“I would not have you exchange the gold of individual Christianity for the base metal of Christian Socialism.”
– Charles Spurgeon

At a moment in which we must fight the advancement of socialism into the field of healthcare, among other places, I think many may find the following excerpts from Charles Spurgeon helpful. Additionally, since so many American Christians—especially of the fundamentalist and Baptistic traditions—seem to believe that the Gospel does not pertain to or does not address politics, economics, and social order, I hope our more pietistic brethren will find the direction of a stalwart Baptist such as Spurgeon instructive.

A chance encounter reading a Spurgeon sermon while I studied at Reformed Episcopal Seminary a few years back left his quotation against “Christian Socialism” welded in my memory. That encounter spurred this further study.

Spurgeon’s comments against socialism appear as early as 1878, but pick up more frequency after 1886. They virtually disappear from his sermons after 1893. There is a good explanation for this time period: a group known as the Fabian Society organized in 1884 for the purpose of advancing the ideas of Karl Marx and establishing England as a socialist state. In 1889, the well-funded group circulated The Fabian Essays written by sympathetic celebrities (and members) such as George Bernard Shaw, Sidney Webb, Beatrice Webb, the theosophist Annie Besant, and on-and-off, H. G. Wells; the essays gained wide popularity. Liberal churchmen (called “broad” at the time) baptized the Fabian ideas and called it the “social gospel,” or “Christian Socialism.”

The goals of the socialist group built upon the atheistic system of Marx with a few bold twists. Aside from the standard socialist ideal of the abolition of private property, and government monopoly over education, credit, and business, some of their goals were:

1.     Government control over all insurance (universal health care).

2.     Elimination of the significance of the family.

3.     Elimination of the significance of religion.

4.     Justified use of force if necessary to attain socialistic goals

5.     A universal system of pensions (universal retirement).[1]

Spurgeon sniffed out the godless, anti-biblical scheme and preached against it from his pulpit. He continued this as long, apparently, as the pamphlets created a stir among his congregation or society in general. What follows below are relevant excerpts from his sermons during the period.

• • •

Did I hear a whisper that ministers are nowadays very broad, and have given up the old gospel. I know it, and I am not surprised: the builders are the first to reject the chosen stone. Christ owes little to preachers, and some of his worst enemies are found in their ranks. Unconverted men are in too many pulpits, and are seeking out many inventions to set aside the pure gospel which exalts Christ Jesus. Let them alone, the ditch is gaping for these blind guides. Our Lord can do without them. He owes his victories to himself, and to himself alone; and, therefore, let the faith of his people rest in peace, for if they will have patience they shall see greater things than they have yet beheld. Our text saith that it is not only the Lord’s doing and marvellous, but it ismarvellous “in our eyes,” which it could not be if we did not see it. We shall see and we shall marvel. Some of us may have passed away, but you who are younger may live to see modern thought obtain supremacy over human minds: German rationalism which has ripened intoSocialism may yet pollute the mass of mankind and lead them to overturn the foundations of society. Then “advanced principles” will hold carnival, and free thought will riot with the vice and blood which were years ago the insignia of “the age of reason.” I say not that it will be so, but I should not wonder if it came to pass, for deadly principles are abroad and certain ministers are spreading them. If it ever should be so, do not, o believers, for a single moment despair, but rest certain that the Lord is about to do a marvellous thing in the earth, and that he will lift up once again the stone which the builders have again refused, and cause it to become more than ever the headstone of the corner. Never dream of defeat. Be calm amid all the din of controversy, for the hand which holds the gospel must win the victory. This is the Lord’s doing and we shall see it.[2]

• • •

In the early days of Christianity, multitudes of Christians were tormented to death because of their faith in Jesus. There was no excuse for it, for they had done no harm to the State. Christianity does not come into a nation to break up its arrangements, or to break down its fabric. All that is good in human society it preserves and establishes. It snaps no ties of the family; it dislocates no bonds of the body politic. There are theories of socialism and the like which lead to anarchy and riot; but it is not so with the mild and gentle teaching of Jesus Christ, whose every word is love and patience.[3]

• • •

I fear lest in any of you there should be even the least measure of despising the one lost sheep, because of the large and philosophical methods which are now so loudly cried up. I would not have you exchange the gold of individual Christianity for the base metal of Christian Socialism. If the wanderers are to be brought in, in vast numbers, as I pray they may be, yet must it be accomplished by the bringing of them in one by one. To attempt national regeneration without personal regeneration is to dream of erecting a house without separate bricks. In the vain attempt to work in the gross, we may miss the practical result which would have followed working in detail. Let us settle it in our minds that we cannot do better than obey the example of our Lord Jesus, given us in the text, and go after the one sheep which has gone astray.[4]

• • •

For ninny a year, by the grand old truths of the gospel, sinners were converted, and saints were edified, and the world was made to know that there is a God in Israel; but these are too antiquated for the present cultured race of superior beings. They are going to regenerate the world by Democratic Socialism, and set up a kingdom for Christ without the new birth or the pardon of sin. Truly, the Lord has not taken away the seven thousand that have not bowed the knee to Baal, but they are, in most cases, hidden away, even as Obadiah hid the prophets in a cave.[5]

• • •

The practical point is, brothers and sisters, since we want to do good, let us preach up our Lord Jesus Christ as the sovereign balm for every sinner’s wound. If you want to be philanthropists, be Christians. If you would bless your fellow-men with the best of all blessings, convey to them the knowledge of Jesus Christ. Do not believe that there is anything you can do for your children which will be more effectual than teaching them about Jesus. Do not think that anything in the workshop can soften the vulgarities, silence the blasphemies, and end the profanities of your fellowworkmen, like setting Jesus Christ before them.… Oh, let us keep on with the subject of Christ crucified! Whatever there is not in our shop window, let us always have Christ as the chief article of our heavenly commerce. Whatever there may lack of grace and beauty in our speech, and our outward appearance, may there be no lack of Jesus Christ, set forth among the sons of men; for “men shall be blessed in him,” and not without him. Great schemes of socialism have been tried and found wanting; let us look to regeneration by the Son of God, and we shall not look in vain. Nothing has come of newfangled preaching, from the first day till now; but never has the old faith of Jesus failed. Men have been blessed in Jesus, and they shall be blessed in him as long as the race shall exist.[6]

• • •

The next thing, dear friends, is that we must prove that the old faith produces much love of our fellow-men. You know that, nowadays, the watchword is, “the enthusiasm of humanity.” It is a curious thing that those churches that have such a wonderful “enthusiasm of humanity” speak of us as if we were always talking of God and forgetting men. Well, well; which of these new-fangled churches has an orphanage? It is very fine to talk about Christian socialism, and what you are going to do for the poor; but what have you done? Much of it is just chatter, chatter, and nothing else. But the godly, who feel that God is all, are, after all, those who care most for men; and those who believe most firmly that the unbelieving sinner will be lost are the men who are most anxious to have him saved.[7]

• • •

The god of modern thought exceedingly resembles the deities described in this Psalm [115:8]. Pantheism is wondrously akin to Polytheism, and yet differs very little from Atheism. The god manufactured by our great thinkers is a mere abstraction: he has no eternal purposes, he does not interpose on the behalf of his people, he cares but very little as to how much man sins, for he has given to the initiated “a larger hope” by which the most incorrigible are to be restored. He is what the last set of critics chooses to make him, he has said what they choose to say, and lie will do what they please to prescribe. Let this creed and its devotees alone, and they will work out their own refutation, for as now their god is fashioned like themselves, they will by degrees fashion themselves like their god; and when the principles of justice, law, and order shall have all been effectually sapped we may possibly witness in some form of socialism, similar to that which is so sadly spreading in Germany, a repetition of the evils which have in former ages befallen nations which have refused the living God, and set up gods of their own.[8]

Christians today simply must follow Spurgeon’s example in decrying the false paradise of socialism. This means addressing social and political issues, even when other Christians and certainly most secularists disagree (in fact, especially so!), but from a strictly biblical and not Marxist or socialist way. Socialism itself stands absolutely antithetical and opposed to Christianity as it for one denies the commandment against theft of private property (and that’s just the beginning). The original socialists themselves intended to supplant the faith, and hated it as a rival. Christian scholar and journalist David Aikman mentions an interesting anecdote in his book on atheism, The Delusion of Disbelief. He writes,

The strong linkage between politics and religion in the late nineteenth century was having a profound social impact, one that deeply troubled Marx and Engels. The following story illustrates just how it incensed them. While playing a well-known Victorian parlor game with Karl Marx’s daughter, Engels answered with a single word a “Confessions” question (“What is your favorite motto?” “What is your favorite color?” etc.) that asked whom he most hated in life. “Spurgeon,” was Engels’s curt, one-word answer, referring to the English Baptist… whose sermons in the 1850s to the 1880s drew as many as twenty thousand people, many of them working-class folk. Why did Engels hate him so? Because Spurgeon was diverting England’s urban working class away from atheist revolutionary socialism to Christian parliamentary reformism.[9]

We should take up Spurgeon’s example and start diverting fellow Christians, and others as well, away from the temptation to believe that government socialism will take care of us. It will not; and every nation so far that has installed so-called “universal health care” now sees regular shortages, rationing, waiting lists, denials, delays, and diminished treatments because of it. Millions are oppressed and literally thousands have died waiting for healthcare simply because socialized medicine cannot respond in the way they need. It’s a death trap.

Along these lines we should consider the wisdom of Spurgeon, who in commenting on the proverb, “Knock at no door which thou wouldst not have opened,” explained,

Or it may open on a sudden, and thou wilt stand confounded. When persons speak for a cause which they do not really believe in, they may have to pay dearly for their words. Some who defend Socialism may soon have too much of it.[10]

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In your home, are national holidays like Memorial Day and July 4th just fun summer days to cook out, go to parades, and enjoy watching some fireworks? What can you and your family do to make them more meaningful?

If you’re still riding the momentum from Memorial Day and looking forward to July 4th only about a month away, a great resource you may want to take advantage of is The Valley Forge’s Online History Tour of the southeast campaign in the War for American Independence. Featuring Marshall Foster and Bill Potter as the expert tour guides, the tour takes audiences through South Carolina and Georgia to explore the battlefields, scenic locations, and heroes that experienced God’s providential blessing in a war against the greatest empire on earth.

But it’s more than just a dry lecture that could be used for history credit in high school or college. It’s an opportunity to learn about the stories of godly men often obscured by modern-day historians. It’s an opportunity to discover the worldview that shaped and propelled the founding fathers into action. That founding generation who pledged “their lives, their fortunes, and their sacred honor” to “preserve the blessings of liberty to ourselves and our posterity.”

In this newly released preview video, The Valley Forge shares a 15-minute peak into the Online History Tour with Bill Potter and Marshall Foster, which your whole family can watch together from the comfort of your own home. A great way to prepare to worship and praise God this July 4th for our nation and Christian legacy.

To register for the full Online History Tour, go to http:www.historytour2012.com/.

If you like to form your eschatology from the newspaper and are persuaded that the world is getting worse, you may want to consider what technology expert Byron Reese had to say in this recent video interview on Triangulation about the breakthroughs on the verge of being made in medicine, energy, etc. Byron has spoken at our conferences and he is Chief Innovation Officer at Demand Media.

My December 27, 2003 article Earthquakes: Are They a Sign of the End? prompted a number of responses, which I thought would be worth re-visiting. There was one particular email that was especially meaningful and moving for me. It was critical of my position, so I wrote the following response to clear up some issues:

Thanks for writing. Please note what Jesus said in Matthew 24:33-34: “Even so YOU too, when YOU see all these things, recognize that He is near, right at the door. Truly I say to YOU, this generation will not pass away until ALL THESE THINGS take place.” The “you” refers to Jesus’ first-century audience (24:2, 4, 6, 9, 25, etc.) not an unspecified future “last-days” audience.

“This generation” (Matt. 11:16; 12:41–42; 23:36; Mark 8:12; Luke 7:31; 11:30–32, 50–51; 17:25; cf. Gen. 7:1; Ps. 12:7; Heb. 3:10) refers to the generation to whom Jesus was speaking. “This generation” never refers to a future generation.

The earthquakes that Jesus references were earthquakes that occurred throughout the Roman Empire in the first century. As I noted in my brief article, the biblical and secular historical record is clear on this point. The famines (Acts 11:28) and earthquakes were the beginning of birth pangs. As that generation came to an end, the temple was destroyed, Jerusalem was sacked, more than one million Jews were killed, and more than 50,000 were taken as slaves. This was the actual “birth” of judgment.

Jesus was not prophesying what would happen to the “world,” He was pointing out what would happen “in Judea” (Matt. 24:16). The people in Judea could escape the coming calamity by fleeing “to the mountains” (24:16). If Jesus were describing a global conflagration, there would be no place to escape.

If you are interested in this topic, I suggest that you get my book Last Days Madness. It offers a comprehensive study—verse by verse—of Matthew 24 and other NT/OT prophetic texts.

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Keep in mind that an increase in earthquakes is often the result of better technology to measure them. Earthquakes are recorded every day because we have equipment planted around the world to detect them.

To be honest, I never expected her to respond, and if she did respond, I expected to read a lengthy rebuttal filled with more modern-day prophetic theories. Was I surprised when I received the following reply:

THANK YOU, THANK YOU, THANK YOU, for responding. Most of what I added to my email I read on www.lamblion.com. I have been terribly upset since this Tsunami. I have recently gotten married to a man who has never even stepped foot in a church. . . . I was raised by a mother and father who ingrained in my head that the world was going to come to an end before I turned thirty. At one point in my life (just a couple of years ago), I went into a major depression. I stopped caring about my life. I figured what is the point if I am only going to die. I never had many goals, but about a year ago I stopped this way of thinking. I put my parents words out of my mind. I decided I wanted to go to college. I went and got my GED and have been in college for a year now. My husband is finishing his BA. I have never been more happy. I look at my son and dream about our future, about buying our first home and growing old. After this Tsunami hit, my world turned black again. I have been scouring the internet for signs. I read on Jack Van Impe’s site that the end will happen between 2001 and 2012. I am so distresses I can’t think straight. I’m losing focus on my goals and my husband doesn’t understand. Does your book talk about the mark? Do you think that will happen in our life time? How long do you think this world has left? I am truly thankful for your response. I have felt so alone.

What you believe about the future will determine how you live in the present. How many more people out there have put their lives on hold because some prophecy writer has assured them the end is near.

In the infamous Dred Scott case of 1857, the U.S. Supreme Court declared people imported from Africa to be sub-human and thus not worthy of freedom. This holding involved such a twisting of the text of the U.S. Constitution that a dissenter wrote: “[W]hen strict interpretation of the Constitution, according to fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”[1] Such a hijacking of the Constitution must end.

President Thomas Jefferson wrote that a branch of civil government that gave itself sole authority to interpret the Constitution was a “despotic branch.”[2] We have observed the evils that result when our civil officials fail to faithfully follow their oaths of office by keeping the text of the U.S. Constitution their foremost human guide: slavery, sterilization, sodomy, and abortion. We could add to that list theft through inflation of the money — an evil President Andrew Jackson fought hard against the U.S. Supreme Court in his day and eventually succeeded in defeating.

In the first article in this series, we addressed the Protestant Reformation principles which led our founders to make our civil government one of Law rather than of men. You can see that article here. In the second article in the series, we saw how deviations from the text of the U.S. Constitution has resulted in great travesties of justice, and you can read that article here. Now we will address how our officials should hold each other accountable to the U.S. Constitution as the highest human civil authority in our nation.

III. How Civil Officials May Hold Each Other Accountable to the Constitution. 

As each official at all levels of civil government in the United States makes a commitment to uphold the U.S. Constitution, an essential aspect of that commitment must entail that they hold one another accountable to the Constitution. Likewise, federal and state governments should hold each other accountable to the Constitution. Within these two jurisdictions, each branch should hold the others accountable. Below we consider some specific ways that this accountability has historically been performed and today should be performed.

A. How Congress and the President May Hold the Judiciary Accountable to the Constitution.

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If men allow this abuse to continue, eventually not only will the U.S. Constitution fall into discredit, but constitutionalism itself will sink into derision. Once “the rule of law” in America is exposed as “the rule of men,” soon to follow will be the demise of “the Blessings of Liberty for ourselves and our Posterity.”

1. How the President may hold the Judiciary accountable.

The Constitution gives the President the duty to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. Judicial decisions are not “Laws” of any kind.

In the ordinary use of language it will hardly be contended that the decisions of the Courts constitute laws. They are, at most, only evidence of what the laws are; and are not of themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect.

Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842).

Thus, the President does not have to “faithfully execute[]” court decisions at all. He only needs to enforce the “Laws” the courts properly apply. He certainly does not have to enforce decisions that are “either defective, or ill-founded, or otherwise incorrect” when compared to the Constitution, which he has taken an oath “to the best of [his] Ability, [to] preserve, protect and defend” against anyone and everyone. U.S. Const. art. II § 1, cl. 7.

If the President refused to enforce an unconstitutional judicial decision, his action should not be considered a reversal. The Judiciary might continue to cite the ruling as a precedent, but no judge could count on the President’s assistance in imposing the unconstitutional decision on the litigants, or anyone else.

One particular instrument the President could use toward judicial accountability would be the United States Marshals Service, “a bureau within the Department of Justice under the authority and direction of the Attorney General.” See 28 U.S.C. § 561(a). The President appoints “by and with the advice and consent of the Senate, a United States marshal for each judicial district of the United States”. See id at § 561(c). So the President may remove (and with the senate’s approval replace) the marshals as he sees fit, if they fail to perform his directions.

Without the support of the marshals, the Judiciary would be severely handicapped. “It is the primary role and mission of the United States Marshals Service to provide for the security and to obey, execute, and enforce all orders of the United States District Courts [and] the United States Court of Appeals”. See id at § 566(a).

The marshals are governed by this rule: “Except as otherwise provided by law or Rule of Procedure, the United States Marshals Service shall execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties.” Id at §566(c)(emphasis added).

So if the President determines that some judicial “writ[], process, [or] order[ is not ]issued under the authority of the United States” because it violates the Constitution; and if, as part of his duty to “take Care that the Laws be faithfully executed” he commands the Marshals Service not to execute such “writ[], process, [or] order[]”; then the Service will thereby be excused by the law of the Constitution (as understood by the President) from doing so. Judicial supremacy becomes a pipe dream without Presidential cooperation.

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Similarly, other efforts made by the Supreme Court would prove ineffective. The Court may try to enjoin the President or his subordinates. See Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867); Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1868). The Court may hold him in contempt. But its citations would only be overturned by executive pardons. See U.S. Const. art. II, § 2, cl. 1.

Indeed, as the Court has already conceded, “[t]he executive power is vested in a President, and as far as his powers are derived from the Constitution, he is beyond the reach of any department except the mode prescribed by the Constitution through the impeachment power.” Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 610 (1838).

2. How Congress may hold the Judiciary accountable. 

“Whatever functions Congress are, by the Constitution, authorized to perform, they are, when the public good requires it, bound to perform.” United States v. Marigold, 50 U.S. (9 How.) 560, 567 (1850).

Congress may choose several various approaches to prevent judges from misconstruing the Constitution. One option is to simply prevent them from hearing certain constitutional issues in the first place. This remedy would affect the federal court as a whole. Another option is for Congress to remove judges from the bench for lack of “good behavior” or to impeach and convict them for violating the law. This second remedy would expel specific federal judges who have displayed a disposition toward unconstitutional opinions and orders.

a. Limiting the Judiciary’s jurisdiction.

The Constitution gives the Supreme Court original jurisdiction “[i]n all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party.” U.S. Const. art. III, § 2, cl. 2. On all other matters, however, the Constitution gives Congress the power to regulate and make exceptions to the Supreme Court’s jurisdiction. “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” Id.

The Supreme Court early recognized that Congress had this constitutional power when it wrote:

[T]he political truth is, that the disposal of the judicial power, (except in a few specified instances) belongs to congress. If congress has given the power to this Court, we possess it, not otherwise: and if congress has not given the power to us, or to any other Court, it still remains at the legislative disposal. Besides, congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of the federal Courts, to every subject, in every form, which the constitution might warrant.

Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799) (Chase, J.).

In Ex parte McCardle, the Supreme Court went so far to subordinate itself to the jurisdictional limitations of Congress that it adjusted its response to a particular case while on appeal. It declared:

We are not at liberty to inquire into the motives of the Legislature. We can only examine into its power under the Constitution; and its power to make exceptions to the appellate jurisdiction of this court is given by express words.

What, then, is the effect of the repealing Act upon the case before us? We cannot doubt to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.

74 U.S. (7 Wall.) 318 (1868) at 514.

In addition to granting Congress the power to limit the Supreme Court’s appellate jurisdiction, the Constitution gives Congress the power to create or eliminate inferior courts. “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” U.S. Const. art. III, § 1 (emphasis added).

[I]f the Constitution had ordained and established the inferior courts, and distributed to them their respective powers, they could not be restricted or devested by Congress. But as it has made no such distribution . . . having a right to prescribe, Congress may also withhold from any court of its creation jurisdiction of any of the [constitutionally] enumerated controversies. Courts created by statute can have no jurisdiction but such as the statute confers. No one of them can assert a just claim to jurisdiction exclusively conferred on another, or withheld from all.

The Constitution has defined the limits of the judicial power of the United States, but has not prescribed how much of its [sic] shall be exercised by the [inferior courts]; consequently, the statute which does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it confers powers not enumerated therein.

Sheldon v. Sill, 49 U.S. (8 How.) 441, 448-49 (1850).

So Congress may declare that inferior courts hear only certain questions. See Lockerty v. Phillips, 319 U.S. 182, 187 (1943). Congress may restrict inferior courts from granting certain remedies. See Lauf v. E.G. Skinner & Co., 303 U.S. 323, 329-30 (1938); Drivers’ Union v. Lake Valley Co., 311 U.S. 91, 100-03 (1940). Congress may even require that in whatever questions the inferior courts hear, their decisions may not be appealed. See United States v. Klein, 80 U.S. (13 Wall.) 128, 145 (1872).

What may prevent Congress from abusing this power by limiting the federal courts’ jurisdiction so much that it plainly licenses a violation of the Constitution?

One check on Congressional power would be the state courts, which have jurisdiction to hear federal issues and whose jurisdiction cannot be limited by Congress. See Testa v. Katt, 330 U.S. 386 (1947); Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962); Free v. Bland, 369 U.S. 663 (1962); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969).

Another check on an unconstitutional abuse by Congress would be for the Supreme Court to resist the limitation and rule anyway. Other elected officials, including the President, would have to examine the dispute and determine which view of the Constitution appears most accurate.

In United States v. Klein, Congress created a limitation that the Court believed denied parties their constitutional protections and took a constitutionally granted power away from the President. The Court refused to follow the limitation. Klein, 80 U.S. (13 Wall.) 128 (1872).

This Congressional approach to constitutional accountability by limiting the jurisdiction of the Court would be most effective when there is widespread abuse in the Judiciary and swift action is needed. When the abuse is with only one judge or a handful of judges, the next approach would probably be preferable.

b. Removing judges for lack of “good Behaviour” or for subverting the Constitution.

The Constitution does not guarantee any judge an appointment for life. Rather, it states that “[t]he judges, both of the supreme and inferior courts, shall hold their offices during good Behaviour”. U.S. Const. art. III, § 1. In addition, the Constitution states that “all civil officers of the United States[] shall be removed from office on impeachment for, and conviction of Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. Const. art. II, § 4.

If judges may hold their office only “during good Behaviour”, then they may be removed for conduct that constitutes less than “good Behaviour.”

When it comes to “high Crimes and Misdemeanors”, the Constitution gives the procedure to follow for removal (“Impeachment . . . and Conviction”), but does not fully define “high Crimes and Misdemeanors.” To understand this phrase as the Founders understood it, we have to investigate the history behind its use in Common Law practice.

The phrase “high Crimes and Misdemeanors” embraces a host of improper conduct. Blackstone described the need of impeachment for “a prosecution of the already known and established law.” 4 Sir William Blackstone, Commentaries *256. A judge’s violation of the “Supreme Law of the Land” meets that requirement. So while an impeachable offense would include crimes, it would not be limited to crimes.

“No one has as yet been bold enough to assert that the power of impeachment is limited to offenses positively defined in the statute-book of the Union as impeachable high crimes and misdemeanors.” 1 Joseph Story, Commentaries on the Constitution of the United States (Hilliard, Gray & Co. 1833), ante note 121, § 797, at 581.

“Congress have unhesitatingly adopted the conclusion that no previous statute is necessary to authorize an impeachment for any official misconduct.” Ibid., §799, at 583.

The view that judges may be impeached for unconstitutional opinions, not merely crimes, has long legacy in our English Common Law tradition. “[I]f the judges mislead their sovereign by unconstitutional opinions . . . these imputations have properly occasioned impeachments; because it is apparent how little the ordinary tribunals are calculated to take into cognizance of such offenses, or to investigate and reform the general policy of the state.” 2 Richard Woodeson, Laws of England 611-12 (1792).

Justice Joseph Story confirmed that this practice has carried into our own impeachment system.

In examining the parliamentary history of impeachments, it will be found that many offenses, not easily discernible by law, and may of a purely political character, have been deemed high crimes and misdemeanors worthy of this extraordinary remedy. Thus, . . . judges . . . have . . . been impeached . . . for misleading their sovereign by unconstitutional opinions, and for attempts to subvert the fundamental laws, and introduce arbitrary power.

1 J. Story, Commentaries, § 800, at 584 (footnote omitted).

Subverting the Constitution was apparently within the definition of “high Crimes and Misdemeanors” as the Founders understood it. At the Federal Convention, George Mason argued that the phrase “high Crimes and Misdemeanors” should be added to this provision so that it would be understood to include subversions of the Constitution. “Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offenses. . . . Attempts to subvert the Constitution will not be Treason as above defined.” Debates of the Federal Convention of 1787 as Reported by James Madison, Documents Illustrative of the Formulation of the Union of American States (1927) at 691.

By impeaching and convicting errant judges so they are removed from the federal courts, Congress would provide a healthy Constitutional check to the wayward Judiciary.

B. How State Officials may hold the Judiciary Accountable to the Constitution.

The Constitution requires “the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, [to] be bound by oath or affirmation, to support this Constitution”. U.S. Const. art VI. As a result, state constitutions require state officials to take an oath or affirmation to support the United States Constitution.

A detailed look into how each elected official of a state may seek to uphold the Constitution against a wayward Judiciary would take volumes, and would vary somewhat within each state jurisdiction. But having already considered examples of how the executive officer and legislative officers of the federal government may act, it would not be hard to imagine how similar checks could be applied on a state level. For example, although a state legislature could not impeach and convict federal judges who rule contrary to the Constitution, they may be able to remove state judges subverting it.

Two particular options available to the state governments should be addressed. The first option is an appeal to the Doctrine of Interposition, which could be raised by a civil official, federal or state, but is particularly applicable in a controversy between the federal government and the state governments because of early Supreme Court rulings involving the doctrine. The second option is a refusal by state court judges to follow federal precedents and orders that conflict with the Constitution — also an act of interposition.

1. How the State May Raise the Doctrine of Interposition.

The Bill of Rights from the Constitution declares, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X.

The Constitution does not give exclusive power to the federal judiciary to interpret the Constitution, nor does it prohibit states from interpreting the Constitution. To the contrary, the Constitution requires state officials to take oaths to support the Constitution. They are not required to take oaths to uphold the decisions of the federal courts.

Therefore, when a case arises that strips a state of a portion of her reserved sovereignty, that state as the aggrieved party could simply refuse to acquiesce in and to apply the judiciary’s decision.

In Worcester v. Georgia, the federal court voided the convictions of missionaries who had resided among the Cherokee Indians without a state license. 31 U.S. (6 Pet.) 515 (1832). Although Georgia had participated in the litigation, Georgia’s Governor refused to release the missionaries until they agreed to leave the state. When President Andrew Jackson[8] supported Georgia, the U.S. Supreme Court proved powerless, or at least reluctant, to do anything about this exercise of interposition.[9] The Doctrine of Interposition arose formally as a defined doctrine out of this case.

The doctrine [of Interposition means] that a state, in the exercise of its sovereignty, may reject a mandate of the federal government deemed to be unconstitutional or to exceed the powers delegated to the federal government. The concept is based on the 10th Amendment of the Constitution of the United States reserving to the states powers not delegated to the United States. . . . Implementation of the doctrine may be peaceable, as by resolution, remonstrance or legislation, or may proceed ultimately to nullification with forcible resistance.

Black’s Law Dictionary (4^thed. 1951).[10]

“The Constitution does contemplate and provide for the contingency of adverse state interposition or legislation to annul or defeat the execution of national laws.” In Re Charge to Grand Jury, Fed. Case No. 18,274 [2 Spr. 292].

Recently, however, the Judiciary has begun to shun the Doctrine of Interposition as an antebellum doctrine, calling it “without substance.”[11] Their remarks only expose once again their desire to avoid accountability to the Constitution, as they refuse to recall how our country became free from the tyranny of Great Britain by an act of interposition.

The Court’s ruling in Ex parte Young described how unconstitutional laws and usurping officials should be treated. 209 U.S. 123 (1908). These principles apply to officials of both the federal and state governments. See, e.g., Minnesota v. Hitchcock, 185 U.S. 373, 386 (1902). If the Court were consistent, it would have to be held to the same standard when it issued unconstitutional rulings and orders.

The [judicial decision] to be enforced is alleged to be unconstitutional; and if it be so, the use of the name of the [United States] to enforce an unconstitutional [decision] . . . is a proceeding without the authority of, and one which does not affect, the [United States] in its sovereign or governmental capacity. It is simply an illegal act upon the part of a [group of justices] in attempting, by the use of the name of the [United states], to enforce a [judicial decision] which is void because unconstitutional. If the [judicial decision] . . . be a violation of the Federal Constitution, the [errant justices], in proceeding under such [decision], come[] into conflict with the superior authority of the Constitution, and [they are] in that case stripped of [their] official or representative character and [are] subjected in [their] person[s] to the consequences of [their] individual conduct. The [United States] has no power to impart to [them] any immunity from responsibility to the supreme authority of the Constitution.

Ex parte Young, 209 U.S. 123.

From a strategic standpoint, for a state to effectively hold the federal courts accountable to the Constitution through an act of interposition, the strategy should be for as many state officials to stand together in the controversy as possible. At the very least, the Governor of the state, as the executive officer, should give full support to any other state officials under attack by unconstitutional orders or precedents. State governors usually have control over state national guards and state police, who can see that unconstitutional orders are not enforced. If a state makes a strong stand, the President of the United States will have to examine the Constitution and determine which side is in the right before or if he intervenes. Congress may also intervene to help the state.

Whatever the outcome, a state official who takes his oath seriously cannot follow the crowd if the crowd is leading him off the cliff of constitutional disintegration. To do so would be nothing less than treason against “the Supreme Law of the Land.” As the Court wrote in Cohens v. Virginia, “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.” 19 U.S. (6 Wheat) 264, 378 (1821).

2. How State Judges May Challenge Unconstitutional Federal Court Rulings and Orders.

“This Constitution, . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby”. U.S. Const. art. VI (emphasis added). Under this article, state judges have an obligation to uphold the Constitution against all other competing legal authorities.

On the other hand, the U.S. Supreme Court has taken the position that any of its decisions that “state a rule based upon the Constitution of the United States” is “under the Supremacy Clause, . . . binding upon state courts.” See Henry v. City of Rock Hill, 376 U.S. 776, 777 n. 1 (1964) (per curiam). This doctrine is constitutionally incoherent. If it were true that Court rulings had the same authority as the Constitution under the Supremacy Clause, then how could the Court ever overrule any of its previous decisions that “state[] a rule based upon the Constitution”? And yet, the Court has often overruled its decisions. See, e.g., Payne v. Tennesee, 501 U.S. 808, 827–30 & n.1 (1991).

In 1968 the Utah Supreme Court stood against the usurpations of the Warren U.S. Supreme Court, declaring:

The United States Supreme Court, as at present constituted, has departed from the Constitution as it has been interpreted from its inception and has followed the urgings of social reformers in foisting upon this Nation laws which even Congress could not constitutionally pass. It has amended the Constitution in a manner unknown to the document itself. While it takes three-fourths of the states of the Union to change the Constitution legally, yet as few as five men who have never been elected to office can by judicial fiat accomplish a change just as radical as could three-fourths of the states of this Nation. As a result of the recent holdings of that Court, the sovereignty of the states is practically abolished, and the erstwhile free and independent states are now in effect and purpose merely closely supervised units in the federal system.

We do not believe that justices of once free and independent states should surrender their constitutional powers without being heard from. We would betray the trust of our people if we sat supinely by and permitted the great bulk of our powers to be taken over by the federal courts without at lest stating reasons why it should not be so. By attempting to save the dual relationship which has heretofore existed between state and federal authority, and which is clearly set out in the Constitution, we think we act in the best interest of our country. . . .

When we bare our backs to receive the verbal lashes, we will try to be brave; and should the great court of these United States decide that in our thinking we have been in error, then we shall indeed feel honored, for we will then be placed on an equal footing with all those great justices who at this late date are also said to have been in error for so many years.

Dyett v. Turner, 439 P.2d 266 (1968).

In 2003 Chief Justice Roy Moore of Alabama stood against an unconstitutional federal court’s order when he refused to remove a Ten Commandment’s monument from the State Judicial Building. As Chief Justice, Judge Moore had legal sway over the building authority. Only when Chief Justice Moore was reprehensibly removed from office was the monument ejected.

Critics of such actions by state judges have said that in disobeying an order by a federal court, those state judges have violated standards of professional responsibility. In Chief Justice Moore’s case, he was accused of violating Alabama’s Canon of Judicial Ethics.

“A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Alabama Canon of Judicial Ethics, Canon 2, § a (2001).

Critics argue that by opposing the federal court, a state judge causes the public confidence in the impartiality of the judiciary to dissolve.

Nothing could be further from the truth. As we have already discussed, deviance from the Constitution is what causes the public to lose confidence in the Judiciary and the justice system. Besides that, even if a state’s canon of judicial ethics were to require a judge to follow a unconstitutional order, that canon would be trumped by the Constitution, which states that “[t]his Constitution . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” U.S. Const., art. VI (emphasis added).

Through the examples of state judges with constitutional fidelity, other civil officials may grow inspired to restrain judicial usurpation. If other civil officials do unite with these state judges in defense of the Constitution, strategic success will likely increase. Yet whether success seems sure or suspect, the state judge should first seek alliance from the Supreme Judge of the Earth who does right.[12] The federal Judiciary may seem a colossal giant, but “the battle is the Lord’s”. I Samuel 17:47. God “maketh the judges of the earth as vanity.” (See Isaiah 40:23.)

IV. Conclusion

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He must first remember his oath before God to uphold the Constitution, not the opinions of the Judiciary; he must second remember that the Constitution is “the Supreme Law of the Land”, not the Court; he must third remember the admonition of the Lord to “[r]ender to Caesar the things that are Caesar’s”[13]; and then fourth remember that in the United States, Caesar is the Constitution. If he does this, the Constitution will persevere, and so will “the Blessings of Liberty for ourselves and our Posterity.”

1. Dred Scott v. Sandford, 60 U.S. 393, 620-621 (1856) (Curtis, J., dissenting).
2. 8 The Writings of Thomas Jefferson 310 (Paul L. Ford ed., 1897).
3. Baker v. Carr, 369 U.S. 186, 211 (1962); Powell v. McCormack, 395 U.S. 486, 548–549 (1969).
4. Cooper v. Aaron, 358 U.S. 1, 18 (1958).
5. Gregg v. Georgia, 428 U.S. 153, 176 (1976) (emphasis added). 
6. Wallace v. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, C.J., dissenting).
7. U.S. Const. pmbl.
8. President Andrew Jackson had several battles with the U.S. Supreme Court where he successfully asserted the responsibility and authority of the other branches of government to interpret the Constitution of the United States and not to rely upon the interpretation of the U.S. Supreme Court as the final arbiters of that document. When vetoing the Second National Bank, which he believed was an instrument of government-sanctioned theft through inflation in the money, he disagreed with the U.S. Supreme Court’s ruling that the bank was constitutional, saying in his veto message of 1832 that

   “If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.”

   President Jackson’s Veto Message Regarding the Bank of the United States; July 10, 1832.

9. See 1 Charles Warren, The Supreme Court in the United States History (1926), at 729-79.
10. More recent editions of Black’s Law Dictionary have reflected the Court’s contemporary opposition to the Doctrine of Interposition.
11. United States v. Louisiana, 364 U.S. 500, 501 (1960).
12. Genesis 18:25.
13. Mark 12:17.

Another National Day of Prayer has come and gone, but it hasn’t stopped ill-informed judges from trying to rewrite our nation’s history. “A Colorado appeals court ruled last week that the state governors’ previous proclamations regarding the National Day of Prayer were unconstitutional as they implied a ‘government endorsement of religion over nonreligion.’”

This isn’t the first time wayward judges have displayed their ignorance of history and the meaning of the Constitution. Wisconsin U.S. District Judge Barbara B. Crabb ruled that “the government has taken sides on a matter that must be left to individual conscience. . . . The government may not use its authority to try to influence an individual’s decision whether and when to pray.” She and the Colorado judges need a history lesson from the Founders who drafted the First Amendment and also called for national days of prayer and thanksgiving.

In 1789, the same day the wording of the First Amendment had been finalized, Congress called on President Washington to declare a national day of prayer and thanksgiving. The proclamation stated that “it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor.”

John Adams, in his 1798 Proclamation, stated something similar:

[T]he safety and prosperity of nations ultimately and essentially depend on the protection and blessing of Almighty God; and the national acknowledgment of this truth is . . . an indispensable duty which the people owe to Him.

Then there are the official documents that called for national days of prayer. On March 16, 1776, “by order of Congress” a “day of Humiliation, Fasting and Prayer” where people of the nation were called on to “acknowledge the over ruling providence of God” and bewail their “manifold sins and transgressions, and, by a sincere repentance and amendment of life, appease his righteous displeasure, and, through the merits and mediation of Jesus Christ, obtain his pardon and forgiveness.”[1]

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Here’s a proclamation from 1799, more than ten years after the Constitution was drafted, during the administration of John Adams:

[That April 15, 1799] be observed throughout the United States of America as a day of solemn humiliation, fasting, and prayer; that the citizens on that day abstain, as far as may be, from their secular occupation, and devote the time to the sacred duties of religion, in public and in private; that they call to mind our numerous offenses against the most high God, confess them before Him with the sincerest penitence, implore his pardoning mercy, through the Great Mediator and Redeemer, for our past transgressions, and that through the grace of His Holy Spirit, we may be disposed and enabled to yield a more suitable obedience to his righteous requisitions in time to come; that He would interpose to arrest the progress of that impiety and licentiousness in principle and practice so offensive to Himself and so ruinous to mankind; that He would make us deeply sensible that “righteousness exalteth a nation, but sin is a reproach to any people [Proverbs 14:34].”[3]

National days of prayer and thanksgiving have been a part of our nation’s history before its founding, during its founding, and since its founding.

If the above judges don’t know this history, they shouldn’t be judges. If they do know this history and don’t account for it, they shouldn’t be judges.

1. A copy of the original document can be viewed at www.loc.gov/exhibits/religion/f0404s.jpg
2. A copy of the original document can be viewed at www.loc.gov/exhibits/religion/vc006494.jpg. The proclamation can also be seen in Gary DeMar, America’s Christian History (Powder Springs, GA: American Vision, 2005), 252.
3. John Adams, “National Fast Day,” A Compilation of the Messages and Papers of the Presidents, 1:284–286.

The radical two-kingdoms perspective has recently addressed homosexual marriage. The result has been erudition in the service of confusion. This result includes the familiar R2K progression:

1)      There is a social conflict involving civil law and Christian values.

2)      “Christians should not seek to promote distinctively Christian doctrines and practices through the properly coercive power of the state,” and . . .

3)      Mosaic Law is that which must not be mentioned unless you subsequently, immediately dismiss its validity for today.

Therefore, you end up with only two alternatives:

1)      Stand aside while pagan forces like abortion and gay marriage “further destroy the fabric of society” (totally unacceptable, of course), or

2)      Rationalize coercion based upon legal standards claimed to be not distinctively Christian

But this latter position always leads to ethical, cultural compromise.

And thus Dr. Horton concludes,

Although a contractual relationship denies God’s will for human dignity, I could affirm domestic partnerships as a way of protecting people’s legal and economic security.

There is a third option: claim biblical standards that clearly derived from theonomic (Mosaic) law, but pretend that they’re not. Thus, this position also appeals to loving one’s neighbor as a basis for creating civil laws and penal sanctions. But dismissing the Mosaic grounds for this really opens to door to tyranny.

Strait Talk

The question involved is civil government is, “For what actions are we biblically sanctioned to use coercive force in society?” The subsequent question must be “and how much force?” in various cases, but we can leave that for another time. The primary question is in view here.

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Answer the primary question in regard specifically to the issue of marriage: for what are we sanctioned to use coercive force in society? What does the Bible say?

The main aspect is simple: adultery. There are others, for example, enforcement of inheritances, but adultery is the main thing.

The State should not apply force in regard to the composition of a marriage except when the oath of marriage has been violated in a specific. And even this is only at the behest of the victim.[1]

But this means “adultery” has to be defined. What is adultery?

Adultery is consensual sexual relations of a married person with someone outside his or her marriage.

But supposing two men could possibly take a marriage oath and then be recognized as having a “marriage,” the definition could apply to married homosexuals as well.

Thus, we need to define “marriage” first. This is why the social fight is targeted on this issue.

On the issue of divorce, Jesus refers to the creation ordinance of Genesis:

He answered, “Have you not read that he who created them from the beginning made them male and female, and said, ‘Therefore a man shall leave his father and his mother and hold fast to his wife, and the two shall become one flesh’? So they are no longer two but one flesh. What therefore God has joined together, let not man separate” (Matt. 19:3–5).

From this we could derive a definition of marriage as the joining together of a male and female in a covenantal and physical sexual bond in which they are considered by God and man, judicially, “one flesh.”

But the creation ordinance itself does not explicitly exclude homosexual marriages (and Jesus does not quote it in regard to this issue anyway). I, for one, am satisfied that it is a definitive ideal and that it thus implicitly excludes homosexual marriage. But to be sure, it is not explicitly stated.

More importantly, in post-fall word, it is going to be asserted by many that not only is it not explicitly stated, but it is unclear, and even purposefully not excluded.

Now, the R2K view feels this problem. This is why it appeals not just to the creation ordinance itself, but to the fact that societies throughout history have actually upheld the creation ordinance. But this is an appeal to human convention.

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Thus comes a backup argument: Whenever societies have departed from heterosexual marriage as the standard, society collapses. But this is merely a pragmatic argument. It is also not necessarily always true, and when it is, it could easily be a case of correlation but not causation. (Besides, why does an amillennialist, who believes God’s kingdom can and will never be established in this world, care if society in this world collapses or not? It’s all corrupt and to be burnt up in the end.)

Thus, a trump card comes in: “in terms of specifically Christian witness, love of neighbor (as God’s image-bearers) should be front-and-center. We have to care about our non-Christian neighbors (gay or straight) because God cares and calls us to contribute to the common good.”

But this, too, suffers from lack of clear definition, which is recognized on the R2K front:

The challenge there is that two Christians who hold the same beliefs about marriage as Christians may appeal to neighbor-love to support or to oppose legalization of same-sex marriage.

Exactly. Who defines what position “love” must take?

Worse, this view means that the answer to the question of “coercive force” is without limit as long as it is justified by love for neighbor or common good. Instead of clearly delimiting the powers of government, this view gives it a blank check—signed, “love.”

This is why the “love your neighbor” argument for the civil realm is so dangerous: nearly any intrusive or tyrannical behavior can be justified by it. All you have to do is argue that you are de facto loving your neighbor by forcing him to do something against his will for his own good or for the good of society.

Under the guise of common good, or “loving neighbor”, laws could be justified to force you and your children into centralized government schools. Or prisons. Or concentration camps.

So who determines what, exactly, contributes to “the common good,” and what exactly comprises “loving your neighbor” in society?

Without a clear, divine standard to answer that question, we will be left with some form of the opinions or traditions of fallen men.

And since when do we interpret the Word of God based upon the conventions, or pragmatism, or the definitions of men anyway?

What we need is a clear map.

Stoning Homosexuals

Both of Jesus’ “great commandments” (Matt 22:37–40) to love God and neighbor are taken from the Mosaic code—Deuteronomy 6:5 and Leviticus 19:15 respectively. Jesus also explained, “If you love me, you will keep my commandments” (John 14:15).

What commandments?

And specifically, what commandments in the civil realm? For what are we allow—no, commanded—to use force in society?

The argument must come from Scripture, not man. R2K realizes this much, and states, “Special revelation corrects our twisted interpretations and gives us a better map.”

True. But there is only one place in Scripture where anything like this can be answered without creating broad standards that open the door to tyranny.

Only Mosaic Law gives us the clear revealed standards for civil law that forbid homosexual “marriage.” Because marriage is a physical bond, it is not properly consummated without physical sexual relations.[2] But this is strictly forbidden for homosexuals:

If a man lies with a male as with a woman, both of them have committed an abomination; they shall surely be put to death; their blood is upon them (Lev. 20:13).

And unlike adultery, there is no victim here. This is by definition a matter of State. This is not a mere civil suit, but a criminal suit. Both shall surely be put to death.

Now, note a couple things here:

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First, this is not about stoning homosexuals. It says nothing about people who are dispositionally homosexual—people who through the distinct perversion of their own fallen nature are attracted to the same sex. This is not outlawed as a crime (a sin, to be sure, but not a crime). Anyone can come out openly in a biblical society and admit they are “homosexual” in the sense they are attracted that way, and it is no crime.

(Ravi Zacharias makes a good argument distinguishing between the proclivity and the act of homosexuality here. While he does not go into the crime aspect—which he would not, not being a theonomist—he does make an important distinction, and does so with characteristic power.)

Secondly, there are always privacy and legal protections. Under Mosaic Law, two witnesses are required to bring conviction. In the case of even a private homosexual act, who would be the witnesses? Unless two practicing homosexuals were willing to tell on each other, were filming themselves, or were engaging before hostile witnesses, it would be difficult to bring a conviction even in OT society.

Moreover, private property laws are very strict, and false witnesses would be guilty of the crime for which they sought to prosecute someone else (Deut. 19)—in the case of sodomy, death. Thus, you would largely have people minding their own business.

But, granted, this is still a stark position: it’s a death penalty after all. And holding forth this position is anti-gospel according to the R2K guys. Thus, despite asserting that special revelation provides that “better map,” it must default to the sin-obscured version—“general revelation”—interpreted through the lens of fallen human traditions, nature, and cultures:

Special revelation corrects our twisted interpretations and gives us a better map, but general revelation gives sufficient evidence at least for minimal arguments from antiquity.

“Minimal arguments”—agreed. But not clear and simple by any means. Again, Horton acknowledges the weakness inherent in the system:

Knowledgeable people will disagree about the strength of those arguments, since, for example, Greek elites often had teen-age boys entertain them on the side—with the approval or at least the awareness of their wives.

But the clear and strong Mosaic standard is, well, clear and strong, and it makes a remarkably stark command. It thus so often gets opposed, or dismissed, and R2K relegates the whole Mosaic code to a former time and place:

The statements in Leviticus are part of the Mosaic covenant. They pertain uniquely to the covenant that God made with Israel as a nation. The laws that governed every aspect of private and public life, cult and culture, were a unique episode in redemptive history.

You know those “statements in Leviticus” like “love you neighbor as yourself” (19:18)? Yep, all gone. It was a unique episode in redemptive history. R2K concludes,

Therefore, there is no more biblical warrant for stoning homosexuals today than there is for avoiding Scottish cuisine.

On this point he is simply flat wrong. Paul wrote, “whatever is pure, whatever is lovely, whatever is commendable, if there is any excellence, if there is anything worthy of praise, think about these things” (Phil. 4:8). Therefore, there is clear biblical warrant for avoiding Scottish cuisine (except for Scotch, proper, of course).

But to some degree there is truth in the statement of no biblical warrant for stoning homosexuals. This is not the Mosaic view and never really was—the injunction is against the act of sodomy, not homosexuality in and of itself in the broad sense. But this is the problem: sodomy is clearly outlawed upon penalty of death, and therefore the State cannot countenance the concept of homosexual marriage—not even as an adjunct, admission, exception, or loophole to the creation ordinance of marriage.

This Mosaic injunction is not an addendum or unique interlude; it is an elucidation and protection of God’s creation ordinance: it is an elucidation of the very moral law that Horton wishes to uphold, and it is the civil expression of the protection of it.

This civil protection is nowhere else upheld in Scripture or in nature.

And by not following the revealed standard, but relying upon human-filtered standards, the R2K cannot logically prevent 1) other forms of legally sanctioned homosexual civil unions, as long as they’re not called “marriage”, and 2) all the other humanistic State tyrannies that have attached themselves to the institution of marriage.

In a biblical law society, neither of these injustices would continue, including the heart of the modern problem: State licensing of marriage.

A Biblical Blueprint

The State should be forced out of licensing and regulating marriage, period. This is the way it used to be. It is becoming a more widely-known fact that state-regulated marriage licenses in this nation began solely as a way for bigoted statists to prevent interracial marriages. Before that, while marriages were registered with the States, the State’s permission was not required.

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As with most bureaucratic tyrannies, when their shortsighted usefulness is spent, they do not die but justify their existence by addressing new and more widespread “needs.” Thus when racial fears subsided enough that States relaxed such stipulations in marriage licensing, the New Deal had swept in with Social Security, etc., and the government was using its control of marriage licensing to regulate distribution of welfare benefits. Even this rationale has clearly outlived its usefulness: at that time most people were married; today, this is hardly the case and renders the determinations of beneficiaries awkward or unfair in many cases.

The State maintains control over licensing because we continue to accept its validity in regard to taxation, welfare, and several other areas of life. Bust this, and there remains no advantage to marriage for the homosexual except for an anti-Christian social statement. Horton is correct about this ultimate difference. But instead of criticizing state involvement to a perverse degree to begin with, he sanctions civil unions with equal state benefits up to but not equaling the point of calling these unions “marriage.”

But the state licensing is the first thing that should go. Then all of the taxes and benefits leveraged to it.

A definition of marriage is essential, but so also is the law against sodomy.

Then, in a biblical society, we would (re)institute laws against adultery and sodomy. Marriage would be covenanted through private means with witnesses. Churches and/or private organizations would keep notarized records. In the event of adultery, the records and the evidence would be presented in court, should a case be brought. This is the only area a state would get involved.

In such a society, even homosexuals could pretend to get married, but law would not recognize the union based on the definition of marriage. They could even call it “marriage,” but they’d better be quiet about it. Indeed, public ceremonies of this sort would be a risky indicator of sodomy to follow. The state would have no other input; and it would be ridiculous for a homosexual to bring an adultery suit against his partner. The law would not honor it and he would be publicly exposing himself again as a sodomite.

In short, a biblical society suppresses homosexual conduct by pushing it underground.

What about visitation rights during hospital stays? Another place government should be forced back to only its theonomic limits—in this case, private property. All hospitals should be privatized and run like private businesses. A hospital in that case is private property. Owners can decide the rules for visitation at their own hospitals. No doubt, devout Christian hospital owners would not countenance homosexual partnerships, and would not consider such partners as “family”. Others may not have such high restrictions. In time, people would learn and choose hospitals according to their preference. Don’t like a pro- or anti-homosexual hospital? Don’t use it. Problem solved.

Granted, in dire emergencies you may not have a choice, but if you knew your community well enough in advance, these types of problems would be minimized.

What about adoption? This is a slightly more difficult issue. But it is important to note that homosexual singles are already allowed to adopt in many states. Some forbid it, and other make it difficult, but many allow it. This is, therefore, not so much a milestone at stake.

If a single person period is allowed to adopt, then a single person with spiritual proclivities toward homosexuality, but not practicing, is not much different. An open sodomite, however, is a whole different story. Here again, the laws against sodomy come into play, not the homosexuality itself. The legal issue here is not adoption, but sodomy.

Otherwise, without getting into the full involved discussion, the best advice I can give Christians in order to stop homosexuals from adopting here and now is two-fold:

1)      Start adopting more themselves, and

2)      Fight to make adoption less expensive for the average Christian

Adoption is so highly regulated and red-taped by the state today that it is highly cumbersome and expensive—average cost is around $20,000 and $30,000. If Christians were really concerned about adoption, they’d simply get more involved in the real problems associated with it.[3] Adopt the kids yourselves before the homosexuals can blink.

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Conclusion

It is clear why the fight has centered specifically on the definition of marriage. It is also clear why the issue appears now at the end of decades of ignoring and weakening adultery laws and divorce laws:

Christians have not taken the judicial aspects of marriage seriously for fifty years, or more. And we have not taken them seriously because we have refused to adopt a social and judicial theory based on biblical law.

We dismiss Moses, and then pretend as if our appeals to human convention and our assurances that we, really(!), are loving our neighbor somehow honor God in the civil realm. And you think that will stop the homosexual lobby and the activist courts?

Guess what: human conventions and definitions change. Homosexual lobbies are wise to that fact. They know that it favors their agenda. They will keep trying to push us the next step down the road, just as the humanists always have.

And if one of our celebrated Reformed theologians have their way, we will have the next step down that road at least: “domestic partnerships.”

The answer for civil society lies in Moses, and in the courage to embrace him.

1. Biblically, the degree of penal sanction in cases of adultery is to be determined by the victim, the spouse. Thus, while the death penalty is an option, a merciful victim could call for much less. Thus, when Joseph suspected Mary of adultery (before he had the visitation from an angel informing him of the truth), he chose to divorce her quietly because he was “a just man” (Matt. 1:19).
2. Obviously there are exceptions for circumstances where this is made impossible through accident, dismemberment, etc.
3. This is not to ignore that many Christians are indeed involved, and passionately, wholeheartedly. My criticism is not to these fighters.

In the 1927 case Buck v. Bell, 274, the United States Supreme Court upheld a statute instituting compulsory sterilization of the unfit, including the mentally retarded, “for the protection and health of the state.” This decision flew blatantly in the face of the text of the Constitution, just as more recent cases such as Roe v. Wade (abortion) and Lawrence v. Texas (sodomy) have in recent years. If you’re a civil official responsible for performing the task of sterilizing Americans under a ruling like this, which would you feel obligated to obey—the court or the Constitution?[1]

Does this question not resemble the one asked of the Reformers? “Will you obey the Pope (or King) rather than the Bible?” They chose the Bible.

We continue addressing this question with the second point of the series. If you missed the first point in this series, you can read it here.

II. The Supreme Law of Our Land

A. U.S. civil officials are sworn to uphold the written constitutional text.

When a government official is ordered by a judge to fulfill an action that the government official believes is contrary to the U.S. Constitution, which must the official obey?

We could break down this question and apply it to different officials. If a Congressman were implicitly ordered by a judge to provide funding for an unconstitutional federal service, would the Congressman be obligated to vote for such funding in the federal budget? If a President were ordered by a judge to assist in the enforcement of an unconstitutional federal activity, would the President be obligated to send such assistance? If a state official were ordered to remove an item from state government property contrary to the Constitution, would the state official be obligated to remove the item?

Article VI of the Constitution states in no uncertain terms that “[t]his Constitution . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” U.S. Const. art. VI. All judicial officers take their oath of office to support the Constitution itself (and no person, office, or governmental body — “any Thing in the . . . Laws of any State to the contrary [such as Canons of Judicial Ethics] notwithstanding”) Id.

Article II of the Constitution requires the President to take an oath to “preserve, protect and defend the Constitution of the United States.” U.S. Const. art I, §1. Article VI requires that “[t]he Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution.” U.S. Const. art VI, para. 3.

This Constitution and its oath thereto are still relevant today and should control, above all other human competing legal powers and influences, the decisions of the officials of the United States. God commands “every soul [including civil officials to] be subject to the higher powers.” ( Romans 13:1.) In our nation, the highest civil power belongs to the United States Constitution.

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In an earlier writing before the Constitution’s adoption, John Marshall explained how the Judiciary would serve to keep the Federal Government accountable to the Constitution. “Can [the United States] go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the Judges as an infringement of the Constitution which they are to guard: — They would declare it void.” John Marshall, The Fairness and Jurisdiction of the Federal Courts, 2 The Debate on the Constitution (The Library of America, 1993).

B. The Primary Test for Interpreting the Constitution Is the Text of the Constitution Itself.

James Madison, the “father of the Constitution” and disciple of John Witherspoon wrote, “As a guide in expounding and applying the provisions of the Constitution . . . the legitimate meanings of the Instrument must be derived from the text itself.” James Madison, Letter to Thomas Ritchie, September 15, 1821, III Letters and Other Writings of James Madison 228 (Phillip R. Fendall ed. 1865). The U.S. Supreme Court once held to the idea that “[i]n expounding the Constitution . . . , every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added.” Holmes v. Jennison, 39 U.S. (14 Peters) 540, 570-71 (1840).

Chief Justice Marshall asked in Marbury, “Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government?” 5 U.S. at 180.

A dissenter in the infamous Dred Scott case rebuked the errant majority for rejecting the fundamental principles of constitutional interpretation in their effort to reject the fundamental worth of a person.

And when strict interpretation of the Constitution, according to fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court.

 Dred Scott v. Sandford, 60 U.S. 393, 620-621 (1856) (Curtis, J., dissenting).

The “strict interpretation of the Constitution” has been abandoned too often, and “fixed rules” have not been followed in many court decisions. Judges have the responsibility to decide cases according to the plain, and still unsullied, text of the U.S. Constitution. See Marbury, 4 U.S. at 180.

C. A Court Opinion or Order Does Not Share Equal Authority with the Constitution.

“An unconstitutional act is not a law; it confers no rights; it imposes no duties . . . ; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County, 118 U.S. 425, 442 (1886). Accord, Huntington v. Worthen, 120 U.S. 97, 101-02 (1887); Ex parte Siebold, 100 U.S. 371, 376 (1880); Fay v. Noia, 372 U.S. 391, 408 (1963). If this is true for a statute, how much more must it be so for an unconstitutional judicial decision?

In the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are; and are not of themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect.

Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842).

In the case Bowers v. Hardwick, the U.S. Supreme Court wrote that it “is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. . . . Otherwise, the Judiciary necessarily takes to itself further to govern the country without express constitutional authority.” Bowers v. Hardwick, 106 S. Ct. 2841, 2846 (1986).

In The Federalist Papers, Alexander Hamilton wrote, “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” The Federalist No. 78 (Clinton Rossiter ed., 1961). To Hamilton, it seemed that if the judiciary were to impose its own will on the law, it would effectively replace the legislature.

[T]he general liberty of the people can never be endangered by that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.

Id.

President Thomas Jefferson wrote in a letter to Abigail Adams,

The judges, believing the [Alien-Sedition] law constitutional, had a right to pass a sentence of fine and imprisonment, . . . . But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it, because that power has been confided to him by the Constitution. That instrument meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what are not, not only for themselves in their own sphere of action, but for the legislative and Executive also in their spheres, would make the Judiciary a despotic branch.

8 The Writings of Thomas Jefferson 310 (Paul L. Ford ed., 1897).

No constitutional decision of the Supreme Court is “supreme” over anyone (except perhaps the actual litigants in the case), because “constitutional questions may not be considered as finally settled, until settled rightly.” Pollock v. Farmer’s Loan & Trust Co., 158 U.S. 601, 663 (1895)(Harlan, J., dissenting). The touchstone of constitutional jurisprudence is truth, not power.

Moreover, nowhere does the Constitution mention decisions of the Supreme Court or of any other court as any part whatsoever of this “supreme Law.” Expressio unius exclusion alterius.[2]

 The Constitution always remains supreme over any mere judicial decision purporting to construe it.

D. Equating “Judicial Review” with “Judicial Supremacy” Undermines Our Entire Judicial System.

When the Judiciary’s power to review the Constitution becomes construed to establish “judicial supremacy” in interpreting the Constitution, a controlling text disappears, replaced by judicial commentary. The Constitution serves as a platform for judicial paraphraseology, deconstruction, psychologizing of the Founders, and other superficial tricks.

Without an objective, over-riding textual standard, judicial reasoning becomes elastic and sophistical. For example, the Court decided to enforce the doctrine of stare decisis in Parenthood v. Casey,[3] but decided to ignore the doctrine of stare decisis in the case Lawrence v. Texas.[4]

As the Judiciary replaces the standard of the Constitution, judicial review becomes nonscientific. The constitutional correctness of the Court’s decision in a case cannot be verified or falsified by any means other than a subsequent act of judicial interpretation. In other words, no body may make an independent inquiry of the Judiciary itself. Without this ability, public confidence in the judicial system breaks down.

Since the Supreme Court began replacing the text of the First Amendment to the Constitution with conflicting judicially-fabricated tests, lower courts have remarked how consistently confusing Establishment Clause cases have become. The Third Circuit Court of Appeals has observed, “[t]he uncertain contours of these Establishment Clause restrictions virtually guarantee that on a yearly basis, municipalities, religious groups, and citizens will find themselves embroiled in legal and political disputes over the content of municipal displays.” ACLU of New Jersey v. Schundler, 104 F.3d 1435, 1437 (3rd Cir. 1997). The First Circuit concurred, calling this area of law a “vast, perplexing desert.” Helms v. Picard, 151 F.3d 347, 350 (5th Cir. 1998), rev’d sub nom; Mitchell v. Helms, 530 U.S. 703 (2000). The Fourth Circuit has labeled it “the often dreaded and certainly murky area of Establishment Clause jurisprudence.” Koenick v. Felton, 190 F.3d 259, 263 (4th Cir. 1999). The Tenth Circuit opined that there is “perceived to be a morass of inconsistent Establishment Clause decisions.” Bauchman for Bauchman v. West High School, 132 F.3d 542, 561 (10th Cir. 1997).

Too often, the Court has rejected a jurisprudence that enjoys an “evenhanded, predictable, and consistent development of legal principles, [that would] foster[] reliance on judicial decisions.” Payne v. Tennessee, 501 U.S. 808, 827 (1991); see, e.g., Parenthood v. Casey, 505 U.S. 833, 867-68 (1992).

The Court’s modern “constitutional truth” is situational, relative, and personal. Majorities of sitting judges with their clerks and other legal intelligentsia determine the “truth” of the Constitution for the time being and the specific purposes at hand.

Without accountability to the Constitution, the judicial elitists assert power over everyone else, but recognize no obligation to listen, let alone answer, to anyone else. Having complete autonomy, the Judiciary separates itself not only from the text and time-honored construction of the Constitution, but from the realities of theology, politics, economics, morality, and culture that construction were meant to serve.

In the third and final part of this series, we will address “How Civil Officials May Hold Each Other Accountable to the Constitution.”

1. See http://biotech.law.lsu.edu/cases/psyc/buck-v-bell.htm/.
2. A long-standing principle of statutory interpretation meaning “the express mention of one thing excludes all others.” As the Judiciary has written: “”[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, “[w]hen the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” Id.
3. 505 U.S. 833 (1992).
4. 539 U.S. 558 (2003).