In about one month nine people will announce whether we all will face a health care mandate and a whole new wave of socialism from Obamacare. The power that these nine Americans (really only five Americans) wield over the more than 312 million people who live in the United States is really daunting if you stop to think about it. And how about the more than 54.5 million people dead from abortion because of a little court decision seven of these nine made not quite forty years ago?
Is it any surprise that six of these Justices on the United States Supreme Court are Roman Catholic? With the exception of Justice Sotomayor, who even many Catholic groups recognize is really more post modern than anything else in her worldview, most of these recent Roman Catholics on the bench actually account for the relatively conservative wing of the Justices. Four of them at least believe the Constitution has an objective meaning that can only change by constitutional amendment. That’s always nice.
In 2008, the same year I graduated from law school, I had the opportunity to sit in on the oral arguments of the D.C. v. Heller case, in which the court thankfully struck down some of the more extreme violations of the 2nd Amendment, but I was personally struck by how this lineup or mortals could with a swish of their robes decree tyranny or liberty on hundreds of millions. If you’re a self-conscious Roman Catholic or at least “high church,” the way the United States Supreme Court operates nowadays fits your theological assumptions and worldview well. Why shouldn’t a committee of elitists have greater ability and intelligence to decree the meaning of the Constitution for all? Hasn’t the Roman Church essentially been doing that with the Bible and even the supernatural revelation of God for centuries? No wonder then that Roman Catholics have accounted for over 10% of those appointed to the court since its instatement—and the majority of those appointed within the last half-century with the rise of constitutional revisionism. Before them the high church Episcopals historically have dominated with 32.4% of all the Justices since the adoption of the Constitution.1
Only three Justices have been Baptist. Only two have been Congregationalist. Of the Protestant denominations not “high church,” Presbyterians account for the largest segment that have served on the bench with 17.6% of those appointed since the Court’s creation. But the last Presbyterian appointed was in 1972, and he, Justice Lewis Powell, hardly reflected the Reformed worldview of John Witherspoon or the Presbyterians of the Covenantal era. Evangelical Christians have been highly under-represented on the Court relative to the population of the United States over the last 223 years, and this has had an impact on how the Court operates and how the public perceives its role in government.
Furthermore, the small influence non-“high church” Protestants had in on the Court was diluted even further when they began separating their theology from their politics in the post-Darwinian world after the 1890’s.
That separation propelled America into the era of modernism, and America has been facing a modernist dilemma with its Supreme Court for many decades now. A modernist dilemma that may soon give way to a post-modern dilemma if more Sotomayor-type justices are appointed. But is the answer to get more people on the bench with a priesthood-view of their role—who see themselves as the sole diviners of the Constitution? How do the principles of the Reformation apply to an institution like the United States Supreme Court?
When Chief Justice Roy Moore of Alabama was removed from office for upholding the sovereignty of God in 2003, this dilemma was highlighted for the first time in a long time. His court battle made Americans ask again: If a civil government official is ordered by the Judiciary to engage in an action that the official believes is contrary to the U.S. Constitution, which must the official obey — the Judiciary or the Constitution?
Does this question really sound that different from the question posed to Martin Luther at the Diet of Worms? While one involved the inspired Word of God, and the other the fallible but supreme “Law of the Land,” both questions grapple with the essential lesson Samuel Rutherford addressed in his work of the Puritan era Lex Rex: Is Law the supreme authority or is man the supreme authority?
Legal scholars and commentators have wrestled with this question since the drafting of our Constitution. Other similar debates likewise took place hundreds of years before the Constitution was ever written. Some argue that for the sake of stability, a judicial review must be final. In fact, they argue, the Courts must have final say in interpreting the Constitution. If a judicial order can be questioned, what is the significance of the review?
On the other side are those who argue that if the judiciary has the final right of interpretation over the Constitution, then the judiciary has in effect replaced the Constitution as the supreme authority. Under Article VI of the Constitution, each official must take an oath to uphold the Constitution, not a judge’s possibly faulty view of the Constitution. Otherwise, the oaths are effectively to the judiciary. This three-part article series seeks to explain why the second perspective is the correct and necessary policy.
I. The Supremacy of Law as a Heritage of American Civil Government.
Every nation’s civil government must for practical purposes have a final authority.
In ancient history, a king usually held the final authority — with a few noteworthy exceptions. The exceptions include early ancient Israel, which was ruled by a Supreme Law (Deuteronomy 31:10-12) for its first few generations from Moses until the rise of King Saul (Deuteronomy 17:14-15; cf. I Samuel 8:4-22); 11:15) ; the Medo-Persian Empire, which had a Law that could not be changed even by the King once it was enacted (Esther 1:19; Daniel 6:8, 12, 15) ; and the Roman Republic, which governed itself by written laws, beginning with the the Law of the Twelve Tables.2
From the rise of the Roman Empire until the Middle Ages, most nations made kings their final civil authorities. The kings made the laws, the kings changed the laws, and sometimes the kings ignored their own laws. In these cultures, people saw law as an extension of the king. He could do to the law as he willed. This idea was known as REX LEX, Latin for “the King is Law.”
When the Christian Reformation occurred in sixteenth-century Europe, its implications became broader than a mere rejection of papal authority.3 The Reformers proclaimed the motto Sola Scriptura (“by Scriptures alone”). This meant that the Scriptures occupied final authority above all other authorities in the world.4
In 1579 the French Reformers known as the Huguenots published Vidiciae Contra Tyrannos (“A Defense of Liberty Against Tyrants”), which had a broad influence on European thought.5 This work explained why kingly authority was derived from the people and how kings are subject to law. According to this work, the people could rise up and hold the king accountable to God’s Law if the King refused to follow it of his own accord.
[A] truly godly people will not simply agree to reprove and repress a ruler who tries to abolish the law of God, but also will take care that through malice and wickedness, he produce nothing that may hurt the same, or that over a long period of time would corrupt the pure service of God.
Junius Brutus, Vindiciae Contra Tyrannos (reprint Cambridge University Press, 1994).
Many Huguenots would later flee from persecution in France traveling to Ireland, Scotland, and England where they would continue to spread these teachings among the Puritans and Separatist Protestant Christians of Britain.6
In A.D. 1100 King Henry I of England had issued the Charter of Liberties, binding the King to certain laws regarding the treatment of church officials and nobles.7 This became the precursor to 1215, when King John of England agreed to sign the Magna Charta, acknowledging that the will of the king could be bound by law.8 During the next several hundred years, the Magna Chartawould play a pivotal influence in the development of the English Common Law.9 From 1628 to 1649, that influence would culminate as King Charles I and Parliament faced off in a national power struggle and eventually Civil War.
The concerns leading to war began to stir when King Charles I arrested five knights. In his desperation to obtain funding without approval from Parliament, the King had resorted to forcing loans from the wealthy. These knights resisted, and were arrested.10 The order of imprisonment stated no reason for the knights’ arrest, and so the knights sought a writ of habeas corpus. In response, the knights were told that they were simply arrested by order of the King, even though no criminal violation was given.11
Many members of Parliament believed the King had violated Chapter 29 of the Magna Charta and 28 Edward III, c.3, statutes forbidding interference with the liberty of a subject except according to the law of the land. In addition, the King had married a Catholic and condoned persecution of English Puritans.12 Even further, the King appeared recklessly committed toward taxation without Parliamentary approval.
Several statutes of Edward I and Edward III had prohibited the Crown from exacting any taxes without consent of Parliament.13 Some exceptions had been allowed for seaport towns, but only in times of war.14 When subservient judges of Charles I held that the King’s Ship Money Tax was legal, an outraged House of Commons impeached the judges for rendering an unconstitutional judgment.15
Fear that the King would continue to put himself above the law led Parliament to draft the “Petition of Right”16 in 1628 and urge the King to sign it. The King dissolved Parliament but eventually was forced to reinstate it to raise funds for fighting Scotland.17 In turn, Parliament brought forward legislation designed to take away the King’s command of the armed forces.18 The King tried to arrest his opponents in the House of Commons, but once they escaped, war erupted.19
After twice defeating Charles I, Parliament tried him for treason and the murder of his people. The King refused to defend his actions in court, claiming that Parliament had no authority to judge him since he claimed to be the highest civil authority in the nation.20 Parliament sentenced Charles, and on January 30, 1649, put him to death.21
Parliament’s adherence to the rule of law over the rule of the king set a powerful precedent that would later influence the American colonies. Jurists and esteemed writers from Sir Edward Coke22 and John Locke23 to John Milton24 and Thomas Hobbes25 began to write increasingly about the equality of men under law. Samuel Rutherford’s book LEX REX (“the Law is King”), in particular, laid out a bold and enduring argument for the supremacy of law over civil officials.
That power which is contrary to law, and is evil and tyrannical, can tie none to subjection, but is a mere tyrannical power and unlawful; and if it tie not to subjection, it may lawfully be resisted. But the power of the king, abused to the destruction of laws, religion, and subjects, is a power contrary to law, evil, and tyrannical, and tyeth no man to subjection: wickedness by no imaginable reason can oblige any man.
Samuel Rutherford, Lex Rex (Hess Pubns, 1998).
The Founding Fathers of the United States of America grew up studying these famous works and hearing the stories of their ancestors who fought in the English Civil Wars. When drafting the Declaration of Independence, their words reflected a similar belief in the supremacy of Law over King.
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
The Declaration of Independence para. 1 (U.S. 1776).
The Declaration went on to enumerate the many ways the King of England had violated the Laws of Nature and of Nature’s God, as well as “our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments.” Id para. 23.
The Founders concluded that
A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people. . . . We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved.
Id para. 30.
To prevent the United States from falling into conflict between the Law and the civil officials of its government, the Founders delineated the powers of their new federal government in the U.S. Constitution.
Part II of this three-part article series will address The Constitution as the Supreme Law of the Land.
- For records on the religious composition of the U.S. Supreme Court, visit http://en.wikipedia.org/wiki/Demographics_of_the_Supreme_Court_of_the_United_States#Religion or http://www.adherents.com/adh_sc.html/. [↩]
- See Norton Coleman, The Twelve Tables (Princeton, 1960). [↩]
- See David W. Hall, The Genevan Reformation and the American Founding (2003); Douglas Kelly, The Emergence of Liberty in the Modern World: The Influence of Calvin on Five Governments from the 16th Through 18th Centuries (1992); Joe Morecraft, III, The Global Influence of John Calvin (July 27, 2006) (unpublished paper, on file at Chalcedon Presbyterian Church, Georgia). The German historian Ranke famously said, “John Calvin was the virtual founder of America.” Egbert Watson Smith, The Creed of Presbyterians 119 (2006). Even more significantly, John Adams wrote:
After Martin Luther had introduced into Germany the liberty of thinking in matters of religion, and erected the standard of reformation, John Calvin, a native of Noyon, in Picardie, of a vast genius, singular eloquence, various erudition, and polished taste, embraced the cause of reformation. In the books which he published, and in the discourses which he held in the several cities of France, he proposed one hundred and twenty-eight articles in opposition to the creed of the Roman Catholic church. These opinions were soon embraced with ardor, and maintained with obstinacy, by a great number of persons of all conditions. The asylum and the centre of this new sect was Geneva, a city situated on the lake anciently called Lemanus, on the frontiers of Savoy, which had shaken off the yoke of its bishop and the Duke of Savoy, and erected itself into a republic, under the title of a free city, for the sake of liberty of conscience. Let not Geneva be forgotten or despised. Religious liberty owes it much respect, Servetus notwithstanding. From this city proceeded printed books and men distinguished for their wit and eloquence, who spreading themselves in the neighboring provinces, there sowed in secret seeds of their doctrine. Almost all the cities and provinces of France began to be enlightened by it.
6 John Adams, The Works of John Adams 313–14 (Charles Francis Adams, ed. 1851). [↩]
- See Arthur C. Cochrane, ed., Reformed Confessions of the Sixteenth Century (Philadelphia: Westiminister, 1966). [↩]
- See J.H. Burns, et. al., The Cambridge History of Political Thought 1450-1700 211-14 (Cambridge University Press, 1991); John Adams, 6 The Works of John Adams 3-4 (Charles Francis Adams, ed. 1851). [↩]
- See B.J. Cottret, The Huguenots in England: Immigration and Settlement c. 1550-1700 (Cambridge University Press, 1992). [↩]
- See Albert Beebe and Wallce Notestein, eds., Source Problems in English History (New York: Harper and Brothers, 1915). [↩]
- See Sir J.C. Holt, Magna Carta (Cambridge University Press, 1992). [↩]
- See 2 Sir Edward Coke, The Selected Writings of Sir Edward Coke 746-54 (Steve Sheppard, ed., reprinted Liberty Fund, 2003); 4 Sir Willaim Blackstone, Commentaries on the Laws of England *420-39. [↩]
- SeeJ.R. Tanner, English Conflicts of the Seventh Century 60, 270-72 (Students’ ed., Cambridge University Press, 1961); Douglas W. Kmiec, The American Constitutional Order 47 (Anderson Publishing, 1998). [↩]
- See The Five Knights Case at 3 How S.T. 1 (K.B. 1627), reprinted in J.P. Kenyon, The Stuart Constitution 106-109 (Cambridge University Press, 1966). [↩]
- See J.H. Merle D’Aubigne, The Protector: A Vindication 23, 38-40 (reprinted Sprinkle, 1983). [↩]
- See Raol Berger, Impeachment 90-91 (Harvard University Press, 1973). [↩]
- Id. [↩]
- Id. [↩]
- See4 Blackstone, Commentaries *437. [↩]
- See Kmiec, The American Constitutional Order41-43, 53–55. [↩]
- See id. [↩]
- See id. [↩]
- See Gilbert Mabbot, 4 How. St. 993 (1816); cf. 2 Cobbett’s Parliamentary History of England 1260 (1808). [↩]
- See Kmiec, The American Constitutional Order 41-43, 53–55. [↩]
- See Sir Edward Coke, Prohibitions Del Rey, 12 Co. Rep. 63 (1609). [↩]
- See John Locke, The Second Treatise of Government 4-10, 15, 48-57, 70-73, 75-81, 112-15, 119-31, 138-39 (Neil H. Alford, Jr. et al. eds., Legal Classics, 1994)(1690). [↩]
- See John Milton, The Tenure of Kings and Magistratesin Prose Writings 191-95, 197-99, 201 (reprint Everyman’s Library ed., 1974) (1649). [↩]
- See Thomas Hobbes, Leviathan 104-08, 110, 119-20, 122-23, 139-43, 167-70, 172-80 (reprint Oxford University, 1881) (1660). [↩]