Wednesday, November 29, 2006

The Unborn Child Pain Awareness Act Needs Your Help

Congress has at Least One More Chance to Do Something Great

A friend of mine in Washington has alerted me to an important bill about to be debated by the lame duck congress: The Unborn Child Pain Awareness Act. Once the Democrats take control in the new session, pro-life legislation will have little or no chance to get out of committee. As of January, advocates for the powerless children in the womb will be forced to play a defensive game against an onslaught of legislation seeking to protect so called “rights” to kill human beings in the first and last years of their lives. But right now this Congress has a chance to redeem itself by doing something right. The Congress needs to pass the Unborn Child Pain Awareness Act ASAP, and we need to encourage them to do it.

My friend Alexandra wrote:

"Be an Advocate for the Unborn

Congressman Chris Smith (R-NJ) recently introduced legislation which would put people on notice that the unborn are worthy of legal protection. Scientists now know that unborn babies 20 weeks or older can feel pain. As it currently stands, the law permits second and third trimester abortions without any pain-reducing drugs for the child. Smith’s bill, the Unborn Child Pain Awareness Act (H.R. 6099), would require an abortion provider who knowingly performs an abortion on an unborn child of 20 weeks or more to provide the mother with information about her baby’s age and sensitivity to pain. She will be given a brochure informing her of the option to have an anesthetic administered directly to her unborn child prior to the procedure.

By the 20th week, unborn babies have the physical structures necessary to experience pain. Studies have shown that they react to painful stimuli by withdrawing or grimacing, just as you and I would. For this reason, anesthesia is routinely administered to unborn children of 20 weeks or more who undergo prenatal surgery.

A few months ago, congressional offices were flooded with letters and phone calls in support of the American Horse Slaughter Prevention Act, which banned the inhumane transport of horses to be slaughtered for human consumption. Because of the overwhelming response from constituents, the Horse Slaughter Prevention Act passed the House by an overwhelming margin.

Ordinary people who took a moment to write an e-mail or make a phone call made all the difference.

The House of Representatives is expected to hear debate on the Unborn Child Pain Awareness Act next Tuesday or Wednesday. It is doubtful that the new Congress will take up this legislation after it convenes in January. NOW is the time to call or e-mail your Representative and urge him or her to SUPPORT H.R. 6099.

Please, do not let the last weeks of this Congress pass without speaking up on behalf of the unborn babies among us who are subject to forms of torture and dismemberment that would be criminal if committed on animals.

Unborn children need your voice. Please call or e-mail your Representative TODAY! Then ask your friends and family across the nation to do the same.

To find your Representative, go to You can contact your representative via e-mail through his or her website or by phone. Letters will not arrive in time for the debate. To read the text of the Unborn Child Pain Awareness Act, go to and search for bill number H.R. 6099.
If you have any questions regarding this legislation or other bills to protect unborn children, please feel free to contact me at

Alexandra Berauer”

Please e-mail your representatives. Turn on the heat to get something good done while there is some daylight left to work in. Politely and lovingly demand the passage of the Unborn Child Pain Awareness Act, H. R. 6099.

Tuesday, November 28, 2006

A Response to Albert Mohler on Natural Law

On November 13th, I went to Biola to hear Albert Mohler, the brilliant writer and commentator who is also president of a Southern Baptist college. Mohler started out on what I consider the right track. He was talking about Christians in the public square. People have continually attacked Christians in the public square and are recently seeking to drive them out completely. Many people believe that religious discourse is fundamentally inconsistent with democracy and the values of the liberal West. The problem is that without Christianity there are no foundational reasons for a tolerant or liberal society.

Mohler started out well by identifying the fundamental problem with Christians in the public square as epistemological. What is the foundation or basis for reasoned discourse from a Christian worldview? Mohler was also correct in identifying the Scripture as a primary foundation of Christian knowledge. We should still agree with the Reformer’s “Sola Scriptura.” The Scripture is our fundamental guide to the mind of God. The biblical account must trump our reasonings, our traditions, our writings and our philosophizing.

Where I think that Mohler went wrong was that in the same speech he also sought to marginalize natural law. There are three problems with marginalizing natural law. First, it is a scriptural doctrine. Second, the epistemology of natural law is intertwined with the epistemological basis of Protestantism itself. And third and least important, it is effective.

Mohler discussed the scriptural passages that deal with natural law, Romans chapter 1 and Romans chapter 2, but I believe he misinterpreted both. Mohler admitted that chapter 1 shows that God has revealed His nature, including His moral demands, to mankind in general revelation. But Mohler takes the passage’s conclusion that human beings repressed the knowledge that God has given them and continue to disobey God as an indication that we no longer have moral knowledge because of the fall. Or if we do have it, it is so confused as to be worthless. He likewise interprets chapter 2 in the same way. Chapter 2 speaks of our innate moral knowledge, God having written the law on our hearts. He interprets the passage’s reference where Paul says that the Gentiles’conscience now affirms them and now convicts them as meaning that the conscience sometimes convicts them for things that are good and affirms them in things that are bad. Neither of these interpretations is justified by the text. In chapter 1, it is not said that the reason that people repress moral knowledge and rebel against God is because they have no practical moral knowledge left after the fall. The whole point of the passage is that despite what we know, we choose to rebel against God because of our sinfulness. We repress what we know rather than acting in ignorance. One of the major points of Paul’s argument in Romans is that mankind is morally accountable to God because man knows about God and knows what is right and yet does not follow God’s will, but instead rebels against God. This is why only God’s sovereign action to draw us to Himself and His grace in the sacrifice of Jesus Christ are adequate for our salvation. Apart from God’s help, we are hopelessly in willful rebellion against God. We do not sin because we are ignorant, we sin because we wish to sin. In addition, there is nothing in the Romans 2 passage to indicate that the Gentiles’ pangs of conscience are inaccurate. There is no reason to believe that Paul is not saying that our conscience affirms us in what is right and condemns us in what is wrong. The alleged scrambling does not appear in the text. I suspect that it is a presuppositional overlay.

It is also the case that there are other passages in the Bible which support natural law. Some of them discuss the ways in which God has revealed things to man. Not only do we see in Genesis 1 that God has created man in His image, but even after the fall God affirms in the Noahic Covenant that the reason why murder is prohibited is because man was made in the image of God. Enough of the image must still be retained to justify God’s rule regarding murder. I Corinthians 11:7 also refers to man as “the image and glory of God.” James, in chapter 3 verse 9, warns us not to “curse men who are made in God’s likeness.” While sin and the fall have damaged the image of God in man, they have not eliminated it. Man’s innate moral knowledge, reasoning ability, ability to learn language and the knowledge of God’s existence are likely all part of the image of God in man. In Amos 4:13, we hear that God “reveals His thoughts to man.” God also makes natural law arguments in the Scriptures. For example, when Jesus is explaining why it is not wrong to heal on the Sabbath, He does not simply say because God says so, but instead He refers to an analogous moral instinct that the people already accept: on their Sabbath, they still untie their animals and lead them to food and water, so why shouldn’t God’s people bound by illness be freed on the Sabbath as well? See Luke 13:16-17. In Matthew 7:11 when Jesus argues God will give us good things when we ask, he says to the crowd “you, being evil, still know how to give good gifts to your children . . .” (emphasis added). These are just two examples of God’s own arguments from general revelation or natural law.

Second, the epistemology involved with natural law is the foundational epistemology of reformed Protestantism. It is the Roman Catholic Church which is communitarian and authoritarian in its understanding of the Scripture: the papacy, when speaking ex cathedra, and the magisterium of the church explain to the believer what the Bible allegedly means. By contrast, Protestants have maintained since the time of the Reformation that God’s Word in the Scripture was accessible to all human beings, or at least all regenerate human beings. This requires, of course, that words actually mean something, and that human beings have the ability to learn language and understand what those words mean with some objectivity. That is only possible with an Augustinian epistemology in which God, through the creation of man in His image and through His divine light, has given us reason, the ability to learn a language, and other innate information. This includes moral information. Being able to understand universals such as the difference between good and evil and justice and injustice intertwines language and morality. If this Augustinian morality is not real, how can people claim to understand the Scripture objectively? A rejection of the ability to understand the Scripture objectively is indirectly supportive of the Roman Catholic system, not the Protestant system. Without accessibility, it would be necessary to have some authority to explain to people what the Scripture meant. But with objectivity provided by the general revelatory endowment of the Spirit of God to all human beings, every man can understand the Scriptures. This is not to say, however, that everyone will read the Scripture and be saved without God’s aid. Without the Holy Spirit illuminating the human being and drawing him to Christ, people do not believe or accept the Gospel. This is different from saying that the Scripture is not understandable. Indeed, the real undermining of natural law among Protestants has taken place partially because of Protestant anti-intellectualism, partially because of modernism and its rejection of Augustinian epistemology and its subsequent influence even in many evangelical Protestants, and partially through the growth of modernistic epistemologies among evangelical Protestants, even though those epistemologies are inconsistent with their traditional beliefs. There has also been the confusion of natural law and natural theology. The issue of whether or not people will be saved without the Scripture is a very different question from whether or not they can know something about good and evil without the Scripture. And yet, people often wish to equate the two. The great debate between Barth and Brunner over natural law was really a debate over this issue of natural theology with natural law incorrectly chained to natural theology’s outcome.

A third argument supporting natural law is not as important as the first two because it is instrumental rather than principled. But natural law arguments actually do work. As we pointed out above, God uses them throughout Scripture. There are also arguments commonly used by Abraham Lincoln and Martin Luther King, Jr. in their arguments against slavery and for civil rights respectively. At the Biola talk by Albert Mohler, he was asked a telling question by a member of the audience. A woman asked if we are to reject natural law arguments, exactly what kind of arguments are we supposed to make? What will a winning argument look like if it is not going to look like a natural law argument? The questioner pointed out that if people reject natural law, they are not very likely to accept the testimony of the authority of Scripture. Was Mohler advocating a “the Scripture says…” argument, or does he have some alternative? While Mohler dealt with the question for nearly five minutes, he was actually quite stumped. He finally admitted that even though he doesn’t believe in natural law, he himself uses natural law arguments. He also articulated his belief that it is not our obligation to use arguments that work, but merely to testify to the truth. Sadly, I think it is this kind of rejection of effectiveness and willingness to fall into an ineffective separatism that has handicapped orthodox Christianity for the last 200 years. God’s truth is not only true, it is effective.

So, while I greatly appreciate Albert Mohler and still have the greatest respect for him and will continue to read his excellent writings, I was disappointed in his position on natural law.

Wednesday, November 22, 2006

License to Kill

One of my former students recently told me he had heard some Christian professors from another school question whether evangelicals should not “rethink” our stance against abortion because of the tremendous suffering caused by unwanted pregnancies.

It is true we need to respond with greater love and help to everyone – but especially people like women who are suffering because of an unexpected baby. But I cannot agree with the professors.

First, most abortions are not committed to avoid suffering. They are done for convenience. But even physical or economic or romantic or mental suffering is not really good reasons to kill relatively innocent human beings – even if they are in the body God has entrusted to you. And, scientifically speaking, unborn human beings are still living human beings. There is no point at which an inanimate object becomes alive or at which a non-human object becomes human. At conception living sperm and living egg join to create a living human being.

Certainly, a license to kill would seem handy to most of us. That emotionally devastating ex boyfriend, the boorish spouse, the obnoxious neighbor, the cruel boss, the embarrassing relative, the sycophantic rival, the lying coworker, the greedy captain of industry – none of them would be much missed and so much human suffering would be ended by their elimination (there is a song in Gilbert and Sullivan’s Mikado based on just this idea). But of course I jest. Even very bad humans, who cause pain to others every day, cannot be justly killed through extrajudicial processes without legal justification or excuse such as the defense of others from deadly force. All humans are made in the image of God. And we are all sinful. Some reason for wanting to eliminate any of us could be found by a truly righteous judge. But in God’s mercy, instead of allowing the open season on humans we so richly deserve, God has said “Do not murder.” Killing is reserved for just war and just legal process against a limited number of serious crimes.

Whatever made people claim it was ok to kill babies in the womb or nearly out of the womb? A license to kill may go with “spies at war,” but not with “mothers to be.”

Flying Imams Questioned

Six Islamic Imams were taken off a US Airways plane for questioning on Monday. They claim their detention and questioning were due to discrimination. The Imams had been attending a meeting of the North American Imams Federation in Minnesota. The Imam’s complaints are what I have heard emphasized.

If the television broadcasts I heard are to be believed, it seems there is probably more to the story.

It has been said that the Imams, though traveling together had seats in pairs spread evenly through the plan – two near the front, two in the back, and two in the middle. During their time at the airport, they were allegedly overheard making derogatory comments about the US. Once on the plan, two of the Imams demanded seat belt extensions that the flight crew believed they did not need. The extensions could have been used to bind crew members in the event of a takeover of the plane.

Under the circumstances of the current war, these factors, along with the instincts of an experienced flight crew, seem like probable cause for questioning to me. If no one had done anything and the plane had been hijacked, everyone looking back would have asked why nothing had been done in light of this suspicious pattern. While I hate the nuisance of heightened security, I realize it is necessary in the world in which we now live. The flight crew and officials of US Air and the TSA are to be congratulated for taking no chances. At worst this could have been a hijacking. But it could also be an exercise designed to probe and desensitize the airport security system. The response thwarted any such exercise.

Thursday, November 16, 2006

Legal Ethical Dilemmas IV cont. - indifferent things, part III

Because so many issues in politics involve not clear moral issues, but the question of whether or not means are efficacious and the question of which costs and benefits we are willing to shoulder, it is the case that we need to be somewhat respectful, humble and kind to each other in political discourse. One of the problems is that during the last century, fascism and communism systematically worked to create entire generations of people who were angry and highly politicized. Their heirs still teach on American college campuses today and are still working to create highly politicized and bitter political partisans. The response to bitter partisanship is usually more bitter partisanship. The partisan says “compromise with me or you’re being unreasonable.” Extremism is defined as disagreeing with the politicized person. So politics seems more and more extreme. We have not yet reached the levels of extremism experienced by America during the early Federalist years when Thomas Jefferson was suggesting that it might be good for Americans to copy the French Revolution and behead a few New Englanders. Nor is it as bad as the pre-Civil War years in which congressman not only argued with words, but even caned each other on the floor of American’s legislative body. But things have become extremely unpleasant and bitter in the political world. Ideally, things would be better if we all were aware that we share the same basic goals but are arguing about what means are actually the best to achieve those goals.

Another problem though is that some people do not believe that there really are choices between certain costs and other costs. Some people actually think that through political action the world and human nature can be perfected. They think that the effects of the fall can be eliminated and the world turned into an earthly paradise. Ironically, the belief in the pursuit of paradise on earth has caused more human suffering than perhaps any other idea. In a fallen world, perfection and earthly paradise are impossible. Attempts to change human nature by force or to re-make the world through government policies usually result in efficiency and suffering. Look at the Communists, the fascists and the Islamists. They are already suffering from attempts to perfect society and mankind. It seems like an odd paradox that the desire to end all wars creates passivism and encourages aggression and thereby fuels the existence of vicious wars rather than stopping them. By contrast, working to arm a country properly and to deter war frequently prevents wars from breaking out since no one thinks combat is worthwhile. As a late 60’s and early 70’s sitcom once said, if you flood a desert you may end up draining an ocean. Politics and public policy are a paradoxical business. But they must always be understood as existing in a fallen world. While we pursue the good and seek to make things better, the pursuit of paradise usually has the opposite result. It is only the paradise of God’s eternal kingdom that will eventually end sin, pain and death. But until then, we muddle through, making due with what we have rather than obtaining perfection. Perhaps it is because in seeking to create a perfect world, we seek to put man and his wisdom and authority in palace of God. It is only by accepting who God is and seeing the world as it really is that we can make genuine progress.

Wednesday, November 15, 2006

Legal Ethical Dilemmas IV cont. - Indifferent things, Part II

Another example would be the relative generosity or toughness of the worker’s compensation law regime in a given state. Worker’s compensation in itself is a sort of special compromise made in the law that allows workers to collect damages for injuries from their employers in exchange for limiting the amount and scope of the damages. Before workers compensation laws it was difficult to collect damages for an on the job injury since an employee implicitly agrees to do the dangerous things that he does as part of his regular employment. Worker’s compensation in itself is a sort of social bargain that has advantages and disadvantages, but nearly all states have chosen to enter into that bargain and have a worker’s compensation scheme of some sort or another. It was pioneered by the scheme used for sailors in maritime law. But worker’s compensation regimes can have relative harshness or generousness. They can either make it easy to collect or difficult to collect, easy to contest an opinion about whether a worker is injured or difficult. In California, the system used to favor workers. The advantage of this was that workers who were genuinely injured had an easier time of obtaining fair compensation for their injuries. Attorneys were able to represent them and obtain enough of a reasonable compensation to make a living as worker’s compensation attorneys. However, the scheme had disadvantages. It encouraged fraud and waste and was hard on employers in the state. One of the factors influencing employers in whether to keep their businesses in California or move to other states was the expense of the California worker’s compensation system. California was losing many employers (California environmental regulations and the high cost of housing in California are also reasons businesses are leaving, but people don’t like to talk about those). Now we have a stricter worker’s compensation regime in California. There is less waste, less fraud and the system is easier on employers. But the system is more difficult on people with legitimate claims. And the new system is particularly hard on worker’s compensation attorneys. It is much more difficult to make a living as a worker’s compensation attorney in California today as opposed to a few years ago. So, the change in regimes has both costs and benefits. It isn’t really a choice between good and evil, but a choice between which goods and which evils you’re willing to tolerate in a fallen world.

Often complex issues also involve risks in the calculation as well as costs and benefits of the system itself. The controversy over global warming is a good example. There is some scientific evidence that global temperatures are rising. There is a risk in interpreting the evidence because it is statistical data collected from a variety of fixed points over what geologically or climatologically is a short period of time. When we look at the history of weather, we also rely on the accuracy of certain scientific techniques and theories for interpreting temperatures and conditions in the past. It is possible that there are certain factors affecting those tests and measurements that we’re not aware of, and that measurements and estimates of past change are inaccurate. In addition, cities create heat. Much of the rise in global temperature measurements is due to the urbanization and the rise of temperatures in urban areas. So even the question of whether there really is warming or not is one where we may be substantially certain that there is increase in temperatures, but it is difficult to be absolutely certain that this is the case, or to be certain as to how long the trend will last. After all, it is obvious that weather men have trouble predicting the weather next week. To predict the weather over decades or centuries is far more difficult. Currently computer models are used to do this but the computer models are only as accurate as the assumptions made in constructing them. Until we have a many years of computer models making accurate predictions, it is difficult to know whether or not the current computer models actually are accurate. When you’re deciding whether there really is global warming there is always a substantial risk that you’re wrong.

Second, what is the cause of global warming? Some people believe that it is man-made and other people believe it is natural. Some people think it is a combination of both. Again, the decision is largely based on faith in computer models that may or may not be accurate. We have no certain way of knowing. But there are also common sense arguments on both sides. Some people look at the tremendous amount of waste material put into the atmosphere by industrial mankind. But other people note that the amount of waste generated by mankind is miniscule compared to that generated by one volcano. In addition, when we think about carbon dioxide emissions, we tend to focus on cars while forgetting that some natural objects like cows and buffalo create vast amounts of carbon dioxide over a period of time—especially since a car is only operated a few hours a day, while the buffalo was breathing around the clock. Furthermore, climates have built in regulators that we are not fully aware of. There was a period of time back in the 70’s and 80’s when climatologists were sure we were going to produce a new ice age. Now they are even more sure that we are creating global warming. They appear to have been wrong about the ice age.

But then even if you assume and are willing to take the risk that global warming is real and that it is actually man-made rather than natural, there is then the problem of exactly how you deal with it. Even assuming global warming is real and affected by human carbon dioxide production, there is still a question about whether it can be stopped, slowed down, prevented or reversed and whether or not stopping it or reversing it is actually worthwhile. Reducing carbon dioxide emissions is likely to have an unpleasant impact on commerce. It will make all the products we use and all the food we eat more expensive. That means that more people will descend into poverty as they are unable to afford the necessities, let alone the luxuries of life. Because more people will be in poverty, some of the people who are already in poverty will actually die because they will be unable to afford the necessities of life. In addition, the money used to convert industry to produce less carbon dioxide will not be available for other endeavors. The human ingenuity and time invested in reducing carbon dioxide emissions will not be available to produce new food, to create new technologies, to defend the country militarily from its aggressive enemies, to spread the Gospel or to do other desirable things. While warmer temperatures may not be desirable in the Sahara, they may be highly desirable to Canadians. National public radio has recently been running stories on the expected boom in commerce to areas in Canada that are currently enclosed by ice for a large part of the year. Many Canadians hope that global warming will turn there towns into major centers of commerce. If global warming is real, a northwest passage may open up cutting 4,000 miles off a travel by ship from Tokyo to New York. The Russians have recently complained that global warming will melt the permafrost of Siberia and that the uncovered mammoth carcasses will release large quantities of methane into the atmosphere. But a warm Siberia will also be an area that will be more friendly to farming, logging and other human enterprises than the permanently frozen Siberia that we have today. In addition, there may be alternatives to limiting industry. The process of photosynthesis turns carbon dioxide into oxygen and carbon imprisoned in the form of plants. Is it possible to plant and sustain enough new vegetation around the world to shift the global balance of carbon dioxide and oxygen? Undoubtedly doing so is probably easier than retooling all of the industries of the world or trying to stop the poor from burning fossil fuels. These are just some examples of how a complex issue like global warming is not simply about the right and wrong of protecting human life, but rather about the costs and benefits involved in specific political and economic measures. When you decide to endorse policies for changing industry or policies for letting the market take care of these problems, you are choosing between costs and benefits, not merely choosing to save the environment or hurt the environment.

Tuesday, November 14, 2006

Legal Ethical Dilemas IV - Keeping the Indifferent Indifferent

Another common problem, which is interwoven with the radical politicization of life and government, is the tendency for people to paint everything in either totally gray terms or totally black and white terms. Some people claim that there is no such thing as good and evil and they want to make everything gray. I cannot agree with them. But it is also a mistake to claim that every public policy issue is really a question of good and evil. There are advocates out there who are more than willing to assume that the cause of no fault car insurance is a moral issue: those who disagree with them are evil and those who agree with them are on the side of the angels.

Public policy would be a lot easier if everything really was clearly dictated by the moral law. But it isn’t. Many issues in government are not purely matters of morality, but rather matters of how moral principles can effectively be vindicated by public policies. There are usually costs and benefits or risks and hopes for every policy alternative. The real question is often not weather a policy is right or wrong or good or evil, but whether it will effectively protect human life or effectively protect property, or effectively promote a sense of community. Policies almost always have both good and bad effects. The law of unintended consequences is one of the most inescapable laws of human existence. Even though we want our policies to purely achieve good ends, they often do not. Even good policies bear certain costs.

Law is full of examples of policies that have both positive and negative effects or costs and benefits. For one example, our statutes of limitations. A statute of limitations bars claims at a certain period in time. We will not go into the complex issues of when statutes of limitations are told or in effect put on hold and when they run. But generally one must file a civil complaint for some injury or breach of contract prior to the time the deadline established by some statute of limitations. Short statutes of limitations such as a year to eighteen months have the advantage that they encourage people to file claims while the witnesses are still around and easy to find. The witnesses still remember things when a short period of time has gone by. The documents that are necessary for the case will probably be available since they will not have been lost or destroyed and everybody will be able to plan their insurance and savings needs for risks because they will know that it is unlikely that cases will be filed against them after the short statutes is run. There are several disadvantages to the short statute of limitations. First, it catches some people unawares. There are always procrastinators. People wait to file their claim until it is finally too late. Also, sometimes you don’t really know you have a claim or if you wouldn’t think you have one, you’re not sure if you really need to file a lawsuit. Occasionally insurance companies will toy with people until the statute of limitations is run. In addition, a short statute of limitations prevents people from engaging in rightful negotiations beyond a certain point. A single year is not very much time to resolve a complicated dispute that involves that involves contradictory evidence. In addition, many people do not have any idea of what their stable medical condition will be like following an accident within a single year. Often they won’t know whether they’re going to be in pain for life or whether they’re going to get better and be pain free during the time that goes by in a short statute of limitations. So you can see that both sides have advantages and disadvantages. When choosing a statute of limitations it isn’t really a choice between good and evil, it’s a choice between what kind of problems you’re prepared to deal with as a society and which kinds of problems you would like to avoid. And after you pass one, you will always be tempted to make equitable exceptions when the difficult circumstances arise. A certain number of exceptions are reasonable and will do justice in specific cases. But you can’t make an exception out of every circumstance or eventually the exceptions will swallow up the rule.

Monday, November 13, 2006

Changing Hearts or Laws?

In late October, our school was blessed by a visit by Michael Cromartie, vice president of the Ethics and Public Policy Center in Washington, D.C., where he directs evangelicals in civic life, religion, and the media programs. He is also serving a term on the U.S. Commission on International Religious Freedom. Cromartie was here to speak about the work of the president’s Commission on Religious Freedom. In doing so, he also discussed a variety of interesting side topics including the relationship between culture and law.

As Cromartie pointed out, there are people who insist that it is not possible to make society more moral through human laws but rather culture must be changed in order to obtain any improvement in public morality. By contrast, there are other people who seem to ignore culture and focus on legal means to maintain or change public morality. Cromartie indicated that there should be a balance between the two. It is true that it is necessary to change people’s hearts and minds for the law to be effective. But it is also true that legal changes can have a positive effect. Cromartie pointed out that the civil rights movement in the United States helped change the laws that allowed segregation even though the hearts and minds of many people throughout the nation were not yet ready for such a change. Some people tried to persuade Martin Luther King that he should not press for civil rights but should rather pray and work for people’s hearts to change. King rejected this idea. He was willing to work for a change in people’s hearts, but he recognized that the law should not allow recognition of segregation and the evils of racial discrimination. The civil rights movement helped bring about simultaneous change in both areas. The change in the law helped change people’s hearts and minds. The change in people’s hearts and minds made the change in the law enforceable.

I think that it is important to remember this two-tier approach to public morality and human law. It is especially important in battles over issues like embryonic stem cell research, abortion and the means of education for children. Christians are not going to succeed in maintaining or improving public morality if they alienate everyone in the culture through bad manners, through loveless attitudes or through a lack of care about those in need. But we will not succeed in ending the evils of abortion, etc. or promoting better education of children through vouchers, home schooling, etc. unless we also pay attention to the legal and political systems. It is not a case of either/or, but of two things that must proceed hand-in-hand. Christians for too long have tended to neglect one or the other.

Because of the inter relations between human law and cultural attitudes, it is of the utmost importance that we continue to emphasize preaching the Gospel, making disciples and teaching the full counsel of God as expressed in Scripture and as applied to the ethical and moral challenges we face in real life today. At the same time, Christians need an increased awareness that God is calling some of them to careers in law and government service and calling all of us who are citizens to vote properly and campaign properly in the service of our republic. While not every Christian should become a congressman or a congressional staff member or an attorney or a civil servant, all Christians that vote should acquaint themselves with the issues, discuss them with their neighbors, and support candidates whose character, ideas and principles will further effective government. We need to remember though too that though not every Christian is called to government and law, many more are called than are currently. Instead of encouraging the best and the brightest of our young people to become doctors and business executives, we need to encourage a few more of them to become law professors, journalists, civil servants and statesmen.

The world of political people is currently filled with many people who either have good intentions and terrible policies, or bad character and good policies, or desire for money, sex and power furthered by professing whatever policies they think will get them more of what they want. This is not a happy situation. While all people are sinful, and while people with defective characters will always be attracted to positions of power and authority, it is necessary for the good of our neighbors that we allow the Lord to sanctify us, purify us, improve our characters and also to put us in positions of service to our neighbors in law and government as well as in other fields and professions. We must not let service in law and government re-make us in the world’s image. We need to study law and government from a Christian worldview and learn to apply that worldview in practice. We need to work against both substantive and systemic injustices throughout our society. In a fallen world we will not succeed in getting rid of all the injustice in society. But we can have a better society than the one we have now. In order to improve society, we must never forget to work in both the realms of hearts and minds and human laws.

Friday, November 10, 2006

Religious Liberty Part IV

Belief in conscience is likewise being eroded by post-modern thought. Modern scientific belief has alternatively taught that human moral ideas and religious ideas are either a development of evolutionary processes, a set of mere chemical reactions to stimuli, or a set of social constructs. None of these things can be proved scientifically because the history of moral development, the existence of God, and the existence of conscience are not subject to proof or refutation through controlled scientific experimentation. But those who would go beyond the bounds of science under the name of science have been eager to dispel a belief in God or His moral laws in order to further what they perceived as their own liberty. However, that rather than achieving liberty, belief that science has dispelled morality or faith in God results in slavery and tyranny. The modern atheistic governments of communism and fascism have far outstripped the inquisition in the incorrect application of force.

Because the dictates of moral conscience go against some of the desire for license, the west has allowing the gradual elimination of freedom of conscience. Here in California, we already have attempts at legislation which would force pharmacists to prescribe medicines whose effects they consider immoral or would require doctors to perform procedures that they consider immoral. It is not enough for those who advocate license in experimentation or sexuality to have an illegitimate liberty to carry out their inappropriate desires, but rather they seek government not only to approve but to mandate that others approve of their actions.

Like truth and conscience individual rights are likewise endangered. Post-modernism questions the existence or importance of the individual. As a result, the more popular post-modernism becomes, the greater danger to the continued existence of individual rights. The courts have also rejected the theistic worldview as a foundation for western jurisprudence. Without the belief in a God who gives rights, rights are purely a matter of positive law and can be eliminated through the amendment of the Constitution or through statute. Unless we believe along with the Declaration of Independence that there is a creator who endows humans with unalienable rights, all rights are perfectly alienable and can be dispensed with through proper legislation.

The rise of radical Islamo-fascism is also a threat to these rights. Vishal Mangalwadi did not speak to this problem, but it is clearly a real problem in the West today. On the one hand, some people wish to react to Islamo-fascism by allowing the rule of law and the existence of individual rights to be compromised in order to appease the Islamo-fascists. Rather than acknowledging that women have a right to equal education, freedom from abuse and freedom from slavery to a patriarchy, western nations are beginning to allow radical Muslims to create enclaves which practice an extremely radical version of Sharia law that discriminates against women and strips them of the relative equality they have achieved under in the Christian west. Islamo-fascism also forbids freedom of conscience. Inhabitants of Muslim societies are free to believe in and practice Islam. While they may tolerate the existence of other religions to some degree, social rules discriminate against them, people are not free to convert from Islam to Christianity, and Christians free to proselytize and seek the conversion of Muslims to Christianity in an open and public way. True freedom of conscience requires not only the ability to place ideas before people, but the ability of people to embrace those ideas. Without the freedom to proselytize and the freedom to convert, there is no religious freedom and no freedom of conscience. The attitude is similar to the attitude that prevailed in some places in the West at some times. But it is an attitude that we ultimately have chosen to reject because of the three foundations opf religious liberty.

So if we give in to radical Islam, we lose the foundations of religious liberty. But likewise some people seek to suppress our liberties in resisting Islam. The beliefs of the Islamo-fascists have led some westerners to redouble their efforts at preaching moral relativism and post-modernism. But you cannot defend against a false belief in no belief at all. Only a real truth will triumph against a false one. The radical left has also sought to suppress conscience as they perceive that radical Islam is in part driven by a warped view of moral conscience. Radical Islamists are critical of pornography and homosexuality in the West. As a result, some westerners redouble their efforts to have not only freedom to engage in the use of pornography or in homosexual acts, but to suppress the conscience of others who disagree with them concerning the moral status of those acts. And last, there are those who seek to eliminate individual rights in order to protect us from those who would eliminate individual rights. Contrary to popular belief though, the Patriot Act and the acts of the current government in the war on terror have not limited the individual rights of American citizens nor compromised the inalienable rights of non American citizens. But attempts to treat rights as purely a matter of positive law rather than as flowing from the nature of God Himself and His order in creation do threaten the continued existence of individual rights. The insistence of many that rights are purely a matter of constitutions rather than a matter of the divine Logos threaten to relativize rights and allow their future elimination.

So, with respect to religious freedom we walk a sort of tight rope in the West. But in a sinful world, most good social practices are always on some kind of knife edge or another. Human beings are perpetually falling into some social sin or another even as they succeed in eliminating some other social sin. But despite the fact that life is a constant struggle, we must continue to struggle for the existence of religious liberty and freedom.

Thursday, November 09, 2006

Religious Liberty, Part III

So, all three of the major foundations of religious liberty flow from the Bible and its impact on western civilization. The problem is that all of them are currently in jeopardy because of western civilization’s rejection of the Bible and the Christian worldview. In the United States, there is still a solid majority of people who not only consider themselves Christians, but who actually hold many of the foundational beliefs of Christianity. The west is steadily losing belief in many of the distinctive elements of the Christian worldview. In Europe the disintegration of the Christian world view has preceded at a higher rate than it has here in the United States, but even here the disintegration is most evident. Another problem is that while western civilization was steadily working the biblical principles into its way of life, it was also steadily unraveling the application of some biblical principles for its convenience at the same time. Our poor treatment of the Indians and our experiments with slavery and racial discrimination have not only been evil, but have caused tremendous damage to western law and western legal theory. Today our rejection of the ideas of the Scripture is leading to the rejection of the very foundations of the liberties we cherish.

Today westerners are being educated to believe that there is no such thing as objective truth. Post-modernists try to tell us that objective truth does not exist. Truth is merely an artificial construct of society—a deception used to justify the status quo of power structures. Pragmatists may tell us that we can go ahead and act as though objective truth existed, but despair of actually providing any genuine foundation for its existence. So when challenged or when presented with some other possible working hypothesis, the pragmatist has no way to hold the line against the active “moral superman” who seeks to unravel customary morality in favor of some “new” morality that is not moral at all. Our lack of belief in truth is already beginning to show up in the courts as people are more and more willing to lie in individual cases and as judges are more and more willing to disregard the established meaning of the law and of individual words in order to achieve an evolution in social policy. In the name of tolerance we have also become intolerant. Western society is poised to persecute those who believe in objective truth and seek to maintain it in the face of social demands for moral relativism. Sadly, the cutting edge issue in this regard is sexual morality. In California we are continually threatened with proposed laws that will effectively make it illegal to be critical of homosexual conduct. In some places, like Canada and Sweden, such laws not only already exist, but have already been used in prosecutions against Christians who have spoken against the homosexual lifestyle and homosexual practices. Thankfully, in Sweden an acquittal was achieved when a pastor was put on trial for criticizing homosexuality from the Bible. But if this trend continues, the west will continue to reject belief in truth and will begin to subject those who believe and maintain belief in objective truth to persecution in the name of “freedom.”

If a society no longer believes that objective truth exists or can be determined through reasoned inquiry or special revelation, then it only makes sense, for practical purposes, that society must decide what is to be true or not to be true, and must act to preserve social stability by suppressing those who advocate an alternative truth. This is, of course, exactly what happened to Socrates and to Jesus. And the former western beliefs in objective truth and in free dialogue were largely based upon the situations involving Jesus and Socrates.

Wednesday, November 08, 2006

The Election is Over

So the election is over and the results are almost all in.

The American public has spoken. Like King Lear they have chosen those who tell them what they want to hear. They have chosen Grimma Wormtongue over Gandalff. The have rejected the party that proved incompetent at doing good or explaining it in favor of the party that seeks sin and death under the cover of glowing platitudes.

By the grace of God things almost never turn out as badly as they could, and the election is no exception. It will not be the end of the world. Hopefully everyone will learn from it. Prolife Democrat's did well. If the Democrat party gives up abortion they can continue to do well too. Moderate big business and country club Republicans did badly. The Republicans need to remember first principles instead of being the party of personal peace and affluence or the party of the status quo. But the news media, pied pipers that they are, are already saying that to win Republicans must become less principles. Will people learn?

The fight for the Supreme Court could be lost if the Senate falls to the democrat's. When Justice Stevens retires (and he cannot hold on much longer) there will be a huge push by Democrats to replace him with another pro-abortion justice. If they succeed, the blood of millions of additional aborted children will be on the hands of this generation. We have a chance to overturn Roe with just one more pro-life, or even strict constructionist judge. But that chance may be lost if the Senate races in Virginia or Montana go to the pro-abortion party.

And, what of the war? Islamofacists around the world are congradulating each other this morning. Will the House force premature withdrawal from Iraq and let the bloody civil war there grow worse till Iraq becomes a terrorist state? Will we go on the defensive in the war on terror and waist billions of dollars on the Democrats target hardening and law enforcement strategies while our enemies grow strong and bold over-seas?

Will we end up with not only no family protection amendment, but laws requiring that school children be taught that homosexual marriage is normal and good? We have lost a battle in the culture war due to the perfidy of our own side. Now the war will be even more intense.

Religious Liberty, Part II

The Bible teaches that there is absolute truth. Truth comes from God and His mind. Jesus is the embodiment of that truth as the second person of the Trinity in incarnate form. Jesus is the divine Logos who is truth, reason, order and the communication of God Himself. Jesus did not use armed force to spread the Gospel. Instead, God has chosen to spread the good news about Jesus Christ through preaching rather than the power of the sword. Christians have sometimes been mistaken in attempting to use means other than persuasion to spread religious truth. But the biblical text itself clearly supports the notion that the good news of Jesus Christ is to be spread through preaching and persuasion rather than through force or intimidation. Likewise, it rejects bribery and economic pressure as a means for spreading the Gospel. While it took hundreds of years for European Christians to put this notion into action, the fact is that the doctrine was always present in the Scripture itself. It took time for the idea to work itself out into the consciousness of the society.

The same thing is true of conscience. Romans chapter 2 tells us that God has written His law on the heart of all human beings, both Jews and Gentiles. When Luther said it was neither right nor safe to go against conscience, he was thinking of a God-given conscience—the God-given conscience of a Christian in particular—rather than a mere social construction. If conscience were purely a social construct, it would not make sense to say that you will go with a social construct against the authority of the very society that is responsible for constructing the conscience. Luther’s stand and the idea of freedom of conscience assume that conscience ultimately comes from a source other than social power and pressure. While social norms may mend or mar our higher conscience and make us feel guilty or pleased about actions that are actually evil or truly good, our deep conscience, the moral knowledge that we have from being created in the image of God and illumined by the divine light of God’s general revelation exalt human beings morally accountable before God and means that all human beings have at least some native ability to understand God’s demands even though outside of Christ they do not have the power to comply to any serious degree with those demands. We respect conscience because of its biblical source and because of the need of all people to be free to worship God. One of the Ten Commandments indicates that everyone should be able to observe the Sabbath. Not only are free people given the Sabbath off, but animals, prisoners of war and debtors or prisoners working off their debts are to be allowed to rest on the Sabbath. In describing this rule for the Sabbath, God is indicating that all creatures should be given the opportunity to give what they owe to God. All of us should be able to give proper worship to God and to give Him proper place in our lives. Even if we are bound by other commitments or relationships, those commitments or relationships cannot supersede what is owed to God Himself. Hence we allow people freedom of conscience to give what they believe what they owe to God.

We have found through bitter experience that the government is a poor arbiter of religious duty. As a result, we have found that it is best to leave people free to pursue the dictates of their conscience provided that they do not undertake things that are clearly against the moral law of God such as murdering innocent people in order to fulfill that perceived or actual duty.

Individual rights also find their foundation in the Bible. The Scripture clearly talks about moral obligations both of individuals, nations and governments that transcend human authority, governmental sovereignty or social consensus. Indeed, the whole point of many of the illustrations of Scripture is the importance of one man or woman or a group of men or women standing firm against the clear dictates of government, society and false religions. Moral dictates create reciprocal rights. The prohibition of murder creates a right to life. The existence of moral commands creates a right to fulfill those moral commands. The command not to steal creates a right to private property. While a right to life can be forfeited by capital crime or a right to property cannot extend to misuse property over which we have stewardship because stewardship in property is entrusted to us by the God who owns the universe and everything in it, these rights are predispositions of justice rather than immutable entitlements. The existence of individual rights is clearly indicated by the tone, tenor and attitude of Scripture even though there is no explicit discussion of rights as such. Once again, this was not something that occurred to westerners immediately upon conversion to Christianity. Rather, it was something that worked its way out as they absorbed the Christian worldview and began to struggle with the problem of applying Scripture to their lives. Today we sometimes take individual rights too far by believing that we can have individual rights to do things that are evil. While we can have rights that make it easier to get away with doing things that are bad, there can never be any right to do something wrong. God only gives us rights to choose among goods and rights to be free to do what is good. Evil must be tolerated that freedom may exist, but no one ever has a right to do something evil in itself. Hence there cannot be an individual right to abortion or a right to murder one’s spouse or a right to abuse one’s children. Rights are also evident from the nature and order of God’s creation. The rights of human beings are in part related to the kind of thing a human being is and the duties entrusted to human beings by God. Since God is the ultimate owner of all things including human beings, and since human beings have no right to own one another, a variety of realities about individual rights flow from these facts. But rights are a huge topic and we could go on about them forever, so back to these three foundational principles of religious liberty.

Tuesday, November 07, 2006

Democrates Against Democracy

Now that we are once again in an election season, there is more talk once again this year about election fraud and the supposed repression of voters. Throughout American history there have been instances of voter fraud, especially in New York City, New Jersey and a few of the northeastern states. Chicago is also known for its own problems in this respect. While there has been Republican involvement in election fraud, the majority of well-known historical election fraud has been perpetrated by the Democratic Party. The same is still true today. When illegal aliens and dead people vote, they are usually voting Democrat, although the recent scandal in Orange County has shown that Republicans are not free from fault in this respect. History has shown that there was substantial election fraud in the election between John F. Kennedy and Richard Nixon. Kennedy won because of fraudulent election results. Nixon was aware of this but waived his right to object and demand an investigation. Nixon believed that the integrity of American’s belief in voting and democracy was more important than the results of his individual race.

Today we experience exactly the opposite. Even though there is relatively little voter fraud and virtually no voter intimidation, left wing elements within the Democratic Party are constantly trying to create the impression that there is wide-spread intimidation of Democrat voters and that there is wide-spread voter fraud by Republicans. Neither of these things is empirically true. If anything, the reverse is probably the case. Nevertheless, this constant rebel rousing about voter intimidation and fraud is creating growing doubt among the American electorate.

Democracy requires trust in order to function. People have to believe that their votes really count. They have to believe that voting is a viable substitute for forced violence and the rule of the mob. By reducing trust in our election system, these radical elements within the Democratic Party are undermining democracy itself in the United States. Perhaps this is logical for them since many radical left-wing elements believe in one form of totalitarian rule or another. But for those many people in the Democrat and Republican parties who love freedom, raising the level of distrust in democracy is neither rational nor wise. Even though the electorate may not always make the right decision, it is better for us to have a republic in which people vote than to be under the control of elites or to have public offices swayed by who can put forward the most persuasive (or the best news media covered) demonstration in major cities.

Monday, November 06, 2006

Moral Failure of Christian Leaders

In the news once again this season, we have articles about a major Christian leader who is accused of moral failings. Sadly, this is all too common but not surprising. Some people like to point out the moral failings of Christian leaders as an attack against the truth of Christianity. But Christianity does not predict that its leaders or its rank and file believers will be free from immorality or hypocrisy. Christianity as a system predicts precisely the opposite: it says that all human beings commit sins. After we become Christians, our sins are forgiven and God works within us to gradually make us better and better people. But in this life we do not obtain apparent perfection. In fact, God often calls to Himself the very people who have the greatest problems with sin and temptation. So even though Christians may be improving throughout their lives, they are frequently people who struggle more with sin and character than the “good people” of the world who, though they sin, may sin less or have character defects which are less evident. God in His mercy and kindness often chooses the weak among us rather than the strong.

I think it is also the case that many people are led into the Christian ministry of pastorship, teaching or counseling in part because of their own struggles with sin and self. God also calls those with problems to help and encourage others with problems. Because of these facts, it is not surprising when any Christian, let alone a Christian minister, fails to live up to the standards to which we are called. It is also the case that Christian ministers are often under greater spiritual attack and pressure. The temptations presented to them are often more egregious than those facing people with less responsibility. But for the grace of God protecting us from temptation that we are unable to bear, any person would succumb to life-destroying temptations given the right circumstances.

It is true nevertheless that the Bible clearly articulates that those with leadership and authority among the people of God should be relatively pure in their outer moral actions and relatively strong in character. As a result, when allegations of serious sexual misconduct or fraud or crime turn out to be true, it is sometimes necessary to temporarily, or in some cases even permanently, remove a person from leadership within the church. But we must do so with humility since any of us could easily fall into the same situation. Christians are broken people accepting the gifts that God offers to us. As C.S. Lewis has said, whenever we do anything right, God is deserving of the credit. Whenever we do anything wrong, that is the result of our own selves.

Because of the truths I am describing in this article, people within the world have no real right to criticize Christianity because of the moral failings of our leaders. As I say, their failings are merely verifying Scripture’s understanding of human nature. In addition, people within the church should not let these events discourage them. Instead we should re-double our efforts to allow God to sanctify us through the transforming power of His Word. We should re-double our efforts to pray for our leaders and ourselves that we will not be led into temptation and that God will deliver us from evil. And as the church takes the actions it must, we should look upon our fallen heroes with an attitude of humility, love and mercy. And, we should try to undertake such safeguards as we can to avoid temptation in our own lives and to protect other leaders from falling into temptation. Financial audits, office doors with windows, computer internet filters, and accountability to spouses and to friends can seem like unnecessary irritations, but they are really wise safeguards to help all of us avoid the problems to which our human nature makes us susceptible even after our conversion to Christ. As I have grown older, as I have read the books of more Christian authors, and as I have come to know more great Christian men and women, I have come to realize that maturity in Christ, rather than resulting in moral perfection, leads us more and more to a consciousness of our sinfulness and vulnerability. Even those among us who we account strong and mature are in need of sanctification, study, and fellowship. Human laws also have a role. Good human laws help us avoid the worse sins than we already find present in our hearts and minds.

May God have mercy upon us all and hasten His sanctification process within His people. May we all do what we can to avoid temptation and to pray that the Lord will cause us to allow Him to grow the fruit of His Spirit in our lives. The Scriptures say that the fruit of the Spirit is love, joy, peace, patience, kindness, goodness, faithfulness, gentleness and self-control; against such, there is no law.

Friday, November 03, 2006

Three Foundations of Religious Liberty

On October 13th and 14th, international lecturer, Vishal Mangalwadi, spoke at the speaker series we have here at Trinity. Dr. Mangalwadi talked about many things related to religious persecution, the situation in India and historical matters, but one interesting portion of his speech was about religious liberty. Dr. Mangalwadi noted that in the West religious liberty has largely developed based upon three ideas: truth, conscience and constitutionalism to protect individual rights.

Traditionally, the West has believed that objective truth exists and will triumph in a free discussion of ideas. Milton wrote about this during the time of the great English civil war of the 17th century. The great Huguenot jurist, Mornay, also spoke about this on his diplomatic journeys to the Netherlands from France. While the West has religious wars for a period of time, it was ultimately the consensus of western peoples that truth should be a matter of persuasion rather than a matter of violence.

Freedom of conscience has been a foundational principle of religious liberty in the West. The need to follow conscience was exemplified by Martin Luther who indicated at the Diet of Worms that he was unwilling to bow to the claims of human authority, but rather must follow his conscience unless convinced that his conscience was incorrect by reasoned argument from the Scripture. Likewise, the Westminster Confession emphasizes the need for freedom of conscience. This is not to say that there are not things that are right or wrong or true of false. The deep conscience is given to us by God, and contains genuine moral information. While our higher consciences may be affected by society, upbringing, and ill treatment or false belief, our deep consciences flow from God’s nature and God’s image imprinted on man through the divine light. Though that image is damaged by sin, we still must respect the genuine dictates of real conscience. We have faith that the power of conscience should not be made subservient to the power of government without some sort of reasoned persuasion from the Word of God as to the proper content of conscience.

Mangalwadi spoke last of the foundation of belief in individual rights. Again, the Huguenots had a fundamental role in the early development of constitutionalism and the belief that constitutions should protect and reserve the rights of the people against their governments. Samuel Rutherford and John Locke, influenced by the writings of the Huguenots, expounded these concepts for the English speaking peoples. The notion of rights is also a fundamental part of the development of the English common law with its emphasis on the proper predisposition of justice toward the preservation of life, property, and the freedom to choose among goods necessary to develop virtue and achieve what relative human happiness is possible in a fallen world.

All three of these foundations, truth, conscience and individual rights, were developed in the West because of the Bible and its influence. Mangalwadi is currently developing a video series that will discuss the role of the Bible in western civilization. I believe he is correct in asserting the role of biblical truth in supporting the development of the foundational ideas which in turn support religious freedom. In the next post of this series, I will argue that the Bible is the origin of the three foundations of religious liberty.

Thursday, November 02, 2006

When the Right is Wrong; the Power of the Courts and Natural Law

The Supreme Court is an institution with an interesting history. It has almost always been controversial. Sometimes it has been right, and sometimes it has been wrong. In the early history of the United States, the Court wrote an opinion upholding the rights of Cherokee Indians against the United States government. The Court was right at that point. Andrew Jackson, however, refused to implement the Court’s decision. Jackson was wrong about the Indians but he was partially right about constitutional checks and balances: he had the power to interpret the Constitution and laws in good faith and could refuse to abide by the Court’s ruling except in the specific instance decided by the Court. Abraham Lincoln followed the same principle following Dred Scott. The Court was wrong in the Dred Scott opinion. They decided that black people could not have the rights of regular American citizens. Lincoln could do nothing to help Dred Scott, but he disagreed with the Court’s opinion and refused to put it into practice. Lincoln continued to issue passports and do other executive branch acts that treated black people as citizens of the United States with equal rights. During the 1800’s the Court was seen as an important applier of constitutional meaning in individual cases but not as an ultimate arbitrator of constitutional meaning in all cases.

Opinion about the Court’s power shifted in the 1900s. In the first half of the century various versions of positivism became dominant. Positivists said law was not a “brooding omnipresence in the sky” (to quote Oliver Wendell Holmes, Jr.). The positivists thought that law was not based on natural law and reason, but was whatever the legislatures and courts said it was. Positivists saw law as a science of articulated power. To the degree that law was within the jurisdiction of the courts, positivists saw law as whatever judges said or did. With respect to the common law this made some sense. But with respect to the Constitution, this was a revolutionary idea. Courts in the past had thought of the Constitution as a higher law that was founded upon, and clarified, the implications of the still higher natural law that gave power to the Declaration of Independence, the acts of the people, and the Constitutional Convention. If a constitution was seen merely as a document that provided a jumping off point for the articulation of evolving judicial opinion, this was something entirely different.

The Court earned its new power by doing something right. During the 1950s, legislatures in the separate states and the federal government were unwilling to make necessary progress in putting into action the implications of the amendments passed after the Civil War. Clearly black people were entitled to equal treatment and equal civil rights. But the legislatures did not take action to vouchsafe those civil rights. In the 1950s, the courts began to move to protect genuine civil rights. In doing so, they stretched their powers. The courts normally did not have the authority to oversee ongoing activities of executive branch entities in detail. They normally did not have the power to set government policy. But because of the positivism and legal realism of the earlier part of the 1900s, and because the Court was doing something right in standing up for civil rights, no one was willing or able to question the Court’s reach for power. The Court did a good thing, but in doing so they developed powers that stretched beyond the original design of the Constitution. As a result of the civil rights cases, the high court of the United States claimed the ability to be the ultimate arbitrator of the meaning of the U.S. Constitution. Because of this power, in practice, and because of the legal positivism and legal realism taught by American law schools, American politicians and lawyers came to accept that the Supreme Court really was not only the ultimate arbitrator of the Constitution, but in a sense, the font of a living Constitution that was comprised of whatever the Court said. Based on this new view of their power, the high court enacted and created new “rights” that were antithetical to the original constitutional order and to natural law: the right to abortion being chief among them. Both then and now there were some dissenters on the Court, but the dissenters’ opinions were not always as helpful as they might be.

Just today I saw on the internet some comments by Justice Scalia (who is a brilliant, and who is right about the law most of the time) in which he was essentially talking about the Court as a guardian of democracy. Scalia sees his role as doing whatever the majority of citizens in the country want him to do as expressed through their legislators. Scalia admits that he is personally opposed to abortion and that there is no right to abortion in the Constitution as it is currently written. But Scalia also admits that if the majority of the people would vote for a constitutional amendment, through the proper process, guaranteeing the right to abortion, then he would be happy to uphold that new right. Scalia apparently takes a Hobbesian positivist view of the law. He seems to be saying that whatever the majority wants, the majority gets, whether it is genuinely right or wrong. This is a problem. Suppose the majority of people passed a constitutional amendment denying civil rights to people based upon race or national origin? That would be immoral, clearly wrong and clearly contrary to the text of other provisions in the Constitution. Would the Court then uphold this provision merely because it had been passed by the majority of people through the proper process? Would they forget to make any objection even in principle?

Human beings have a right to life because they are human beings. That right comes from God and is inalienable. It is recognized in the Declaration of Independence, a foundational document of our government. The right to life cannot be taken away or disparaged by statute or even by constitutional amendment because it is based in a higher law than that of the Constitution. The problem is that today our society no longer understands, embraces or correctly articulates the higher law. We have so deluded ourselves in our claim that no such law exists that we have begun to pretend we forget what it actually says. Deep down it is undoubtedly true that the law is still there, but we have suppressed its meaning just as the southerners suppressed it when they insisted on making black people their slaves. We have suppressed the moral truth that human beings are human in all stages of development and that human beings are entitled to enough of a right to life that they cannot be intentionally killed with malice aforethought and without justification or excuse. We have allowed their intentional killing provided that they are very small and out of sight because they are in woman’s womb or in a petri dish. Justice Scalia’s rejection of the Court’s claim to be the font of revised constitutional text is justifiable and correct. But his belief in pure democracy as an antidote is simply suggesting a weaker poison in exchange for stronger.

Wednesday, November 01, 2006

Why You Should Vote

At the link is my post of October, whith comments, on why Republicans need to get out and support Republican candidates even if they are not completely happy with the party record. The main reason: government by the Democrates will be much worse. Even if the Democrate candidate in your race is pro-life, he will vote for a leadership that will ruthlessly fight for abortion in judicial nominations and statutes. Why go from people who are ineffective in getting what you want to peple who will deliberatly do the opposite of what you want.

Legal Ethical Dilemmas III - Anger

Another common legal dilemma is the use of anger. A fellow Christian once told me that anger is a gift given to us by God in order to deal with evil. Anger is an appropriate reaction against evil. The Bible clearly allows this to be true. Jesus was angry when He threw the moneychangers out of temple. But the Bible also says that we need to have limits to our anger. We are “not to let the sun go down on our wrath.” If you perpetuate your anger and are angry all the time, or if you internalize your anger and refuse to give it acknowledgement or expression, the ends are the gradual destruction of mind and body. While anger is good at the appropriate times and in the appropriate amounts, it is corrosive and can be destructive in the wrong amounts or at the wrong time. There is a danger in the law of turning the law into a milk toast occupation in which righteous indignation has no role. But that danger is not the most common in our society.

Today we live in a world that is more and more politicized. People involved with plaintiff’s personal injury work often believe that industry is populated by vicious, cold-blooded robber barons who are eager to give the masses cancer, disease and destruction in order to make a quick buck. Conversely, lawyers involved in the insurance defense business are sometimes equally partisan. They often believe that the plaintiff’s bar is full of men and women who are encouraging fraudulent and frivolous litigation in order to make money at the expense of the economy and legitimate business practices. The plaintiff’s bar thinks that people are reckless with other people’s lives and health. The defense bar believes that the plaintiff’s bar is making demands that cannot be met in a fallen world. The defense attorney says life cannot be perfect and human life cannot be risk free. In order to live and have agriculture, industry and other means of feeding and clothing people, we have to undertake activities that have risks. And if society were to fully internalize all the economic externalities of those risks, we might easily restore ourselves to the quality of life present in the early Middle Ages rather than to the environmental paradise sought by the plaintiff’s bar. Each side has their argument and their perspective. More and more often attorney’s tempers grow short.

It is common among legal practitioners that they not only believe the other side’s tactics are malicious attempts to waste time and increase the costs of litigation rather than efforts at gathering genuine evidence to encourage settlement or prepare for trial. As tempers escalate, threats of sanctions and demands for additional rules and statutes designed to punish parties for asking too many questions or filing illegitimate claims grow greater and greater. There is a time for anger in practice—when faced with genuine and clearly identifiable evil. But most anger in practice today is counterproductive. Most lawyers are reasonable people. Though they are sinners, like all humanity, they are trying to do the best they can do for their clients. It is not their desire to impoverish society or to eliminate justice. While there are always some attorneys who are crooked, they are still, thankfully, not the majority of attorneys. Frequently a lot of the anger and bitterness in litigation comes about through misunderstanding. Lawyers have differences of opinion about the proper scope of discovery or the results that they think their discovery should achieve. When the other side resists answering questions that they believe are beyond the proper scope of discovery, or when they do not produce the documents or evidence that their opponents conjecture to exist, the result is not only anger but escalating threats and threatening court filings. Each side assumes the other side is being willful and malicious. I have found that it is far more productive to assume that the other attorney is simply trying to do his job. If one deals with an angry fellow attorney with kindness and concern rather than attempting to escalate anger and threats, the result is usually that opposing counsel relaxes and a productive dialogue can begin. It is odd in our society that we are so willing to be pacifists in international affairs, and claim that if people would all just decide that war is never the solution to problems, that everybody would agree and we would have universal peace. But in our private business and legal transactions where a genuine peace is far more possible than in international affairs, we refuse to agree that matters could be settled by reason and discussion, and insist on litigation as war.

When attorneys agree to talk with one another and to treat the litigation process as a rational exchange of reasoned views and material evidence, the process is more effective and easier on both of the parties and the attorneys. The stress and anger that comes from the assumption of sharp practice and retaliation is not worth what it produces.

It is true that clients frequently encourage litigation as war. The clients want their attorneys to be zealous and they believe that a gentle discussion between counsel may mean that they are being sold out for the sake of the ”good old boy network.” As a result, some attorneys engage in theatrics in order to appease their clients. But the proper role of an attorney is to be a counselor who persuades his client to do what is right, not to be a mercenary who engages in bloodletting for his client’s entertainment. Attorneys are the first line of defense against genuinely malicious clients. It is never in a client’s best interest to act maliciously or destructively. Skilled attorneys must always be at work to convince their clients to do what is right because doing what is right is what is really in your client’s best interest. Wrongs will eventually be discovered, if not by the trial court, perhaps by the heavenly court. Wrong does eventually out, and our job as attorneys is not to enable our clients wrong, but to counsel our clients to do what is right. Many lawyers are afraid to do this because they believe that counseling their clients in the right will lose them business. They prefer telling their clients whatever they want to hear and then happily billing the money necessary to pick up the pieces after their client’s will results in an explosion of litigation and accusation. But this is wrong. I have found that in reality when clients are counseled to do what is right and kept away from those gray areas that tempt their customers and fellow businessmen to litigation, the client is not only happy, but grateful. If people find out that you are an honest attorney who will tell them the truth and encourage them in the right way, you may lose a few angry clients but the general public will beat a path to your door. In addition, you will be a much happier attorney and live a longer and happier life. You will also contribute to a happier community and a happier world. While your belief that litigation need not be war will not end all wars, it may contribute to social stability and a community feeling. And if we love our neighbors as ourselves, isn’t that the sort of thing we should want for our neighbors?