St. George Tucker and the Theology of the Common Law


Jon Rowe

Jon Rowe is a full Professor of Business at Mercer County Community College, where he teaches business, law, and legal issues relating to politics. Of course, his views do not necessarily represent those of his employer.

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7 Responses

  1. Avatar Jaybird says:

    Organic Law/The Brooding Omnipresence in the Sky

    I think it’s a lot more likely that The Gods of the Copybook Headings are up there and more than willing to come back and explain stuff to us again.

    I’m also reminded of Donald Kingsbury’s quotation.“Tradition is a set of solutions for which we have forgotten the problems. Throw away the solution and you get the problem back. Sometimes the problem has mutated or disappeared. Often it is still there as strong as it ever was.”

    Christianity probably taps into The Gods of the Copybook Headings in some strange and oblique ways that successfully fence off a handful of problems we forgot we had once. Christianity in the US has evolved a *LOT* over the last 250 years. (I imagine that it’d be mutually incomprehensible. One church would see the other as downright pagan, the reverse would see the first as downright atheist (or satanic!).

    I guess we’re lucky that most of the old problems have disappeared rather than mutating or coming back with a vengeance.Report

  2. Avatar JoeSal says:

    “Blackstone, and other theorists, are fatally mistaken when they think they get “one general will” by a concurrence of vote. Many influences may decide a vote contrary to the feelings and views of the voters; and, more than this, perhaps no two in twenty will understand or appreciate a measure, or foresee its consequences alike, even while they are voting for it. There may be ten thousand hidden, unconscious diversities among the voter which cannot be made till the measure comes to be put in practice ; when, perhaps, nine out of ten of the voters will be more or less disappointed, because the result does not coincide with their particular individual expectation.

    Those inventions are all too short-sighted and too defective to be allowed to govern the great Interests of mankind” -J.W. pg. 24 True CivilizationReport

  3. Avatar PD Shaw says:

    I don’t know how Berns could claim that “liberty of conscience was widely accepted at the time of the Founding.” Most of the original states had religious tests enshrined in their constitutions. I think the situation in Virginia was not widely accepted, which is why Jefferson took such pride in securing the Statute for Religious Freedom. It was hard.

    OTOH, I am not familiar with the argument stemming from Blackstone’s comment on Christianity being part of the common law. The portions of Blackstone that I’ve read are lacking religious sentiments. Abraham Lincoln learned the law by thorough reading of Blackstone in the 1830s, and he was a fervent admirer because he had made the law accessible to someone like himself who lacked formal education and he had provided an orderly, logical structure out of judge-made law.Report

  4. Avatar Jonathan Rowe says:


    As to your second point, Blackstone just plainly said that Christianity is part of the common law.

    As to your first point, … it’s complicated. Berns is no dummy. He’s walking a line between the ideals of the American Founding as contained in their Lockean documents done under the auspices of natural right, and the other realities.

    A lot of it depends on how we might understand the notion of “widely accepted.”Report

  5. Avatar Burt Likko says:

    If, on the other hand, it’s justiciable by the Supreme Court (and American courts in general) and exists at a place higher than the US Constitution, such a powerful thing in the hands of judges becomes understandably more controversial.

    This is the danger that natural law enthusiasts haven’t ever really addressed, at least not to my satisfaction. The Constitution is malleable and fallible, but it is also legible. We can know, if nothing else, its words. The “law” of the Christian faith (or indeed any faith) is not just powerful but dangerous when put in the hands of those who would be required to view it through their own personal religious lenses as well as their political lenses, and all too easy for results politically convenient to those who otherwise would be bound to a contrary result under the law to produce some revelation, interpretation, or other pronouncement of this higher “natural” law to save their convenient result.

    Better they be principled, of course, but if we are to have legislators and judges pronouncing upon the law in a self-interested way, then at minimum they should do so openly. Hiding the pronouncements of the lawgivers behind the vestments of theology embeds today’s political and religious fashion into stone, a result that will quickly prove untrue to the law, untrue to the faithful, and untrue to the will of the people.Report

  6. Avatar George Turner says:

    Tucker also noted that states retain the right of denization, as they didn’t surrender that right to the federal government under the Constitution, and had been exercising that right under the Articles of Confederation. It would be easy to argue that granting state drivers licenses and special priviliges (like sanctuary) to illegals is an act of denization. He also noted that such rights could not be transfered across state borders. If someone took that argument to court, there’s no telling what the outcome would be.

    Some European legal scholars have also brought up denization to cover the status of rather stateless migrants who are locked out of full citizenship but still granted a lesser status, such as residency, and noting that countries have recreated the status of denizen without realizing what they were doing in a legal context, and thus leaving a patchwork of contradictory policies that have no real grounding in law or tradition.

    This would be an example of a problem that the common law had dealt with long ago, but which is completely forgotten today.Report