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The Basics of Constitutional Law - re: Abortion
& Abortion & the Declaration of Independence
I have been (as of October 2, 2008) party to a vigorous
discussion over ending the slaughter of millions of little babies in the womb
(how can we even say these words...?!), the issue being how "states rights"
involved vs. top-down federal intervention. I have been getting sizable
education in constitutional law, and seeing more and more clearly the majesty
and power of Godly government. This piece was a contribution to that
discussion. Some of my thoughts are brand new to me, and are quite open to
correction and amendment.
Kerry Morgan (at http://www.revivetherepublic.com/ ) has been leading (rightly, I have come to think, much to my surprise) in the "states rights" direction, although it might be better phrased, "states obligation". I had thought that the protection of life trumped everything else because of its fundamental importance to everything else. And, it does, but not in the way I had thought, i.e., not by a top-down federal statute criminalizing abortion. The criminalizing comes first through general moral principles of the law of God and principles of separation and dispersion of powers articulated in the Declaration of Independence and in the Constitution. But except in defined situations, state governments, not federal, are the ones responsible for specific criminal statutes and prosecution.
The discussion centers around the danger of giving the federal government any more power than it is allowed by the Constitution, most especially jurisdiction over a comprehensive federal criminal justice system. Criminal justice has been reserved steadily to the states, such as for murder, theft, etc. That included abortion until Roe v. Wade, when, in an act of deceit, word-twisting, and evil (or ignorant) reasoning, the Supreme Court acted as though it, the Court, had the final say on who is and is not a person.
The Court had already (in Engel v. Vitale, 1962), and with equal moral and legal betrayal, told God that His services as sovereign were no longer needed, ruling prayer unconstitutional. Our Constitution had been hi-jacked because the Court had persuaded the populace that it had the authority to decide, arbitrarily on its own, to interpret the Constitution. "The Constitution means what the Supreme Court says it means," said one justice -- judicial supremacy, not judicial review. As the founding fathers would have understood, that was an act of treason (or monumental ignorance), gutting the legitimacy of the Constitution, and putting America under the Court's oligarchic power.
In our present passionate discussion, we are divided between a top-down federal approach and a bottom up states approach. All seem to agree that the Declaration of Independence is our founding legal document, with legal force governing the Constitution itself, and all other laws in America. It establishes the metaphysical, moral, and spiritual base for America squarely on Biblical worldview and law -- the culmination of nearly two millennia of Western Christian history, from the conversion of Constantine, through many struggles between Church and State to define their relationship, the development of a limited government in England, with the crowning Magna Carta in 1215, leading through both catholic and reformation theology to the American Constitution.
The problem has been to discern how those Biblical principles of the Declaration are applied to the federal and state governments.
Here is what I see to be a possible resolution of the matter.
I think it imperative to protect the constitutional distinction between federal and state governments. The federal government is limited by the Constitution, notably by the Bill of Rights, better called the Bill of Federal Limitations. The reason for the limitations is clear -- that the concentration of power in any person's hands sooner or later will lead to tyranny. So the complicated system of checks, balances, and dispersion of power has been part of the answer to the problem of tyranny.
The foundation of it all is the Sovereignty of God over all things. If God is not sovereign, then there is no possibility of We, the People, limiting the concentration of power. Without a trust and obedience relation to the living God, we will drift inevitably back into trusting and obeying Civil Government. Only Big Bureaucratic Government looks Big Enough to do the job once held by God.
That is the reason for limiting the power of any central government under the law and grace of God.
It occurred to me some years ago that the development of a limited government (where, as our first chief justice, John Jay, remarked, "Providence has given to our people the choice of their rulers....,") means that God has taken the divine right of rulership from kings and oligarchs and given it to the people themselves. We, the People, have a divinely given mandate to choose our rulers. These principles were already at work to a large degree in early Hebrew society. We can only guess how it might have worked out if they had not insisted, under Samuel, on a king.
This present controversy is giving me (at least) a better grip on how that works in our own real time and circumstances.
Harry Truman had a sign on his desk, "The Buck Stops Here." But he was wrong. The sign belongs on God's desk. But humanly speaking, it stops at We, the People, under God. The voting public then are the highest officers of the State -- not the elected officials -- not legislators, presidents, or judges, who are the servants of the people. The question is how to preserve that order of things. It will certainly involve all the checks, balances, and dispersions which the founding fathers built into our democratic republic under God. How can a widely spread and diverse people maintain their rulership over a narrowly focused and organized civil government and "special interests"?
It will mean necessarily that We, the People, have a common religion, a common understanding of truth and righteousness, a common worldview. To the extent that we are religiously fractured, we will not be able to stand unified against centralization of government. So religion is necessarily a part of public discussion, especially political discussion. We must find, in a freemarket of ideas, a unity of religion, worldview, and morality.
If John Jay is right, then necessarily, if the people are to retain their position of supremacy over all three branches of government, that we ourselves must take on the task of saving the lives of millions of our citizens. It is first of all our obligation to defend the babies, and only secondly that of civil government. Civil government becomes both formed and obligated through our political activity under God.
So how can that be administered in the realities of life? The following is new to my own thinking, and will need further clarification, but it seems to me on the right track.
Kerry Morgan has been upholding something like this view. The title of his "pro-life" article is First We Defend the Law, then We Defend Life. That basic title principle appealed to me the moment I saw it. Unless we get law straight, we will only mess up defending the rights of anyone at all -- unintended collateral damage. It is only by the law directing coercive force that rights can be adequately defended. When that fails, we resort again to vigilante law. In a society where that is all that is available, that may be what has to be done, just for survival. But we have close to four millennia of Godly law tradition behind us, so Judeo-Christians have no such excuse.
A powerful scene occurs in A Man for All Seasons, the key to the whole story, in which Thomas More is talking with his wife, daughter, future son-in-law, and an unsavory fellow who wants Thomas to employ him. Thomas says "no", and the fellow skulks out the door, with no good intended. Wife and daughter both want Thomas to arrest him. "He is dangerous! He is a spy!" Thomas replies: "There is no law against that."
Roper, the future son-in-law, says, "Yes there is, God's law!"
Thomas: "Then let God arrest him."
Wife: "While you talk, he's gone!"
Thomas: "Then go he should if he were the devil himself -- until he broke the law!"
Roper: "See now, you give the devil benefit of law!"
Thomas: "Yes. What would you do? Cut a great road through the law to get after the devil?"
Roper: "Yes! I'd cut down every law in England to do that!"
Thomas: "And when the last law was down and the devil turned round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, man's laws, not God's. And if you cut them down -- and you're just the man to do it -- do you really think you could stand upright in the winds that would blow? Yes, I give the devil benefit of law for my own safety's sake."
[A Man for All Seasons is an extraordinary story. If Thomas More (ca. 1550) was half the man portrayed, he was a saint of God. I am an Anglican, and do not agree with his theology of the Catholic Church and defense of the Pope against Henry VIII, but I hope that I would have stood with him for his dedication to truth and righteousness. Our contemporary understanding of freedom of conscience (at its best) was still a long time coming, another 150 years, perhaps, after the reign of Oliver Cromwell with the Glorious Revolution. But Thomas stood for something deep and precious. For that I honor him.]
Kerry Morgan's proposition -- first defend the law, then defend life -- is like Thomas's. If we tear down the constitutional setup to get after abortion, we may end up with a criminal justice system which lends itself even more fully to anti-life legislation, at the hands of a central government over which we will have lost control.
There have been rumors of an attempt to create a national police force for decades, partly by centralizing local police forces. We can vote ourselves into a tyranny from which we cannot vote ourselves out. And then we may find ourselves facing a civil war to recover our freedom far more lethal than either that of 1776 or 1860.
The stakes get higher the longer we Christians fail to understand and pursue Godly government. I think we Christians will have to regain our place in the public arena the same way the early Christians won it, and the Chinese are winning it, by laying down our lives, not by raising the sword. I think we can pick up the sword of government authority only after we have won it the Godly way. Rodney Stark describes this in The Rise of Christianity.
But even in pagan lands, law is a protection, which is no doubt partly why God commands us to obey the emperor. Tyranny in a Godless world can be better than living in chaotic danger of robbers, rapists, murderers on every highway, sea lane, and street corner. Rome was a blessing because, though it did so at brutal sword point, it brought a measure of peace to the whole Mediterranean basin (part of the "fullness of time").
That principle is true in every pagan and secular culture. There is no other way they can do it. Only the Biblical view of civil government, with a creator God uniquely self-dedicated to truth, justice, and love, began to change that built-in governmental contradiction of the Fallen world.
So we must not subvert the law in order to protect a given class of persons. Only with a consistently Godly form of law will any of us be protected -- against both law-breakers and law makers.
If, then, the Declaration gives us our founding religious principles, how can we convey those principles down to the lower levels of government?
The Declaration, as has been said in our discussions,
does not make statutes, it gives the principles which must be honored as
statutes are being made -- principles such as
that civil government is primarily about coercion, force;
that unless we are under God, we have no unalienable rights;
that all legitimate government proceeds from the law of God because
all legitimacy comes from the law of God;
that the people under God are to interpret the will of God to civil government
through their elected representatives;
that the primary task of civil government is to submit the use of coercive force to
the law and grace of God.
How, then, are these principles enforced on lower levels of government? Only, in the end, by the people. God has put the choice of our rulers into our hands. The buck stops here. The people must stand up for truth, righteousness, and love -- for the law and grace of God. No system of government will be just and faithful where the people are not willing to stand, at any risk to themselves, for truth, righteousness, and love. It will not happen without the dedication of our lives, our fortunes, and our sacred honor into the task. If we are to choose our rulers, we must raise up from our own midst to be our rulers the kind of persons who will honor those principles.
So then, We, the People, must stand for these principles to be honored by every piece of legislation considered in Congress. But what about the states?
The same principles apply. If the citizens of the state do not themselves honor those principles, then the state will drift into centralization and tyranny. The buck stops with the citizens, not the government. Or better, the citizens under God are the government.
But..., there are ways in which rebellious and recalcitrant states can be disciplined. If states are admitted to the Union under certain restrictions, such as to have a republican form of government, or to follow the principles of the Declaration and of the Constitution, then certain privileges ought to be removable from them when they violate those conditions.
A state, at the demand of Congress, perhaps initiated by a court, could have either vote, voice, or seat in Congress removed, as happened (wrongly I think) after the war between the states.
We are wrong to consider the Union indissoluble when the very conditions of our Union are being violated. States rights to withdraw (which I think necessary) imply also an obligation for member states to conform to the meaning and purpose of the Union. If the Union is to be voluntary, that obligation runs in both directions. A nation which loses the vision of its reason for existence will be hi-jacked by others who have a different vision. The vacuum will not remain unfilled.
Under such a scheme, the federal government could not dictate the text of a law, but it could review whether the text did in fact honor the principles required for being a state. I see no way around giving the federal government such power. A state which did not defend the unalienable right to life, liberty, and happiness should be disciplined until it did so.
As Kerry has pointed out, any such law-making is not just "federal", it always involves getting the majority (or more) of states to agree. So as the sovereignty of states is properly honored, so also, in its very operation, is the federal government an outworking of those states in Congress assembled.
Along those lines, we must restore the Senate to is proper function by restoring the Electoral College system. The Senate was designed to represent the states in the federal government, not the masses of individual people, as is the House. Many of the changes to our constitutional order have had the effect of atomizing (and thus rendering powerless) the population in a mythical version of We, the People. The people must have buffering communities below the national level, such as states, counties, towns, churches, and families -- each with their own independent governments. That is part of the dispersion of power. As the principle of subsidiarity says, the authority of government should be dispersed to the lowest level reasonably possible.
These principles, it seems to me, protect the unalienable right to life, and at the same time protects the structure of government designed to protect the people from a centralized police state.
NOTE: This article raises many issues about "theocracy" and "pluralism" under a government of "divine right of rulership" being given to the people, etc. which are not here addressed. Go to Biblical Government for information on these issues. Also, honest pluralism (there is a very dishonest and destructive kind, based on "relative truth") can be had only under the law and grace of God. It was begun there and has survived in no other setting.
The Basics of Constitutional Law - re: Abortion
& Abortion & the Declaration of Independence
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