Thinking deeper: What is law anyway?

(Centennial Fellow) A recent decision by Summit County to cite eminent domain in their effort to seize Andy and Ceil Barrie’s 10 acre parcel and dream home in Breckinridge so that the county can preserve open space is a reminder of how American law has changed.

The most notorious eminent domain case, adjudicated by the US Supreme Court, was the 2005 Kelo vs. New London (CT) case. This case extended the government’s ability to seize private property under eminent domain, even when the only public purpose was to enrich the government. The Fifth Amendment’s Takings Clause prohibits the taking of private property for public use without just compensation. The city of New London argued that by condemning a number of privately held lots and transferring them to the New London Development Corporation, the city would be better off and would be able to collect much more in property taxes. However, the city couldn’t get the financing, the home was destroyed, and the area is now a trash dump.[1]

The US Supreme Court has made numerable embarrassing blunders in its history. The most recent contretemps concerned Obamacare when Chief Justice John Roberts went to heroic lengths to find authority for the individual mandate under the Congress’s power to tax and spend, a ruling in which his four liberal colleagues concurred.

John Roberts is not the first Chief Justice to confound logic and good sense. Former Chief Justice Hugo Black made a few boneheaded decisions of his own such as the 1944 Korematsu v. U.S. where the court missed the chance to address the civil rights violations that marked the internment of Japanese Americans during World War II. In Everson v Board of Education (1947), Justice Hugo Black also wrote: “In the words of Thomas Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state.” Black cited Jefferson as support of precedence yet Jefferson had nothing to do with the Bill of Rights, was out of the country during its debate, and the quote used by Black was taken completely out of context. Jefferson had written the Danbury Baptists to assure them that their freedom of religion would not be violated by the state. Jefferson’s actual quote was, “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.” Black twisted the context to justify the state inhibiting the public expression of religion, a false assumption that stands to this day.

It should be noted that Chief Justice Hugo Black was a liberal Democrat who was appointed by FDR and was also a member of the KKK. He gave many public speeches as anti-Catholic. Near the end of his life, Black would admit that joining the Klan was a mistake, but he went on to say “I would have joined any group if it helped get me votes.” The Everson case was about authorized payment by local school boards of the costs of transportation to and from schools – including private schools. Of the private schools that benefited from this policy, 96% were parochial Catholic schools. Obviously, Justice Black was delighted to write his opinion.

How did we get to the point where our legal system often neglects the principles upon which it was founded? Physical laws hold the universe together. Moral and civil laws hold society together. Laws hold individuals accountable for their actions. They protect private property rights which represents the essential foundation of freedom. There are important differences between the physical, moral, and civil laws.

Physical laws correspond to the reality of the natural world and can be seen in biology, chemistry, and physics including Newton’s three laws of motion (including the law of gravity), the four laws of thermodynamics, Einstein’s laws of relativity, etc. The moral law is represented in the Bible, e.g., the 10 Commandments, etc. Psalm 127:1 says.
“Except the Lord build the house, they labor in vain that build it: except the Lord keep the city, the watchman wakes but in vain.” The moral law reflects the nature and order of God. Civil law is established by the state. England and America have historically based their system of law on natural law, or the idea that God’s moral law has been revealed in the hearts and conscience of men.

There is a moral law (everyone knows it is wrong to torture babies for fun, etc.)
The moral law requires a moral lawgiver.
The moral lawgiver is God.
God provides man an ordered legal system based upon good judges (Exodus 18:13-16, 23:1-8 and Deuteronomy 1:16-17, 19:15-21). God tells us in Micah 6:8,”…to act justly, and to love faithfulness, and to walk humbly with your God.” Of course, God will judge all those in rebellion as described in Acts 17:31.

Dostoevsky said “If there is no God, all things are permissible. If all things are permissible, there is no right and wrong.” Thomas Aquinas systematized Christian natural law theory. Through the influence of philosopher John Locke and legal theorist William Blackstone, natural law became the bedrock of America’s constitutional republic. Natural law was practiced throughout America until the 1920’s whereupon it was replaced by positive law (the idea that laws could be made by man independent of God.)

Natural law comes from God’s general revelation of the world around us and is embedded in our conscience. The Declaration of Independence recognized this truth when Jefferson referenced “…the laws of nature and nature’s God.” He also recognized that man “was endowed by the Creator with certain inalienable rights.”

Civil law should reflect the underlying natural law. The truth is all civil laws legislate morality (even speed limits imply a moral right to life). Everyone in politics is trying to legislate morality. The questions are: 1) whose morality should be legislated? and 2) what about the separation of church and state?” In addition, the ultimate questions are: 1) does God’s law matter? and 2) which worldview dominates the electorate and the elected in formulating these laws? and 3) what happens when we legislate immorality?

Positive law is opposed to natural law. Positive law is based upon the power of man, not the power of God. In a naturalistic philosophy (secular worldview) there is no God and therefore man determines morality and law. Christopher Langdell became the Dean of the Harvard Law School in 1870 and was a committed Darwinist. He changed the American legal education system to embrace the concept of Darwinism (through legal positivism) as he instituted case law theory at Harvard in the late 19th century. The American legal system never looked back as it indoctrinates law students into legal positivism, or man-made law that is no longer anchored to natural law. What was taught in law school became practice in the court room.

Strict constructionists believe that the Constitution, along with the Declaration of Independence, is based upon natural law. Legal positivists, e.g., President Obama, believe that man establishes law based upon man’s power and intelligence that changes over time. This explains why President Obama desires to change the negative liberties imposed by the Constitution (constraining powers) to positive liberties whereby the state can create new rights such as the right to education, the right to healthcare, the right to a good paying job, etc. all of which were not foreseen or desired by the founders. President Obama, and other secularists, maintain that the Constitution is a living document, subject to change, and should be used to accomplish political objectives.

The law should reflect from where rights are derived. The Judeo-Christian view says rights are derived from God. This was the view of our founding fathers. The secular worldview that pervades Europe and America believes that rights come from man, specifically the government. However, laws should derive from the general and special revelation of God and not from the flawed judgment of imperfect man. Nazi Germany clearly demonstrated the horrific failures of depraved men making laws independent of God.

The US Supreme Court, arbiter of US law, blundered when it said that slaves were 3/5 of a man, declared that the murder of the unborn is legal, and when it forced Americans to buy a product (Obamacare). The US Supreme Court ruled that a dream home had to be destroyed via eminent domain so a city could replace them with businesses who would pay increased tax revenues in the Kelo decision. King Ahab and Jezebel, in a similar “eminent domain” case, went further in seizing Naboth the Jezreelite’s land in 1 Kings 21 whereupon God promised to kill King Ahab because government stealing and murder is wrong in God’s eyes. God is sovereign over the rulers and kings of nations, e.g. Proverbs 16:9-10, Proverbs 21:1, Daniel 2:21, and Romans 9:17.

Does legality equal morality? The German supreme court ruled that Jews were not persons, therefore their extermination was not against the law. What if a moral law (DOMA) is legal but the executive branch chooses not to enforce it? What if California voters pass Proposition 8 (protecting traditional marriage) but activist courts overrule it? What will happen to a nation if all three branches of government abandon the Judeo-Christian worldview and the electorate becomes a secular majority?

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” Article 1, Bill of Rights. But even if it did mandate the separation of church and state, the First Amendment does not prohibit legislating morality. In fact, the First Amend­ment itself legislates morality: it clearly implies it would be wrong for Congress to legislate a national religion or prohibit the free exercise of religion; it also implies any congressional attempt to abridge freedom of speech, the press, or assembly would be morally wrong. Oddly, secularism has been deemed a religion by the US Supreme Court (Torcaso v. Watkins) and the IRS has ruled that secular humanism be granted a religious exemption yet secularism is the preferred means of indoctrination in the government schools throughout America.

Secularists have criticized Judeo-Christian morality and law as tyrannical, predicated on the problems of theonomy, or Christian Reconstructionism/ Dominionism. This is a view popularized by R.L. Rushdoony and argues for Old Testament laws to be observed, e.g., stoning of adulterers, blasphemers, etc. The error of theonomists is that they misunderstand the unique place these laws had for Israel at that time and that the New Testament shows Jesus teaching about the distinction in realms between Caesar and God. There will be heaven on earth only with the Second Coming despite man’s attempts to establish a utopia on earth. Secularists use the argument of theonomy as a red herring and also reject absolute morality while seeking to establish laws that emphasize tolerance rather than conduct. This is legislating immorality.

Secularists also seek to support tolerance for Islam, e.g., foot baths and Muslim only prayer rooms, halal food for inmates, 50 significant US court cases have cited Sharia law, etc. in an effort to undermine the Judeo-Christian moorings of the Constitution. There are now 85 Sharia courts in London. Sharia law is gaining momentum internationally and will be contested here in America.

It is the Constitution that both secularists and Islamists are targeting. Bill Ayers, former domestic terrorist and member of the radical Weather Underground, said in a 1-30-14 debate at Dartmouth (with Dinesh D’Souza) that the Constitution needs to be changed because we have “felony disenfranchisement” meaning that convicted felons should be able to vote in elections. Ayers also said that he wants to eliminate the Electoral College referenced in Article II of the Constitution as well as the 12th Amendment to the Constitution since it unfairly favors a different worldview. He has been an adviser to President Obama and is very interested in how elections are run in the US.

Secularists want to use international courts (one world government) while Islamists want a Sharia court (Caliphate) as they each pursue a utopia on earth where their worldview prevails. Isaiah 33:22 gave the founders the framework idea for the American way of government,”…the Lord is our judge, lawgiver, and King.” This represents the three branches of government that the founders placed constraints upon through checks and balances due to their understanding of the fallen nature of man. It is increasingly apparent that only those with a Judeo-Christian worldview are preventing secularists and Islamists (as co-belligerents against Christianity) from attaining their goal.

The founders used the Bible, Locke, Montesquieu, and Blackstone more than any other source when drafting the nation’s foundational documents. They used the Psalms, Isaiah, and Deuteronomy more than any other book in the Bible. They clearly embraced natural law and the fallen nature of man as the Declaration of Independence, Constitution, and Bill of Rights were drafted. This is why there are two legislative bodies, three different branches, an executive veto, a distribution of powers between a national and many state governments, an understanding that God was the creator who endowed our rights, a constitutional republic instead of a democracy, the role of advise and consent, the principle of the consent of the governed, war can only be declared by Congress, and that government could not establish a religion, etc. They were very familiar with Islam (from problems with the Barbary pirates) and were familiar with the Enlightenment ideas that culminated in the French Revolution (the birth of secular humanism.)

Common law was the 18th century system of law that governed England. It was based upon societal customs and recognized/enforced by the judgments and decrees of the courts. It was the general body of statutes and case law that governed England and the American colonies prior to the American Revolution.

William Blackstone was considered one of the leading experts on the law in England (and was a judge on the King’s bench) who wrote his four volume magnum opus “Commentaries on the Laws of England” which gave the system of law scholarly respectability. He was a key influence on the founders and said this,”Upon these two foundations, the law of nature and the law of revelation (the Bible) depends all human laws, that is to say, no human law should be suffered to contradict them.”

The 10 commandments represent a problem for legal positivists because the first four relate to God, the fifth relates to a traditional family, the sixth has been changed to accommodate murder of the unborn, the seventh has been clearly abandoned owing much to the recreational pursuits of leaders such as the Kennedy’s, Bill Clinton, et.al., the eighth is a source of vehement opposition most notably when Democrats are in power, the ninth has been relativized as the Bible is no longer used in courtroom oaths, and the tenth is widely violated as our leaders now promote envy through slogans such as “war on women”, “you didn’t build that”, “everybody needs to pay their fair share”, and “the 1% are the enemy of the 99%.” The identity politics of class, gender, and race divisions (born of envy) now dominate our culture and have been promoted by the Obama administration in an effort to turn people away from absolute truth and toward the government for solutions to the problems of envy.

John Milton, 17th century poet and polemicist, said “So many laws argue so many sins.” He would be shocked to know there are approximately 1.5 million federal laws and regulations in the United States. There are 18,000 new regulations since President Obama took office according to the Federal Register. Executive orders, recently cited as a strategy to be used by the President to thwart an uncooperative Congress, can only make matters worse. The quantitative excess (the number of laws) in conjunction with the qualitative deficiency (pursuit of moral relativism in defiance of natural law) assures that America is headed down a road of moral disorder.

What can be done regarding bad laws and bad judges that arise from abandoning the precepts of natural law? Good law is based upon God’s unchanging character. Thomas Jefferson wrote, “Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?” The record of history and the Bible (see Romans 1) confirm that the consequences of moral rebellion to natural law never ends well.

The USSR Constitution said, “ARTICLE 124.- In order to ensure to citizens freedom of conscience, the church in the U.S.S.R. is separated from the state, and the school from the church. Freedom of religious worship and freedom of antireligious propaganda is recognized for all citizens.” Psalm 75:7 says, “It is God who judges: He brings one down, he exalts another.” For those who reject God and His moral law, it is useful to recall Nahum 1:3,”The Lord is slow to anger but great in power, the Lord will never leave the guilty unpunished.” Although it is unlikely that America will change its legal environment from within, we would be well advised to pursue an abundance of caution before pursuing the model of international law. We would also be well advised to hold judges accountable for their decisions despite their opposition to doing so. Ultimately, our founders would tell us that they gave us a republic “if we could keep it.” Whether or not we do depends on the quality of America’s character. Based upon what we see in the policy direction and repeated betrayal of trust without consequence in the Obama administration, and the increasing number of questionable court decisions, the jury is still out on that one.

[1] http://www.washingtontimes.com/blog/watercooler/2011/sep/3/picket-05-kelo-decision-failure-ct-site-remains-du/

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