We’ll continue the last post by looking at the supreme court in relation to acting on the truth. As previously stated the primary purpose of government is to protect its citizen’s rights. To that end three separate branches of federal government were established, each with limited powers, and each with the incentives and ability to provide a check on the advance of power by the others.
We’ll start with some thoughts from our Founders as their views represented the intent for the court at the time of our founding, regardless of whether you believe the constitution is a living document or not. Below are just a few quotes from the Federalist Papers about the nature of power, its structure, and the intended role of the judiciary.
‘We may define a republic to be … a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.’ (Number 39)
‘The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national, in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers it is national, not federal; in the extent of them again, it is federal not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.’ (Number 39)
‘The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will … be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.’ (Number 45)
‘It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers.’ (Number 48)
‘All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government.’ (Number 48 and Jefferson’s Notes on the State of Virginia)
‘An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy.’ (Number 48)
‘But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.’ (Number 51)
‘Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.’ (Number 51)
‘All judges who may be appointed by the United States are to hold their offices during good behavior.’ (Number 78)
‘… the general liberty of the people can never be endangered from that quarter [the judiciary]: I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”’ (Number 78)
‘The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning … Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people declared in the Constitution, the judges ought to be governed by the latter rather than the former.’ (Number 78)
‘It can be of no weight to say that the courts, on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature … The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.’ (Number 78)
From the above statements, we can draw the following principles:
We have a republic, not a democracy, which is both federal and national in its composition.
Federal officials are to hold office only for a limited time period or during good behavior.
Power is diffused and balanced among the several branches, including the judiciary. Federal power was to be limited and defined, its focus was to be primarily external or toward things that the States could not easily do for themselves – such as arbitrating disputes between each other.
All power is derived from the people, and all federal government power results from the legislative branch. However, each branch is to remain unencumbered within its defined functions, while at the same time having some incentive to maintain their power from encroachment by the other branches.
Justice is the end of government, and the judiciary’s role is to judge the law.
Where laws contradict, the court is to look to the Constitution as the supreme law. The court is to use judgment in its decisions, and not merely exercise its will, as the Constitution is an expression of ‘fundamental law’.
So how well has the supreme court done in the exercise of its responsibility? Has it used judgment or merely exercised its collective will in its decisions. One can look at some of the cases generally considered to be landmark in order to draw some insights into this question. Consider the Dred Scott decision before the War Between the States that reinforced slaves being merely property. Consider also the string of decisions made during FDR’s administration after Roosevelt failed in his attempt to pack the court with justices who would be sympathetic with his views. Policies that were previously denied as unconstitutional were suddenly okay. Decisions were reached that upheld the Social Security Act, and the ability to tax some groups in order to subsidize others – so much for equality under the law. Indeed the view underlying the latter decision expressed a contrary collective view that some are more equal than others.
But it doesn’t end there. The NLRB decision of 1937 gave Congress the power to regulate labor disputes with only an intra-state impact, and a decision made the following year reversed original intent by declaring federal law was constitutional unless there were specific prohibitions expressed within the Constitution. So much for the negative powers as originally expressed. This and more took place during the FDR administration.
But it hasn’t ended there either. In the Brown v Board of Education decision the court declared a ‘new law for a new day’. The trouble is that the judiciary does not make law, the legislature does, an illegal usurping of power wrapped in a pleasing and well-intended package. Also the judiciary cannot amend the Constitution. There is a specific process already in place for that as well. It has done both. We can also look at a more recent decision which rivals the Dred Scott decision in its moral bankruptcy. That is the 1973 Roe v Wade decision that discovered a right to kill unborn babies. We are seeing the fruit of that decision today at work within Planned Parenthood. Human sexuality decisions include the 2003 Lawrence v Texas decision and the more recent decision declaring a right for same sex marriage. These two decisions reject the notion that morality underlies legislation. The problem with this notion is that all laws have a basis in morality. At least they do if one is turned toward their Creator. It is only when man is arrogant enough to turn toward himself that morality disappears as God alone provides the basis for morality.
So what has changed? When our country was founded, as a people we were guided by Divine and Natural Law. That was the basis underlying our Declaration. Human Law was to be subservient to those laws that had their basis in the Divine. Shortly after the War Between the States, the Dean of the Harvard Law School began to teach a theory based upon Positive Law instead of Natural Law. However, Positive Law was not a new concept. It was well known as early as the thirteenth century and written about by Thomas Aquinas in his Summa Theologicae. Instead, what was developed in the late eighteenth century was an elevation of human law over divine; another indication of man turning away from his Creator and toward himself. Thomas wrote about several types of law that included Eternal, Divine, Natural, Human, and Positive. These areas are not clear-cut categories within Thomas’s writings. However, there is a definitive relationship and hierarchy between the types of law. The following summarizes some of Thomas’s thoughts about each type of law.
Eternal Law is so-named as ‘the ruling idea of things which exists in God as the effective sovereign of them all has the nature of law. Then since God’s mind does not conceive in time, but has an eternal concept … it follows that this law should be called eternal.’ This type of law relates to God’s governance and as God is divine this type of law is divine and supreme over all law – believe it or not even human law. Further, ‘While not as yet existing in themselves things nevertheless exist in God in so far as they are foreseen and preordained by him … Thus the eternal concept of divine law bears the character of a law that is eternal as being God’s ordination for the governance of things he foreknows.’ This type of law resides in the mind of God. Only He fully knows and understands this type of law.
Divine Law also has God as its source, and serves two purposes. First, ‘It is evident that every lawmaker intends to direct men by means of laws toward his own end, principally … But the end which God intends is God Himself. Therefore, the divine law principally looks to the ordering of man toward God.’ ‘Since, man is best able to cling to God through love, it must be that the intention of divine law is primarily ordered to an act of love.’ In short, it is the ordering of man toward good, virtues such as charity and mercy. ‘The next point after this is that divine law intends the love of neighbor. For there should be a union in affection among those for whom there is one common end. Now, men share in common the one ultimate end which is happiness, to which they are divinely ordered. So, men should be united with each other by mutual love.’ Divine Law includes revelations such as the outward laws within scripture that includes the Ten Commandments, and the inward laws as expressed within the Gospels. While man knows Divine Law because it has been revealed to him, he does not fully know or understand Eternal Law as it exists solely within God.
There is a relationship between Eternal and Natural Law as man does share in Eternal Law. ‘Since all things are regulated and measured by eternal Law … it is evident that all somehow share in it, in that their tendencies to their own proper acts and ends are from its impression. Among them intelligent creatures are ranked under divine Providence … Thus they join in and make their own the Eternal Reason through which they have their natural aptitudes for their due activity and purpose. Now this sharing in the Eternal Law by intelligent creatures is what we call “natural law.”’ The source of these first three areas of law presents several implications. ‘Divine and natural law proceed from the divine will … and hence cannot be altered by custom proceeding from the will of man; change can come only by divine authority. Accordingly no custom can acquire the force of law against divine or natural law.’ Second, ‘It is the function of divine law to regulate relationships between men, and the relationship of man to God. Now, as a matter of general principle both of these relationships are subject to the dictates of natural law, to which the moral precepts relate (emphasis added). But both of them require to be applied to the concrete by a further law, either divine or human.’ So natural law: (1) is derived from Eternal Law, (2) like divine law comes from divine will and cannot be changed by man, (3) is related to moral precepts, and (4) requires either divine or human law for its application.
As far as human law goes, ‘The purpose of human law is to be useful to men … namely that it is consistent with religion as corresponding with divine law, that it agrees with good discipline as corresponding to natural law, and that it furthers our welfare as corresponding to human usefulness.’ Human laws are intended to bring people toward virtue. In regards to human and natural law, ‘to depend on natural law is of the essence of human law … on this head positive law and justice is divided into the jus gentium and civil law … Those precepts belong to the jus gentium which are drawn like conclusions from the premises of natural law, such as those requiring justice in buying and selling and so forth, without which men cannot live sociably together; this last is a condition of natural law, since … man is by nature a sociable animal. Constructions, however, put upon natural law are proper to civil law, and here each political community decides for itself what is fitting.’
While natural law is based upon man’s nature and his application of reason; positive law is determined by human agreement (emphasis added). Natural law’s source is divine and requires the use of the nature we’ve received from our Creator to derive it, while positive law has its source in human law. The later is influenced by culture, changes with the time and place under consideration, and considers necessity and usefulness in its framing. However, all law depends on the extent to which it promotes justice, one’s receiving what they are due. From Thomas Aquinas, ‘Now in human affairs a thing is said to be just, from being right, according to the rule of reason. But the first rule of reason is the law of nature, … Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.’
Two quick examples from Thomas’s writing show the difference between natural law and positive law. In a question posed as to whether a slave could marry without their master’s consent, he supported the right for a slave to marry, ‘slavery is of positive law; whereas marriage is of natural and Divine law.’ ‘The positive law arises out of the natural law, and consequently slavery, which is of positive law, cannot be prejudicious to those things that are of natural law.’ Second is in relation to a prostitute giving alms out of her earnings. Prostitution is a matter of positive law while giving alms is a matter of Divine law. Would anyone argue that slavery and prostitution, both having their basis in positive law, are morally right? They are made law by human agreement and have their basis in human reason, and human desire, apart from natural law.
There are many arguments that have been advanced as to why human and positive law should be elevated above the other types. One argument against the applicability of Natural Law to man has been that, ‘The freer a thing the less it is under a law. Men are freer than the other animals, because their power of deciding for themselves sets them apart. Since the other animals are not subject to natural law, then neither are men.’ By man turning toward himself he attempts to exempt himself from the divine, an exemption that is simply not grounded in reason – the opposite of natural law. When man turns in that direction he loses the moral basis of law. If you think otherwise, consider again the cases of Dred Scott, Steward Machine Co (authorization to take from some groups in order to subsidize others), Roe v Wade, Everson, and Engel v Vitale. These are cases where new rights were declared by a human court, often in contradiction of Divine and Natural law.
We no longer follow the Constitution as it was written, but instead follow the supreme court’s interpretation of it within the 3,000 page The Constitution of The United States Of America, Analysis And Interpretation. This is human arrogance. Think that statement is wrong? Here are a couple of statements by supreme court justices.
‘We are under a Constitution, but the Constitution is what the judges say it is,’ Charles Evans Hughes while Governor of New York.
‘The federal judiciary is supreme in the exposition of the law of the Constitution,’ Chief Justice Earl Warren.
Both of the above are clear statements rooted in elitism. The three branches of government each have a specific role and were intended to provide checks and balances on the others. In the absence of morality that comes with turning to positive/human law we instead see collusion and selective enforcement of the law. We see the usurpation of power from other branches. We see cities defying Federal law and people entrusted to their protection dying as a result. We see organizations negotiating to sell body parts from unborn babies that they have killed. We see elitism in some of its ugliest forms, and this elitism gives rise to the false perception that those who are part of that elite have the right to rule.
The elitism underlying collectivism is a return to the pagan philosophies of those such as Plato and Aristotle. The book of Ephesians warns us not to follow that way. ‘So this I say, and affirm, together with the Lord, that you walk no longer just as the Gentiles also walk, in the futility of their mind, being darkened in their understanding, excluded from the life of God because of the ignorance that is in them, because of the hardness of their heart; and they, having become callous, have given themselves over to sensuality for the practice of every kind of impurity with greediness.’
I’ll close with a final quote from Thomas Aquinas.
‘As Aristotle says, it is better that all issues be regulated by law than to be left to the decision of judges. Three reasons may be given. First, because it is easier to find the few wise men who suffice to frame rightful laws than the many required to judge aright about every single case. Secondly, because framing the laws allows for a long time during which to ponder over what they should enforce, whereas judgments on particular facts are about cases which suddenly blow up. … Thirdly, because lawgivers judge on the general lie of the land and with an eye to the future, whereas magistrates have to decide on the case before them, about which they can be affected by love or hate or some partiality, and this can impair their judgment.’
Just consider again some of the historical decisions that the court has made, and the laws and rights they have created outright as a result of those decisions. Then ask yourself – are we on the right track?