By Will Wagner
In the beginning God… – Genesis 1:1
In the beginning was the Word, and the Word was with God, and the Word was God. He was with God in the beginning. Through him all things were made; without him nothing was made that has been made. In him was life, and that life was the light of all mankind. The light shines in the darkness, and the darkness has not overcome it. – John 1:1-5 (NIV)
I will put my laws in their hearts, and I will write them on their minds. – Hebrews 10:16
… the requirements of the law are written on their hearts, their consciences also bearing witness, and their thoughts sometimes accusing them and at other times even defending them. – Romans 2:15
Jesus specifically says: I am the way and the truth and the life, no one comes to the father except through me… – John 14:6; For this reason I was born: for this reason I came into the world – to testify to the truth. Everyone on the side of truth listens to me. – John 18:33-38
This is good, and pleases God our Savior, who wants all men to be saved and come to a knowledge of the truth. – 1 Timothy 2:3-4
Righteousness exalts a nation, but sin is a reproach to any people. – Proverbs 14:34
Increasingly, an imperial judiciary avoids recognizing the real existence of actual good; to imply it exists suggests a moral absolute that might impede political progress.
Over 100 years ago, G.K Chesterton prophetically recognized that
Every one of the popular modern phrases and ideals is a dodge in order to shirk the problem of what is good. We are fond of talking about ‘liberty’ that, as we talk of it, is a dodge to avoid discussing what is good. We are fond of talking about ‘progress’; that is a dodge to avoid discussing what is good…. The modern man says, ‘Let us leave all these arbitrary standards and embrace liberty’. This is, logically rendered, ‘Let us not decide what is good, but let it be considered good not to decide it’. He says, ‘Away with your old moral formulae; I am for progress’. This, logically stated, means, ‘Let us not settle what is good; but let us settle whether we are getting more of it’. He says, ‘Neither in religion nor morality, my friend, lie the hopes of the race, but in education’. This, clearly expressed, means, ‘We cannot decide what is good, but let us give it to our children’.[i]
Thus, Ezekiel Emanuel writes:
[I]nvoking a conception of the good … is not possible within the framework of a liberal political philosophy. [L]aws and policies cannot be justified by appeals to the good. To justify laws by appealing to the good would violate the principle of neutrality and be coercive, imposing one conception of the good on citizens who do not necessarily affirm that conception of the good.[ii] (emphasis added)
And so today when some talk about neutrality, others see it as a modern day dodge to avoid having to deal with the existence of good as an actual existing moral absolute. Making laws and liberty interests adhere to a subjective notion of ‘neutrality’, while dismissing the possibility of an objective moral standard of ‘good’, enables those in power to define law and liberty according to their own morally relative evolving views of ‘neutrality’.
Thus, terms such as ‘truth’, ‘good’ or ‘justice’ are treated as subjective, relativistic viewpoints and not absolute standards. We cannot ‘know’ truth or good, so we must make it up as we go. The problematic result of this approach, of course, is that one who holds it (even if characterised in terms of ‘neutrality’) cannot actually claim it is true or good—or for that matter, neutral.[iii] It may be ‘true’ or ‘good’, or even neutral in the relativist sense, for the speaker, but need not be for the listener, which is no meaningful truth at all. For an imperial judiciary, real truth that actually corresponds to reality or conforms to fundamental laws of logic, is, therefore, not necessary. As Keyes notes:
[T]he cutting edge of relativism’s critique is to say that all ultimate religious and philosophical beliefs are properly understood not as possible sources of true knowledge about God or ultimate truth, but as only products of their culture’s groping to name the unnameable. But at the same time relativism claims for itself immunity from the force of its own critique. We are meant to believe that it alone is not just a product of the relativizing factors in its own (modern, Western, academic, tenure-seeking) culture, but that it is in some mysterious sense, objectively, timelessly true. It comes to us through an epistemological immaculate perception, whereby it miraculously escapes the acid bath of relativizing analysis….[iv]
Moreland and Craig describe the ironic nature of the relativist position:
[R]elativism itself is either true or false in the absolutist sense. If the former, relativism is self-refuting, since it amounts to the objective truth that there are no objective truths. If the latter, it amounts to a mere expression of preference or custom by a group or individual without objective, universal validity. Thus it cannot be recommended to others as something they should believe because it is the objective truth of the matter… .[v]
Thus, morally-relative judicial interpretation of the constitution becomes an agenda-driven instrument of government power to achieve some preferred end— irrespective of whether that end comports with the will of the citizenry. In this jurisprudential revolt against objectivist principles, those with judicial power create new rights and often make irrelevant, in a constitutional sense, inviolable unalienable rights.[vi]
Let us pause for a moment and observe the immense jurisprudential impact of what is happening here. One of the founding principles of the United States was that we are nation of laws and not of men. This principle is known as the Rule of Law. Under the Rule of Law no person, not even a king, was above the law. The Rule of Law for the American nation is its Constitution, enumerating powers granted to government by the people and including the unalienable rights limiting the exercise of such power. Both conservative and liberal judges not wanting to be limited by the Rule of Law (at least in the traditional unalienable sense) resort to such an approach. Doing so allows them to re-characterize the Rule of Law to include ‘rule by judges’. Thus, when used by a non-politically accountable judiciary, the evolving, morally-relative worldview temptingly provides an instrument to diminish unalienable rights and other inviolable standards of some, while creating new rights to advance political interests of others (whether or not supported by a majority of the people).[vii] And all this occurs within a worldview that permits it to call its work the Rule of Law.
Thus, many Americans, and especially those with positions informed by inviolable sacred principles, see their liberty being eroded and taken away by an imperial judiciary. Increasingly, judicial decisions strategically assail the sacred self-evident truth concerning the origin of the universe, the inviolability of life, marriage, family, freedom of speech and the free exercise of religious conscience. For Christian people and other advocates of good governance, the ‘evolution’ of these values is more aptly characterized as devolutionary social engineering. To be sure, a judge could use a subjective morally relative approach to rationally evolve policy positions arguing forcefully against such social engineering. Arguing rationally, apart from any moral absolute, a judge might reasonably explain why a law or government action is incompatible with some amorphous fundamental legal premise protecting life or liberty. A difficulty remains, however, with the absence of an absolute—an objective moral reference point capable of providing an actual measure as the Rule of Law. If no such objective reference point exists, (e.g. inviolable principles reflected as unalienable rights in the American Constitution), nothing reliably holds the government, or governance, accountable under a fixed Rule of Law. Thus, no predictable standard against which to measure or assesses government action (including social engineering) exists. In its place is a subjective, relativism-induced arbitrary assessment by an activist judge politically accountable to no one. However laudable and consistent with traditional values the assessment coincidentally may be today, it (due to its underlying morally-relative jurisprudence) provides no assurance of good governance under the Rule of Law tomorrow.
Indeed, activist judges increasingly reconfigure the political landscape to prevent citizens with viewpoints grounded in the sacred from participating in the political process. For Christian people God and his Word are real, and therefore really matter. They, understandably therefore, oppose devolutionary social engineering averse to His tenets. Activist judges with a bias against Christian people presume, however, that God and his self-evident truth do not even exist. They therefore contend that viewpoints, informed by such sacred sources, have no place in their evolving constitutional governance.[viii] Because they have no place, participation in public policy debates is precluded if one’s view of the world is informed by sacred principles— since government must only adopt public policy informed by secular dogma, without regard to any sacred conscience or moral considerations.
For example, when a subjectivist worldview leads to applying a judicially active organic approach to interpreting the Establishment Clause, Congress shall pass no law respecting the establishment of religion evolves into a morally-relative world where government action must comport with judicially deemed illusions of neutrality. Here, to be constitutionally ‘neutral,’ all laws and other government action must have a secular purpose and not even symbolically endorse religion.[ix] Proponents of this approach favor it because it enables unelected judges, to judicially nullify unalienable absolutes. The Court typically takes a moral absolute once in God’s realm (e.g., the origin of the universe) and re-characterizes it as a policy matter up for discussion. Then, invoking a morally relative kind of neutrality— the Court holds everyone can participate in the discussion except for those informed by religious viewpoints. Thus, the Court has struck down, for example, laws attempting to accommodate the teaching of creation science and regulating the teaching of evolution.
For example, in the State of Louisiana, Darwin’s theory of evolution was taught in the schools. Louisiana passed a law attempting to also accommodate those with a different theory on the origin of the universe— creation science.[x] On its face, such an effort seems to embody the very essence of neutrality. The Court, however, reached an opposite conclusion in Edwards v Aguillard, holding the law unconstitutional because it lacked a secular purpose and symbolically endorsed religious ideas.[xi]
Similarly, in Epperson v. Arkansas, the State of Arkansas passed a law regulating the teaching of evolution.[xii] The Court began its analysis by declaring that ‘[g]overnment in our democracy … must be neutral …’ The Court nevertheless proceeded to hold that because the law was motivated by a religious purpose, it violated the Establishment Clause.
Thus, although often couching its analysis in terms of neutrality, activist court decisions require secularly informed purposes while prohibiting religiously informed ones. Descriptive of such an analysis is Justice O’Connor’s concurring opinion in Wallace v. Jaffree:
It is not a trivial matter, however, to require that the legislature manifest a secular purpose and omit all sectarian endorsements from its laws … It reminds government that when it acts it should do so without endorsing a particular religious belief or practice that all citizens do not share.[xiii]
For these activist judges it is acceptable (and sufficiently neutral), though, for government to dictate and endorse a secular belief or practice that all citizens do not share.
The jurisprudential implications of decisions like Aguillard and Epperson are immense. Implying the irrelevance of God and his moral absolutes facilitates judicial extinction of unalienable liberty as viewed by the Framers. As Herb Titus decries in his article The Bible and American Law, ‘What is there that is self evident, if God does not exist?’[xiv]
Increasing numbers of judges view the exercise of power through a morally relative worldview, and then use that power to harm Christian people. By way of example, senior citizens at a nursing home in Georgia were recently prohibited from praying before they ate their meal. The government said that because the meals were subsidized by the government, praying over the meal would be a violation of the establishment clause.[xv] Likewise, those whose actions are informed by the sacred rather than the secular have faced Establishment Clause challenges for erecting memorials for the fallen, engaging in a moment of silence prior to starting school,[xvi] and praying prior to football games.[xvii]
Jurisprudentially, with God and His objective self-evident truth out of the way, only human/ government determined liberty exists. Having laid this foundation, the threat to unalienable life and liberty, and truth itself, becomes evident.
[This contribution is adapted from excerpts of Prof. Wagner’s book, God, Man, and the Constitution – Worldviews Collide]
[i] G.K Chesterton, Heretics, Dover Publications, Mineola, NY, 1905, p 13.
[ii] Hastings Center Report, Nov-Dec, 1996, p 3.
[iii] See, e.g., C E Rice, ‘Rights and the Need for Objective Moral Limits’ (2005) 3 Ave Maria Law Review 259 p 267-268
[iv]D Keyes, ‘Pluralism, Relativism, and Tolerance’, A Series of L’Abri Lectures, No.2, L’Abri Fellowship, Southborough; See also. C E Rice, note 3 above, p 267–268.
[v] Moreland and Craig, Philosophical Foundation for a Christian Worldview, Intervarsity Press, Downers Grove, IL, 2003. For a lucid analysis of the philosophical foundations of objective truth see Chapter 6 of this treatise.
[vi] For an excellent analysis of some similar phenomena in the international context, see J Cornides, Natural and Un-Natural Law, International Law Group, Organizations Legal Studies Series, 2009, p 2.
[vii] See generally, J Cornides, id.
[viii] See, for example, A Zimmermann, ‘Evolutionary Legal Theories—the Impact of Darwinism on Western Conception of Law’ (2010) 24(2) Journal of Creation 103 (discussing how Justice Olivier Wendell Holmes saw natural rights as a ‘conceptual mistake’ and how evolutionary concepts make any analysis involving God pointless).
[ix] In Lemon v. Kurtzman (1971) 403 US 602, the Supreme Court stated that the government must meet all three prongs of the following test to survive an Establishment Clause challenge: ‘First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion’. A number of justices address the second prong of the Lemon test by asking whether the government action symbolically endorses religion. For a scholarly discussion of how the neutrality principles demean religion in the United States, see, G Moens, ‘The Menace of Neutrality in Religion’ (2004) (Summer 04) Brigham Young University Law Review 535, pp 566–572.
[x] The law prohibited the teaching of the theory of evolution in public schools unless accompanied by the instruction in creation science.
[xi] Edwards v Aguillard (1987) 482 US 578 at 583, 592
[xii] Epperson v. Arkansas (1968) 393 US 97 The law at issue in Epperson prohibited teaching ‘the theory…that mankind ascended or descended from a lower order of animals’.
[xiii] Wallace v Jaffree (1985) 472 US 38
[xiv] H Titus, ‘The Bible and American Law’ (2008) 2 Liberty Law Review 305, p 317; And see generally, N Geisler, Systematic Theology, VOL 2 at 17, Bethany House, Minneapolis, MN 2003 (discussing how ‘all basic theological truth depends upon God’s attributes’) .
[xv] Associated Press (Editorial), ‘Ga. Seniors Told They Can’t Pray Before Meals’, Associated Press, 10 May 2010.
[xvi] Wallace v Jaffree (1985) 472 US 38.
[xvii] Santa Fe Independent School District v Doe (2000) 530 US 290