After the defeat of Hitler’s Third Reich, war crime tribunals were set up in Nuremberg, Germany. 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 its being imposed 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 for so many 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. ((William Blackstone, Commentaries on the Laws of England, 4 vols. (Chicago, IL: The University of Chicago Press, [1765–1769] 1979), 1:38, 41, 42.))
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. 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.”2 The shattered foundation of natural law theory, like Humpty Dumpty, can never be put together again as long as evolution remains our national religion.3
Given materialist assumptions about the origin and destiny of man, natural law theory is by definition dead. It’s surprising that America is not worse of morally since secular assumptions are firmly rooted in every major university and law school in the country. Contrary to what some Christian philosophers and ethicists maintain, logically there is no “common moral ground upon which to engage the secular world in the public square over moral issues” and “all human beings” do not “recognize certain truths.”4 So what’s keeping our world from disintegrating? Fortunately, few secularists are consistent with their materialist assumptions.
For example, Libertarians are working hard to make the case that their worldview “can fix what’s wrong with America.” In their book The Declaration of Independents, authors Nick Gillespie and Matt Welch argue for a Libertarian ethic based on the Declaration of Independence, a document they describe as “the most influential English-language formulation of liberty written during the 1700s” (ix). They focus on what they consider to be “the refreshing blast of radical Enlightenment thought contained within” the following “three dozen words” (ix):
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
I was surprised that the authors would begin their defense of Libertarians by an appeal to this section of the Declaration that specifically links Inalienable rights” with a “Creator.” A Creator assumes the existence of God. The existence of God presupposes a law-giver, and yet Libertarians almost never reference God in defense of their worldview. They can’t and be consistent. It’s one thing to appeal to a Creator in defense of inalienable rights and the undefined “pursuit of happiness” to keep politicians from ruling our lives, but it’s another thing to ignore the Creator when it comes to moral particulars given that the Declaration also states that the He is “the Supreme Judge of the world.”
When Gillespie and Welch were interviewed by John Stossel, they pushed for the acceptance of “alternative lifestyles,” including homosexual marriage based, I suspect, on non-governmental interference and the God-given right to pursue happiness as long as this pursuit doesn’t hurt anyone else. But if God was the Supreme Judge of a nation like Great Britain and a ruler like King George III, then why isn’t He the judge of all of us as well? It’s one thing to make the case, as Libertarians do, that the State is under moral and jurisdictional restraint in governing in the civil realm, but it’s another thing to exclude individuals from the same moral scrutiny in self-government.
While God gets a nod in The Declaration of Independents, He’s never mentioned again except when the authors make the point that America is the most religiously diverse nation in the world. But with all of America’s religious diversity, it seems that religion is irrelevant in shaping any national moral consensus and has led to “everyone doing what is right in his own eyes” (Judges 17:6).
Every signer of the Declaration of Independence, including its author Thomas Jefferson, believed that homosexuality was against “the laws of nature and of nature’s God,” a phrase also found in the Declaration. Even the Supreme Court acknowledged that the pursuit of happiness and inalienable rights did not include the moral or civil acceptance of homosexuality. In Bowers vs. Hardwick (1986) the Supreme Court concluded:
Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws.5
So if you are a Libertarian, please don’t try to make your case for homosexuality and homosexual marriage by an appeal to the Declaration of Independence. It can’t be done. In addition, to remove God from the discussion won’t help either. Once God is gone, everything becomes permissible and possible, whether it’s consented to or not.
- John Warwick Montgomery, The Law Above the Law (Minneapolis, MN: Dimension Books/Bethany Fellowship, 1975), 24–25. [↩]
- Gary North, Political Polytheism (Tyler, TX: Institute for Christian Economics, 1989), xxii. [↩]
- Gary DeMar, “The Religion of Evolution,” Biblical Worldview (October 2002). [↩]
- Miguel Endara, “‘The Law Written on Their Hearts’: Natural Law Reasoning as Common Moral Ground,” Christian Research Journal, 25:2 (2002), 24, 26. [↩]
- Bowers vs. Hardwick (1986), 478 US 186, 92 L Ed 2d 140, 106 S Ct 2841, reh den (US) 92 L Ed 2d 779, 107 S. Ct 29., 147‑48. The plaintiffs in the Hardwick case were caught engaging in the act of sodomy only after the police entered the house on an unrelated case. [↩]