We know a court, every court, is not a representative body and should not be. See post titled "Judges and Democratic Representation." How do we keep a court from going beyond its authority? What does the bible say? Remember that I'm not looking to simply save the American Constitutional system; the goal is a biblical system. Here are three ways to to solve the problem.
First, we must reexamine the concept of judicial review, which allows the U.S. Supreme Court to rule any law unconstitutional but allows no other part of the civil government to superintend the Supreme Court. A judge reviews a case, a dispute. In the bible, the law of God was not subject to review, only the case or controversy. In American law, we know that human law does not necessarily equate to biblical law; therefore, it should be reviewed. For what? For conformity to biblical law. The only judicial review that a judge should engage in is whether it conforms to the bible.
What about the U.S. Constitution? It is not substantive law. How can a law violate the U.S. Constitution if it conforms to the bible? First, we have not established that the Constitution conforms to the Bible. Second, we have determined that the Constitution's religious test clause in Article VI is Unitarian and Humanist, not Biblical. See post titled "Oaths 3."
Unlike the laws of the colonies and early states, which required belief in the bible and the Trinitarian God, the U.S. Constitution forbid the requiring of any belief at all, except in the Constitution. It was that decision to not restrict rule to believers in Christ and the bible, apparently based on a naive belief that Christians and non-Christians could work together to have a just and prosperous society, that led to what we have now. The righteous cannot let the wicked rule over them; they cannot be trusted with the bible, the very source and spring of the Truth, so how can they be trusted with rule and enforcement of law?
Second, we cannot put our faith in the judicial system, even a biblical one. Law doesn't save man. Jesus told a parable about an unjust judge in Luke 18:1-8. This judge wasn't so evil that he was trying to change God's law; he simply didn't enforce God's law properly. That caused a widow to pester him to the point that he relented and granted her justice. The point of the parable was not that we are to pester judges but that we are to pray to God, the just Judge who is more likely to grant us justice, and persist in our belief in Him.
There is no perfect justice system created by man. And life doesn't revolve around the state and its rules. Modern man has developed the foolish notion, the irrational notion, that somehow the state's political structure and exercise of the force of law will bring "the good life" to him. Life is not meant to revolve around the state. It is the productive part of society, the people exercising their freedom to develop, build, and serve the rest of society which is primary. The state merely protects that aspect of society.
Third, there must be a check on the judicial system. But how do you create a check on the judge without having an improper influence upon the judge? Impeachment is a fundamental part of the American constitutional system, even being a part of the constitutions of the States. Yet, the problem with such impeachment processes is that they only deal with unethical or illegal personal conduct; impeachment does not deal with philosophical defection from the fundamentals of the constitution. And if a religious test clause as to belief in the bible and the Trinity were to be a fundamental part of a constitution, then defection from that foundation would provide a substantial basis for determining whether an opinion defected from that basis. In other words, a biblical test clause would provide the substrate for a more potent impeachment threat.
Or course, a more potent impeachment threat would require some limit upon the legislature to keep it from overwhelming, even undermining, the judicial branch. This limit would have to be stated in the constitution. A limited foundational theological test would provide a way to test the faithfulness of the judiciary to the constitution. Has the judge remained faithful to his oath? In a biblical republic, that oath included a commitment to the bible and the Trinity. The oath-faithfulness question would govern the prosecutorial charge by the legislature. That oath would be based upon the bible and the Trinity. Right now, the oath is based on faithfulness to the constitution, which is not as clear a substrate of thought from which to derive an analysis of the judge's philosophy, as expressed in the judge's opinions.
How far would we have to go? Would the judge have to believe in infant baptism or a certain understanding of communion? Of course not, for as to such issues, the Church is the governing authority. Separation of Church and State would apply to prevent the application of the minutia of church doctrine to what the judge must believe and to which he must adhere. What about a socialist judge? Would his oath prevent him from ruling in a socialist fashion? Of course. Socialism is theft, a violation of the eighth commandment. What would be another example? For example, a judge ruling abortion to be legal would be subject to impeachment for violating his oath of faithfulness to a fundamental law of the bible - the sixth commandment.
So we can say that any ruling that clearly violated or allowed violation of the ten commandments would be something that could subject a judge to impeachment.
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