(Centennial Fellow) Figuring on going somewhere? Stay home and remain seated, because the federal government may otherwise throw you in jail. If you think I am kidding, listen to John Baker talking about the tens of thousands of laws waiting to grab you. "Congress has made every American potentially indictable for a federal crime," the law professor said to me as he explained the threat that began growing when Richard Nixon was in the White House. This president wanted a war on crime and got that and a lot more. As decades passed, liberals and conservatives joined forces in passing all kinds of criminalizing measures, often without knowing what the laws actually said. They did this despite the fact that criminal law was meant to be a state function. The Constitution outlined just three federal offenses -- piracy, treason and counterfeiting -- but Congress has added more than 4,500 statutes to the list since then, and that's without counting the arduous, undying assistance of bureaucrats. These happily busy public servants have squeezed in so many additional federal offenses on some 27,000 pages of the U.S. Code that groups trying to calculate the total have given up, including the U.S. Justice Department, the American Bar Association and the Congressional Research Service. Given that no one can do more than rough estimates of how many of these laws exist, it's obvious that not a soul can possibly know what most of them say, and then there is the related issue that many allow conviction with no proof of criminal intent, known by the Latin phrase, "mens rea," or "evil-meaning mind." Some of these laws are big-time with big-time sentences, but are so vague you can step off the cliff thinking you're on a legal bridge, and others are trivial, everyday stuff that can still can put you in jail, cost you a big fine and subject you to public humiliation. Maybe you somehow misappropriated the Smoky the Bear or Woody the Owl character. It could be handcuff time, friend. Chances are it won't happen to you, but it could even though you had absolutely no idea you were doing anything wrong and are far removed from entertaining criminal thoughts.Consider Bobby Unser, the race car driver, who was out snowmobiling with a friend and got lost. They abandoned one snowmobile, went in the direction of possible help and then struck out on foot, eventually finding their way to safety after two days of facing death.Federal officials wanted to know where Unser lost his snowmobile, and he made a guess and they said, well, that means you were on protected federal land and broke the law and face a $5,500 fine and six months in jail. He fought back with the help of several large organizations that think highly of justice, but even though the government never found the snowmobile, he had failed to prove himself innocent and was declared guilty. He was fined $75, but this was after he and those groups had spent as much as $800,000 fighting the case and the government spent something like $1 million, according to his version on an online video. The Wall Street Journal has been running a series of articles on this over-criminalization, and a number of groups are doing their best to get more politicians involved, among them the Federalist Society (with which Baker is associated), the American Civil Liberties Union, the Heritage Foundation and the Washington Legal Foundation. Solutions? Some of those suggested are outright repeal of many of the laws, rewriting others, making some nothing more than civil penalties and careful codification. There is an obvious problem. If sheer counting is a near impossibility, how long will reform take?
As the confirmation hearings for nominee Elena Kagan begin this week, we again return to the question of how Supreme Court justices should interpret the Constitution. Central to this inquiry is the approach that justices take towards both the text and the fundamental principles which undergird our Constitution. There has been a long-running debate concerning this among varying judicial philosophies, one that in many ways mirrors current tensions among the Christian church. The recent phenomenon of the emergent church movement provides us with a striking similarity to the approach taken by many of our nation’s modern/activist judges.
A very attractive approach in our modern culture comes to the following conclusion: When I no longer like the orthodoxy, I’m in favor of changing it. The temptation to question and challenge orthodoxy is indeed strong; in fact, our nature drives us to it. The history of religion finds numerous cases when those who were dissatisfied sought to overturn longstanding truths in favor of new ideas that “better suited” the circumstances of the day. Typically, what happens is that when we find orthodoxy no longer convenient, we seek to replace it by crafting something new, rather than align ourselves with it. More often, this is done through clever reinterpretations of the original.
In recent years, such a group has been increasing in their influence among the church. This group, commonly referred as the “emergent church” has intentionally remained elusive in declaring their doctrine. Yet among many in the movement, there are significant challenges to the fundamental orthodoxy of Christianity: through faith in Christ alone is the sole means of salvation. These revisionists are denying the doctrine of substitutionary atonement, the reality of Hell, and the very nature of the Gospel. The emergent movement comes out of frustration that the 21st Century church doesn’t fit well within a 21st Century mindset. For instance, it is indeed uncomfortable to think about eternal damnation in Hell. What to do? Remove this threat from religion. Or, it does indeed seem arrogant that Christ is the sole route to salvation. What to do? Open it up to other alternatives. Many in the emergent church movement are doing just these things.
Of course, this tendency to contradict the orthodoxy is not limited to religion. There are great similarities in the causes, methods, and desired ends of the “emergent” movement toward a “living Constitution.”
Justice William Brennan, in a 1985 speech at the Georgetown University School of Law, laid out his view of constitutional interpretation. “Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. It majestic generalities and ennobling pronouncements are both luminous and obscure. This ambiguity of course calls forth interpretation, the interaction of reader and text.”
Brennan concluded that the text of the Constitution was less important than his own desired ends of “justice.” When discussing the issue of capital punishment, Brennan, a longtime opponent, concluded that the Constitution was incompatible with state-sanctioned executions. Where did he find this? He certainly could not have concluded that capital punishment conflicted with the 8th Amendment concerning cruel and unusual punishment, as the authors of the amendment certainly had no such opinion. Looking to other portions of the Constitution, there is clear evidence that execution is permissible. Both the 5th and 14th Amendments permit its usage. The requirement that no person “be deprived of life, liberty, or property, without due process of law” presupposes that when a person has been guaranteed due process, then capital punishment may indeed be used.
Brennan is forced to ignore both the mind of the authors and the clear meaning of the text. Simply to state that the text is ambiguous, Brennan seeks to give himself permission to interpret it however he sees fit.
What Brennan challenged is the very concept of rule of law and the principles of limited government. He does this through the activist and “living constitution” approach to judicial review. The Supreme Court Justice, under our model of constitutionalism, is not entitled to “make the law what they want it to be.” Rather, they are to apply the law as it was intended. It is fine that Justice Brennan disliked the usage of capital punishment. It is absurd to conclude that it violates the text and/or the fundamental precepts of the Constitution.
What we need are justices who recognize the truth and value of the orthodoxy and who have a commitment to uphold it.
('76 Editor) A man in Denver, call him Jim, emailed me in connection with our Feb. 17 debate on medical marijuana and potential legalization of the drug. His comments speak for themselves:
I was hoping to make it to the debate but couldn't. I did want to share with you some thoughts on the topic of discussion. I was addicted to drugs for 15 years. Though marijuana was the least harmful drug it lead to harder drugs. People like to say that it is only "habit forming" which is part of the lie that addicts buy into. All addictions are based on the addicted person convincing him/her self into a lie that what they are doing is "OK". It is a lie.
My addiction to marijuana consisted of 15 years of daily looking for the drug and or doing it at every chance I could. I have been clean for 25 years but still have memories that haunt me to this day, including the death of two very close friends that died at the hands of drugs and their behavior changing effects.
I also have a friend that is moving his business because a "pot store" moved next door. We now have the druggies and drug dealers opening up shop "next door", a thought that makes me sick. It needs to be stopped.
My hopes and prayers are that the lawmakers will come to their senses and start making decisions that will benefit the majority and not a relatively few lost individuals.
(CCU Faculty) The United States Supreme Court has agreed to hear the case of Christian Legal Society v. Martinez (UC Hastings). This case concerns the claim by the Christian Legal Society, a national group of Christian lawyers and law students, that they have been denied their First Amendment guarantees of freedom of association and free exercise of religious faith.
The Christian Legal Society had an organized chapter on the University of California’s Hastings College of the Law campus in San Francisco. In 2004, the group was told by school administrators that they would no longer be recognized as an official campus group, thereby losing their eligibility for school funding and other benefits, including the ability to reserve campus space to hold meetings. The reason for this decision: the Christian Legal Society required that voting members and club officers sign a statement of faith and agree to a personal conduct code. This code includes the statement that “Christians should not engage in sexual conduct outside of a marriage between a man and a woman.”
The law school argued that all campus groups must not discriminate against people because of their religious faith or sexual orientation. Groups that exclude individuals from membership are denied official recognition and school funding.
In Federal District Court, as well as in the 9th Circuit Court of Appeals, the Christian Legal Society was unsuccessful in their claim that the school’s decision violated their First Amendment rights. Attorneys for the Christian Legal Society argued that the First Amendment guarantees a right of “expressive association.” As such, a group must be able to adhere to their core religious views and make governing decisions based upon them. The denial of this by the lower courts allows for the school’s ban on discrimination to trump a religious group’s right to exercise their faith freely.
We must hope that the US Supreme Court will overturn these lower court decisions and recognize the significant right of religious groups to maintain the central tenets and teachings of their faith.
('76 Editor) Americans from the major Christian faiths, seeing an imminent move by the civil power against God-given elements of a sustainable and free society, are putting their names to a resistance manifesto known as the Manhattan Declaration.
Catholic, Orthodox, and Evangelical leaders developed the declaration in recent weeks and released it on Nov. 20. It spells out why the biblically faithful citizen cannot consent to laws and policies that destroy innocent human life, redefine marriage as something other than the union of one man and one woman, or trample religious liberty. And it envisions the potential need for civil disobedience to such laws.
The Manhattan Declaration in full, some 4700 words, is here. A summary is here. The online signature page for adding one's name, as more than 197,000 individuals have already done, is here. I signed in a gesture of wholehearted agreement and active support. Will you?
(CCU Student) In most aspects of our world today, we see the increasing absence of moral authority. Citizens in all venues of vocation are striving for premier results, success, and position, and moral authority has become forgotten and lost all meaning and value. Ethics and principles have been replaced with mendacious and disingenuous acts, most of the time being intentional. An area that I feel has lost its honorability and morality is our current government. This is not a statement made based of feeling, biased, or emotion; rather, on facts and evidence. Our government has resonated the sound of a progressive movement towards socialism within the past few months, which directly contradicts the foundation set forth by our founding fathers. Thomas Jefferson, a deist and author of the declaration of independence, stated the following about his vision for the people of the United States: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”
-(Thomas Jefferson, Declaration of Independence)
So there is no doubt that our country was meant to provide citizens with rights and prosperity. Our new governmental administration has decided to contradict the Constitution and take our country in a new direction. Now, change isn’t always a bad thing, where the question lies with, is it morally right to go against the will of the people and foundation of our country? There are three fundamental concepts that compromise moral authority in our nation.
Universal healthcare is a current economic and political proposal that brings into question the matter of ethics and fairness. The government has digressed into a position defending and promoting the passing of a bill providing everyone with free healthcare. Sure, it looks great on paper, but in this economy, it is deemed as further government acquisition of another aspect of our lives. It is essential for the government to be involved to an extent, but where should the line be drawn? The new administration is unbalanced and unchecked, giving democrats the chance to advance any laws they want. But how about morally, is it fair to those that do not wish to see taxes increased to pay off this bill, which will cost twenty percent of our entire economic revenue?
Next, we take a look at the separation of church and state. Recently, the government has conveyed their message that they are impelling the separation of the church and state rather then coalescing the two. The problem is, however, that the separation is a one-sided deal, as the government receives their taxes from churches, while the churches aren’t getting the appropriate rights or privacy.
For example, if Proposition 8 in California would have passed, it would have required all churches to wed same and heterosexual couples regardless of denomination or affiliation. So churches are paying these high stipends, complying with federal law, and still aren’t able to obviate themselves from governmental affairs. The church has also attempted to accelerate the process of implementing the teaching of Creationism in schools, only to be thwarted numerous times in congress. In addition, it has been proven that Christian men founded our country on Christian principles and morals. Nine of the original thirteen founding fathers were bible- believing Christians, and this is proven throughout their actions. In 1777. Continental Congress voted to spend $300,000 to purchase Bibles, which were to be distributed throughout the 13 colonies. George Washington is identified today as an anti governmental advocate and once stated:
“Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.”
-(George Washington, on Political Parties and Government)
Thirdly, there is the issue of abortion. In 1973, a case titled Roe v. Wade voted in favor of the pro-choice movement and abortions became legal. Since then, the government has done little to ratify the law, and has been negligent and deemed Presidents who sought reform as derisory. It is a controversial topic that has been debated time over time for the past quarter century, while no progress has been made. The government recently is in the process of enacting a law in the universal healthcare bill that would take taxpayer money to assist the federal in funding abortions. One has to question, why weren’t the American citizens involved in the inquiry, or informing of their own tax money going towards funding a cause as influential as abortion?
This isn’t just a matter of pointing the finger at a single person; rather, it’s the corruption of government and how they’ve inveigled the media into preaching subliminal messages to its citizens. And to be impartial, government isn’t the only ones abusing this concept of absence of morality; it’s everywhere in our daily lives. As our society as a whole advances towards ideology of socialism and progressive liberalism, the line of moral ethics and values continues to move further and further back. At what point, however, will the line of morality be abolished, and fundamental Constitutional rights become eliminated? Therein lies the salient question, so I believe we should turn to the Bible to follow what God says. In Romans 13:1, God says to obey the government, but lest not forget that he is in charge of the grand scheme.
“Let every person be subject to the governing authorities. For there is no authority except by God’s appointment, and the authorities that exist have been instituted by God.” -(Romans 13:1, Holy Bible)
(CCU Faculty) In the landmark abortion case of Roe v Wade, the late Chief Justice Rehnquist (then Associate Justice) wrote a dissent opposing the majority’s opinion that the Fourth Amendment’s prohibition against unreasonable search and seizure included the right for a woman to have an abortion. Justice Rehnquist was indeed correct in his reading of the Bill of Rights. What Rehnquist did not do, however, was recognize the fundamental right to life of a fetus. In fact, had Rehnquist managed to forge a majority around his interpretation, thus siding with the Texas abortion restrictions, there would have been no prohibition of abortion in America. The issue simply would have been reserved to the individual states to decide for themselves.
Justice Rehnquist, a conservative constitutionalist, refused to find any doctrinal basis on which the United States Constitution was supported. His starting point for judicial review rested solely on whether or not the text of the Constitution explicitly prohibited or prescribed a particular act. Thus the “rightness” of laws for Rehnquist was based entirely on the consensus of the people as expressed in their Constitution.
In the Lincoln-Douglas debates of 1858, Senator Stephen Douglas famously stated: “I don’t care whether slavery is voted up or voted down.” For Douglas, all that mattered was that the will of the people should prevail. The fact that this will might be contrary to the Declaration of Independence’s principle of equality and the natural law rights described by Jefferson was of no concern to Douglas. For Douglas, the consensus of the people determined what was right and wrong.
Tragically, the jurisprudence of the late Chief Justice Rehnquist was no different from the political theory of Senator Douglas. In an article published in 1976 in the Texas Law Review, Rehnquist wrote of his judicial philosophy and his refusal to find any basis for his reasoning beyond the text of the Constitution: “Beyond the Constitution and laws in our society, there is simply no basis other than the individual conscience of the citizen that may serve as a platform for the launching of moral judgments. There is no conceivable way in which I can logically demonstrate to you that the judgments of my conscience are superior to the judgments of your conscience and vice versa.” Rehnquist’s argument is that my opinion on the wrongness of abortion (or slavery) is merely my subjective judgment, certainly not superior to the view that slavery and abortion are right. As such, these “judgments of conscience” must be excluded from our evaluation of the law.
Adherents to a strict constitutionalism that is not grounded in the natural law (The Laws of Nature or Nature’s God), when challenged to explain why one should not have absolute power? over another or why we should respect the life of a fetus, can only point back to the text of the Constitution; and when the text is silent, to whatever the majority will says. Based upon this line of reasoning, the “rightness” of a Constitution or a law rests entirely on the will of the majority (in the case of the Constitution, a super majority). As has been proven too many times in history, the presence of a majority will is no guarantee of that will being “right”.
In his inaugural address, Thomas Jefferson stated that in order for the will of the majority to be right, it must be reasonable. This suggestion leads us to both a conclusion and a question. First, we can conclude that Jefferson believed that the consensus of the majority will may not be right at times, and therefore should not be followed. The question is, should we determine what standard we use in order to define whether the will of the majority is reasonable or not?
Abraham Lincoln relied on the standard that Jefferson and the Founders had established in the Declaration of Independence: All men are created equal and all are entitled to their God-given rights of life and liberty. Reflecting on Jefferson’s text, in 1858 Lincoln stated: “All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times.” The Nature law as understood by Lincoln is these truths laid down in the Declaration. These truths are the foundation on which our Constitution is based. Justice Rehnquist failed to recognize these self evident truths. Had he been able to do so, he would have found that even when our Constitution is silent on specifics, a more fundamental law is a source from which we can judge the “rightness” of our laws.
Editor: Kevin Miller's forum on "Liberty & Christianity: Allies or Adversaries?", held at CCU on 8/28, continues to stir discussion. After Greg Schaller weighed in on 8/30, Bill Watson countered on 9/8. Schaller now offers his rebuttal to that Watson posting, keyed to the following italicized quotations:
BW writes: If Christians in the West were even able to impose their morality, the result would be a rejection of Christianity similar to what is happening now in Iran.
GS comments: Dr. Watson lays out a very compelling case on the great evils of the radical Islamic theocracy in Iran. But does that mean that Christians who seek to employ a Biblical morality in the secular world are attempting to also establish a Christian theocracy. Of course not. An attempt to impart Judeo-Christian ideals into secular society need not equate to the establishment of a theocracy. In fact, it is quite the opposite, for it is the Judeo Christian tradition that insisted upon a respect and tolerance for religion. We can see the realization of this in our Constitution with the free exercise and establishment clauses, as well as the refusal to have faith requirements for those seeking elected office. In this, we can see that God’s ordering of free will has been codified in our laws. Quite the opposite of the establishment of a theocracy!
The fact is that for over 200 years (not to mention tracing the origins of the Common Law through the millennia), our country’s laws have found their roots in the Judeo Christian tradition. The laws handed down by God to Moses have been a remarkably effective basis for the establishment of civil society. Is the usage of these codes equivalent to the establishment of a theocracy? The command against thievery, for instance, and the punishments against it are a proper respect for the right of property ownership. This right of property is, as emphatically stated by Jefferson in the Declaration, endowed by the creator. We certainly are not establishing theocracy by insisting that our God-given right to property be protected by the state.
BW also writes: We should present the gospel, rather than enforce morality.
GS comments: This statement invites further confusion in two ways. First there is the dubious suggestion that by seeking to influence secular law, we are ignoring the Great Commission. Second, there is the implication that our activity in the secular law is ultimately a failure, as we should only be concerned that Christians do what is right following their conversion to Christianity. And those outside the faith will not do what is right for the right reasons, so they are not our concern. Aristotle discussed the progression of how a man becomes magnanimous and virtuous, ultimately doing what is right for its own sake. According to Aristotle, very few will achieve this and most will only be obedient out of habit or fear of reprisal. He, of course, does not suspend the state’s role in encouraging virtue and discouraging vice simply because most will never do right for right’s sake. Likewise, it doesn’t make sense that as Christians, we should give up on encouraging Judeo-Christian values because most will not subscribe to them for what we consider the proper reasons.
Watson’s and Miller’s reference to Jerry Falwell and the Great Commission implies that by attempting to impart Judeo-Christian values in the public square, we are ignoring Christ’s order. Just as in the first case, this is a false choice. We agree completely that the role of a pastor (in this case the late Rev. Falwell) is indeed to be concerned primarily, if not exclusively, with evangelism and discipleship. Our original premise in this discussion, however, and the focus of Kevin Miller’s original lecture, was on the role of Christians in the public square. The argument that Christians should be active in civil society is in no way a suggestion that we ignore our primary activity as presented by Christ in the Great Commission. Nor is there any suggestion that seeking to impart Christian morality in the public square will result in the salvation of lost souls.
When we look to our laws (even those based on the Judeo Christian values), do we consider whether we are attempting to enforce morality or simply establish good practical laws? Does a potential murder victim whether the heart of the person threatening him is “right with God”? No, he simply wants the would-be murderer to consider the consequences of his actions and think twice before acting. Our punishments for the murderer are based on Judeo Christian values. We don’t accept or reject these punishments because of, or in spite of, their Biblical origins and the morality they are based on. So why must we reject other laws that have their basis in the Judeo Christian tradition? Is it simply the issues that are “controversial” or the issues where public opinion is eroding away from the traditional Christian values?
One final point: both Watson's and Miller’s arguments are grounded in the primacy of liberty. But where does this command to preserve and protect liberty come from? God. If they remove God from the equation, what is their admonition to protect liberty based on? Are they simply basing it on public opinion which today places a high value on liberty? What happens when this changes? If public support for liberty diminishes, will they then adopt the argument that public opinion is wrong? I don't see what ground my colleagues ultimately have to stand on, other than to point to God as Jefferson did, identifying Him as the Creator or Nature’s God. Which returns me to my original point in the previous post: when God is the source of liberty, there is a duty and obligation to the author of that liberty.
On Sunday, May 31, Dr. George Tiller of Wichita, Kansas was killed as he was walking into his church. Dr. Tiller was perhaps one of the most controversial practitioners of abortion in the United States. He repeatedly and defiantly performed late term abortions at the Women’s Health Care Services in Wichita, where he worked.
Robert George, Professor of Jurisprudence at Princeton University, one of our nation’s strongest and most eloquent opponents of abortion, wrote the following upon learning of Tiller’s killing:
Whoever murdered George Tiller has done a gravely wicked thing. The evil of this action is in no way diminished by the blood George Tiller had on his own hands. No private individual had the right to execute judgment against him. We are a nation of laws. Lawless violence breeds only more lawless violence.
The point made by Professor George is identical to the concern expressed by Abraham Lincoln in his Lyceum Address of 1838. The title of Lincoln’s speech was “The Perpetuation of Our Political Institutions.” Lincoln addressed his concern about a growing attitude of lawlessness as exhibited by increasing instances of public vigilantism. In what he described as an ill omen, Lincoln explained the circumstance:
I mean the increasing disregard for law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgment of Courts; and the worse than savage mobs, for the executive ministers of justice. This disposition is awfully fearful in any community; and that it now exists in ours, though grating to our feelings to admit, it would be a violation of truth, and an insult to our intelligence, to deny.
Lincoln referenced some of the instances of lawlessness: the hanging of gamblers in Vicksburg, Mississippi and the burning to death of a black man in St. Louis who had committed murder. Lincoln recognized his audience’s skepticism and whether there was in fact any great loss to society, now rid of these people, and what difference it made to the larger matter, the topic of Lincoln’s address:
But you are, perhaps, ready to ask, "What has this to do with the perpetuation of our political institutions?" I answer, it has much to do with it. Its direct consequences are, comparatively speaking, but a small evil; and much of its danger consists, in the proneness of our minds, to regard its direct, as its only consequences.
So perhaps society was better off having fewer gamblers. And wouldn’t the man who had committed murder ultimately have been executed had he been put on trial and been found guilty? Didn’t the mob simply expedite the inevitable?
This was not, according to Lincoln, a justification for lawlessness. For a spirit of lawlessness begets a greater spirit of lawlessness. For “the lawless in spirit, are encouraged to become lawless in practice; and having been used to no restraint, but dread of punishment, they thus become, absolutely unrestrained.”
So what did Lincoln prescribe in order to prevent our degeneracy into lawlessness?
Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor; -- let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children's liberty.
Many opponents of abortion may be tempted to conclude (like the mob in Vicksburg or the vigilantes in St. Louis) that society is better off with one fewer abortionist. But our society, based upon the Rule of Law, does not permit citizens seeking individual vengeance. The temptation to find a good that justifies murder is the same temptation of lawlessness that so worried Lincoln.
The means of ending abortion in the United States are not by murdering abortionists. They are by winning the minds of the American public through persuasion and prayer, and by legislating through proper means the end of state-sanctioned abortion. Tiller did indeed have blood on his hands, but the evil of his murder is in no way diminished by that fact.