Oliver Wendell Holmes wrote in a dissenting opinion in Southern Pacific Company v. Jensen, 244 U.S. 205, 222 (1917) that “[t]he common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified.” By this he asserted his rejection of any idea of a higher or natural law–a law above the law so to speak. Justice Holmes would have us instead look only to the sovereign. What then is the check on the power of the sovereign one might ask? How are we to know whether a law is just or unjust?
Compare the words of the Pennsylvania Supreme Court in Updegraph v. Commonwealth, 11 Serg. & Rawle 394, 406-407 (1824 WL 2393 (Pa. 1824):
No free government now exists in the world, unless where Christianity is acknowledged, and is the religion of the country. So far from Christianity, as the counsel contends, being part of the machinery necessary to despotism, the reverse is the fact. Christianity is part of the common law of this state. It is not proclaimed by the commanding voice of any human superior, but expressed in the calm and mild accents of customary law. Its foundations are broad and strong, and deep; they are laid in the authority, the interest, the affections of the people. Waiving all questions of hereafter, it is the purest system of morality, the firmest auxiliary, and only stable support of all human laws.
Holmes was undoubtedly arguing for the elimination of not only the idea of a natural or higher law behind the common law, but the elimination of Christianity as a basis for law altogether. In fact, in his famous The Path of the Law, 10 Harv. L. Rev. 457 (1897), he argues that morality itself should be separated from the consideration of law as well. It seems that Holmes would have us look to nothing beyond the power of the sovereign for our law and our liberty.
Unfortunately, Holmes and others like him have convinced most Americans, including many, if not most, Christians in America, that Christianity cannot be the basis of our laws. Like the defense counsel in the case before the Pennsylvania Supreme Court, I suspect that most Americans believe that Christianity would more likely lead to despotism than liberty.
However, a cursory review of where true liberty has arisen in the world will prove the words of the Pennsylvania Supreme Court true. Likely a cursory review of American history will reveal the same thing. Check into it yourself, and then ask, do we have more liberty now after Holmes’s words have taken root? Or, did we have more liberty when it was openly acknowledged that Christianity lay at the foundation of our legal system?.
Holmes, and most of the elites of society from his day to ours, want a world where law, and everything else, is totally divorced from God and Christianity. They want us to believe that in such a world we will all be better off. We will have more freedom, more prosperity, and more peace. They want us to believe that law and morality can exist just fine without any reference to a “brooding omnipresence in the sky,” whether it be the God of the Bible or the common law. But, as R. J. Rushdoony points out in The Institutes of Biblical Law
Law is in every culture religious in origin. Because law governs man and society, because it establishes and declares the meaning of justice and righteousness, law is inescapably religious, in that it establishes in practical fashion the ultimate concerns of a culture. Accordingly, a fundamental and necessary premise in any and every study of law must be, first, a recognition of this religious nature of law.
Second, it must be recognized that in any culture the source of law is the god of the society. If law has its source in man’s reason, then reason is the god of that society. . . .
Modern humanism, the religion of the state, locates law in the state and thus makes the state, or the people as they find expression in the state, the god of the system. As Mao Tse-Tung has said, “Our God is none other than the masses of the Chinese people.” In Western culture, law has steadily moved away from God to the people (or the state) as its source, although the historic power and vitality of the West has been in Biblical faith and law. (p. 4-5, footnote omitted)
And, the quotes above demonstrate the truth of Dr. Rushdoony’s assertions. We have moved away from Biblical faith and law to secular humanism. We have traded God and Christianity as the source of our laws for the state, and, in so doing, we as a nation have forsaken the God of the Bible in exchange for a god of our own making. We have traded the only source of true liberty and freedom for a despot that is working harder than ever to enslave us all. No “brooding omnipresence in the sky” equals no restraint on the power of the sovereign and therefore the end of liberty.