The Scopes trial, pejoratively called the “Monkey Trial,” began one hundred years ago today. It marked the end of a public expression of true Christianity in our society that mattered. It was also a signal that the rule of law was about to change in the United States Supreme Court. And Justice Ketanji Brown-Jackson’s recent comment about an “existential threat to the rule of law” not only gets the problem wrong, but condemns the kind of education provided by our nation’s most prestigious law schools.
The famous trial took place in Dayton, Tennessee, but the contest between the two lawyers, Clarence Darrow and William Jennings Bryan, was about more than a law prohibiting evolution from being taught in Tennessee public schools. It was about the state of Christianity.
The following quote from Summer for the Gods, a recounting of the trial’s history, is demonstrative of the demise of a meaningful public Christianity, and the attending ridicule made it easy to retreat to Christianity as a subjective, personal experience:
“The thing that we got from the trial of Scopes,” a Memphis Commercial Appeal editorial observed, was that most “sincere believers in religion” simply wanted to avoid the origins dispute altogether. “Some have their religion, but they are afraid if they go out and mix in the fray they will lose it. Some are afraid they will be put to confusion. Some are in the position of believing, but fear they can not prove their belief," the editorialist noted, so they leave the field to the extremists such as Darrow and Bryan.
But before I proceed to how this thinking may have influenced the U.S. Supreme Court, let me note that clergy at the time could have found the sound thinking on the subject that was needed for their parishioners by simply reading and preaching from a few chapters in Volume 2 of Herman Bavinck’s Reformed Dogmatics, “God and Creation.” I hope some who may still be “afraid” will now read it.
Like the Christians described above, the Court’s members were backing away from any concept of the givenness of creation as fundamental to law. For example, a brilliant law review article by Professor David Upham demonstrates that by 1924, parental rights had moved from inheriting a true natural law rooted in procreation, to resting in mere custody and control of a child. (Home education as a “right” now depends on a future decision by a U.S. Supreme Court that doesn’t know the fundamental nature man and woman pertaining to the nature of the marital relationship!)
But, by 1938, the United States Supreme Court had bought the lie of evolution. In Erie RR v. Tompkins, the majority jettisoned the transcendent nature of law that had informed the development of the English common law that was carried into our nation’s jurisprudence. The Court said “the assumption that there is a transcendental body of law’” was false. “[L]aw in the sense in which courts speak of it today does not exist without some definite authority behind it” and the “only authority is the State” (emphasis supplied). In other words, no one believes there is God with “authority” to enforce any transcendent law!
With this view of law, there is no sense in which lawyers could any longer say, as Henry de Bracton did in the 13th century, that “law makes the King” and the “King is under the law.” Only law from a transcendent source could create the office of King independent of human will, and, just as importantly, limit its jurisdictional authority as a matter of pre-existing law.
At one time we believed that there were some things a king (civil magistrate) just could not do, period. COVID proved those days are long gone.
Of course, if Justice Brown-Jackson had received a better and broader education, she would know that by the 20th century a cosmological revolution had taken place in the world, the French Revolution, and it has infected her sphere of endeavor. She would know that legal education moved away from thinking grounded in a divinely given and ordered cosmos to a Nietzschean one.
Today, there is no first premise for law, and “whirl is king” as Aristophenes put it. We are the ones who inherited the wind. (Proverbs 11:29a, KJV: “He that troubleth his own house shall inherit the wind.”) Lawyers and untrained “law makers” called legislators now make up law as they go.
If the justice’s legal education had included that knowledge, or if she had thought more about it, she would know there is no existential threat to the rule of law; the premise for it is already dead.
The real existential threat is to a revival of the rule of law. And the odds of that are slim at present because today’s best trained lawyers have no cosmology on which its revival could be premised!
Want some proof that the education received in law schools has failed? Ask a lawyer what the Supreme Court means when it evaluates a claimed constitutional right in relation to abortion, marriage, parentage, medical care for transgendered youth, and the like, by asking “whether it is an essential component of ‘ordered liberty.’” Dobbs v. Jackson Women’s Health Organization (2023).
They will blather on about history or tradition, but the very nature of the inquiry reminds me of C.S. Lewis’s statement in The Abolition of Man respecting whether one instinct should have priority over another:
“We grasp at useless words: we call it the ‘basic’ or ‘fundamental,’ or ‘primal,’ or ‘deepest’ instinct. It is of no avail. . . . [T]hese words conceal a value judgement passed upon the instinct and therefore not derivable from it.”
Similarly, the words “ordered liberty” conceal a value judgment. At bottom, they conceal a cosmology that law has rejected - an ordered one - that cannot be derived from it.
Having graduated from a reputable law school, I can confirm that no one ever suggested that I ask, “‘Ordered’ by what and to what purpose?”
If whirl is all there is—if there is no transcendence to law, as the Supreme Court said— there is no ordered anything. Order comes about by the power some one or more of us hold and can wield over others. Welcome Justice Brown-Jackson to MAGA world and to an authoritarian“King” Trump.
The profession the justice is in and the Court on which she serves adopted a premise for law that has produced fruits she now decries.
Now it is time for Christian lawyers to learn how to apply a “Christian view of law in a United States Supreme Court Case,” and for Christians to know what it looks like. Otherwise, we will all continue to inherit the wind.
