We ended Part II with the thoughts of Thomas Jefferson and James Madison as to the importance of interpreting the Constitution according to its plain meaning and intent of the authors. George Washington also wrote of the importance of adhering to the prescribed methods for changing the Constitution.
If, in the opinion of the people…the constitutional powers be at any particular wrong, let it be corrected by an amendment in the way the Constitution designates. But let there be no change by usurpation; though this in one instance be the instrument of good, it is the customary weapon by which free governments are destroyed.”[1] [emphasis added]
Joseph Story was the leading Constitutional scholar of the nineteenth century and in 1833 wrote in Commentaries on the Constitution that the Constitution “…was to be understood in terms of its plain, commonsense meaning” and must not be changed by the caprice of men.
The reader must not expect to find in these pages any novel construction of the Constitution. I have not the ambition to be the author of any new plan of interpreting the theory of the Constitution, or enlarging or narrowing its powers, by ingenious subtleties and learned doubts…”[2]
For 150 years original intent was the courts’ coin of the realm when interpreting the Constitution. But that dramatically changed in 1947. The beginning of that change occurred seventy-seven years earlier when Christopher Columbus Langdell became president of Harvard Law School in 1870 and developed the theory of legal positivism which was adopted and applied by other leading lawyers and jurists that followed him including Supreme Court Justice Oliver Wendell Holmes.[3] Since 1947, legal positivism has replaced original intent as the standard for interpreting the Constitution. The essence of the theory is summarized as follows:
1. There are no objective, God-given standards of law, or if there are, they are irrelevant to the modern legal system.
2. Since God is not the author of law, the author of law must be man; in other words, the law is law simply because the highest human authority, the state, has said it is law and is able to back it up by force.
3. Since man and society evolve, therefore law must evolve as well.
4. Judges, through their decisions, guide the evolution of law (Note again: Judges “make law).
5. To study law, get the original sources of law – the decision of judges; hence most law schools today use the “case law” method of teaching law.[4]
The Founding fathers including those who drafted the Constitution held a biblical worldview. In this worldview, eternal truths were revealed to man by God through his creation and His revelation to the ancient Hebrews and first century Christians. In the Christian worldview, the Supreme Being (God) created matter out of nothing and formed the universe. He impressed certain principles upon that matter, laws of nature from which it can never depart. However, man was His special creation and was allowed to choose to follow or depart from those principles as they relate to human nature. Those principles are truths that are intrinsic and timeless, and are essential elements needed to provide a coherent and rational way to live in the world. These truths are called by various names: permanent things, universals, first principles, eternal truths, and norms.[5]
These absolutes became the basis for American law and were expounded upon by men such as William Blackstone in his Commentaries on the Law of England. Blackstone wrote:
This law of nature…directed by God Himself…is binding in all the globe, in all countries, and at all times: no human laws are of any 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.[6] [emphasis added]
The American Constitution’s biblical origins and the Founders’ unbending devotion to original intent in its interpretation were hindrances to the proponents of legal positivism. In his book The New Freedom, Woodrow Wilson disparaged the Founders’ notions of original intent and argued that progressives should be allowed to apply the Darwinian principle in interpreting the Constitution.
And they [the authors of the Constitution] constructed a government…to display the laws of Nature…The government was to exist and move by virtue of the efficacy of “checks and balances.” The trouble with this theory is that government is not a machine, but a living thing. It falls not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin…Government is not a body of blind forces; it is a body of men…Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of Life, not of mechanics, it must develop. All that progressives ask or desire is permission—in an era when “development,” “evolution,” “is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.[7]
Wilson’s profoundly humanistic understanding of man jettison’s the Founders’ concern for the universal wickedness of fallen man and therefore dispenses with the need for those pesky “checks and balances” so important to the Founders. The Darwinian understanding of man is that he basically good and ever progressing. Therefore, as men and society evolve, so must their constitutions and laws.
Not content with a fluid interpretation of the Constitution to meet the needs of an evolving society, there is a new breed of activist judges that have gone beyond legal positivism to legal realism. Such realists are using the legal system to promote their own ends while using positivism as the “basis for denying divine law and/or natural law.” Judicial realism is another name for judicial usurpation of legislative power. Legal realists such as Charles Evans Hughes, the Chief Justice of the Supreme Court during most of Franklin Roosevelt’s administration, believe that, “We are under a constitution, but the Constitution is what the judges say it is.”[8] Put another way, judges don’t just interpret the meaning of the Constitution; they decide what they believe the Constitution ought to say. They become social policy makers who craft decisions based on what they think as opposed the wishes of the people and their elected representatives. Prophetically, Thomas Jefferson warned of such an activist judiciary, “The Constitution… is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.”[9]
The basis for liberals’ plea for separation of church and state rest only on eight words taken out of context in 1947, but they are now used to blast any hint of America’s Godly heritage from every facet of American society. Theirs is not a true separation of church and state but creation of an invisible church subservient to the state. However, the history and importance of separation of church and state is far longer and greater than its misapplication to the Establishment Clause of the First Amendment. The separation of the spiritual realm from the secular was instituted by Christ. The separate but complementary roles of church and state were designed and ordained by God. Therefore, the battle is not merely between church and state but just one battle on the far larger battleground of humanism versus Christianity. Dietrich Bonhoeffer, the renowned German theologian who was martyred for his stand against Nazism, called humanism “the most severe enemy” that Christianity ever had.[10]
The sad state of American jurisprudence with regard to a real separation of the dual realms of church and state occurred because of two major failures by the Christian church in America. We shall call the first failure an abandonment of the public arena which occurred in the late 1800s and early 1900s with the rise of the “social gospel.” The social gospel movement started within the church but was used by secularists for left-wing social reform. Fearing a gospel of “salvation by works,” many conservative and evangelical churches developed a “ghetto mentality,” backing away from society and burying themselves in prayer, Bible study, converting the lost, and personal morality and holiness.[11] But in doing so, they also became the silent church that also buried its responsibility to be salt and light to the government and culture at large. [See: Matthew 5:13]
The second failure of the church in maintaining the dual realms of church and state we shall label as acceptance. Contemporaneous with the abandonment of the public arena by conservative and evangelical churches in the late 1800s and early 1900s, many mainline churches felt the effects of a loss of cultural authority as secular humanism advanced on the coattails of science and rationalism. In order to retain a measure of cultural authority and acceptance in the face of humanism’s onslaught, mainline Protestant leaders began embracing secular human sciences to lend credibility and cultural relevance to the tenets of their religion.[12] But such acceptance brought compromise of its creedal doctrines which resulted in a profane and powerless church that had lost its saltiness, “…no longer good for anything except to be thrown out and trodden under foot by men.” [Matthew 5:13b. RSV] And because of the church’s abandonment of society or the compromise of its message, the humanistic worldview reigned supreme and subsequently spread into every facet of culture.
The leaders and many of their bureaucratic subordinates in the institutions of American life now present what appears to be the face of an almost invincible monolithic humanism. In the presence of such a daunting challenge, Christians and others in America may ask how society can return its laws and Constitution to reliance on the original intent of the Founders when the rules for interpreting and enforcing those laws and the Constitution are made up by judges as they see fit to protect and promote their humanistic worldview. Our first priority is to correctly identify our adversary. The Apostle Paul paints a vivid picture of the enemy and his lair. “For we are not contending against flesh and blood, but against the principalities, against the powers, against the world rulers of this present darkness, against the spiritual hosts of wickedness in heavenly places.” [Ephesians 6:12. RSV]
Even though it is a spiritual battle in this life and the heavenlies, we are not meant to be mere uninvolved spectators banished to the sidelines by a hostile society. In this earthly life, Christians are His “boots on the ground,” and our marching orders are to actively spread salt and light into all arenas habited by a lost and dying world.
Larry G. Johnson
Sources:
[1] John Eidsmoe, Christianity and the Constitution-The Faith of Our Founding Fathers, (Grand Rapids, Michigan: Baker Books, 1987), pp. 392-393.
[2] Ibid., p. 393.
[3] Ibid., p. 394
[4] Ibid.
[5] Larry G. Johnson, Ye shall be as gods – Humanism and Christianity – The Battle for Supremacy in the American Cultural Vision, (Owasso, Oklahoma: Anvil House Publishers, 2011), p. 392.
[6] William Blackstone, Commentaries on the Laws of England, Vol. 1-Book I & II. (Philadelphia, Pennsylvania: J. B. Lippincott Company, 1910) p. 27.
[7] Eidsmoe, p. 390. Quoting: Woodrow Wilson, The New Freedom, (New York: 1914), pp. 44-48.
[8] Ibid., pp. 395-397.
[9] David Barton, Original Intent – The Courts, the Constitution, & Religion, (Aledo, Texas: Wallbuilder Press, 2008), p. 195.
[10] Eric Metaxas, Bonhoeffer, (Nashville, Tennessee: Thomas Nelson, 2010), p. 85.
[1] Eidsmoe, p. 407.
[12] Johnson, p. 252.
