Supreme Court Justice Antonin Scalia, speaking at the Woodrow Wilson International Center for Scholars on March 15, 2005, weighed in on the latest Supreme Court ruling on the death penalty. If you recall, a majority of the justices (5–4) ruled that the death penalty could not be applied to anyone under the age of 18. The March 1 ruling was based on “evolving notions of decency.” The logic of the ruling is self-evident: The Constitution is no longer “the law of the land”; it has become a flexible document in the hands of those who are using personal moral preferences as a basis for law. Scalia hammered at this point: “If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.” But questions remain: By what standard? Persuade them in terms of what?

We’ve seen this problem before. After the defeat of Hitler’s Third Reich, war crime tribunals were set up in Nuremberg. The purpose, of course, was to judge those who had participated in the grossest of atrocities, the planned extermination of the Jewish race. John Warwick Montgomery explains the problem the tribunal faced:

When the Charter of the Tribunal, which had been drawn up by the victors, was used by the prosecution, the defendants very logically complained that they were being tried by ex post facto laws; and some authorities in the field of international law have severely criticized the allied judges on the same ground. 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. Faced with this argument, Robert H. Jackson, Chief Counsel for the United States at the Trials, was compelled to appeal to permanent values, to moral standards transcending the life-styles of particular societies—in a word, to a “law beyond the law” of individual nations, whether victor or vanquished.[1]

How did the Tribunal account for this “law beyond the law”? What justification was given for imposing it ex post facto? The Tribunal could not appeal to the Bible. Revealed religion had been discounted decades before. Higher Criticism, which had its start in Germany, had effectively destroyed the Bible as a reliable standard for history and law. What about natural law? Sir William Blackstone, whose Commentaries on the Laws of England served as the primary foundation of law from the time of the War for Independence to the time of the War between the States, developed a natural law theory based on the doctrine of creation:

Thus when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be.

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This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are in validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

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Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered [permitted] to contradict these.[2]

But with the publication and adoption of Charles Darwin’s On the Origin of Species in 1859 by the scientific and legal professions, Blackstone’s legal worldview was considered to be quaint and anachronistic. Darwinism made natural law a logical impossibility. How could an immaterial law be derived from a purely material cosmos that had come into existence by chance? “Charles Darwin destroyed natural law theory in biological science. . . . His successors destroyed natural law theory in social science. In the 1920’s, quantum physics destroyed natural law theory in the subatomic world. This immediately began to undermine modern legal theory.”[3] The shattered foundation of natural law theory, like Humpty Dumpty, can never be put together again as long as evolution remains our national religion.[4] At the moment, natural law theory is dead given materialist assumptions that are firmly rooted in every major secular university and law school in the country.

An appeal to the people generally must take one more step. A fixed set of moral standards must serve as the foundation for the moral views of the people, judges, legislators, and the Constitution. In a First Things article, Scalia wrote, after quoting Romans 13:1–4, “But the core of [Paul’s] message is that government—however you want to limit that concept—derives its moral authority from God. It is the ‘minister of God’ with powers to ‘revenge,’ to ‘execute wrath,’ including even wrath by the sword (which is unmistakably a reference to the death penalty). Paul of course did not believe that the individual possessed any such powers. Only a few lines before this passage, he wrote, ‘Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.’ And in this world the Lord repaid—did justice—through His minister, the state. These passages from Romans represent the consensus of Western thought until very recent times.”[5]

When the people embrace these principles, then Justice Scalia’s views will become a reality. Appealing to the people, and trying to persuade the people without a mutual agreement that there are fixed moral standards, the arbitrary personal moral views of five justices are not much different from the arbitrary personal moral views of 280 million citizens.


[1] John Warwick Montgomery, The Law Above the Law (Minneapolis, MN: Dimension Books/Bethany Fellowship, 1975), 24–25. [2] William Blackstone, Commentaries on the Laws of England, 4 vols. (Chicago, IL: The University of Chicago Press, [1765–1769] 1979), 1:38, 41, 42. [3] Gary North, Political Polytheism (Tyler, TX: Institute for Christian Economics, 1989), xxii.
[4] Gary DeMar, “The Religion of Evolution,” Biblical Worldview (October 2002).
[5] Antonin Scalia, “God’s Justice and Ours, First Things 123 (May 2002), 17–21.