My name is Barry Arrington. I am an attorney in Denver, Colorado specializing in complex litigation and constitutional law. My passion is defending constitutional liberties, especially those guaranteed by the First Amendment.
I am also very interested in Darwinism’s connection to the law. How, you might ask, is a theory of biological origins connected to the law? Good question. I will answer it by recounting an email I sent not long ago to Joseph Bottum, the editor of First Things. I am a great fan of FT and think Mr. Bottum does a great job as editor, but recently he went seriously astray in a post on FT’s blog when he suggested we should deemphasize the debate over Darwinism because it distracts from more important issues like abortion. I responded to Mr. Bottum by suggesting that perhaps he had gotten his issue priorities exactly backwards, and if you will indulge me for a moment, I will explain why this is so.
It is not an overstatement to say that the modern era of law began with the publication in 1897 of “The Path of the Law” by Oliver Wendell Holmes, Jr. You can read Holmes’ article here. In this seminal work Holmes announced that it was time to jettison any notion that the law has anything to do with morality, because morality has no meaning. Holmes wrote, “For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.” It is beyond the scope of this post to explore Holmes’ article in depth, but there is an excellent discussion by Phillip Johnson here.
The point is that with “The Path of the Law” Holmes had founded the school of “legal realism,” which gradually came to be the predominate theory of jurisprudence in the United States. “Legal realism” should more properly be called “legal nihilism,” because Holmes denied the existence of any objective “principles of ethics or admitted axioms” to guide judge’s rulings. In other words, the law is not based upon principles of justice that transcend time and place. The law is nothing more than what willful judges do, and the “rules” they use to justify their decision are tagged on after they have decided the case according to their personal preference. At its bottom legal realism is a denial of the objective existence of a foundation of moral norms upon which a structure of justice can be built.
Why would Holmes deny the objective existence of morality? This is where the influence of Darwin comes in. It is one of the darker secrets of our nation’s past that Holmes, perhaps the most venerated of all our Supreme Court justices, was a fanatical –I used that word advisedly – Darwinist who advocated eugenics and the killing of disable babies. In Buck v. Bell Holmes wrote ““It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind . . . Three generations of imbeciles are enough.” As Phillip Johnson has written, Holmes was a “convinced Darwinist who profoundly understood the philosophical implications of Darwinism.”
“The Origin of Species” was published in 1859. By 1897, when Holmes wrote “The Path of the Law,” Darwinism had had become an unchallengeable scientific orthodoxy accepted as a matter of course by practically all intellectuals. Holmes thought he had no choice but to believe Darwinism and to accept uncritically the philosophical naturalism at the bottom of Darwin’s ideas, and his great contribution to American law was to reconcile the philosophy of law with the philosophy of naturalism. Truly Holmes ideas could be called “jurisprudential naturalism.”
Once they were unleashed from any duty to actually apply objective “rules of law,” judges soon found they could impose their political views on the rest of us under the guise of interpreting the United States Constitution. The federal judiciary’s long march through our laws, traditions and institutions began slowly in the 1930’s but rapidly gathered momentum until, in 1973 in the most stunning example of judicial willfulness in our nation’s history, the Supreme Court invalidated the abortion laws of all 50 states.
So you see legal realism was built step by step, precept by precept, upon a foundation of philosophical naturalism that in turn rests upon the triumph of Darwin for its acceptance. And upon this foundation was built a superstructure of judicial willfulness that resulted ultimately in Roe v. Wade. Each link in the causal chain is plain to see for anyone who takes the time to look. Therefore, Mr. Bottum erred when he suggested that the fight over Darwinism is a distraction from “more important” issues like abortion. Darwinism is at the root of the unlimited abortion license Mr. Bottum deplores.
This is why I am excited about ID – and honored to be invited to post on this site – because ID gives us hope for freedom. Holmes was tightly bound by the fetters of Darwinism. Tragically, he believed he was compelled to accept Darwin’s ideas and accommodate the law to those ideas. To me, the most thrilling thing about ID is that it shows us that while Darwinism may be true, it is not necessarily true. ID gives us hope that we can look forward to a day in this nation – and indeed the world – when our minds will have been finally wrested from Darwin’s tyrannical grasp. After 150 years of ascendancy, I hear the creaks and groans of an edifice on the verge of toppling, and all of our institutions – not least the law – will be better when it finally does.
UD News brings this Holmes quote to our attention: In commenting on a recently published book he had read, Holmes said, “[I] think morality a sort of higher politeness, that stands between us and the ultimate fact — force . . . Nor do I see how a believer in any kind of evolution can get a higher formula than organic fitness at the given moment” (Oliver Wendell Holmes, Jr. to Harold Laski, May 13, 1926, in Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916–1935, 2 vols., ed. Mark DeWolfe Howe [Cambridge: Harvard University Press, 1953], 2:837).