Oaths, lack of respect for them, and failure to understand their importance point toward our country's problems and perhaps their solution. But first, who is the sovereign of this United States? I don't mean in the absolute biblical sense; that's clearly God. I mean in the publicly acknowledged by the people sense and as evidenced by our founding documents.
First question: Does God care? If He rules the world and if He cares about the world that He created, then yes is the obvious answer. He cares about the type of government you erect over your society. He showed that when He lead the Israelites out of Egypt and went about assisting Moses in setting up . . . what? Laws. Judges. Governing processes. He saves individuals from sin and death, and He saves societies from slavery and wandering in the wilderness. He cares about your civil government and its founding documents.
Second question: But you'll argue, "I believe, and my church believes, what does it matter what anyone else believes or does in the civil government or, as you say, what is written in the documents publicly acknowledging their covenant status?" You hit on it right there and answered it in your very question. The public or official or covenant or legally binding governing documents are the evidence of a people's faith. Just as taking an oath in court doesn't mean you will, in fact, tell the truth, but it is evidence that you're more likely to tell the truth if you can imagine God (the God of the bible more particularly) Himself watching and judging your words.
Our ancestors, or at least their elected representatives, voted to ratify the U.S. Constitution, the key founding document. It is evidence of their faith. The document doesn't make them a certain status before God or create some relationship of favor between God and the people ratifying. It is evidence of something. It shows how they thought, how they related to God in His status as Governor of the universe.
So back to the original question of this post, that dealing with the first element of a covenantal relationship. Who is the sovereign of the United States, as evidenced by the founding, covenantal documents? First some history. The following are words from some earlier founding documents, those of Plymouth, Massachusetts and the Puritan establishment in Connecticut.
"IN THE NAME OF GOD, AMEN. We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord King James, by the Grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &c. Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a Voyage to plant the first Colony in the northern Parts of Virginia; Do by these Presents, solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid: And by Virtue hereof do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions, and Officers, from time to time, as shall be thought most meet and convenient for the general Good of the Colony; unto which we promise all due Submission and Obedience. IN WITNESS whereof we have hereunto subscribed our names at Cape-Cod the eleventh of November, in the Reign of our Sovereign Lord King James, of England, France, and Ireland, the eighteenth, and of Scotland the fifty-fourth, Anno Domini; 1620." Mayflower Compact, from Yale Law School's the Avalon Project, http://avalon.law.yale.edu/17th_century/mayflower.asp, accessed on 19 Feb 2014.
Is there any question in your mind as to who is the sovereign of those pilgrims who were setting up a colony on the shores of Massachusetts? To summarize, they acknowledge they are subject to King James, but the document is suffused also with the acknowledgement of God. By the grace of God, they undertook their voyage for His glory and for the advancement of the Christian faith. they submit to a human government for their better ordering and preservation, and they intend to enact laws intended for the general good of the colony. Respecting the purity of their allegiance to God as their sovereign, the most you can criticize is that they asserted the sharing of sovereignty between the king (James) and the King of kings.
"For as much as it hath pleased Almighty God by the wise disposition of his divine providence so to order and dispose of things that we the Inhabitants and Residents of Windsor, Hartford and Wethersfield are now cohabiting and dwelling in and upon the River of Connectecotte and the lands thereunto adjoining; and well knowing where a people are gathered together the word of God requires that to maintain the peace and union of such a people there should be an orderly and decent Government established according to God, to order and dispose of the affairs of the people at all seasons as occasion shall require; do therefore associate and conjoin ourselves to be as one Public State or Commonwealth; and do for ourselves and our successors and such as shall be adjoined to us at any time hereafter, enter into Combination and Confederation together, to maintain and preserve the liberty and purity of the Gospel of our Lord Jesus which we now profess, as also, the discipline of the Churches, which according to the truth of the said Gospel is now practiced amongst us; as also in our civil affairs to be guided and governed according to such Laws, Rules, Orders and Decrees as shall be made, ordered, and decreed as followeth:
"It is Ordered, sentenced, and decreed, that there shall be yearly two General Assemblies or Courts, the one the second Thursday in April, the other the second Thursday in September following; the first shall be called the Court of Election, wherein shall be yearly chosen from time to time, so many Magistrates and other public Officers as shall be found requisite: Whereof one to be chosen Governor for the year ensuing and until another be chosen, and no other Magistrate to be chosen for more than one year: provided always there be six chosen besides the Governor, which being chosen and sworn according to an Oath recorded for that purpose, shall have the power to administer justice according to the Laws here established, and for want thereof, according to the Rule of the Word of God; . . . ." Fundamental Orders of Connecticut, January 14, 1639, from American History, http://www.let.rug.nl/usa/documents/1600-1650/the-fundamental-orders-of-connecticut-1639.php, accessed 19 Feb., 2014.
The above is only the beginning of a lengthy governing document, but it tells you alot about the belief of the people of Connecticut about the sovereign and His relationship to their governance of their colony. Notice that Almighty God in providence ordered things there. He's also the historical prologue to the entire enterprise. The goal is the prosperity, success and continuation of the project: "to maintain and preserve the liberty and purity of the Gospel of our Lord Jesus which we now profess, as also, the discipline of the Churches, which according to the truth of the said Gospel is now practiced amongst us; as also in our civil affairs to be guided and governed according to such Laws, Rules, Orders and Decrees as shall be made, ordered, and decreed as followeth: . . ." What kind of men should rule according to this document? - "chosen and sworn according to an Oath recorded for that purpose, shall have the power to administer justice according to the Laws here established, and for want thereof, according to the Rule of the Word of God; . . . ." You'll be hard pressed to find a more thoroughly biblical/Christian statement in a founding governing document.
Notice the type of men shall serve. The charter states: "provided always there be six chosen besides the Governor, which being chosen and sworn according to an Oath recorded for that purpose, shall have the power to administer justice according to the Laws here established, and for want thereof, according to the Rule of the Word of God; . . . ."
What kind of oath should such men adhere to that would evidence a faith in the God of the bible and the wise application of His law?
Friday, February 21, 2014
Saturday, February 15, 2014
Criminal Justice 1
Interestingly, the first reference in the law of Moses to the eye-for-an-eye principle is with respect to a law that could apply to abortion.
"If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. And if any mischief follow, then thou shalt give life for life, Eye for eye, tooth for tooth, hand for hand, foot for foot, Burning for burning, wound for wound, stripe for stripe." Exodus 21:22-25.
The eye for an eye principle is a principle of justice. It is opposed to a justice system focused solely upon prevention, which might end up punishing people beyond what is just in order to put fear into others. It is also opposed to a justice system tilted toward the rich and powerful and influential. No one is above the law, and no matter your class, you are subject to the law's just demands.
People say the law of God is too harsh. Really? God, the God of mercy, the God who sent His Son to die for mankind, is too harsh? Well, the law of God was intended to drive us to Christ for mercy. Yes, but that doesn't make it untrue. The law of God is the correct incentive for seeking Christ for the very reason that it is true. It is not too harsh, nor is it overly lenient.
If the law of God is too harsh, then so is Jesus Christ.
"Then came to Jesus scribes and Pharisees, which were of Jerusalem, saying, Why do thy disciples transgress the tradition of the elders? for they wash not their hands when they eat bread. But he answered and said unto them, Why do ye also transgress the commandment of God by your tradition? For God commanded, saying, Honour thy father and mother: and, He that curseth father or mother, let him die the death. But ye say, Whosoever shall say to his father or his mother, It is a gift, by whatsoever thou mightest be profited by me; And honour not his father or his mother, he shall be free. Thus have ye made the commandment of God of none effect by your tradition. Ye hypocrites, well did Esaias prophesy of you, saying, This people draweth nigh unto me with their mouth, and honoureth me with their lips; but their heart is far from me. But in vain they do worship me, teaching for doctrines the commandments of men." Matthew 15:1-9.
Notice that Jesus did not say the law requiring execution of those who curse father and mother was too harsh. He used it to contrast the evil behavior of the scribes and Pharisees, who were cursing their fathers and mothers by hypocritically not providing for them, with the doctrine of washing hands when they eat bread. They were criticizing Jesus' disciples for not washing their hands, when the critics themselves deserved death for their sins. He was not saying that the law was too harsh or unjust; He was saying that they were ignoring a just law of God in order to follow their own manmade rules. Which is the standard for justice - you or God? You think His law is too harsh? You could do a better job? No, you couldn't. But that is exactly what we have done in our modern, progressive times - we've come up with "better" laws than God could come up with. How far is your heart from God? As far as your lips are from affirming the law of God.
The scribes and Pharisees were too harsh when they should have been lenient, and they were too lenient, when the law might threaten them. They did not follow God's law. Their failure in that area was one of the reasons that Christ was so harsh in condemning them. Notice that Jesus uses a law that today would be mocked as utterly barbaric in our "modern, tolerant-of-juveniles" time. We live in the day when youths gang together, and instead of learning a trade or education in school, sell and use drugs in the streets. They shoot people who drive down the wrong road at night, and they drive by houses and apartments and shoot innocent people. They live off crime, they prostitute women, they sell mind-debilitating drugs, they get welfare checks because they don't have jobs, and they despise and dishonor their parents. But the law of God is too harsh in calling for such youths execution. We're so much more enlightened by letting them run our streets and kill the innocent for a pair of shoes.
The law Jesus quotes in Matthew 15 is akin to the law Deuteronomy 21 regarding the rebellious son.
"If a man have a stubborn and rebellious son, which will not obey the voice of his father, or the voice of his mother, and that, when they have chastened him, will not hearken unto them: Then shall his father and his mother lay hold on him, and bring him out unto the elders of his city, and unto the gate of his place; And they shall say unto the elders of his city, This our son is stubborn and rebellious, he will not obey our voice; he is a glutton, and a drunkard. And all the men of his city shall stone him with stones, that he die: so shalt thou put evil away from among you; and all Israel shall hear, and fear." Deuteronomy 21:18-21.
Notice the procedure in that law. The parents are the only ones who can act as complainants. The natural affection for one's child would prevent false accusations from occurring. The son is not a small child but someone who is a drunkard and old enough to perform work. This son is out of control, defying God by defying his parents. Respect to parents is taken very seriously by God and by Jesus.
Is some justice criminal and some civil? Where do you draw the line? If you had to draw a bright line in the western legal tradition between civil justice and criminal, which you really cannot do, you would have to use intent. Intentional conduct, as opposed to reckless or negligent conduct, is more likely to be criminal. The business that makes a defective product is not intent upon hurting you on purpose. Its behavior is in the realm of negligent behavior and results in civil lawsuits for money damages. The problem is the appropriate form of punishment for a corporation. Monetary damages punish the shareholders, not the worker or executive who made the mistake that resulted in the defective product. How do you punish the worker who decided to cut corners and put a lesser quality ingredient into the part that ended up killing people because it was weakened by that ingredient? Execution?
"And it shall be, if thou do at all forget the LORD thy God, and walk after other gods, and serve them, and worship them, I testify against you this day that ye shall surely perish. As the nations which the LORD destroyeth before your face, so shall ye perish; because ye would not be obedient unto the voice of the LORD your God." Deuteronomy 8:19-20.
So what is justice? No, who determines what justice is and how it is to be applied? What will preserve God's blessing upon a society? What standard do we use to determine a just law, a just sentence, the lawful victim?
"If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. And if any mischief follow, then thou shalt give life for life, Eye for eye, tooth for tooth, hand for hand, foot for foot, Burning for burning, wound for wound, stripe for stripe." Exodus 21:22-25.
The eye for an eye principle is a principle of justice. It is opposed to a justice system focused solely upon prevention, which might end up punishing people beyond what is just in order to put fear into others. It is also opposed to a justice system tilted toward the rich and powerful and influential. No one is above the law, and no matter your class, you are subject to the law's just demands.
People say the law of God is too harsh. Really? God, the God of mercy, the God who sent His Son to die for mankind, is too harsh? Well, the law of God was intended to drive us to Christ for mercy. Yes, but that doesn't make it untrue. The law of God is the correct incentive for seeking Christ for the very reason that it is true. It is not too harsh, nor is it overly lenient.
If the law of God is too harsh, then so is Jesus Christ.
"Then came to Jesus scribes and Pharisees, which were of Jerusalem, saying, Why do thy disciples transgress the tradition of the elders? for they wash not their hands when they eat bread. But he answered and said unto them, Why do ye also transgress the commandment of God by your tradition? For God commanded, saying, Honour thy father and mother: and, He that curseth father or mother, let him die the death. But ye say, Whosoever shall say to his father or his mother, It is a gift, by whatsoever thou mightest be profited by me; And honour not his father or his mother, he shall be free. Thus have ye made the commandment of God of none effect by your tradition. Ye hypocrites, well did Esaias prophesy of you, saying, This people draweth nigh unto me with their mouth, and honoureth me with their lips; but their heart is far from me. But in vain they do worship me, teaching for doctrines the commandments of men." Matthew 15:1-9.
Notice that Jesus did not say the law requiring execution of those who curse father and mother was too harsh. He used it to contrast the evil behavior of the scribes and Pharisees, who were cursing their fathers and mothers by hypocritically not providing for them, with the doctrine of washing hands when they eat bread. They were criticizing Jesus' disciples for not washing their hands, when the critics themselves deserved death for their sins. He was not saying that the law was too harsh or unjust; He was saying that they were ignoring a just law of God in order to follow their own manmade rules. Which is the standard for justice - you or God? You think His law is too harsh? You could do a better job? No, you couldn't. But that is exactly what we have done in our modern, progressive times - we've come up with "better" laws than God could come up with. How far is your heart from God? As far as your lips are from affirming the law of God.
The scribes and Pharisees were too harsh when they should have been lenient, and they were too lenient, when the law might threaten them. They did not follow God's law. Their failure in that area was one of the reasons that Christ was so harsh in condemning them. Notice that Jesus uses a law that today would be mocked as utterly barbaric in our "modern, tolerant-of-juveniles" time. We live in the day when youths gang together, and instead of learning a trade or education in school, sell and use drugs in the streets. They shoot people who drive down the wrong road at night, and they drive by houses and apartments and shoot innocent people. They live off crime, they prostitute women, they sell mind-debilitating drugs, they get welfare checks because they don't have jobs, and they despise and dishonor their parents. But the law of God is too harsh in calling for such youths execution. We're so much more enlightened by letting them run our streets and kill the innocent for a pair of shoes.
The law Jesus quotes in Matthew 15 is akin to the law Deuteronomy 21 regarding the rebellious son.
"If a man have a stubborn and rebellious son, which will not obey the voice of his father, or the voice of his mother, and that, when they have chastened him, will not hearken unto them: Then shall his father and his mother lay hold on him, and bring him out unto the elders of his city, and unto the gate of his place; And they shall say unto the elders of his city, This our son is stubborn and rebellious, he will not obey our voice; he is a glutton, and a drunkard. And all the men of his city shall stone him with stones, that he die: so shalt thou put evil away from among you; and all Israel shall hear, and fear." Deuteronomy 21:18-21.
Notice the procedure in that law. The parents are the only ones who can act as complainants. The natural affection for one's child would prevent false accusations from occurring. The son is not a small child but someone who is a drunkard and old enough to perform work. This son is out of control, defying God by defying his parents. Respect to parents is taken very seriously by God and by Jesus.
Is some justice criminal and some civil? Where do you draw the line? If you had to draw a bright line in the western legal tradition between civil justice and criminal, which you really cannot do, you would have to use intent. Intentional conduct, as opposed to reckless or negligent conduct, is more likely to be criminal. The business that makes a defective product is not intent upon hurting you on purpose. Its behavior is in the realm of negligent behavior and results in civil lawsuits for money damages. The problem is the appropriate form of punishment for a corporation. Monetary damages punish the shareholders, not the worker or executive who made the mistake that resulted in the defective product. How do you punish the worker who decided to cut corners and put a lesser quality ingredient into the part that ended up killing people because it was weakened by that ingredient? Execution?
"And it shall be, if thou do at all forget the LORD thy God, and walk after other gods, and serve them, and worship them, I testify against you this day that ye shall surely perish. As the nations which the LORD destroyeth before your face, so shall ye perish; because ye would not be obedient unto the voice of the LORD your God." Deuteronomy 8:19-20.
So what is justice? No, who determines what justice is and how it is to be applied? What will preserve God's blessing upon a society? What standard do we use to determine a just law, a just sentence, the lawful victim?
Thursday, February 13, 2014
Why America has a Problem of Judicial Tyranny
"The supreme court under this constitution [U.S.] would be exalted above all other power in the government, and subject to no control." Brutus, Anti-Federalist Papers 78-79, Part one is taken from the first part of “Brutus’s” 15th essay of The New-York Journal on March 20, 1788; Part two is from part one of his 16th of the New York Journal of April 10, 1788, accessed at "The Federalist Papers," http://www.thefederalistpapers.org/antifederalist-paper-78-79, Oct. 12, 2014.
Any honest person with the least legal training and who has read the Roe v. Wade opinion, the 2013 opinion on the Defense of Marriage Act & the same sex marriage opinion of 2015 will come away with this incredible question, among others: How could any court, much less the highest court of the land, act with such lawless abandon to endorse such evil? Neither opinion can be described as based on any law, any law except the opinion of a majority of the Justices on the Supreme Court. Lawless, arrogant, and unappealable.
The United States Supreme Court has now become a supreme royal ruler, acting on its own opinion and prejudice of the individual Justices. Five Justices (a majority of nine) now rules, and we know not how to stop it. Its opinions are supposed to be based on carefully analyzed and restrained opinions, but some of its most recent opinions have been based - with not even a cloak of law - on the personal opinions of five of its Justices. Why?
America likes to pride itself on being the proponent of the "rule of law," something mankind has fought for throughout history. It's what we contend for in Afghanistan. The alternative is the rule of man. But if a new ruler - a court instead of a king - becomes the final authority, with no appeal beyond it, then haven't we come full circle, if that court decides issues affecting the entire country based on its own opinion?
So, how did such an ideal and desirable goal - the rule of law - become so perverted in less then three centuries? To put it simply, once the center, the fulcrum of rulership, shifted from the church and the king to a foundational document, that is, the constitution, then those who interpret the words of that document, the lawyers, became the center of power and control over the priests and all the king's men. There is only one interpreter above the lawyer - the decision-maker, the judge who decides which lawyer in a case is correct. He that controls the interpretation of the law controls the law. If perverting the law in order to advance one's personal predilections and beliefs is the key to power, then some seem to have little compunction about engaging in such perversion.
What's scary is that the founders thought that judicial independence would be the barrier to protect us from the rule of man. They apparently did not think that things would go so awry as they have today. The following is quoted from an Alabama appellate court decision's dissenting opinion. It sums up some of that thinking.
"In this state, the scope of the power of the executive has been viewed to be only as extensive as granted by the constitution. This court in deciding a case under the Constitution of 1875, which was essentially the same as the Constitution of 1901 in its statement concerning separation of powers, stated as follows:
"‘With us, the governor has no prerogatives. He must find warrant in the written law for his every official act. He has no more power to appoint officers, when not expressly conferred, than has the president of the senate, who is of the legislative, or the chief justice of this court, who is of the judicial department: and when we go back to our constitutions and laws, in this state, from the beginning of the state government to the present, we find it has been the policy to distribute this appointing power among the several departments of the state . . . It may be true, that the governor has been invested with the greatest share of this power, but no principle or policy has been declared that the power inherently belongs to him. And we may remark that the fact that all our constitutions, in assigning appointive power of the governor, have specifically designated the particular officers to whom it applied, furnishes cogent argument that the people did not regard the power as necessarily or inherently belonging to him.’ Fox v. McDonald, 101 Ala. 51, 13 So. 416 (1893).
"Similarly the parallel development of judicial independence has been described. In his article, Separation of Powers: Judicial Independence, 35 Law & Contemp. Prob. 108 (1970), Senator Sam Ervin traces the development of judicial independence from Aristotle to Montesquieu, to the federal and state constitutions, and to the present era. His conclusions may be summarized in his language as follows:
"‘Judicial independence is the strongest safeguard against the exercise of tyrannical power by men who want to live above the law, rather than under it. The separation of powers concept as understood by the founding fathers assumed the existence of a judicial system free from outside influence of whatever kind and from whatever source, and further assumed that each individual judge would be free from coercion even from his own brethren.
"‘To my mind, an independent judiciary is perhaps the most essential characteristic of a free society. From long experience as a practicing attorney, a trial judge, an appellate judge, and now a legislator, I have had ample opportunity to observe and appreciate the safeguards embodied in the separation of powers doctrine so wisely formulated by our forefathers.'"
Morgan County Commission v. Powell, 292 Ala 300, 324, 293 So. 2d 830, 852-3 (Ala. 1974) (Heflin, C.J., dissenting).
Independence was the key; dependence on the legislature was the great evil. For some reason, they did not seem to think that independence could go too far to the other extreme, that our dependence as a citizenry would turn into inordinate trust in the judiciary, a sort of judicial idolatry. Whatever the court says is law is the law. How could they have been so blind?
Their trust was in the system they had set up. Their trust was in judges, who have no army, no weapons, no force, only the law on their side. Their trust was in the people, not royalty or those given the kingly duty of executing the laws, the executive department, which does have the force and the armies and the weapons to coerce. The judicial system seemed so safe, so weak, so trustworthy in its careful, written analysis of the law. But is it? Are ideas so safe that we don't have to worry about any manipulation of those ideas by the clever ones entrusted with interpreting the law?
Can any system devised by man avoid abuse? Can those entrusted with a large amount of power always be trusted with that power? Can we idolize and trust something, even an ingenious institutional document like the U.S. Constitutional system to the point that we have to be shown that there is no one trustworthy but God?
And what do we do about it now?
Any honest person with the least legal training and who has read the Roe v. Wade opinion, the 2013 opinion on the Defense of Marriage Act & the same sex marriage opinion of 2015 will come away with this incredible question, among others: How could any court, much less the highest court of the land, act with such lawless abandon to endorse such evil? Neither opinion can be described as based on any law, any law except the opinion of a majority of the Justices on the Supreme Court. Lawless, arrogant, and unappealable.
The United States Supreme Court has now become a supreme royal ruler, acting on its own opinion and prejudice of the individual Justices. Five Justices (a majority of nine) now rules, and we know not how to stop it. Its opinions are supposed to be based on carefully analyzed and restrained opinions, but some of its most recent opinions have been based - with not even a cloak of law - on the personal opinions of five of its Justices. Why?
America likes to pride itself on being the proponent of the "rule of law," something mankind has fought for throughout history. It's what we contend for in Afghanistan. The alternative is the rule of man. But if a new ruler - a court instead of a king - becomes the final authority, with no appeal beyond it, then haven't we come full circle, if that court decides issues affecting the entire country based on its own opinion?
So, how did such an ideal and desirable goal - the rule of law - become so perverted in less then three centuries? To put it simply, once the center, the fulcrum of rulership, shifted from the church and the king to a foundational document, that is, the constitution, then those who interpret the words of that document, the lawyers, became the center of power and control over the priests and all the king's men. There is only one interpreter above the lawyer - the decision-maker, the judge who decides which lawyer in a case is correct. He that controls the interpretation of the law controls the law. If perverting the law in order to advance one's personal predilections and beliefs is the key to power, then some seem to have little compunction about engaging in such perversion.
What's scary is that the founders thought that judicial independence would be the barrier to protect us from the rule of man. They apparently did not think that things would go so awry as they have today. The following is quoted from an Alabama appellate court decision's dissenting opinion. It sums up some of that thinking.
"In this state, the scope of the power of the executive has been viewed to be only as extensive as granted by the constitution. This court in deciding a case under the Constitution of 1875, which was essentially the same as the Constitution of 1901 in its statement concerning separation of powers, stated as follows:
"‘With us, the governor has no prerogatives. He must find warrant in the written law for his every official act. He has no more power to appoint officers, when not expressly conferred, than has the president of the senate, who is of the legislative, or the chief justice of this court, who is of the judicial department: and when we go back to our constitutions and laws, in this state, from the beginning of the state government to the present, we find it has been the policy to distribute this appointing power among the several departments of the state . . . It may be true, that the governor has been invested with the greatest share of this power, but no principle or policy has been declared that the power inherently belongs to him. And we may remark that the fact that all our constitutions, in assigning appointive power of the governor, have specifically designated the particular officers to whom it applied, furnishes cogent argument that the people did not regard the power as necessarily or inherently belonging to him.’ Fox v. McDonald, 101 Ala. 51, 13 So. 416 (1893).
"Similarly the parallel development of judicial independence has been described. In his article, Separation of Powers: Judicial Independence, 35 Law & Contemp. Prob. 108 (1970), Senator Sam Ervin traces the development of judicial independence from Aristotle to Montesquieu, to the federal and state constitutions, and to the present era. His conclusions may be summarized in his language as follows:
"‘Judicial independence is the strongest safeguard against the exercise of tyrannical power by men who want to live above the law, rather than under it. The separation of powers concept as understood by the founding fathers assumed the existence of a judicial system free from outside influence of whatever kind and from whatever source, and further assumed that each individual judge would be free from coercion even from his own brethren.
"‘To my mind, an independent judiciary is perhaps the most essential characteristic of a free society. From long experience as a practicing attorney, a trial judge, an appellate judge, and now a legislator, I have had ample opportunity to observe and appreciate the safeguards embodied in the separation of powers doctrine so wisely formulated by our forefathers.'"
Morgan County Commission v. Powell, 292 Ala 300, 324, 293 So. 2d 830, 852-3 (Ala. 1974) (Heflin, C.J., dissenting).
Independence was the key; dependence on the legislature was the great evil. For some reason, they did not seem to think that independence could go too far to the other extreme, that our dependence as a citizenry would turn into inordinate trust in the judiciary, a sort of judicial idolatry. Whatever the court says is law is the law. How could they have been so blind?
Their trust was in the system they had set up. Their trust was in judges, who have no army, no weapons, no force, only the law on their side. Their trust was in the people, not royalty or those given the kingly duty of executing the laws, the executive department, which does have the force and the armies and the weapons to coerce. The judicial system seemed so safe, so weak, so trustworthy in its careful, written analysis of the law. But is it? Are ideas so safe that we don't have to worry about any manipulation of those ideas by the clever ones entrusted with interpreting the law?
Can any system devised by man avoid abuse? Can those entrusted with a large amount of power always be trusted with that power? Can we idolize and trust something, even an ingenious institutional document like the U.S. Constitutional system to the point that we have to be shown that there is no one trustworthy but God?
And what do we do about it now?
Sunday, February 2, 2014
Oaths 1 - A Discounted Power
Jesus said, "Again, ye have heard that it hath been said by them of old time, Thou shalt not forswear thyself, but shalt perform unto the Lord thine oaths: But I say unto you, Swear not at all; neither by heaven; for it is God's throne: Nor by the earth; for it is his footstool: neither by Jerusalem; for it is the city of the great King. Neither shalt thou swear by thy head, because thou canst not make one hair white or black. But let your communication be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil." Matthew 5:33-7.
But this warning on how to speak the truth in your personal life, if taken to the extreme and applied to all contexts, even courtrooms and the covenantal contexts, of course, would deny oaths altogether. Jesus was speaking to the misuse of oaths, like "I swear on a stack of bibles that I'm telling you the truth!" Jesus said to not do that. You're trying to enhance your word, which apparently has little credibility with the people you're speaking with, either because of their evil cynicism or your bad reputation for not telling the truth.
The courtroom is where the Ninth Commandment applies. There you're facing the justice system of the state, and when it is possible that people can lie and perhaps get away with it because there's no evidence to the contrary, it is right and appropriate to demand that they swear to tell the truth before God, knowing His ability to judge the false testifier in this life and the next. The state, as a covenantal institution with the responsibility of justice before the God who ordained it, can and should demand your oath to tell the truth.
The Church, another covenantal institution, "the pillar and foundation of the truth," and the one charged with the more important task of guarding the keys of the kingdom, also has the right to demand it. It demands it of its ministers, of those entering into marriage, and of those at baptism, who implicitly swear to follow the Head of the Church to death if necessary to show their faith in Him.
Ray Sutton, whom I mentioned earlier wrote the book on the covenant, posited five points to a covenant: Authority, Historical Prologue, Law, Sanctions, Continuity. These elements are essential to a covenantal institution. What are the covenantal institutions - family, church, and state. Each involves an oath - the family's oath appears in the wedding vows, the church's oath appears in baptism and the vows of the ordained ministers and appointed servants of the church, and the state's oath is in the oath of office of each elected official. If you lack any particular element, then the institution is weakened, even destroyed.
Consider for example the family. If there is no authority over marriage, then it would simply be a matter of living together and breaking up if needed. What is the history behind marriage? How would we define it? Wouldn't it be malleable into just about anything as time went by? Without a law to determine the boundaries of marriage, then sexual fidelity would mean very little unless there was personal preference by the participants for such fidelity. If there was not punishment for violating the rules of marriage, then the law of marriage would be impotent. The continuation of life itself is dependent upon marriage. The value of children, loyalty, love, support, etc. All of this flows from marriage and the family, and it does or does not continue based on the governing elements of the covenant.
These elements are obvious in the operation of the state. A hierarchy, a history of the people and the formation of their government, law, punishment for violating that law, and the future of that people, their elected officials and their successors, and their form of government. The U.S. Constitution incorporates these five elements. "We the People" are the sovereign, and we all know the history - fight against royal tyranny, violation of the rule of law, no taxation without representation, a constitution should rule not a king. The legislature creates laws, and the executive enforces those laws with sanctions against those who violate the law. Elected officials are elected for terms, and the Constitution with amendments continues as the foundation of the nation.
The Constitution does not state what the law should be. There are historical examples and tidbits, like capital punishment for treason and impeachment for high crimes and misdemeanors, but the Constitution is a foundational document, not the law itself. The Constitution says nothing about the law being God's law, based on the bible, or Christian in origin. Some argue it is implied. Is it?
Israel was given laws by God through Moses. One fundamental instruction was that the king, the ruler of the nation, would have to be an Israelite. Deuteronomy 17:14-17. Was this an anti-immigrant law? Remember Israel was supposed to be a light to the nations, a special people who would show forth the truth of the true and living God. But to have that religious separation, it required geographic separation because geography in the ancient world determined political, social, and religious loyalty. Immigrants could become Israelites. Witness Rahab in Joshua 6. See also Heb. 11:31; James 2:25. The problem was religious loyalty, not ethnicity or nationality.
Who are your rulers to be - Christians or non-Christians? Yes, we don't have kings, but we have officials that we elect to rule us. Those we elect are the equivalent of kings, only their power is dispersed instead of concentrated. Do you want the "foreigner" ruling? That is, the foreigner in covenant, the foreigner in faith, the foreigner to God and His law. Is that what we've gotten to in forgetting God's word on civil government? We don't care who rules a Christian people?
But that's just the first element of a covenantal institution. What about the others?
Oaths are involved in the punishment element because the oath calls down God's curse upon the one who violates the oath. Oaths today aren't taken seriously these days, probably because God Himself isn't taken seriously. But it is God who ensures that oaths are kept, either by the person making the oath or by issuing consequences for the person who fails to keep his oath.
So, the first element is the authority governing the institution. Is "We the people" the authority in a Christian republic? What about God? What kind of oath would a person serving in the institution of civil government make if they are to serve a Christian republic? Does the official swear to serve the American people as the sovereign . . . even if they defy the God of the bible? What law? Will any law do? Only those not entirely contradictory to the law of God?
Let's keep our obedience to God as minimal as possible. Let's keep ourselves the supreme authority. Let's ignore God's law. Let's take oaths that don't matter, and let's call our society Christian. Really now?! Could we get any more humanistic?
But this warning on how to speak the truth in your personal life, if taken to the extreme and applied to all contexts, even courtrooms and the covenantal contexts, of course, would deny oaths altogether. Jesus was speaking to the misuse of oaths, like "I swear on a stack of bibles that I'm telling you the truth!" Jesus said to not do that. You're trying to enhance your word, which apparently has little credibility with the people you're speaking with, either because of their evil cynicism or your bad reputation for not telling the truth.
The courtroom is where the Ninth Commandment applies. There you're facing the justice system of the state, and when it is possible that people can lie and perhaps get away with it because there's no evidence to the contrary, it is right and appropriate to demand that they swear to tell the truth before God, knowing His ability to judge the false testifier in this life and the next. The state, as a covenantal institution with the responsibility of justice before the God who ordained it, can and should demand your oath to tell the truth.
The Church, another covenantal institution, "the pillar and foundation of the truth," and the one charged with the more important task of guarding the keys of the kingdom, also has the right to demand it. It demands it of its ministers, of those entering into marriage, and of those at baptism, who implicitly swear to follow the Head of the Church to death if necessary to show their faith in Him.
Ray Sutton, whom I mentioned earlier wrote the book on the covenant, posited five points to a covenant: Authority, Historical Prologue, Law, Sanctions, Continuity. These elements are essential to a covenantal institution. What are the covenantal institutions - family, church, and state. Each involves an oath - the family's oath appears in the wedding vows, the church's oath appears in baptism and the vows of the ordained ministers and appointed servants of the church, and the state's oath is in the oath of office of each elected official. If you lack any particular element, then the institution is weakened, even destroyed.
Consider for example the family. If there is no authority over marriage, then it would simply be a matter of living together and breaking up if needed. What is the history behind marriage? How would we define it? Wouldn't it be malleable into just about anything as time went by? Without a law to determine the boundaries of marriage, then sexual fidelity would mean very little unless there was personal preference by the participants for such fidelity. If there was not punishment for violating the rules of marriage, then the law of marriage would be impotent. The continuation of life itself is dependent upon marriage. The value of children, loyalty, love, support, etc. All of this flows from marriage and the family, and it does or does not continue based on the governing elements of the covenant.
These elements are obvious in the operation of the state. A hierarchy, a history of the people and the formation of their government, law, punishment for violating that law, and the future of that people, their elected officials and their successors, and their form of government. The U.S. Constitution incorporates these five elements. "We the People" are the sovereign, and we all know the history - fight against royal tyranny, violation of the rule of law, no taxation without representation, a constitution should rule not a king. The legislature creates laws, and the executive enforces those laws with sanctions against those who violate the law. Elected officials are elected for terms, and the Constitution with amendments continues as the foundation of the nation.
The Constitution does not state what the law should be. There are historical examples and tidbits, like capital punishment for treason and impeachment for high crimes and misdemeanors, but the Constitution is a foundational document, not the law itself. The Constitution says nothing about the law being God's law, based on the bible, or Christian in origin. Some argue it is implied. Is it?
Israel was given laws by God through Moses. One fundamental instruction was that the king, the ruler of the nation, would have to be an Israelite. Deuteronomy 17:14-17. Was this an anti-immigrant law? Remember Israel was supposed to be a light to the nations, a special people who would show forth the truth of the true and living God. But to have that religious separation, it required geographic separation because geography in the ancient world determined political, social, and religious loyalty. Immigrants could become Israelites. Witness Rahab in Joshua 6. See also Heb. 11:31; James 2:25. The problem was religious loyalty, not ethnicity or nationality.
Who are your rulers to be - Christians or non-Christians? Yes, we don't have kings, but we have officials that we elect to rule us. Those we elect are the equivalent of kings, only their power is dispersed instead of concentrated. Do you want the "foreigner" ruling? That is, the foreigner in covenant, the foreigner in faith, the foreigner to God and His law. Is that what we've gotten to in forgetting God's word on civil government? We don't care who rules a Christian people?
But that's just the first element of a covenantal institution. What about the others?
Oaths are involved in the punishment element because the oath calls down God's curse upon the one who violates the oath. Oaths today aren't taken seriously these days, probably because God Himself isn't taken seriously. But it is God who ensures that oaths are kept, either by the person making the oath or by issuing consequences for the person who fails to keep his oath.
So, the first element is the authority governing the institution. Is "We the people" the authority in a Christian republic? What about God? What kind of oath would a person serving in the institution of civil government make if they are to serve a Christian republic? Does the official swear to serve the American people as the sovereign . . . even if they defy the God of the bible? What law? Will any law do? Only those not entirely contradictory to the law of God?
Let's keep our obedience to God as minimal as possible. Let's keep ourselves the supreme authority. Let's ignore God's law. Let's take oaths that don't matter, and let's call our society Christian. Really now?! Could we get any more humanistic?
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