Return to IndexThe following letter is in response to my May Comments, "The Rule of Law or Man". My responses will be inserted into the text in bold letters.
From:Objection [YOU SAID] Dear Brutus: It's not clear where your political theories would lead us.
(REPLY) The political theories that I summarized in my "May" comments are not my theories, even though I agree with them. They are derived from the "Protestant Political Theory" that was the predominant political theory of the founding era. John Knox a leader in the Protestant Reformation was one of the leaders in developing the theology of resistance to tyranny, which taught that the common people had a right and duty to resist the civil rulers when they ruled contrary to the Bible. To do otherwise would be rebellion against God. Both James Madison and Thomas Jefferson voiced this exact sentiment. Jefferson stated that, "To resist tyranny is obedience to God", while Madison stated it this way, "To resist tyranny is service to God". Another prominent reformer that played a prominent role in developing this Protestant political theory was a Presbyterian name Samuel Rutherford (1600-1660). In 1644 he wrote his famous, "Lex Rex: or The Law and the Prince". Lex Rex translated from Latin means: The law is king. This writing taught that the law was founded on the Law of God and if the king or government ruled contrary to the Law of God they were to be disobeyed. The government being ordained and instituted by God was to administer justice according to the principles of God's Law. Tyranny was defined as ruling without the sanction of God. That is what the colonists meant when they accused the king of tyranny; that he was committing acts contrary to the rule of God's Law. We must always be subject to the office of the magistrate, but we are not to be subject to the man in that office who commands what is contrary to the Bible. A ruler must not be deposed for a single breach of the contract that he has with the people. He is only to be relieved of his position when his acts are destroying the fundamental governing structure of society. Rutherford set forth 3 appropriate levels of resistance for the private person. (1) Defend himself by protest (complaint), this in our society would be legal action, redress of grievances, contacting our legislators, lobbying, etc. (2) Flee if possible; and (3) The use of force to defend oneself and only if flight is impossible. These 3 premises were taken from the life of David as recorded in the Old Testament. John Locke drew heavily from the Presbyterian tradition when he laid down his 4 basic points which the founders knew well and recommended as guidelines. (1) inalienable rights; (2) government by consent;(3) separation of powers; (4) the right to resist unlawful authority.
The "Rule of Law" can be divided into two categories, the "law of nature (and nature's God)" and the "law of nations". The former category is in reference to the individuals accountability to the "Law of God" in their relations between individual persons, and is sometimes used interchangeably with the "law of nations" as in the "Declaration of Independence". The term "law of nations", which can be found in our constitution, is in reference to the individual nations accountability to the "Law of God" in relationship to other nations and their own citizens, as an individual corporate person and to the citizens accountability to their nation. In other words, it is the law of nature as it is applied to individual persons, then being applied to nations as individual corporate persons. The idea of nations as corporate individual persons comes from (1 Cor. 12:12-26) in which Paul compares the Church to a body made up of different parts ,yet one body. The Church as a corporate body cannot violate the "Law of God" any more than the individual can. From this application is made that any group of people are to be considered as one person and just as accountable to God as any individual person and that each part of the body is to be considered equal but separate in their accountability to God as well.
On the "Rule of Law", Catholic Political Theory is also in agreement. Here are a few quotes from early Christian leaders to back this up. St. Abrose....."things that are divine are not subject to imperial power." St. Augustine....."it is not for the judges to judge the law but according to the law." St. Isidore....." the title of kings is held by proper administration, by wrong doing it is lost." Pope Gelasius to Emperor Anastasius....."There are two powers, august emperor, by which the world is chiefly ruled, namely, the sacred authority of the priests and the royal power, Of these, that of the priests is the more weighty, since they have to render an account for even the kings of men in divine judgment...While you are permitted honorably to rule over human kind, yet in things divine you bow your head humbly before the leaders of the clergy...you recognize that you should be subordinate rather than superior to the religious order."
Here are some quotes from English priests and jurists. A 12th century Anglo-Norman law......"Against the command of God and the Catholic faith no order is valid." Robert Grosseteste, bishop of Lincoln....."princes and secular judges cannot establish laws contrary to the law of God." John of Salisbury....."it is said that the prince is absolved from obligation of the law, but this is not true in the sense that it is lawful for him to do unjust acts... Inferiors should cleave to and cohere to their superiors...but always and only on condition that religion be kept inviolate..." One of the forces behind the Magna Carta, Archbishop Stephen Langdon....."whatever service is rendered to the temporal king to the prejudice of the eternal king is undoubtedly an act of treachery."
As you can see the "Rule of Law" has been promoted by the Christian Faith for hundreds of years. Was our country not founded on the principle that all men are equal before the law and that no one is above the law?
As to where this political theory would lead us, back to one nation "UNDER GOD" of course.
(REPLY) My intention was not to debate issues, but to educate in the principles of a just government. I was not aware that educating or teaching was considered complaining, and if it is complaining, the 1st Amendment gives me freedom to do so if I choose.
As far as my comments being general, are not principles the general foundation upon which our ideas of right and wrong are based?
As far as being overly idealistic is concerned, the term "just" means; that which is right, perfect, or ideal. When we teach, are we to teach others to strive towards that which is not ideal, just because we know that we can never obtain it? Even though God knows that we cannot reach perfection, He commands us to "be perfect as He is perfect". Are we than to not strive towards the perfect Christian life, because we know we cannot obtain it? I believe that it was James Madison who once said something to this effect,"All governments are imperfect. It is therefore, our duty to establish a government that is the least imperfect that can be humanly obtained."
The principles that I am advocating are not just for the United States. The "Rule of Law", as it is God's law, applies to all nations, everywhere, at all times and at every level of government. When I refer to our government, it is for use as an example with which we are all familiar, as the "Rule of Law" applies equally to our country as to any other.
(REPLY) You are in error when quoting that Justice Marshall made his statement in the Plessy Vs Fergussen case. That case took place in 1896 (100 years ago) and had to deal with the southern equal but separate legislation. The John Marshall in that case was the lone dissenting vote and his full name was John Marshall Harlan.
I believe that your quote of Justice Marshall comes from Marbury Vs. Madison in 1803. I have read it and his statement only inferred that the judges were to interpret the law, whether it was constitutional or not. He never advocated that the judges could change the law or create law. Justice Marshall summarized his ruling on that case with the following words, "a law repugnant to the Constitution is void and that courts, as well as other departments, are bound by that instrument." Does this sound like he believed in a variable constitution?
Your statement that," the constitution is what the Supreme Court says it is", is a quote from a 20th century judge the name of which I cannot remember and it meant that if they say that the constitution is a living document than it is a living document. It had a completely different meaning than Marshal's statement. This living constitution theory has been advocated in recent years to justify the constitution being ignored and violated. Samuel Adams once wrote,"In all free states the constitution is fixed; it is from thence that the supreme legislature as well as the supreme executive derives its authority. Neither, then can break the fundamental rules of the constitution without destroying their own foundation." Alexander Hamilton in the Federalist Papers clearly pointed out, that any judges who ruled according to will rather than law were constitutionally subject to impeachment. To quote a judge, who has violated the law, as an authority on the constitution and expect him not to try and justify his behavior and to condemn himself is unrealistic. The only way the constitution was to be variable was through the amendment process or a constitutional convention. George Washington warned against arbitrary laws in his Farewell Address. If was found that the constitution needed changed "let it be by amendment".
(REPLY) There is nothing wrong with wanting to correct injustices. The problem is that injustices cannot be corrected by creating another injustice, this merely shifts an injustice from one group to another. Two wrongs never make a right. My Bible tells me to never "repay evil for evil" or "wrong for wrong". We are to "test all things", "hold on to the good", and "avoid every kind of evil".
John Marshall summarizes our governments purpose by quoting his oath of office,"I do solemnly swear that I will administer justice, without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all duties incumbent on me as, according to the best of my abilities and understanding, agreeably to the Constitution, and laws of the United States".
In a just government special interests are not favored. Our constitution limits the Federal Government (general government) to laws that provide for the "general welfare" (common good). In other words, laws that apply equally to all citizens, that is, we are all to be treated equally under the law. Under a government of privilege we have the nonproductive rich who get rich by government privileges and we have the unproductive able bodied being paid not to work, from taxes collected from the productive, hard working citizen.
True compassion does not have compassion on one group by hardening ones heart towards another group. True compassion never destroys a persons character. The transfer of wealth without obligation to an individual, does just that. It teaches dependency. If a person does not work and he is able, than as the Bible says, "he should not eat". To have a class of dependent people who are better off than many who work and who pay the bill, is clearly unjust. Also, compassion is not compassion unless it is voluntary.
The taking of money from some by a heavy graduated income tax and giving to others is one of the main planks given in the "Communist Manifesto" for transforming a country into socialism and ultimately communism. Communism is not dead, it is alive and well in all the countries of the world. Our 5th Amendment states that, "private property shall not be taken for public use without just compensation". In other words, If private property (and money is property to which we lay claim as just compensation for services rendered) is taken for public use, the person from whom the money was taken must personally get something of equal value in return. The government taxes us to provide for our common defense. This is considered something of equal value in return, because the tax payer receives personal benefit and it is provided for in the constitution. Welfare on the other hand, does not provide something of equal value in return, because the one taxed does not personally receive anything in return. In Art.1, Section 8 of the Constitution it specifies the purposes for which the taxes are to be used and declares that all taxes are to be uniform throughout the United States. A graduated income tax that taxes some at varying degrees and does not tax others, is not a uniform tax. Its purpose is to make all those who are not of the privileged unproductive rich class equal in income, rather than equal under the law, thus creating a 2 class system of the privileged and the serfs. (by rich I do not mean businesses which are productive and produce wealth, but those who have become rich due to government privileges such as bankers, politicians, and lawyers, which do not produce wealth, but consume it)
As for those unintended consequences; I'm not so sure that these consequences are unintended. Our politicians have become masters at playing one segment of the population against another to help keep them in power.
(REPLY) First of all, our government was never established as a democracy. Our founders called it a republic and Noah Webster called it a representative republic. Here are some quotes from the founders concerning democracy. Fisher Ames, "A democracy is a volcano which conceals the fiery materials of its own destruction." Benjamin Rush, "A simple democracy is the devil's own government." John Adams, "Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide." However, today our country has become a representative democracy by default. Originally our republic was based on a fixed constitution and the rule of law. Thus a republic has certain fixed principles, called republican principles, incorporated into its government that are intended to guard against the unjust excesses of democracy. In a democracy, because it is not based on the fixed laws of God and a constitution, but on the rule of man, the laws are constantly changing. Democracy is the rule of force, so might makes right. It is always in turmoil with one faction of society struggling against another faction of society. When a change of power takes place after an election the existing laws are then changed to favor the special interests which that faction represents. The struggle and change continues to go on with each change of those in power. It is like a huge tug of war, being pulled back and forth till no one can keep track of what the law is anymore. In a republic there is stability, because when those who rule are changed they are contained within the bounds of fixed principles. This is why John Adams defined a republic as, "The rule of law, not of man".
It is true that change is characteristic to human nature. However, because man's human nature is in a fallen state, most changes are for the worst especially in government. It was once said that, "power corrupts and absolute power corrupts absolutely". This can be seen in government as it gains more power. I say however that, "man will corrupt power absolutely". There is a legitimate use of power. Power cannot corrupt, it is neither good or bad in and of itself. It is the person who welds it that has the corrupting influence. There is nothing new under the sun, man is not getting progressively better, he remains a sinful fallen creature. The reason many view the Constitution as a living document is because of a change in the legal philosophy that has infiltrated our law schools over the years. The predominent legal theory now being taught is no longer the rule of law, but legal positivism. John Eidsmoe in his book "Christianity and the Constitution" summarizes legal positivism in the following manner: "(1) There are no objective, God-given standards of law, or if there are, they are irrelevant to the modern legal system. (2) Since God is not the author of law, the author of law must be man; in other words, law is law simply because the highest human authority, the state, has said it is law and is able to back it up by force. (3) Since man and society evolve [change], therefore law must evolve as well. (4) Judges, through their decisions, guide the evolution of law (Note: Judges "make law"). (5) To study law, get at the original sources of the law, the decisions of the judges; hence most law schools today use the "case law" method of teaching the law." It is even possible to get a law degree today without studying the Constitution. With most government positions being filled by lawyers taught in this legal theory, it is easy to understand why our Constitution is being ignored and our checks and balances are no longer being enforced.
As far as steering our government along the lines of our Christian Heritage and civilization is concerned; I thought that was what I was advocating. This may be a sad example of the failure of our churches, to teach Christian political theory, when a Christian does not recognize it when it is taught.
(REPLY) I do not have any problem with amendments when needed. However, the amendment that Judge Bork advocates is not necessary because the Constitution already has a remedy included in it. The judicial branch was not given the authority to make, change, or enforce laws. It is the president's job to enforce laws and the legislature's job to create and change laws. They also have taken an oath to uphold the Constitution. If the president feels that the judges have made a law (which is unconstitutional) he can refuse to enforce it just as President Andrew Jackson did. Jackson felt that the oath of office which all branches of government took to uphold the Constitution gave each member of each branch the authority and right to defend the Constitution as each understood it. If the Congress feels that the Judges have usurped the authority which is rightfully theirs they can pass a law nullifying a law which the judges have created or simply refuse to fund it. If their law is then challenged, not by the judges (as they do not have the authority to challenge a law directly) but by a citizen or state and it is overturned when brought before the courts, Congress can then start impeachment proceedings to remove the guilty judges from office. A quick look at our history shows that of the 12 impeachments recorded, 9 of them were judges and of the 4 convictions, all were judges. One example was John Pickering who was removed from office in 1803 for drunkenness and profanity on the bench, and for "UNLAWFUL DECISIONS". This is one of our checks and balances that has not been exercised in years. Likewise, impeachment proceedings can be brought against any president that creates or uses executive orders, because there is no constitutional authority given to the president to create laws. Clearly we do not need an amendment in this area.
I hope I have now been specific enough. Thank you for writing. Brutus
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