This is the first in a series of articles about the recent Supreme Court opinion in Hamdan v Rumsfeld. As is often true, the news media in their enthusiasm to reinforce their own opinions has ignored many of the subtle legal facts concerning the Hamdan case. These articles will attempt to shed a bit more light on what the case actually means and decides. It is alleged that Hamdan was the driver for Osama bin Laden. He was captured during the invasion of Afghanistan. He is charged with conspiring and agreeing to attack civilian objectives and commit murder with unprivileged belligerence and terrorism. As part of this conspiracy, he acted as bin Laden’s driver during the time when he knew bin Laden and his associates were engaged in such terrorist acts. He arranged for transportation of and actually transported weapons used by Al-Qaeda members including bin Laden’s bodyguards. He also drove or accompanied Al-Qaeda leaders to various press conferences, lectures and training camps where attacks against the Americans were discussed and encouraged, and he obtained training for himself at Al-Qaeda sponsored training facilities. Hamdan was to be tried by a military tribunal convened pursuant to the president’s authority as commander in chief. According to the Court’s opinion at page 3 of the slip opinion, Hamdan was assigned to a military tribunal under the provisions of the 2001 presidential order on “detention, treatment and trial of certain non-citizens in the war against terrorism.” This order allows for the detention and trial of persons connected with Al-Qaeda or other terrorist activities aimed at the United States. Contrary to the many articles and video segments you may have seen on television, the majority of the Court did not actually find that the procedures of Hamdan’s proposed trial violated the Geneva Convention. What five members of the Court actually held is that the military commission in question is not authorized by either the Geneva Convention or the Uniform Code of Military Justice. In other words, the Court is claiming that the president did not have authority to set up the commission. Four members of the Court in dicta are critical of the procedural safeguards used by the proposed military commissions. In order to support that criticism, they refer to the Laws of War and Common Article III of the Geneva Convention.
Because of the view today that the Supreme Court is in some way the living oracle of a living Constitution, people pay a great deal of attention to every word the Court says in their opinions. Traditionally, this was not always the case. The part of a legal opinion which is actually binding as precedent and law is its “holding.” How to spot the holding of a case is sometimes a difficult thing to explain. Lawyers learn how to do it in law school through exposure to excerpts of thousands of judicial opinions. Attempts to create a foolproof method of extracting holdings on the part of legal scholars have generally failed. Let it suffice to say that the holding is the applied legal rule for the particular case. It is that logical, legal conclusion upon which the case hinges and without which the case could not be decided as decided. It is the particular bit of law that is fully sufficient to determine the outcome of the case and no more. Holdings can be interpreted narrowly or broadly but in theory it is always supposed to be the necessary thing about the case rather than the many superfluities in the body of the opinion. Extraneous matter beyond the holding is often useful in determining the Court’s attitude. After all, judges are learned experts in the law and their opinions are worth paying attention to. This is triply true of the Supreme Court since they are not merely learned experts but the final earthly court of appeal. But even with the Supreme Court, it is technically true that only the holdings of their cases are binding upon themselves and others. In the Hamdan case, it was not necessary for the decision in the case to look at the procedures to be used in the military commission once the Court had already decided that the power to create military commissions did not belong to the president. This, by the way, is an odd conclusion considering the very things that had been expected up to this point. But more on that later.
Given the Court’s holding, it now falls to Congress to create some kind of authority for military commissions and to set them up. Ironically, Congress thought they had already done this. And they thought that when they did it, they had prevented the Supreme Court from hearing an appeal of the Hamdan case. Reading through records of the congressional debate on the Detainee Treatment Act of 2205 would show as much. It was said on the floor of the House that the bill was contemplated to prevent the Hamdan case from proceeding to the Supreme Court (so I am informed by one of my friends in Washington who discussed the matter with people involved in supporting the debate). But the Court ignored the actual intent of Congress and created a loophole for themselves in the Detainee Treatment Act so that they could hear Hamdan v Rumsfeld in spite of Congress’ attempt to prevent them from doing so. In this sense, the Hamdan case is every bit as much an attack on the authority of Congress as the authority of the president. You haven’t heard that in the press though, have you? The press has been spinning the opinion as an attack on the president alone and in the ringing endorsement of Congress. The Detainee Treatment Act as provided in the Court’s own précis of its opinion, provides that “no Court…shall have jurisdiction to hear or consider…an application for…habeas corpus filed by…an alien detained…at Guantanamo Bay.” Hamdan is an alien detained at Guantanamo Bay. The Supreme Court maintained, however, that this did not apply to them because the habeas petition of Hamdan was already in process when the Detainee Treatment Act of 2005 was enacted into law. And the Court noted that such laws are not retroactive. The problem in that the very history of habeas corpus law is that habeas corpus is a procedural matter and can, in fact, be affected retroactively. When the Congress has acted to deny the Supreme Court jurisdiction to hear particular writs of habeas corpus, they are almost always doing so with existing cases in mind. So, from the very foundation this case is somewhat suspicious. More to follow in the next posting concerning Hamdan.
Tuesday, July 11, 2006
Wednesday, July 05, 2006
The battle of their time - and ours
the bear hour
At the link is an excellent article by Alexandra on the battle of Antietam and why it is still significant today.
At the link is an excellent article by Alexandra on the battle of Antietam and why it is still significant today.
Monday, July 03, 2006
Happy 4th of July
founding.com A User's Guide to the Declaration of Independence
Here is a link to information on the Declaration of Independence.
I hope and pray that all of you, and our blessed country, the United States of America, have a happy and safe Fourth of July celebration. God bless America and give her an even greater part in His great story!
The Declaration of Independence is one of the most important documents in our history. While the Constitutions sets out the rules we are to play politics by, the Declaration is the document that creates the nation. It recognizes a foundation for our government in God and His laws, the human rights created by God, and the consent of the governed.
Governments are God’s servants to limit evil and promote good in the temporal realm, in accord with His legal principles, through human laws that vary from polity to polity.
Human laws must be just to be valid. This is why the government derives ONLY its “just powers from the consent of the governed.”
Without God, there are no true rights. Rights created by men can be taken away by men. “Rights” implied from our equality alone, without God, lead to chaos, license, and behavior destructive of ourselves, our families, our associations, our communities, our states and our nation itself.
The consent of the governed to just laws and just government is also critical. Good government must have the support, participation, and oversight of the people or it will not remain good. The people must, as far as sinful people can, abide by God’s laws too, or their government will not remain good, if it remains at all.
The Declaration also lists concrete instances in which the government of England had violated the law of God, the rights of the colonists and others, and ignored the need for the consent of the colonists. This was no mere self interested revolution. The colonists knew these concrete acts implied England held a philosophy of government different from their own: one in which they and their neighbors could be treated like slaves even though the treatment had not yet escalated so far.
Many Christians believe the American war of independence was unjust. I believe they are wrong. A just war is a war for justice, when necessary and appropriate alternative means are no longer likely to be effective. The colonists had just cause as described in the Declaration and in history. They had suffered a “long train of abuses.” Their petitions for redress had been met with the force of arms and occupation. While there were a few incendiary patriots in Boston and elsewhere, America as a whole acted with patience and deliberation. Had England granted the colonists the rights of free Englishmen the war would have been avoided.
Here is the text of the Declaration:
“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures. He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.He has affected to render the Military independent of and superior to the Civil power.He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:For Quartering large bodies of armed troops among us:For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:For cutting off our Trade with all parts of the world:For imposing Taxes on us without our Consent: For depriving us in many cases, of the benefits of Trial by Jury:For transporting us beyond Seas to be tried for pretended offencesFor abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.He has abdicated Government here, by declaring us out of his Protection and waging War against us.He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people. He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
Here is a link to information on the Declaration of Independence.
I hope and pray that all of you, and our blessed country, the United States of America, have a happy and safe Fourth of July celebration. God bless America and give her an even greater part in His great story!
The Declaration of Independence is one of the most important documents in our history. While the Constitutions sets out the rules we are to play politics by, the Declaration is the document that creates the nation. It recognizes a foundation for our government in God and His laws, the human rights created by God, and the consent of the governed.
Governments are God’s servants to limit evil and promote good in the temporal realm, in accord with His legal principles, through human laws that vary from polity to polity.
Human laws must be just to be valid. This is why the government derives ONLY its “just powers from the consent of the governed.”
Without God, there are no true rights. Rights created by men can be taken away by men. “Rights” implied from our equality alone, without God, lead to chaos, license, and behavior destructive of ourselves, our families, our associations, our communities, our states and our nation itself.
The consent of the governed to just laws and just government is also critical. Good government must have the support, participation, and oversight of the people or it will not remain good. The people must, as far as sinful people can, abide by God’s laws too, or their government will not remain good, if it remains at all.
The Declaration also lists concrete instances in which the government of England had violated the law of God, the rights of the colonists and others, and ignored the need for the consent of the colonists. This was no mere self interested revolution. The colonists knew these concrete acts implied England held a philosophy of government different from their own: one in which they and their neighbors could be treated like slaves even though the treatment had not yet escalated so far.
Many Christians believe the American war of independence was unjust. I believe they are wrong. A just war is a war for justice, when necessary and appropriate alternative means are no longer likely to be effective. The colonists had just cause as described in the Declaration and in history. They had suffered a “long train of abuses.” Their petitions for redress had been met with the force of arms and occupation. While there were a few incendiary patriots in Boston and elsewhere, America as a whole acted with patience and deliberation. Had England granted the colonists the rights of free Englishmen the war would have been avoided.
Here is the text of the Declaration:
“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures. He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.He has affected to render the Military independent of and superior to the Civil power.He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:For Quartering large bodies of armed troops among us:For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:For cutting off our Trade with all parts of the world:For imposing Taxes on us without our Consent: For depriving us in many cases, of the benefits of Trial by Jury:For transporting us beyond Seas to be tried for pretended offencesFor abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.He has abdicated Government here, by declaring us out of his Protection and waging War against us.He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people. He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
Wednesday, June 28, 2006
Democracy
I was recently reading the blog Colossians 3:16 and came across a post commenting on comments made by Condoleezza Rice at the Southern Baptist Convention. The post quoted Condi as saying, “If American does not serve great purposes, if we do not rally other nations to fight intolerance and support peace and defend freedom, and help give hope to all who suffer oppression, then our world will drift toward tragedy.” The author of the comment was troubled by this for a variety of reasons. First, they emphasized truly that our allegiance as Christians is first to God and His kingdom rather than to any of the kingdoms of this world. Second, they were suspicious of Rice’s belief in democracy and that other nations need to have democracies. Third, the article noted that we need to judge political issues from a biblical perspective rather than aligning ourselves with any particular party. All of the parties get things wrong from time to time. I have some sympathy with the author’s conclusion that “the last thing we need is continued blurring of the lines between Christianity and patriotism and a pat on the back for political morality jargon. We need to be jarred back into becoming and making disciples. Not until America’s Christians truly understand and live this will we be the ‘force for good’ that America could be.” It is certainly true that we need to become and make disciples. It is also true that we need to avoid being co-opted politically. As many authors have mentioned, David F. Wells for example, it is easy to seek popularity by adopting the ways of the world in place of the ways of God. This is particularly easy in the political realm where popularity seems so important. All that said, I wanted to deal particularly here with the question of democracy.
Many people believe that democracy arose as a result of Christianity. This is not exactly the truth. Democracy of the unorganized village type is virtually the first government known to humankind. The ancient Sumerians practiced village democracy until slowly falling into the rulership of priest kings. Of course nearly everyone who has seriously studied history is aware of the democracies of the Greek city states. While we fault these democracies today for having slaves, they were somewhat remarkable for their time in the level of government participation they gave the average freeman. I think Russell Kirk is correct in spotting the true weakness of the Greek democracies however: Greek religion did not support genuine morality or virtue. As a result, although the Greek democracies did involve the agreement of the populace, the populace was easily led into all sorts of mischief. They engaged in wars of aggression in order to gain wealth and land. They undertook schemes to take away wealth from certain individuals and redistribute it to others by force. They undertook reverse schemes to create temporary dictatorships that superseded the Greek democracies until overthrown. And the Greek democracies were always easily manipulated by demagogues with good verbal skills. The sophists of course, the philosophical ancestors of today’s postmodernists, were always willing to make money by teaching people how to manipulate the masses with oratorical skill. Like today’s marketing executives, they were mostly interested in the practical outcome of obtaining power and wealth rather than believing in any objective moral accountability. Rome was of course not a pure democracy but was a republic with democratic elements until the emperors took over. But it can be said that a large reason for the emperor’s destruction of the republic was that the general citizenry had become uninvolved in the democratic features of the government and relied instead on powerful and influential individuals. At times the Roman assemblies that were supposed to meet and vote on various things would simply have the officials responsible enter in the records that they had met even though they had not.
It is true though that the modern growth of democracy and republican government has largely occurred through the influence of Christianity. The reasons for this are fairly straight forward: they relate to Christian theology.
Most governments that involve aristocracies or autocratic rulers are based on the philosophy that some human beings are inherently gifted or entitled by nature to rule over others. Christianity has always taught that all human beings were the same kind of thing—sons of Adam and daughters of Eve to use C. S. Lewis’ phrase. None of us has an inherent right to rule over others. In fact, Jesus consistently tells us that if we want to be the greatest of all, we need to be the servant of all. Leadership and status come not from being in some way superior, but rather from providing service to others, especially others who are in need. In addition, the doctrine of the fall and human depravity plays a role in this. Because human beings are all fallen, none of us is inherently trustworthy. Not a single human being or group of human beings can be trusted to justly govern others. So we try to decentralize power and create various checks, balances and institutional devices designed to make it difficult for an errant human being or a group of errant human beings to impose their will on the others. This makes it difficult to get things done but it is more important to make it difficult to do evil things than to make it easy to do good things since few human problems can actually be solved by human government. Christians have also traditionally supported the classical notion coming through Plato and Cicero but also appearing in the Bible of the rule of law. The rule of law means the reign of law. That because individual human beings are not trustworthy, we do not allow any human being or group of human beings to be radically sovereign in the sense of making up the law as they go. Such radical sovereigns change the law to match whatever they do. Instead, the rule of law demands that rulers follow the laws. The notion of rule of law presupposes that there is in fact a higher law, a pattern beyond human making that determines whether or not human rules are actually legitimate. The Bible supports this notion. In Romans 13 and in I Peter, God indicates that the purpose of human government is to punish evil and reward good. God provides us with a standard as to the difference between good and evil. In Romans chapters 1 and 2, Paul outlines all the ways in which we are aware of that standard, even though we fail to live by it. All human beings are morally accountable to God in part because they do know what God wants even though they don’t do it. So the purpose of human government is participating in God’s law to restrain evil and encourage good. When governments do this they are legitimate. When they don’t they are illegitimate (I’ve said this almost too many times on this blot but it still applies here). Because we don’t trust human beings, we tend to prefer these democratic or republican decentralized forms of government. Pure democracies were normally rejected by the Reformers and other Christians of history because they recognized that the mob couldn’t be counted on to do the right thing any more than individual human beings or individual interest groups. This is essentially why the United States has a republican form of government. Our founders balanced their fear of autocratic individuals with their fear of the easily manipulable mob. They sought to create checks and balances against all of them.
But the Christian influence on democracy and republican government isn’t the only one. The Enlightement has also adopted democracy as its standard. The Enlightement is not necessarily connected to Christianity. If there were no Christianity, the Enlightement probably never would have been possible. But the Enlightement project starts with the human being at the center and works outward. A Christian worldview starts with God at the center and works outward coming back around to validate human senses and to provide philosophical evidences for the existence of God, but starting with God first rather than with the human being first. The Christian view democracy has always been based upon man’s failings. The Enlightenment view of democracy is mostly based upon trust in human nature.
Some of the adherents of the Enlightenment view of democracy have the notion that the outcomes of human policy making are derivative of human forms of government. They believe that autocracies tend to be inherently war-like and that democracies tend to be inherently peaceful. This is not true nor is it supported by historical data. It is largely based on an erroneous belief that American rebellions against unjust wars have been due to the democratic nature of our government. And coupled with the view that it is autocracies like Nazi Germany and Napoleonic France that have wars of aggression. One need only look back to the Greek city states to discover that it is entirely possible to have an aggressive democracy. What is really determinative of a people’s policies is the goodness of the people and the accuracy of their religious, moral and ethical views. If America were truly and fully dedicated to Christ and properly understood God’s Word and applied it maturely, I have no doubt that American public policy would be better than it is today. By the same token, if American succeeds in transplanting democracy to Iraq, it is unlikely that Iraqi public policy will ever be anything like as good as American public policy so long as Iraq is dominated by Islam. The public policies of predominantly Hindu India are certainly better than the public policies of an autocratic India. But they are definitely not particularly good in contrast to what a predominantly Christian India would produce.
So, I would say that democracy and republicanism are good. Because they are good, we should want them for our neighbors and help our neighbors in that direction. But we are deluding ourselves if we think that democracy and republicanism alone will cause our neighbors to be peaceful and prosperous. The truth is that only truth causes people to be peaceful and prosperous. Democracy and republican forms of government are based upon some of the truth. But they are not the whole truth. To whatever degree a people believe in the truth, they generally flourish. To whatever degree they reject the truth, they generally have problems. I say “generally” because God tests even “good” nations with famines, plagues, wars and other problems. In a fallen world there is no magical remedy for the effects of the fall.
In conclusion then, I think that it is not wrong for us to advocate democracy for others. This is helping them to come to a greater knowledge of truth. But we also need to help them come to Christ. Democracy is better than autocracy, but autocracy with Christ is probably better than democracy without Christ. The reason that we should strive to help our neighbors and fight intolerance, support peace and defend freedom is because we should love our neighbors. Leaving our neighbors under the rule of oppressive tyrants who prevent them from hearing the Gospel, who enlist their children in vicious wars and who enslave both mind and body is not good. It is not loving to let that sort of thing happen to your neighbor. And for the time being, American is available to be God’s tool. Contrary to what Condoleezza Rice believes, if America fails, God is capable of raising another helper from another place. But remember the words that Esther’s relative Mordecai spoke to her concerning her place in the Persian Empire: “Do not think that because you are in the kings’ house you will own of all the Jews will escape. For if you remain silent at this time, relief and deliverance for the Jews will arise from another place, but you and your father’s family will perish. And who knows but that you have come to this royal position for such as time as this.” God no longer has one chosen nationality. People of all nations can be part of His church of His chosen people. But God is quite willing to use every nation and every people if they will but submit themselves to Him and become His instruments for good. If we do not help other nations become open to the Gospel and live in peace, then perhaps God will find some other nation to do so. But it will cost us. If we are unwilling to be God’s instrument, God will no longer have any real reason to sustain the United States in the position it has become accustomed to. Like Esther’s house, we would not escape. It is likely we would perish if we rejected God’s use of our people. It is important for us not to stick our heads in the sand and miss the opportunities of our times. It is important too not to be arrogant and to suppose that we know everything and can do everything on our own. Nevertheless, we should not be in the business of seeking personal peace and affluence. We should be in the business of seeking to be used by God for His plans both for the salvation of individuals and for the shaping of nations. The fact that some nations may not want to be shaped requires tact, wisdom and skill. Apart from the work of the Holy Spirit, people do not want to be saved either. But we don’t give up on them. We pray for them and preach the Gospel to them despite their opposition. The poor and homeless are reluctant to give up the bad habits that made them poor and homeless. But we do not think it is appropriate to let them rot on the streets, do we? Why then should we let our national neighbors rot within their autocracies and inhumane laws? We should do what we can while remaining humble, prudent, and realistic. But we should never give up.
Many people believe that democracy arose as a result of Christianity. This is not exactly the truth. Democracy of the unorganized village type is virtually the first government known to humankind. The ancient Sumerians practiced village democracy until slowly falling into the rulership of priest kings. Of course nearly everyone who has seriously studied history is aware of the democracies of the Greek city states. While we fault these democracies today for having slaves, they were somewhat remarkable for their time in the level of government participation they gave the average freeman. I think Russell Kirk is correct in spotting the true weakness of the Greek democracies however: Greek religion did not support genuine morality or virtue. As a result, although the Greek democracies did involve the agreement of the populace, the populace was easily led into all sorts of mischief. They engaged in wars of aggression in order to gain wealth and land. They undertook schemes to take away wealth from certain individuals and redistribute it to others by force. They undertook reverse schemes to create temporary dictatorships that superseded the Greek democracies until overthrown. And the Greek democracies were always easily manipulated by demagogues with good verbal skills. The sophists of course, the philosophical ancestors of today’s postmodernists, were always willing to make money by teaching people how to manipulate the masses with oratorical skill. Like today’s marketing executives, they were mostly interested in the practical outcome of obtaining power and wealth rather than believing in any objective moral accountability. Rome was of course not a pure democracy but was a republic with democratic elements until the emperors took over. But it can be said that a large reason for the emperor’s destruction of the republic was that the general citizenry had become uninvolved in the democratic features of the government and relied instead on powerful and influential individuals. At times the Roman assemblies that were supposed to meet and vote on various things would simply have the officials responsible enter in the records that they had met even though they had not.
It is true though that the modern growth of democracy and republican government has largely occurred through the influence of Christianity. The reasons for this are fairly straight forward: they relate to Christian theology.
Most governments that involve aristocracies or autocratic rulers are based on the philosophy that some human beings are inherently gifted or entitled by nature to rule over others. Christianity has always taught that all human beings were the same kind of thing—sons of Adam and daughters of Eve to use C. S. Lewis’ phrase. None of us has an inherent right to rule over others. In fact, Jesus consistently tells us that if we want to be the greatest of all, we need to be the servant of all. Leadership and status come not from being in some way superior, but rather from providing service to others, especially others who are in need. In addition, the doctrine of the fall and human depravity plays a role in this. Because human beings are all fallen, none of us is inherently trustworthy. Not a single human being or group of human beings can be trusted to justly govern others. So we try to decentralize power and create various checks, balances and institutional devices designed to make it difficult for an errant human being or a group of errant human beings to impose their will on the others. This makes it difficult to get things done but it is more important to make it difficult to do evil things than to make it easy to do good things since few human problems can actually be solved by human government. Christians have also traditionally supported the classical notion coming through Plato and Cicero but also appearing in the Bible of the rule of law. The rule of law means the reign of law. That because individual human beings are not trustworthy, we do not allow any human being or group of human beings to be radically sovereign in the sense of making up the law as they go. Such radical sovereigns change the law to match whatever they do. Instead, the rule of law demands that rulers follow the laws. The notion of rule of law presupposes that there is in fact a higher law, a pattern beyond human making that determines whether or not human rules are actually legitimate. The Bible supports this notion. In Romans 13 and in I Peter, God indicates that the purpose of human government is to punish evil and reward good. God provides us with a standard as to the difference between good and evil. In Romans chapters 1 and 2, Paul outlines all the ways in which we are aware of that standard, even though we fail to live by it. All human beings are morally accountable to God in part because they do know what God wants even though they don’t do it. So the purpose of human government is participating in God’s law to restrain evil and encourage good. When governments do this they are legitimate. When they don’t they are illegitimate (I’ve said this almost too many times on this blot but it still applies here). Because we don’t trust human beings, we tend to prefer these democratic or republican decentralized forms of government. Pure democracies were normally rejected by the Reformers and other Christians of history because they recognized that the mob couldn’t be counted on to do the right thing any more than individual human beings or individual interest groups. This is essentially why the United States has a republican form of government. Our founders balanced their fear of autocratic individuals with their fear of the easily manipulable mob. They sought to create checks and balances against all of them.
But the Christian influence on democracy and republican government isn’t the only one. The Enlightement has also adopted democracy as its standard. The Enlightement is not necessarily connected to Christianity. If there were no Christianity, the Enlightement probably never would have been possible. But the Enlightement project starts with the human being at the center and works outward. A Christian worldview starts with God at the center and works outward coming back around to validate human senses and to provide philosophical evidences for the existence of God, but starting with God first rather than with the human being first. The Christian view democracy has always been based upon man’s failings. The Enlightenment view of democracy is mostly based upon trust in human nature.
Some of the adherents of the Enlightenment view of democracy have the notion that the outcomes of human policy making are derivative of human forms of government. They believe that autocracies tend to be inherently war-like and that democracies tend to be inherently peaceful. This is not true nor is it supported by historical data. It is largely based on an erroneous belief that American rebellions against unjust wars have been due to the democratic nature of our government. And coupled with the view that it is autocracies like Nazi Germany and Napoleonic France that have wars of aggression. One need only look back to the Greek city states to discover that it is entirely possible to have an aggressive democracy. What is really determinative of a people’s policies is the goodness of the people and the accuracy of their religious, moral and ethical views. If America were truly and fully dedicated to Christ and properly understood God’s Word and applied it maturely, I have no doubt that American public policy would be better than it is today. By the same token, if American succeeds in transplanting democracy to Iraq, it is unlikely that Iraqi public policy will ever be anything like as good as American public policy so long as Iraq is dominated by Islam. The public policies of predominantly Hindu India are certainly better than the public policies of an autocratic India. But they are definitely not particularly good in contrast to what a predominantly Christian India would produce.
So, I would say that democracy and republicanism are good. Because they are good, we should want them for our neighbors and help our neighbors in that direction. But we are deluding ourselves if we think that democracy and republicanism alone will cause our neighbors to be peaceful and prosperous. The truth is that only truth causes people to be peaceful and prosperous. Democracy and republican forms of government are based upon some of the truth. But they are not the whole truth. To whatever degree a people believe in the truth, they generally flourish. To whatever degree they reject the truth, they generally have problems. I say “generally” because God tests even “good” nations with famines, plagues, wars and other problems. In a fallen world there is no magical remedy for the effects of the fall.
In conclusion then, I think that it is not wrong for us to advocate democracy for others. This is helping them to come to a greater knowledge of truth. But we also need to help them come to Christ. Democracy is better than autocracy, but autocracy with Christ is probably better than democracy without Christ. The reason that we should strive to help our neighbors and fight intolerance, support peace and defend freedom is because we should love our neighbors. Leaving our neighbors under the rule of oppressive tyrants who prevent them from hearing the Gospel, who enlist their children in vicious wars and who enslave both mind and body is not good. It is not loving to let that sort of thing happen to your neighbor. And for the time being, American is available to be God’s tool. Contrary to what Condoleezza Rice believes, if America fails, God is capable of raising another helper from another place. But remember the words that Esther’s relative Mordecai spoke to her concerning her place in the Persian Empire: “Do not think that because you are in the kings’ house you will own of all the Jews will escape. For if you remain silent at this time, relief and deliverance for the Jews will arise from another place, but you and your father’s family will perish. And who knows but that you have come to this royal position for such as time as this.” God no longer has one chosen nationality. People of all nations can be part of His church of His chosen people. But God is quite willing to use every nation and every people if they will but submit themselves to Him and become His instruments for good. If we do not help other nations become open to the Gospel and live in peace, then perhaps God will find some other nation to do so. But it will cost us. If we are unwilling to be God’s instrument, God will no longer have any real reason to sustain the United States in the position it has become accustomed to. Like Esther’s house, we would not escape. It is likely we would perish if we rejected God’s use of our people. It is important for us not to stick our heads in the sand and miss the opportunities of our times. It is important too not to be arrogant and to suppose that we know everything and can do everything on our own. Nevertheless, we should not be in the business of seeking personal peace and affluence. We should be in the business of seeking to be used by God for His plans both for the salvation of individuals and for the shaping of nations. The fact that some nations may not want to be shaped requires tact, wisdom and skill. Apart from the work of the Holy Spirit, people do not want to be saved either. But we don’t give up on them. We pray for them and preach the Gospel to them despite their opposition. The poor and homeless are reluctant to give up the bad habits that made them poor and homeless. But we do not think it is appropriate to let them rot on the streets, do we? Why then should we let our national neighbors rot within their autocracies and inhumane laws? We should do what we can while remaining humble, prudent, and realistic. But we should never give up.
Tuesday, June 27, 2006
Evangelical Outpost on WMDs
the evangelical outpost: Weapons as Mass Distractions:
Technology and the Threat of WMDs
Excellent commentary on the WMD issue. Though unnecessary to justify the war I am still pleased we are finally admitting to finding WMDs and the ingredients that go into them. I am amazed, but not surprised that the press ignores this radical change in data.
Technology and the Threat of WMDs
Excellent commentary on the WMD issue. Though unnecessary to justify the war I am still pleased we are finally admitting to finding WMDs and the ingredients that go into them. I am amazed, but not surprised that the press ignores this radical change in data.
Radio Show on Law and Gospel
Apologetics.com: Challenging Believers to Think and Thinkers to Believe
At the link is a link to my guest appearance on the radio show Apologetics.com discussing the relationship of law and gospel.
At the link is a link to my guest appearance on the radio show Apologetics.com discussing the relationship of law and gospel.
Hudson v. Michigan: The Knock and Announce Rule and the Exclusionary Rule
Hudson v Michigan involves one simple question: whether the Supreme Court’s traditional knock and announce requirement for searches of a person’s home is subject to the exclusionary rule if violated. In other words, if the police come to your house to search it and barge right in without knocking on the door or announcing that they are there, will the evidence of crime that they subsequently find in your home be excluded from admissibility in court because it was obtained in violation of the amendment to the Constitution that protects against unreasonable searches and seizures? In Hudson, the Supreme Court answers that question no. The court declines to apply the exclusionary rule even though Michigan stipulated that their police violated the knock and announce rule.
As the court notes in its opinion, the idea that the peace officers should knock and announce their presence a reasonable time prior to forceful entry into a person’s home is an ancient rule of the English common law which has been codified in federal statutory law since 1917 and applied by the U.S. Supreme Court as required for reasonable searches and seizures since 1995 with the case Wilson v Arkansas. As a traditional custom among law enforcement officers, the practice is perhaps more ancient and more common than its requirement as a matter of law.
Quite reasonably, the court has also recognized a variety of exceptions to the knock and announce rule. These include situations in which there is a threat of violence to the enforcing officers or where the evidence they seek would probably be destroyed or irretrievably hidden if they announced their presence. Another exception is if knocking and announcing would be futile. Certainly too, though there is no court case about it, when a swat team is descending upon terrorists holding hostages, they do not and should not knock or yell first.
Nevertheless, was the Supreme Court right in saying that the knock and announce rule is not protected by the accompanying exclusionary rule? It is common in our courts that when a law enforcement agency violates the protections against reasonable search and seizure, the evidence they seize as a result is excluded so that the person often cannot be convicted of the crime of which they are accused. The reason for this is simple. It provides a deterrent. If law enforcement agencies know they cannot use the evidence they obtain illegally, they are far less likely to undertake illegal measures to obtain evidence. The exclusionary rule is often explained using the metaphor of “the fruit of the poisonous tree.” If a tree is inherently poisonous (i.e. illegal), the fruit that grows on it shouldn’t be eaten either. In other words, evidence gained from an illegal search should be thought of as illegal evidence and excluded from the courtroom. Many prosecutors have suggested that there should be a good faith exception to the exclusionary rule. If the police do not believe they are violating the Fourth Amendment, why should the evidence be excluded since the deterrent is no longer present in that instance, but the criminal wrongdoing still is. The argument for a good faith exception is a strong one. But is the argument against applying the exclusionary rule here a strong argument?
In Hudson, the Supreme Court distinguishes situations in which unlawful evidence is obtained by unlawful warrantless searches. There, the court says “citizens are entitled to shield their persons, houses, papers and effects from the government’s scrutiny.” (Hudson slip opinion, page 8.) The court feels that a search with a warrant conducted without knocking and announcing is different. While there are interests that the knock and announce rule is meant to protect, it is not designed to prevent the government from seeing or taking the evidence described in its warrant. As a result, the court believes that the exclusionary rule is inappropriate. The court feels that the possible violation of the Fourth Amendment involved in failing to knock and announce is not the actual cause of the seizure of the evidence since the evidence could have been lawfully seized under a warrant anyway. The court also believes that the deterrent’s benefits are outweighed by the social costs of the exclusionary rule in this instance. Knocking and announcing is an ambiguous requirement that requires “reasonableness” in its application. It exposes the officers involved to potential harm and allows perpetrators to hide or destroy evidence.
While the court’s arguments are rational and justifiable, I for one have difficulty agreeing with them. The problem is that if the exclusionary rule does not apply, it is unlikely in the current law enforcement environment that police will continue to knock and announce at all. Instead, whenever they are enforcing a warrant, they will simply break down your door and storm in. Why is that undesirable? For several reasons. First, the police do occasionally make mistakes. They do sometimes storm into the wrong apartment. While it is a minor hindrance, it is some hindrance against mistakes if they actually knock and announce their presence first. This at least allows the occupant of the apartment to react as an innocent person being victimized by a mistake. If armed men storm into your apartment or home and you don’t know that they’re the police or that they are coming, you may react in ways that the police will interpret as the actions of a guilty perpetrator, and the result may very likely be that the police will shoot you. Since this does occasionally happen, it is certainly a realistic fear. Can this unlikely event outweigh the need for the police to get at real perpetrators? Yes. Protecting innocent people is more important than getting at guilty people since the reason we go after guilty people is in order to protect innocent people. Protecting innocents should always come first. This is also why we consider people innocent until proven guilty and why we have standards of proof rather than merely assuming that anyone accused of a crime should be locked up unless they can justify their freedom.
In the modern world there are already many ways in which our privacy is legitimately fading away. Because so many of our acts and transactions involve other people, they are essentially public. As a result, our phone records and financial records may lawfully be viewed by the government or counted in government statistics despite peoples’ frequent desire to the contrary. This is especially true during the current war on terrorism. But, the long-time traditional protections of the home as a man’s castle, the protection against the use of hearsay, and the protection of the right to bear arms, these items must be protected and maintained despite the current war against terror and the government’s desperation to apprehend dangerous criminals. Today the government can see what we do inside our homes with infrared scopes. They can listen to our conversations in public places with long-range eavesdropping equipment, and they can see what goes on in our backyards by flying over our property. All of these things are normally considered lawful even though they were not possible in the past when the technology to execute such spying did not exist. Now that the possibility for such intrusion does exist, protecting the old traditional rights against exclusion becomes an even greater imperative. Certainly if the police are executing a warrant, they could use advanced technology to be sure that the alleged perpetrator is not disposing of evidence or arming himself. Using listening devices or infrared devices, they could determine if the evidence is being destroyed or if guns are being aimed. This would be expensive, but it would not be difficult. And, while there is some danger to officers by announcing their presence, they are protected by bulletproof vests and heavy weapons. Neither the average home owner nor the average criminal is reasonably going to provide armed resistance against the small army serving a warrant. While some criminals do remain unreasonable and do attempt to harm peace officers in the course of their lawful duties, that risk should not outweigh the interest of lawful citizens of being protected against immediate unannounced intrusion into their homes by the same armed band.
If the police do make a mistake and violate the Fourth Amendment by storming into someone’s home unannounced, there is no real deterrent against their actions if the exclusionary rule disappears. The damages that would be awarded against the police department in a lawsuit for a house storming would be de minimis. Many people could not afford the protracted legal battle against the government necessary to obtain the damages. And the damages would likely be far smaller than the attorney’s fees necessary to take the case forward. The only way such continued unannounced storming will be prevented is if there is no reason for the police to engage in such assaults in any but the most extraordinary circumstances. The only way to prevent them from having a reason to engage in these assaults is to apply the exclusionary rule. If evidence cannot be gotten by such rude conduct, there will be no reason to engage in the conduct.
I fully sympathize with the police and the difficulty and stress of their situation. But as an innocent public citizen, I am also afraid of unannounced accidental searches of the wrong properties. Based on the stories in our newspapers during my lifetime, I do not believe such a fear is unreasonable or unfounded. As a result, I would have been happier if the Supreme Court had continued to link the exclusionary rule to the knock and announce rule.
As the court notes in its opinion, the idea that the peace officers should knock and announce their presence a reasonable time prior to forceful entry into a person’s home is an ancient rule of the English common law which has been codified in federal statutory law since 1917 and applied by the U.S. Supreme Court as required for reasonable searches and seizures since 1995 with the case Wilson v Arkansas. As a traditional custom among law enforcement officers, the practice is perhaps more ancient and more common than its requirement as a matter of law.
Quite reasonably, the court has also recognized a variety of exceptions to the knock and announce rule. These include situations in which there is a threat of violence to the enforcing officers or where the evidence they seek would probably be destroyed or irretrievably hidden if they announced their presence. Another exception is if knocking and announcing would be futile. Certainly too, though there is no court case about it, when a swat team is descending upon terrorists holding hostages, they do not and should not knock or yell first.
Nevertheless, was the Supreme Court right in saying that the knock and announce rule is not protected by the accompanying exclusionary rule? It is common in our courts that when a law enforcement agency violates the protections against reasonable search and seizure, the evidence they seize as a result is excluded so that the person often cannot be convicted of the crime of which they are accused. The reason for this is simple. It provides a deterrent. If law enforcement agencies know they cannot use the evidence they obtain illegally, they are far less likely to undertake illegal measures to obtain evidence. The exclusionary rule is often explained using the metaphor of “the fruit of the poisonous tree.” If a tree is inherently poisonous (i.e. illegal), the fruit that grows on it shouldn’t be eaten either. In other words, evidence gained from an illegal search should be thought of as illegal evidence and excluded from the courtroom. Many prosecutors have suggested that there should be a good faith exception to the exclusionary rule. If the police do not believe they are violating the Fourth Amendment, why should the evidence be excluded since the deterrent is no longer present in that instance, but the criminal wrongdoing still is. The argument for a good faith exception is a strong one. But is the argument against applying the exclusionary rule here a strong argument?
In Hudson, the Supreme Court distinguishes situations in which unlawful evidence is obtained by unlawful warrantless searches. There, the court says “citizens are entitled to shield their persons, houses, papers and effects from the government’s scrutiny.” (Hudson slip opinion, page 8.) The court feels that a search with a warrant conducted without knocking and announcing is different. While there are interests that the knock and announce rule is meant to protect, it is not designed to prevent the government from seeing or taking the evidence described in its warrant. As a result, the court believes that the exclusionary rule is inappropriate. The court feels that the possible violation of the Fourth Amendment involved in failing to knock and announce is not the actual cause of the seizure of the evidence since the evidence could have been lawfully seized under a warrant anyway. The court also believes that the deterrent’s benefits are outweighed by the social costs of the exclusionary rule in this instance. Knocking and announcing is an ambiguous requirement that requires “reasonableness” in its application. It exposes the officers involved to potential harm and allows perpetrators to hide or destroy evidence.
While the court’s arguments are rational and justifiable, I for one have difficulty agreeing with them. The problem is that if the exclusionary rule does not apply, it is unlikely in the current law enforcement environment that police will continue to knock and announce at all. Instead, whenever they are enforcing a warrant, they will simply break down your door and storm in. Why is that undesirable? For several reasons. First, the police do occasionally make mistakes. They do sometimes storm into the wrong apartment. While it is a minor hindrance, it is some hindrance against mistakes if they actually knock and announce their presence first. This at least allows the occupant of the apartment to react as an innocent person being victimized by a mistake. If armed men storm into your apartment or home and you don’t know that they’re the police or that they are coming, you may react in ways that the police will interpret as the actions of a guilty perpetrator, and the result may very likely be that the police will shoot you. Since this does occasionally happen, it is certainly a realistic fear. Can this unlikely event outweigh the need for the police to get at real perpetrators? Yes. Protecting innocent people is more important than getting at guilty people since the reason we go after guilty people is in order to protect innocent people. Protecting innocents should always come first. This is also why we consider people innocent until proven guilty and why we have standards of proof rather than merely assuming that anyone accused of a crime should be locked up unless they can justify their freedom.
In the modern world there are already many ways in which our privacy is legitimately fading away. Because so many of our acts and transactions involve other people, they are essentially public. As a result, our phone records and financial records may lawfully be viewed by the government or counted in government statistics despite peoples’ frequent desire to the contrary. This is especially true during the current war on terrorism. But, the long-time traditional protections of the home as a man’s castle, the protection against the use of hearsay, and the protection of the right to bear arms, these items must be protected and maintained despite the current war against terror and the government’s desperation to apprehend dangerous criminals. Today the government can see what we do inside our homes with infrared scopes. They can listen to our conversations in public places with long-range eavesdropping equipment, and they can see what goes on in our backyards by flying over our property. All of these things are normally considered lawful even though they were not possible in the past when the technology to execute such spying did not exist. Now that the possibility for such intrusion does exist, protecting the old traditional rights against exclusion becomes an even greater imperative. Certainly if the police are executing a warrant, they could use advanced technology to be sure that the alleged perpetrator is not disposing of evidence or arming himself. Using listening devices or infrared devices, they could determine if the evidence is being destroyed or if guns are being aimed. This would be expensive, but it would not be difficult. And, while there is some danger to officers by announcing their presence, they are protected by bulletproof vests and heavy weapons. Neither the average home owner nor the average criminal is reasonably going to provide armed resistance against the small army serving a warrant. While some criminals do remain unreasonable and do attempt to harm peace officers in the course of their lawful duties, that risk should not outweigh the interest of lawful citizens of being protected against immediate unannounced intrusion into their homes by the same armed band.
If the police do make a mistake and violate the Fourth Amendment by storming into someone’s home unannounced, there is no real deterrent against their actions if the exclusionary rule disappears. The damages that would be awarded against the police department in a lawsuit for a house storming would be de minimis. Many people could not afford the protracted legal battle against the government necessary to obtain the damages. And the damages would likely be far smaller than the attorney’s fees necessary to take the case forward. The only way such continued unannounced storming will be prevented is if there is no reason for the police to engage in such assaults in any but the most extraordinary circumstances. The only way to prevent them from having a reason to engage in these assaults is to apply the exclusionary rule. If evidence cannot be gotten by such rude conduct, there will be no reason to engage in the conduct.
I fully sympathize with the police and the difficulty and stress of their situation. But as an innocent public citizen, I am also afraid of unannounced accidental searches of the wrong properties. Based on the stories in our newspapers during my lifetime, I do not believe such a fear is unreasonable or unfounded. As a result, I would have been happier if the Supreme Court had continued to link the exclusionary rule to the knock and announce rule.
Another Program Leaked by Press
The news media have gleefully disclosed and thereby made less useful another one of the government’s tools in the war against Islamist extremism. The government had obtained access to international financial transaction records, in particular, through access to a database known as SWIFT. The program provided access to a variety of transactions. My understanding is that most transactions subject to tracing are international transactions. In this way, the government of the United States has an opportunity to find and evaluate terrorist financing patterns. But, now that the program has been talked about widely in the media, it is likely that even unintelligent terrorists will begin being more careful about wiring money. Many people believe that the program is unlikely to be successful because terrorists will have already understood that their financial transactions would be under scrutiny. I do not believe that this is a justifiable criticism. It is true that the most clever and intelligent of our terrorist adversaries probably are trained in covert operations and are careful to avoid transactions that are traceable. But, even clever people are sometimes desperate. Sometimes when the level of desperation rises, people take risks. And sometimes those risks lead to them being caught. It is also the case that not everyone who engages in terrorism is a well-trained mastermind. In particular, as we succeed in killing and capturing members of the Al Qaeda network and other terrorist organizations, less trained and less intelligent people will rise to fill their empty ranks. These new people are more likely to make mistakes. Their mistakes can then be capitalized upon.
Sadly, the New York Times has made that capitalization more difficult by revealing another legal government program. This program falls once again under the heading of what I discussed in an earlier blog posting: Synthetic Privacy. In the modern world, we have come to have unreasonable expectations about privacy. We not only want things that are actually done in the quiet of our own homes to remain private, but we seek to require third parties to essentially cover up for us and keep information away from others even though that information is of necessity shared with dozens or perhaps even hundreds of people. We do things in public, engage in public transactions, produce records that are shared with dozens of people, and then we somehow expect the government to take measures to make sure that the government cannot find out about what we did that many other people already know about. This obsession with creating artificial privacy—privacy about things that are not really private—is perhaps understandable, but inappropriate during wartime. While our homes and papers should remain secure from unreasonable searches and seizures, there is no reason why statistics about telephone patterns or wire transfers shouldn’t be known by the government and used to eliminate militant Islamists bent on murdering hundreds of innocent people. We need to keep in mind the difference between genuine privacy and embarrassment and synthetic privacy that provides no real help to anyone except our enemies.
Sadly, the New York Times has made that capitalization more difficult by revealing another legal government program. This program falls once again under the heading of what I discussed in an earlier blog posting: Synthetic Privacy. In the modern world, we have come to have unreasonable expectations about privacy. We not only want things that are actually done in the quiet of our own homes to remain private, but we seek to require third parties to essentially cover up for us and keep information away from others even though that information is of necessity shared with dozens or perhaps even hundreds of people. We do things in public, engage in public transactions, produce records that are shared with dozens of people, and then we somehow expect the government to take measures to make sure that the government cannot find out about what we did that many other people already know about. This obsession with creating artificial privacy—privacy about things that are not really private—is perhaps understandable, but inappropriate during wartime. While our homes and papers should remain secure from unreasonable searches and seizures, there is no reason why statistics about telephone patterns or wire transfers shouldn’t be known by the government and used to eliminate militant Islamists bent on murdering hundreds of innocent people. We need to keep in mind the difference between genuine privacy and embarrassment and synthetic privacy that provides no real help to anyone except our enemies.
Monday, June 26, 2006
Link to clips of recent speeches on bioethics
Academic Dean Don McConnell Speaks at Local Churches
This link takes you to the TLS web site page with clips from my recent speech on embryonic stem cell research and info on ordering the whole talk. There is also a DVD of a speech on abortion available.
This link takes you to the TLS web site page with clips from my recent speech on embryonic stem cell research and info on ordering the whole talk. There is also a DVD of a speech on abortion available.
Burlington Northern V. White
The Supreme Court gets it right again. In an 8-1 decision, the Supreme Court maintained the view that employers who retaliate against employees for civil rights or sexual harassment claims cannot get away with retaliation by taking actions that are negative but have no real economic impact on the complaining party. White operated a forklift for Burlington Northern. White’s immediate supervisor is alleged to have made a variety of insulting and inappropriate remarks to her in front of her co-workers as well as making repeated statements that women should not be working for the track maintenance division. White complained and Burlington Northern did punish her supervisor. But they also transferred her to less desirable work within the same job description. When White complained, they suspended her for insubordination. She was later returned to work and given partial compensation for her suspension. But the overall effect was obviously negative. After exhausting her administrative remedies, White sued Burlington Northern under Title VII of the Civil Rights Act. Title VII has an anti-retaliation provision that “forbids employer actions that discriminate against an employee because he has opposed a practice that Title VII forbids or has make a change, testified, assisted, or participated in a Title VII investigation, procedure, or hearing.” (Burlington vs White slip opinion the beginning of Section II, page 7 of 29). The defense argued that retaliation must involve economic harm. Certain of the federal circuits have agreed with this. Other circuits followed the position advocated by White that any change that would have been material to a reasonable employee and could possibly deter a worker from making or supporting a charge of discrimination could count as harassment under Title VII law.
The benefits of a broad interpretation of “harassment” are fairly obvious: they provide greater protections for employees against actions that are genuinely harassing. The costs are more controversial. A stronger definition of harassment could place some businesses in a difficult position. If an employee files a fraudulent claim in order to protect themselves against well-deserved or completely lawful job changes that were planned independently of any harassment, the employee could use the new harassment law to prevent their employer from doing what the employer planned to do anyway. Nevertheless, the Supreme Court, and I believe rightly so, determined that it was more important to protect the rights of innocent people from unjust treatment in the workplace than to protect the employer from the risk of a chilling effect on business decisions in the face of litigious employees.
The court used appropriate means of statutory interpretation to determine exactly what Congress’ actual intent was when they passed the anti-harassment provisions of Title VII. They noted that the Congress used different language in the normal anti-discrimination provision and in the harassment provision. In a classic common law analysis they found, “We normally presume that, where words differ as they differ here, Congress acts intentionally and purposely in the disparate inclusion of or exclusion.” (Ibid. page 10). The court further stated: “Thus, purpose reinforces what language already indicates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” In other words, if you read the statute and look at what it was designed to accomplish, it was clear that Congress wanted to make sure that employers didn’t do anything that would deter people from fully participating in anti-discrimination law. It was not their intention to limit the provisions against retaliation to changes in a person’s job title or salary. The court defines their new standard: “In our view, plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a change of discrimination.” (Ibid. page 16). The materiality requirement excludes trivial or insignificant harms. Certain changes in duties, prestige or status could easily be material even though they do not relate to salary or job description. The court gives example of things that may seem trivial but under certain circumstances could be significant retaliation. A change in work schedule that interferes with the person’s family life, or a refusal to invite the employee to a weekly training lunch, are examples given by the court of possible material harassment.
Overall, the court’s decision is a good one. It continues to work for justice in the workplace. The opposite decision, requiring changes in matters such as salary or job description before workplace changes could rise to the level of harassment, would have regularly allowed employers to engage in ill treatment of those participating in Title VII anti-discrimination claims. There are all sorts of things an employer can do to hurt an employee without actually affecting job description, salary or similar matters. The court’s decision will help deter employers from such unjustified common cruelty. It is true that there will be a cost to employers based upon those who misuse the statute to try to gain unfair advantage. But this is always a risk of any law. Any time you have a legal standard, someone can misuse it by making false accusations or claims. Nevertheless, the importance of justice is not eliminated by the possibility of other injustices. In addition, I believe the court properly interpreted the Congress’ intent. If Congress wants the other standard, they can always pass a law clarifying that fact. But the court’s findings in this case are consistent with what appears to be the overall intent of the statutory scheme.
The benefits of a broad interpretation of “harassment” are fairly obvious: they provide greater protections for employees against actions that are genuinely harassing. The costs are more controversial. A stronger definition of harassment could place some businesses in a difficult position. If an employee files a fraudulent claim in order to protect themselves against well-deserved or completely lawful job changes that were planned independently of any harassment, the employee could use the new harassment law to prevent their employer from doing what the employer planned to do anyway. Nevertheless, the Supreme Court, and I believe rightly so, determined that it was more important to protect the rights of innocent people from unjust treatment in the workplace than to protect the employer from the risk of a chilling effect on business decisions in the face of litigious employees.
The court used appropriate means of statutory interpretation to determine exactly what Congress’ actual intent was when they passed the anti-harassment provisions of Title VII. They noted that the Congress used different language in the normal anti-discrimination provision and in the harassment provision. In a classic common law analysis they found, “We normally presume that, where words differ as they differ here, Congress acts intentionally and purposely in the disparate inclusion of or exclusion.” (Ibid. page 10). The court further stated: “Thus, purpose reinforces what language already indicates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” In other words, if you read the statute and look at what it was designed to accomplish, it was clear that Congress wanted to make sure that employers didn’t do anything that would deter people from fully participating in anti-discrimination law. It was not their intention to limit the provisions against retaliation to changes in a person’s job title or salary. The court defines their new standard: “In our view, plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a change of discrimination.” (Ibid. page 16). The materiality requirement excludes trivial or insignificant harms. Certain changes in duties, prestige or status could easily be material even though they do not relate to salary or job description. The court gives example of things that may seem trivial but under certain circumstances could be significant retaliation. A change in work schedule that interferes with the person’s family life, or a refusal to invite the employee to a weekly training lunch, are examples given by the court of possible material harassment.
Overall, the court’s decision is a good one. It continues to work for justice in the workplace. The opposite decision, requiring changes in matters such as salary or job description before workplace changes could rise to the level of harassment, would have regularly allowed employers to engage in ill treatment of those participating in Title VII anti-discrimination claims. There are all sorts of things an employer can do to hurt an employee without actually affecting job description, salary or similar matters. The court’s decision will help deter employers from such unjustified common cruelty. It is true that there will be a cost to employers based upon those who misuse the statute to try to gain unfair advantage. But this is always a risk of any law. Any time you have a legal standard, someone can misuse it by making false accusations or claims. Nevertheless, the importance of justice is not eliminated by the possibility of other injustices. In addition, I believe the court properly interpreted the Congress’ intent. If Congress wants the other standard, they can always pass a law clarifying that fact. But the court’s findings in this case are consistent with what appears to be the overall intent of the statutory scheme.
Friday, June 23, 2006
Conspiracy for Terror is Crime
A new story on the wires is that the FBI has arrested a number of people for planning attacks on commercial and government buildings throughout the United States. This so called “home grown” group of people wanted to work for Al Qaeda. Their mistake was attempting to contact Al Qaeda through a federal agent posing as an Al Qaeda representative. They undertook all sorts of measures including swearing an oath to Al Qaeda and engaging in a variety of reconnaissance in equipping. They were then arrested.
On the radio this morning when I heard this story reported, a variety of reporters questioned whether or not it was really appropriate to arrest and prosecute these people since they had not yet obtained any explosives or other weapons, and since they thought that they might be too amateurish to actually carry out their plans. In a sense, these comments are quite remarkable.
Criminals are commonly not particularly clever. They very often lack the actual means to successfully carry out their crimes. When someone attempts to rob a bank with a squirt gun that looks like a pistol, we still arrest them for bank robbery. While it is true that people who actually have the ability to do evil and have done evil have engaged in a more serious crime than those who merely wished to do evil and began acting upon it, we still punish people for having evil wishes so long as they take affirmative actions toward carrying out those wishes. Such conspiracies have been regarded as criminal actions in the western world since the late Middle Ages. Today we have greater protections against arrest for conspiracy. In general we have a greater emphasis on the need for proof of acts taken in furtherance of the conspiracy. We have also narrowed the scope of criminal conspiracy laws like RICO, the Racketeering and Corrupt Practices Act. Originally passed to prosecute mobsters, RICO had been misused to attack those protesting laws they considered illegal, etc. but has been put back in proper context by the high court.
Today our conspiracy laws are fairly reasonable. There is no reason to be surprised about the seven would-be jihadis being prosecuted. They clearly had criminal intentions and they acted for many weeks seeking to carry out those evil intentions. But for the fact that they ran into a government agent instead of a genuine Al Qaeda representative, they undoubtedly would have hurt people, even if they had not succeeded in carrying out the most grandiose of their schemes.
On the radio this morning when I heard this story reported, a variety of reporters questioned whether or not it was really appropriate to arrest and prosecute these people since they had not yet obtained any explosives or other weapons, and since they thought that they might be too amateurish to actually carry out their plans. In a sense, these comments are quite remarkable.
Criminals are commonly not particularly clever. They very often lack the actual means to successfully carry out their crimes. When someone attempts to rob a bank with a squirt gun that looks like a pistol, we still arrest them for bank robbery. While it is true that people who actually have the ability to do evil and have done evil have engaged in a more serious crime than those who merely wished to do evil and began acting upon it, we still punish people for having evil wishes so long as they take affirmative actions toward carrying out those wishes. Such conspiracies have been regarded as criminal actions in the western world since the late Middle Ages. Today we have greater protections against arrest for conspiracy. In general we have a greater emphasis on the need for proof of acts taken in furtherance of the conspiracy. We have also narrowed the scope of criminal conspiracy laws like RICO, the Racketeering and Corrupt Practices Act. Originally passed to prosecute mobsters, RICO had been misused to attack those protesting laws they considered illegal, etc. but has been put back in proper context by the high court.
Today our conspiracy laws are fairly reasonable. There is no reason to be surprised about the seven would-be jihadis being prosecuted. They clearly had criminal intentions and they acted for many weeks seeking to carry out those evil intentions. But for the fact that they ran into a government agent instead of a genuine Al Qaeda representative, they undoubtedly would have hurt people, even if they had not succeeded in carrying out the most grandiose of their schemes.
Movie review: Hoodwinked
Thursday night I watched a DVD of the animated film “Hoodwinked.” I thought it was great. Very funny. The film is a retelling of the Red Ridding Hood fairy tail. But it takes a special spin on it by adding new elements and approaching it like a contemporary mystery/adventure/musical comedy. Much of the humor in the film comes from spoofing popular movies and books.
One of the interesting features of the film is that you see the facts of the story from four different perspectives. Each character sees different things. But, unlike contemporary post modernism, there is a right answer. All the pieces of the puzzle fit together and make logical sense as a systematic whole to reveal the truth. The film is full of surprises. It warns us against stereotypes and jumping to conclusions, but does not deny that the truth is out there to be discovered and acted on.
The film would be fun for children, but, I think they would miss most of the cultural references that make the film funny.
One of the interesting features of the film is that you see the facts of the story from four different perspectives. Each character sees different things. But, unlike contemporary post modernism, there is a right answer. All the pieces of the puzzle fit together and make logical sense as a systematic whole to reveal the truth. The film is full of surprises. It warns us against stereotypes and jumping to conclusions, but does not deny that the truth is out there to be discovered and acted on.
The film would be fun for children, but, I think they would miss most of the cultural references that make the film funny.
Wednesday, June 21, 2006
Mail on Bishops
Concrening the post on the Anglican Communion's problems with Bishops:
In an e-mail, one of my friends said this:
Hi Don,
I linked to your article yesterday. I would be interested to know your
thoughts on my piece.
http://metalofheaven.blogspot.com/2006/06/church-and-sin.html
Church and Sin
Hammerleft a comment
on my
last post with a link to an article by Al Mohler
about the need for Christians to truthfully confront the sin of
homosexuality. Trinitarian Don
also makes some very good points today about sin, objective truth, the
Church, and homosexuality.
While I fully agree with the truth of what both Don and Al wrote, I
don't like how homosexuality often gets singled out by Christian leaders
when referencing and discussing sin. Al stated, "The church is not a
place where sinners are welcomed to remain in their sin." It sounds like
Al hasn't been to Church lately. Churches nowadays are packed with
greedy, lustful, deceitful, proud, selfish, and sexually immoral
believers who are quite comfortable in most of their sins. Pastors and
other Church leaders are just as comfortable in some or all of these
sins. I'm sure I also have blind spots in regard to my own sins.
Some sins are worse than other sins and all sins have gradations of
evil. Homosexuality is no different. A homosexual relationship with one
partner is different than a homosexual relationship with many partners.
Advocating homosexual marriage is different than advocating acceptance
of homosexuals. Struggling and failing to overcome a homosexual
lifestyle is different than proudly proclaiming a deviant sexual
orientation. If Christian leaders and lay believers wish to demonstrate
the love of God towards homosexuals, they need to place homosexuality
and the gradations of homosexuality on the list of all other sins where
it belongs and quit singling homosexuality out as the worst of all sins.
Additionally, if Christian leaders and lay believers wish to be taken
seriously when proclaiming the truth of homosexuality, they need to
increase the references to the sins of greed, lust, deceit, pride, and
selfishness. Perhaps they could start by proclaiming the truth in their
own Church and make a few believers a little uncomfortable.
David M. Smith
My response was as follows:
Thanks Dave,
In many ways I agree with your comment. I think we do not deal strongly
enough with common sins. It is a lot easier to be critical of sins that
you think "other people" commit and that you do not see every day in
yourself or your church. The church has a serious problem with
pornography for example. Yet you hear few sermons about it and most men
experience little real victory in this part of their thought lives, not
because it is impossible, but because we cut ourselves a lot of slack on
something seen as difficult to stop and in some sense, "natural."
You are also right that, while all sins lead to damnation unless covered
by the blood of Christ, there is a hierarchy of sins. Not all sins are
the same. This is why human law forbids murder but not anger, even
though Jesus makes it clear that without God's grace both will send you
to hell in the eyes of our just and holy God.
But, I do think that while advocating public measures that facilitate
homosexual recruitment or that say it is ok - such as gay marriage or
gay advocacy in schools - is far worse that Homosexual sex, promiscuous
homosexual sex is worse that occasional, and an open homosexual
lifestyle is worse that quietly struggling with it. And, acting on the
desire is worse than the desire. But, I think because homosexual sex is
"unnatural" and because it is avoidable for most people, even people
with the desire for it, it is "worse" than many other sins. Paul does
give it a prominent place in Romans 1, where he talks about the
consequences of rejecting God's truth. It is also an easy place to hold
the line on social values. On top of that, it is important because it
is the area where the current push to expand what society considers
acceptable conduct is taking place. We already lost the battle with the
"playboy lifestyle" in the sixties.
If we can keep homosexuality in the "antisocial" column of common
perception we can save thousands of kids from heartbreaking pain that
will occur if they are recruited to the "gay" life (I do not believe
they are hard wired that way even if there are biochemical propensities
or triggers). Next maybe we can drive the playboy lifestyle and sharp
business practices back into the "unacceptable" column. Such
perceptions matter. Life without major sins is nicer for everyone than
life with the major sins. It would be wonderful to have a culture where
we could focus on helping each other with pride, impatience, gluttony, and
sloth instead of the life threatening sins that currently hold our
civilization in thrall.
This said I do not think people should "hate" homosexuals or persecute
them. There but for the grace of God go we all. They need the gospel
and the love of Christ. But a gospel that says sin is not sin, or that
we are acceptable to God just as we are, without atonement or
justification, or that it is ok not to struggle against sin and just
institutionalize it, is not really the gospel at all. It is a dangerous
counterfeit.
In an e-mail, one of my friends said this:
Hi Don,
I linked to your article yesterday. I would be interested to know your
thoughts on my piece.
http://metalofheaven.blogspot.com/2006/06/church-and-sin.html
Church and Sin
Hammer
last post with a link to an article by Al Mohler
about the need for Christians to truthfully confront the sin of
homosexuality. Trinitarian Don
also makes some very good points today about sin, objective truth, the
Church, and homosexuality.
While I fully agree with the truth of what both Don and Al wrote, I
don't like how homosexuality often gets singled out by Christian leaders
when referencing and discussing sin. Al stated, "The church is not a
place where sinners are welcomed to remain in their sin." It sounds like
Al hasn't been to Church lately. Churches nowadays are packed with
greedy, lustful, deceitful, proud, selfish, and sexually immoral
believers who are quite comfortable in most of their sins. Pastors and
other Church leaders are just as comfortable in some or all of these
sins. I'm sure I also have blind spots in regard to my own sins.
Some sins are worse than other sins and all sins have gradations of
evil. Homosexuality is no different. A homosexual relationship with one
partner is different than a homosexual relationship with many partners.
Advocating homosexual marriage is different than advocating acceptance
of homosexuals. Struggling and failing to overcome a homosexual
lifestyle is different than proudly proclaiming a deviant sexual
orientation. If Christian leaders and lay believers wish to demonstrate
the love of God towards homosexuals, they need to place homosexuality
and the gradations of homosexuality on the list of all other sins where
it belongs and quit singling homosexuality out as the worst of all sins.
Additionally, if Christian leaders and lay believers wish to be taken
seriously when proclaiming the truth of homosexuality, they need to
increase the references to the sins of greed, lust, deceit, pride, and
selfishness. Perhaps they could start by proclaiming the truth in their
own Church and make a few believers a little uncomfortable.
David M. Smith
My response was as follows:
Thanks Dave,
In many ways I agree with your comment. I think we do not deal strongly
enough with common sins. It is a lot easier to be critical of sins that
you think "other people" commit and that you do not see every day in
yourself or your church. The church has a serious problem with
pornography for example. Yet you hear few sermons about it and most men
experience little real victory in this part of their thought lives, not
because it is impossible, but because we cut ourselves a lot of slack on
something seen as difficult to stop and in some sense, "natural."
You are also right that, while all sins lead to damnation unless covered
by the blood of Christ, there is a hierarchy of sins. Not all sins are
the same. This is why human law forbids murder but not anger, even
though Jesus makes it clear that without God's grace both will send you
to hell in the eyes of our just and holy God.
But, I do think that while advocating public measures that facilitate
homosexual recruitment or that say it is ok - such as gay marriage or
gay advocacy in schools - is far worse that Homosexual sex, promiscuous
homosexual sex is worse that occasional, and an open homosexual
lifestyle is worse that quietly struggling with it. And, acting on the
desire is worse than the desire. But, I think because homosexual sex is
"unnatural" and because it is avoidable for most people, even people
with the desire for it, it is "worse" than many other sins. Paul does
give it a prominent place in Romans 1, where he talks about the
consequences of rejecting God's truth. It is also an easy place to hold
the line on social values. On top of that, it is important because it
is the area where the current push to expand what society considers
acceptable conduct is taking place. We already lost the battle with the
"playboy lifestyle" in the sixties.
If we can keep homosexuality in the "antisocial" column of common
perception we can save thousands of kids from heartbreaking pain that
will occur if they are recruited to the "gay" life (I do not believe
they are hard wired that way even if there are biochemical propensities
or triggers). Next maybe we can drive the playboy lifestyle and sharp
business practices back into the "unacceptable" column. Such
perceptions matter. Life without major sins is nicer for everyone than
life with the major sins. It would be wonderful to have a culture where
we could focus on helping each other with pride, impatience, gluttony, and
sloth instead of the life threatening sins that currently hold our
civilization in thrall.
This said I do not think people should "hate" homosexuals or persecute
them. There but for the grace of God go we all. They need the gospel
and the love of Christ. But a gospel that says sin is not sin, or that
we are acceptable to God just as we are, without atonement or
justification, or that it is ok not to struggle against sin and just
institutionalize it, is not really the gospel at all. It is a dangerous
counterfeit.
Monday, June 19, 2006
Editorial on Homosexual Bishops
Over the weekend, I saw an editorial about the current dispute in the Anglican Church over whether the church can ordain homosexual bishops, or at least whether they should keep talking about whether or not they should ordain homosexual bishops. The editorial urged that the church completely drop the dispute. It claimed that modern people have all sorts of problems that the church needs to deal with, and that the homosexual bishop issue is merely a distraction. The editorialist opined that no one cares about who their bishop is and that this makes absolutely no difference. The editorial claimed that church unity is more important than wedge issues that splinter the church.
I must say, I found this editorial amazing and unbelievable. How can truth not be important? How can a serious sin be acceptable for bishops to openly and actively participate in without confession or repentance? How can this be a course of action that does not make any difference? I am afraid that this editorial shows just how much many people in our world really are affected by modernism and its extension, post-modernism.
The only logical reason why you would think that the debate over ordaining homosexual bishops does not matter is if you do not believe there is any such thing as sin or objective truth. Or if you think that if there is sin, you also think it isn’t really important. Certainly that is the modern mindset. As Francis Schaeffer said, people are interested in personal peace and affluence. Discussing the s word (sin) makes them feel uncomfortable and not at peace. Hence, they would rather have none of it. Unity, love and peace are all O.K. to talk about because they don’t make them feel uncomfortable. Sin—whether it’s adultery or sex before marriage or business fraud or tax evasion or racial bigotry, or homosexuality—those things make people uncomfortable and they would rather not hear about it. Many churches today have decided to become so “seeker sensitive” that they oblige by avoiding talking about anything that makes their congregants uncomfortable. But in leaving out the whole counsel of God and in leaving out the Word of God, we effectively deprive people of sanctification. As Jesus said in His high priestly prayer, we are sanctified by the Word of God and God’s Word is true.
If we substitute the standards of our community or sub-culture for God’s Word, we effectively substitute a lie for the truth, and an idol for God. This may sound harsh, but if you actually read what Jesus said in the Gospels, He usually wasn’t very worried about making people feel comfortable. He was concerned about making people realize just how sinful they were and just how much they actually needed God. Only when we accept God on His terms can we really experience what He wants to do for us. Trying to come to God on our own terms is, in part, the very essence of sin—and because God is holy, sin separates us from Him. Certainly the biggest problem that many people have with the Gospel is that God wants people to come to Him on His terms. They don’t understand why Christ would have to die for their sins. But God expects us to accept the burden of dealing with Him according to His rules instead of ours. I suspect this may be part of the actual meaning of “taking up your cross” daily and following Jesus: we have to accept Jesus on His terms even when they seem socially shameful or embarrassing. By this I am not saying that Christians should justify rude, tactless or anti-social conduct. Those things can be sins too. What I am saying is that we need to start teaching people what the Bible really says and what it’s implications really are for life, rather than seeking to mold the Gospel message to our modern and post-modern culture. The forgiveness of sin we have in Christ can only come to us if we first agree with God about sin and our need for his atonement for our sins. Calling sin acceptable, especially calling an open lifestyle of sin acceptable for a church leader, is not loving. It is rejecting the very love God offers and that we share with others.
I must say, I found this editorial amazing and unbelievable. How can truth not be important? How can a serious sin be acceptable for bishops to openly and actively participate in without confession or repentance? How can this be a course of action that does not make any difference? I am afraid that this editorial shows just how much many people in our world really are affected by modernism and its extension, post-modernism.
The only logical reason why you would think that the debate over ordaining homosexual bishops does not matter is if you do not believe there is any such thing as sin or objective truth. Or if you think that if there is sin, you also think it isn’t really important. Certainly that is the modern mindset. As Francis Schaeffer said, people are interested in personal peace and affluence. Discussing the s word (sin) makes them feel uncomfortable and not at peace. Hence, they would rather have none of it. Unity, love and peace are all O.K. to talk about because they don’t make them feel uncomfortable. Sin—whether it’s adultery or sex before marriage or business fraud or tax evasion or racial bigotry, or homosexuality—those things make people uncomfortable and they would rather not hear about it. Many churches today have decided to become so “seeker sensitive” that they oblige by avoiding talking about anything that makes their congregants uncomfortable. But in leaving out the whole counsel of God and in leaving out the Word of God, we effectively deprive people of sanctification. As Jesus said in His high priestly prayer, we are sanctified by the Word of God and God’s Word is true.
If we substitute the standards of our community or sub-culture for God’s Word, we effectively substitute a lie for the truth, and an idol for God. This may sound harsh, but if you actually read what Jesus said in the Gospels, He usually wasn’t very worried about making people feel comfortable. He was concerned about making people realize just how sinful they were and just how much they actually needed God. Only when we accept God on His terms can we really experience what He wants to do for us. Trying to come to God on our own terms is, in part, the very essence of sin—and because God is holy, sin separates us from Him. Certainly the biggest problem that many people have with the Gospel is that God wants people to come to Him on His terms. They don’t understand why Christ would have to die for their sins. But God expects us to accept the burden of dealing with Him according to His rules instead of ours. I suspect this may be part of the actual meaning of “taking up your cross” daily and following Jesus: we have to accept Jesus on His terms even when they seem socially shameful or embarrassing. By this I am not saying that Christians should justify rude, tactless or anti-social conduct. Those things can be sins too. What I am saying is that we need to start teaching people what the Bible really says and what it’s implications really are for life, rather than seeking to mold the Gospel message to our modern and post-modern culture. The forgiveness of sin we have in Christ can only come to us if we first agree with God about sin and our need for his atonement for our sins. Calling sin acceptable, especially calling an open lifestyle of sin acceptable for a church leader, is not loving. It is rejecting the very love God offers and that we share with others.
Subscribe to:
Posts (Atom)
