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Notes on Books by Gerard Reed
September 1998 Number Eighty-one ************************************************************************
CHRISITIANS AND THE LAW
Most of us realize the importance of laws--especially when driving on Southern California's freeways! But too few of us give much thought to the importance of living in a nation committed the "rule of law" rather than suffering from the arbitrary whims of rulers, legislators, or judges. Some fine essays exploring this fundamental issue appear in a volume edited by H. Wayne House, The Christian and American Law: Christianity's Impact on America's Founding Documents and Future Direction (Grand Rapids: Kregel Publications, c. 1998). The book's burden was clearly anticipated by Harold J. Berman, Professor Emeritus of Harvard, who warned: "'That the Western legal tradition, like Western civilization as a whole, is undergoing in the twentieth century a crisis greater than it has ever known before . . . [for] we are in the midst of an unprecedented crisis of legal values and of legal thought, in which our entire legal tradition is being challenged--not only the so-called liberal conceptions of the past few hundred years, but the very structure of Western legality, which dates from the eleventh and twelfth centuries'" (pp. 177-178).
Thus the book's first section offers essays addressing "how Christianity has influenced American law. "America has a rich tradition of commitment to the rule of law," House states. "This respect was fostered in the early days of the Republic by a common belief in absolute values, which were considered part and parcel of God's divine order of the universe. He was the great lawgiver, and men were to emulate His laws in their midst so as to have an orderly society" (p. 9). Despite such beginnings, however, our century has seen a repudiation of that common belief, for any acknowledgement of God as the Source of law has disappeared and the "law has become little more than the subjective dictates of legislators and judges captured by the philosophy of relativism" (p. 9).
To validate House's first contention, that the United States' legal system took root in a Christian worldview, Herbert Titus writes about "God's Revelation: Foundation for the Common Law." England's common law--early evident in its "first systematic treatment," Bracton's 13th century work, De Legibus et Consuetudinibus Angliae--declared that "'The king himself . . . ought not to be under man but under God, and under the law, because the law makes the king'" (p. 13). Coke and Blackstone, England's greatest jurists, amplified that position, and Joseph Story, one of America's greatest Supreme Court justices, took it for granted that "'there never has been a period, in which the Common Law did not recognize Christianity as lying at its foundations'" (p. 15).
What was cemented during a millenium under Christian influence has been dissolving during the past century. As the 19th century dimmed, jurists such as Oliver Wendell Holmes Jr. turned away from the Common Law, implementing a new approach to legal study, the "case method," which embraced an evolutionary explanation for legal developments and eliminated God as the author of the natural law. A Darwinian paradigm quickly replaced the Biblical perspective. In one generation, wrote philosopher James Hayden Tufts, the "systems of thought which reigned since Augustus" passed away as "the conception of a world ruled by God and subject to his laws . . . dissolved'" (p. 26). This shift quickly and radically impacted such things as private property rights, family authority, and religious freedom, granting the state heretofore unknown powers.
In "the Philosophical and Biblical Perspectives that Shaped the Declaration of Independence," Gary Amos argues, with persuasive documentary evidence, that the 1776 appeal to "rights" was clearly rooted in the Christian Middle Ages. John Eidsmoe adds his historical views in "Operation Josiah: Rediscovering the Biblical Roots of the American Constitutional Republic." Sadly enough, says Eidsmoe, today's historians generally distort the truth, routinely claiming "that the United States Constitution is purely a secular document and those who drafted it were Deists and skeptics" (p. 83).
Such claims can easily be refuted by carefully counting the references in the framers' writings, which cited biblical references far more frequently (34% of the time) than any other source. In-depth studies of the 55 signers of the Constitution of the United States reveal that a solid majority were professing, active Christians. At most three were Deists. Rather typical is the statement of John Adams, who wrote: "'As much as I love, esteem and admire the Greeks, I believe the Hebrews have done more to enlighten and civilize the world. Moses did more than all of their legislators and philosophers'" (p. 87).
Turning from historical evidence for the Christian basis for this nation's legal system, other contributors address the question concerning "how Christians should relate to American law." These essays exude warnings. Harold O.J. Brown fears that our government has become an oppressive Leviathan which should prompt Christians to resolve to "obey God rather than men" and prepare to resist some decisions, such as the recent RICO edicts. R.C. Sproul, in "The Biblical View of Submission to Constitutional Authority," argues, along with John Calvin, that dictatorial, unjust governments are not legitimate and thus need not be obeyed.
Wayne House too alerts us to Hegel's dangerous notion, that the state is "god walking on earth," which has taken up residence in Western democracies as well as Marxist dictatorships. Believers taking God's law seriously, House says, should carefully study Samuel Rutherford's 1643 classic, Lex Rex. Therein Rutherford wrote: "All tyranny is Satanic. Tyranny defies the laws of God; therefore, failure to oppose tyranny is allegiance with Satan" (p. 168). At times one should protest; flight is right at other times; but self-defense, as a last resort, may be requisite.
In the book's final section, other essayists deal with the question as to "how Christians may influence the future direction of American law." An important turning point apparently occurred in 1947, when the Supreme Court determined, in Everson v. Board of Education, to systematically exclude Christianity from the public square. Consequently, there is today a need for Christians to respond, united in their commitment to defend themselves. Protestants and Catholics must join together. Thus Larry Walker urges us to all "remember the abiding value and continuity of biblical moral law. All of life is ethical and , therefore, requires a moral standard of right and wrong" (p. 208). There is an eternal law, revealed as Divine Law in the Scripture, which gives us clear guidance. Thus with Montesquieu--the most frequently-cited philosophe in Colonial America--we must insist "that all law has its source in God and that laws made by humans should conform to the eternal laws of God" (p. 215).
Most importantly, this means restoring the Ten Commandments to their rightful place in American society! John Calvin. as well as Thomas Aquinas, believed that the "moral law is summarized in the Ten Commandments and in the law of love, that the moral law is 'that inward law . . . engraved on the hearts of all' and that it affirms 'the very same things that are to be learned from the two Tables'" (p. 213). In our day, J.I. Packer declares that the Ten Commandments "'are in fact foundational to Christian morals [and] appeals to the ethic of Christ and the apostles that fail to find their roots in the Commandments (roots that are made very plain in the New Testament, be it said) slip and slide into all sorts of misconceptions. The unity of biblical ethics, starting with the Decalogue, needs rediscovery today'" (p. 218).
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Raoul Berger, one of this century's most distinguished constitutional scholars, occupied a comfortable niche in the liberal pantheon following his definitive studies on Impeachment and Executive Privilege in the early 1970's. A year after he retired from Harvard Law School, however, he published Government by Judiciary: The Transformation of the Fourteenth Amendment, which challenged the judicial activism which has significantly altered the fabric of American society. This treatise was extensively critiqued, indeed it was virulently attacked, following its publication in 1977. Consequently he has recently published (at the age of 95!) a revised edition (Indianapolis: Liberty Fund, 1997) wherein he responds, in exhaustive detail, to his critics and persuasively defends the argument advanced in his initial work.
"It is the thesis of this book," Berger writes, "that the Supreme Court is not empowered to rewrite the Constitution, that in its transformation of the Fourteenth Amendment it has demonstrably done so. Thereby the Justices, who are virtually unaccountable, irremovable, and irreversible, have taken from the people control of their own destiny, an awesome exercise of power" (p. 18). A coup de etat has transpired! A revolution, led by Earl Warren in the 1950's has thoroughly transformed this nation. Men in black robes have seized control of the republic! We've witnessed what an earlier Justice, Louis Brandeis, feared when he warned that "'in every extension of government functions lurks a new danger to civil liberty'" (p. 177). Brandeis also insisted that Americans must ever "'look to representative assemblies for the protection of their liberties'" (p. 384).
A few recent justices, such as the late Thurgood Marshall, hardly respected the Constitution at all. In his words, he failed to find "'the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start'" (p. xix). But most of the justices, trained by academicians devoted to "advocacy scholarship," have simply been so deeply committed to social justice that they justified using any means necessary to attain it. Their humanitarian goals Berger lauds. But their unconstitutional means he loathesl. Thus Government by Judiciary explains and critiques the process whereby the 14th Amendment has been transformed into a steam shovel with which to implement any social policy a majority of the justices find worthwhile. Consequently a series of decisions, dealing with segregation, abortion, criminals' rights, jury size, etc., have all resulted from the federal judiciary's illicit power-grab.
The 14th Amendment secured citizenship for former slaves. Berger's study of its composition and passage reveals it was clearly and carefully crafted to do precisely what it said. Nearly a century of Court discussion and decisions reflected a strict construction of this amendment. But when Earl Warren, who apparently envisioned himself as something of a Platonic Guardian, became Chief Justice, he disdained earlier decisions--including "Justice Harlan's historical demonstration of the limited scope" of the amendment--"and instead struck off a new version of constitutional principle and history" (p. 104). He did so, of course, to abolish segregation via Brown v. Topeka Board of Education.
The Framers of the 14th Amendment, historical documents make clear, left issues such as racial segregation in the hands of the states. The Warren Court initially requested briefs detailing the amendment's "original intent," but when the historical evidence failed to support the court's designs, the facts were brushed aside. Sociology replaced history! More disturbingly, a careful student of the Warren Court, Alfred H. Kelly, wrote at the time: "'The present use of history by the Court is a Marxist-type perversion of the relation between truth and utility. It assumes that history can be written to serve the interests of libertarian idealism'" (p. 342). Soviet historians had different goals, but their methodology was the same--ignore the evidence in order to achieve laudable goals; evade the truth so as to establish equality.
Thus Justice Jackson, a member of the Warren Court, writing about the Brown decision, noted: "'despite my personal satisfaction with the Court's [forthcoming] judgment, I simply cannot find, in surveying all the usual sources of law, anything which warrants me in saying that it is required by the original purpose and intent of the Fourteenth or Fifth Amendment.'" Elsewhere he stated "that he would 'file a separate concurring opinion' if the 'Court feigned that the Justices were doing anything other than declaring new law for a new day'" (p. 143).
In Brown, the justices openly declared themselves superior to the people, who, they said, lacked the moral strength to enact laws to abolish an evil system such as segregation. The Court, Justice Black asserted, effectively freed "itself from the limits of a written Constitution" (p. 302). Many scholars, of course, applauded this newly-found judicial freedom. According to Abram Chayes, the Warren court had obviously engineered "'a radical transformation of the role and function of the judiciary in American life . . . Its chief function now is as a catalyst of social change with judges acting as planners and even managers of large scale intervention in social and economic life'" (p. 380).
Precisely this President George Washington envisioned and decried in his Farewell Address: "'If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield'" (p. 321).
What Washington feared became graphically evident in the words of Donald E. Santarelli, an Associate Deputy Attorney General for the Nixon administration. Pronouncing the constitutional provision for the "separation of powers" antiquated, he asserted that the "Constitution is flexible . . . Your point of view depends on whether you're winning. The constitution isn't the real issue in this; it is how you want to run the country, and achieve national goals. The language of the Constitution is not at issue. It is what you can interpret it to mean in the light of modern needs." Indeed, "Today, the whole Constitution is up for grabs" (p. 351). Pandora's Box, once opened, takes us in unexpected directions!
An illustration of scholarly research and argumentation at its best, Berger's treatise deserves a wide popular readership! Indeed, it's a rare example of a scholarly book which reads easily and provokes personal response. If Berger's right, this nation has lost its moorings, for as Jefferson insisted, "'Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction'" (p. 357).
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Anyone interested in constitutional law, as it was understood during this republic's initial decades, should peruse Joseph Story's A Familiar Exposition of the Constitution of the United States (Lake Bluff, IL: A Regnery Gateway Bicentennial Edition, c. 1986). Story was appointed to the Supreme Court in 1811 and served until 1845. With Chief Justice John Marshall, his was the legal genius which laid the foundation for this "nation under law." Toward the end of his life, envisioning how subsequent generations would need some understanding of the Constitution's "original intent," he wrote this line-by-line explanation of how it should be interpreted.
Thus, for example, explaining the First Amendment, he says: "We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general; and especially to Christianity, (which none could hold in more reverence, than the framers of the Constitution,) but to a dread by the people of the influence of ecclesiastical power in matters of government" (p. 314). To encourage the worship of God, to assist religious communities in their endeavors, was clearly authorized. What the Amendment forbade was the federal government establishing a state religion.
Concerning the Second Amendment, as fiercely contested in our day as the clause concerning religious freedom, Story is equally clear. Since tyrants always try to disarm people and rule with a professional military, this amendment clearly grants "a free people" the right to own and bear arms. This right "had justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them" (p. 319).
Written for ordinary people, Story's treatise clearly illuminates what this nation's Constitution was designed to do. He wrote, the Justice says in his final paragraph, to "inspire the rising generation with a more ardent love of their country, and unquenchable thirst for liberty" (p. 326). It was written in an effort to undergird this nation's grand design. It was written to encourage readers to resist the perennial temptation to slip away from these aspirations. For, Story warned, in his concluding sentence, "Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them" (p. 326).