Higher Law vs. Horizontal Law

The Constitution states that it is “the supreme law of the land” (Art. 6). This can’t mean that it is the supreme moral law of the land since there is very little of what we think of moral law in it. The Constitution is the supreme law of the land only in terms of what powers are actually enumerated in the document itself. If the Constitution does not address a topic, it has no authority over it and therefore does not carry the validity of “supreme law.” The Constitution assumes an existing body of moral law. That’s why you will not find a prohibition against murder, rape, theft, marriage. These moral issues were settled by the populations of the various colonies (and later states) and were written into their law codes.[1] Paul Campos, law professor at the University of Colorado, is nearly correct when he writes:

Like all hotly contested questions of constitutional law, the question of whether abortion is a constitutional right has nothing to do with the meaning of the Constitution. What decides constitutional questions are the political preferences and ideological inclinations of federal judges, and nothing more.[2]

And where are these “political preferences and ideological inclinations” found and shaped? That’s the real and only meaningful question, and it’s the question that modern-day jurists do not want to answer. Attempts are made to anchor present judicial decisions in previous decisions. That only takes them back a notch. At some point, there has to be a final notch. The anchor must come to rest on something solid, unmovable, and ultimately stable. While the proper understanding of a fixed law might change, the law itself and its transcendent origin cannot.

Soon after Charles Darwin, law logically had no foundation upon which it could be built. In fact, law could be nothing more than a flexible sociological construct hurriedly assembled for any moment in time to meet immediate circumstances. It was Christopher Langdell (1826–1906), dean of Harvard Law School and founder of the “case method” of teaching law, who impacted legal education with “his belief that the basic principles and doctrines of the law were the products of an evolving and growing process over many years.”[3] Every secular law school, college, university, and public school in America today has a worldview that is consistent with Langdell’s evolutionary views. Why are we surprised when the Supreme Court and lesser courts rule in terms of evolving ethical assumptions? Moreover, why are we surprised when some people act consistently with the evolution model they were taught as scientific fact? Americans are shocked when kids kill other kids. Given what kids are taught, we should be shocked at the shock:

When he died, [Eric] Harris [one of the Columbine killers] was wearing a white T-shirt with the inscription “Natural Selection” on its front. . . . It’s not clear what the shirt’s inscription referred to, but there’s a video game with the same name. The game’s World Wide Web site says it encompasses a “realm where anything can happen,” a place for the “bravest of the brave and the fiercest of the fierce. It is a place where survival of the fittest takes a very literal meaning. . . . It’s the natural way, it’s Natural Selection,” the game’s maker wrote.[4]

Eric Harris and Dylan Klebold were acting with logical consistency: No God . . . no religious-based morality . . . survival of the fittest. In essence, they were only following orders that were logically derived from the operating assumptions of their officially sanctioned worldview.[5]

At the Nuremberg Trials, “the most telling defense offered by the accused was that they had simply followed orders or made decisions within the framework of their own legal system, in complete consistency with it, and that they therefore could not rightly be condemned because they deviated from the alien value system of their conquerors.”[6] Germany, and much of the West, had adopted Positivist Law whereby “law is based exclusively on the will of the State.”[7] For a time, the Nazi atrocities dampened the appeal of Positivist Law. “If the Positivists are right, then man has no rights and the States have no rights; there is no freedom and no basic equality of men and nations.”[8]

In order to bring sanity to the world, an “alien value system” had to be brought to Nuremberg. It was a belief in a higher law, a law above the law that even judges and those “simply following orders” must acknowledge. Without it, the Nuremberg trials never would have taken place. But in the long run, the “higher law” of Nuremberg was ad hoc. It lasted only long enough to convict those who had participated in “war crimes.” The prosecutors were living off their moral memory that had been discounted scientifically. Soon after, everything went back to normal. Today’s courts operate within the autonomous boundaries of their own understanding of law. In principle, their rulings are no different from those of Adolf Hitler if there is no transcendent reference point. Former New York City mayor Ed Koch continually deferred to the Supreme Court when asked his opinion about allowing a nativity scene in a public school setting. In essence, he was declaring, “The Supreme Court said it, therefore, I must go along with it.” Former Chief Justice Roy Moore is correct when he argues, “There are too many people in our country who don’t recognize that the rule of law is not whatever a judge says. If that were true, judges in Hitler’s German would have been correct in ordering people to die.”[9]

Abraham Kuyper (1837–1920), journalist, pastor, theologian, educator, and Prime Minister of the Netherlands, could not be any more up-to-date with his assessment of what happens to the meaning of law when the state asserts its autonomous sovereignty:

Thus all transcendent right in God, to which the oppressed lifted up his face, falls away. There is no other right, but the immanent right which is written down in the law. The law is right, not because its contents are in harmony with the eternal principles of right, but because it is law. If on the morrow it fixes the very opposite, this also must be right. And the fruit of this deadening theory is, as a matter of course, that the consciousness of right is blunted, that all fixedness of right departs from our minds, . . . . That which exists is good because it exists; and it is no longer the will of God, of Him Who created us and knows us, but it becomes the ever-changing will of the State, which, having no one above itself, actually becomes God, and has to decide how our life and our existence shall be.[10]

Once God’s law is rejected, Pandora’s immoral box opens wide. What if the United Nations determines that certain laws in the United States are contrary to “international law”? To show where we are headed, three members of the United States Supreme Court have already declared that they are using “international law” as a basis for their court decisions. This was especially true with the pro-sodomy Lawrence v. Texas (2003) decision. Consider Ruth Bader Ginsburg’s judicial philosophy:

Justice Ruth Bader Ginsburg is acknowledging the growing effect of international law on Supreme Court decisions, particularly in the areas of the death penalty, race admissions and gay sex: “Our island or lone ranger mentality is beginning to change,” Ginsburg said during a speech to the American Constitution Society, a liberal lawyers group holding its first convention. Justices “are becoming more open to comparative and international law perspectives,” said Ginsburg, who has supported a more global view of judicial decision making. Ginsburg cited an international treaty in her vote . . . to uphold the use of race in college admissions.

What makes today’s use of international law attractive to so many judges? Referencing international law gives the appearance of judicial legitimacy. It’s a poor judge’s version of “higher law” which in reality is nothing more than “horizontal law.” One nation appealing to the judicial decisions of another nation is little different from Hugh Hefner asking Larry Flynt what he thinks about pornography. There might be a debate about the differences between soft and hard core pornography, but in the end, they both are going to agree on its proliferation. The law has become flexible and open to a multitude of interpretations from judges who act as gods: The law begins and stops here because we say so:

People who thus view law find incomprehensible the psalmist’s complaint about “wicked rulers . . . who frame mischief by statute” (Ps. 94:20). For if there are wicked statutes, it must mean that there is a law above the statutes by which their wickedness is identified and judged. There is a transcendent principle, a higher law, that relativizes all statutes and all sovereigns. And this is a law which says above all that the state is not God.[11]

It’s not that statists don’t believe in a god. They just don’t believe in a god who is over them, one they can’t define and control.

1. For example, see Edwin Powers, Crime and Punishment in Early Massachusetts, 1620–1692: A Documentary History (Boston: Beacon Press, 1966); George L. Haskins, Law and Authority in Early Massachusetts: A Study in History and Design (New York: Macmillan, 1960); H.B. Clark, Biblical Law, 2nd ed. (Portland, OR: Binfords & Mort, 1944). [↩]
2. Paul Campos, “Constitution real only as a document,” The Atlanta Journal-Constitution (November 13, 2003), A13. [↩]
3. John W. Whitehead, The Second American Revolution (Westchester, IL: Crossway Books, [1982] 1985), 46. [↩]
4. Kevin Vaughan, “Judge unseals autopsy report on Eric Harris,” Denver Rocky Mountain News (June 25, 1999). [↩]
5. Barbara Reynolds, “If your kids go ape in school, you’ll know why,” USA Today (August 27, 1993), 11A. [↩]
6. John Warwick Montgomery, The Law Above the Law (Minneapolis, MN: Bethany Fellowship, 1975), 24. [↩]
7. Kurt Von Schuschnigg, International Law: An Introduction to the Law of Peace (Milwaukee: The Bruce Publishing Co., 1959), 28. [↩]
8. Von Schuschnigg, International Law, 38. [↩]
9. Art Moore, “Roy Moore appeals removal from office” (December 3, 2003) www.worldnetdaily.com/news/article.asp?ARTICLE_ID=35927. [↩]
10. Abraham Kuyper, Lectures on Calvinism: The Stone Foundation Lectures (Grand Rapids, MI: Eerdmans, [1898] 1970), 89. [↩]
11. Herbert Schlossberg, Idols for Destruction: Christian Faith and Its Confrontation with American Society (Nashville, TN: Thomas Nelson, 1983), 207. [↩]