Archive for September, 2015

On Founders and Fathers

September 30, 2015

People like me appeal to the Founders of the American republic as authorities on what the Constitution meant when it was written. We do that because we believe in a grammatical-historical method of interpretation of any written document. In a similar way, many people like to appeal to the Church Fathers to understand the Scriptures. There are some similarities and some differences in these approaches.

Some Differences:

Unlike the Founders, the Church Fathers did not themselves write the Scriptures. The Scriptures were inspired by the Holy Spirit and written by those with a prophetic gift. Even the earliest of the Early Church Fathers we have were probably pretty young when the Scriptures were written. Furthermore, the writings of the earliest of the Early Church Fathers never explicitly purport to provide any insight into what was meant by the text as written. There is not a body of literature contemporary to the writing of the New Testament, parallel to the Federalist Papers (for example), to which we can appeal for documentation regarding why things in Scripture were probably written the way they were written.

In fact, most of the church fathers were separated as far as we are (or farther than we are) from the Founders. Thus, their value in a grammatical-historical model of interpretation is quite dilute. They may be useful in helping us confirm that we’re still reading Greek in about the same way as they did, but folks like Augustine and his contemporaries didn’t have any first hand, or even second or third hand knowledge of the apostles and evangelists, much less of Moses, David, and the prophets.

Additionally, the Bible is perfect. It is a complete document that will accomplish exactly what God intended it to do. Those tasks include communicating the way of salvation and thoroughly furnishing the man of God for every good work. The US Constitution is an impressive document, but it is far from perfect. We don’t even have a reason to think it would be perfect. It’s a merely human work, and humans make mistakes. There is no guarantee that it will accomplish all its authors intended.

Similarly, the Bible is perspicuous. By contrast, there is no doctrine of the perspicuity of the US Constitution. Even on important points, it is possible for the US Constitution to be vague. Just as their is not guarantee that the Constitution will work as intended, there is no guarantee that a fair-minded reader trying his best will correctly understand even the most important points.

Thus, the need to rely on external authorities becomes important when dealing with the Constitution in ways that it is not when dealing with the Bible.

Some Similarities:

Like the Fathers, the Founders were not always of one mind. In one interaction I had with a Roman Catholic, I recall the following interchange (I’m paraphrasing):

RC: Are you saying that church went off the rails from the very beginning? Because we know what Clement of Rome taught about ecclesiology.
TF: You’re referring to the book of 1 Clement, which is usually attributed to Clement of Rome. But note that the author of that work was arguing with the Corinthians. He was saying that they went off the rails. So, did someone go off the rails right at the beginning? Apparently so – the very evidence you cite is proof of that, whether Clement was right or wrong.

A similar issue was recently raised by my brother, Jordan Hall, in a post about the Constitution. There he raised a comment by Thomas Jefferson in a letter written around 1819. My brother wanted to argue that Jefferson’s position reflected what “the Founders” thought about the Constitution. The problem is this – Jefferson’s letter is one that is arguing against his contemporaries (link to letter). In other words, while my brother may want to side with Jefferson, Jefferson is arguing with another of his contemporaries. “The Founders” were not of one mind on the subject, but of two (or more) competing minds.

That leads us to another similarity. It’s not always easy to identify a “Founder” just as it is sometimes difficult to identify a “Father.” Should we count Origen and Tertullian as Fathers? They are certainly highly influential early Christian authors, but their full orthodoxy is sometimes questioned. Similarly, who do we count as a Founder? One Constitution-focused website explains the problem:

Other U.S. Founding Fathers were not there [TF insertion: at the Constitutional Convention], but made significant contributions in other ways. Thomas Jefferson, who wrote the Declaration of Independence, was serving as ambassador to France at the time of the Convention. He kept abreast of the proceedings in Philadelphia by carrying on correspondence with James Madison. John Adams, as ambassador to Great Britain, wrote “Defense of the Constitution of the Government of the United States of America.” Thomas Paine wrote the influential pamphlet “Common Sense,” which immeasurably influenced the philosophy reflected in the Declaration of Independence. One of the U.S. Founding Fathers, Patrick Henry, was initially opposed to the very idea of the Constitution! He wanted to keep the Articles of Confederation, the predecessor to the Constitution. However, when an agreement was made to add a “bill of rights” to the Constitution, Henry fought hard for its ratification.

(link to site)

We see similar divisions amongst the fathers. There were various theological battles over which those in the early church fought – sometimes on central issues (like Jesus’ divinity) and sometimes over relatively trivial issues (like when Easter should be celebrated). While I certainly wouldn’t treat an Arian as a “father of the church,” it’s important to realize that this identification involves me using the Scripture as my standard for deciding who to label a “father.” Thus, my list of “fathers” is going to include generally orthodox men. I can’t then turn around and say that their opinion proves that my doctrine is orthodox, as Roman Catholics sometimes erroneously attempt to do.

People who are trying to round up opinions of the Founders to support their views need to be similarly careful. Jefferson’s view on the judiciary (as interpreted by my brother) would seem to place him at odds with John Marshall’s views on the judiciary. Nevertheless John Marshall, like Thomas Jefferson, was a founding father (link to relevant information on Marshall). Although Jefferson is more famous, both men were founders and arguably represent (on some issues) competing views found amongst the Founders even in the early days of the republic. If you only count the Founders who agree with you as being Founders, your appeal to them is no longer grammatical-historical analysis but simply partisan politics or propaganda.

So be careful when applying external sources. The Constitution may need them to be understood– Scripture doesn’t need them, even if they are helpful. Moreover, when you are looking at them, look more for the points on which those debating found common ground. In the case of the Fathers, that was that Scripture is the highest and most ultimate authority, aka Sola Scriptura. Look for the things that they took for granted that their opponents would agree with, not those points on which they wanted their opponents to submit. Those points provide much stronger evidence for “the opinion” of the Fathers or the Founders.


Humanly Speaking the Cross was a Failure

September 29, 2015

The pope wasn’t saying that Christ’s death was a failure. He was saying the same thing that both Roman Catholics and Protestants affirm, namely that the disciples were expecting a Messiah that would give military victory over the Romans. Instead, the Romans killed him. He looked like a failure to those who had only a human perspective on things. The pope was contrasting the divine perspective with the human perspective, when he said:

The cross shows us a different way of measuring success. Ours is to plant the seeds. God sees to the fruits of our labors. And if at times our efforts and works seem to fail and not produce fruit, we need to remember that we are followers of Jesus Christ and his life, humanly speaking, ended in failure, the failure of the cross.

This shouldn’t be any surprise, since others have said the same thing.

Roman Catholic expressions of this:
“It is love and loyalty which persist even where humanly speaking there seems to be no reason for it — just as the cross of Jesus was humanly speaking hopeless, but brought salvation and goodness.” A New Catechism: Catholic Faith for Adults, with Supplement

“Humanly speaking, a failure: a colossal, blatant failure. Yet when all seemed to be lost, all was in fact saved. ” Federico Suarez

Non-RC expressions of this:
“5. He was rejected and despised by the people among whom He labored. “He came to His own, and His own received Him not.” His work was, humanly speaking, a complete failure, and when He left the world He had but a handful of followers who had remained true to His teachings and person.” Albert Simpson

“With all reverence, let me say to you, humanly speaking, the day the Master died on the Cross it seemed a colossal failure.” D. L. Ferris

“That beautiful Iife promised so much, but the Cross shows how those promises, humanly speaking, ended in failure. The nation He came to teach rejected Him; the people He came to save crucified Him; a few Disciples only remained faithful to Him; and yet out of that ” failure” came the greatest success the world has ever known, the success which has regenerated mankind!” Alfred Mortimer

“Humanly speaking, his work had failed. ” Warren W. Wiersbe

“What enabled the disciples of Jesus to understand this enigmatic “message of the cross”? At first sight, we see in the cross the sign of a failure, humanly speaking. ” Taize

There are good reasons to be opposed to the papacy, but this isn’t one of them.


Judicial Precedent as Law – Summary

September 28, 2015

In America, judicial precedent is law. This is true even if it is true that:
a) Some of that law is bad law;
b) Some of that law is unconstitutional law;
c) Some of that law would be “honored in the breach”;
d) Some of that law outrages us;
e) Some of that law could be overturned tomorrow;
f) Some of that law is contrary to God’s law;
and we could probably think of many more to go with those.

The fact that judicial precedent is law in America can be seen in a variety of ways:
1) Look at dictionary definitions (I was told that this approach is un-American, but let the reader judge)
2) Look up what it means that America is a “Common Law” jurisdiction as distinction from a “Civil Code” jurisdiction.
3) Look up what the expression “case law” means (not in reference to the Torah, but in reference to the American legal system)

Now, Jordan Hall​, Marcus Pittman​, and Joel McDurmon​ have all expressed disagreement with my thesis – and they are all talented brothers in Christ. But on this point they are wrong, and not just white shoes after Labor Day wrong – they are as wrong as putting a “Tribble” caption on a photo of an Ewok, as wrong as thinking that “RC” in RC Sproul stands for “Roman Catholic”, and as wrong as Bruce Jenner’s current restroom choices.

There are lots of good reasons to oppose the new precedent set by the Supreme Court, but they don’t include the absurd notion that, because the decision is not legislation it is not law (the errant opinion expressed by Jordan and Marcus and defended by Joel).

So please, brothers. Stop it. Just stop it. The media get lots of things wrong all the time, but this is not one of those things. This is actually one of those rare cases where they’ve made an accurate statement.


Taking an Un-American Stance

September 26, 2015

In English the word law includes both statutes and judicial precedent.

“The judgment of a competent, court, until reversed or otherwise superseded, is law, as much as any statute.” (Black’s Law Dictionary, 1910)

American Heritage Dictionary

a. A statute, ordinance, or other rule enacted by a legislature.
b. A judicially established legal requirement; a precedent.

Webster’s (1828)

11. Unwritten or common law, a rule of action which derives its authority from long usage, or established custom, which has been immemorially received and recognized by judicial tribunals. As this law can be traced to no positive statutes, its rules or principles are to be found only in the records of courts, and in the reports of judicial decisions.

One will find similar entries in other dictionaries as well. Some will simply have general statements about binding rules, but where you find mention of statutes, look and see whether judicial precedent or “common law” is mentioned. I don’t think you’ll be disappointed. I’ve been told that this is an un-American approach, but I can live with that. Words have meaning after all, and as general rule, the dictionaries are great sources for those meanings.


Distinguishing Reality from Fantasy

September 25, 2015

No matter how good of an argument for Departmentalism my exceedingly brilliant friend and brother, Steve Hays offers (here, for example), Departmentalism is a pipe dream. It’s not the way America actually works.

In practice, in America, the Supreme Court has a final say. Knowledgeable advocates of the position Steve Hays mentions continually rue this. For example, Ed Whelan, as quoted by Steve Hays in an earlier post, states: “We live in a legal culture besotted by the myth of judicial supremacy.” And again: “Although there are some scholars, both on the right and on the left, who challenge it, most lawyers across the ideological spectrum, having suffered the detriment of a modern legal miseducation, embrace it.” In other words, Whelan’s position is a minority position that reflects the way he thinks the system should be not the way the system actually is.

That said, I don’t think any of the arguments for Departmentalism are very compelling. For example, Whelan argues (quoted by Hays):

It is one thing for the Supreme Court to decline to apply a law that it deems to be unconstitutional; it is quite another for it to maintain that presidents, members of Congress, and state officials must likewise regard the law as unconstitutional and, further, must accept and follow the rationale of the Court’s decision.

Whelan is whiffing. There are at least three strikes there.

1) Although in some cases the Supreme Court decides whether something is unconstitutional as applied, the Supreme Court often decides whether something is unconstitutional on its face, and consequently void. Whelan tips his hat to this point, but doesn’t seem to realize its far-reaching implications.

2) Not all of the Court’s decisions relate to the Constitution. Sometimes the question requires interpreting a piece of legislation and deciding what the legislation means. We’ll come back to this issue shortly.

3) In America, no one has to “regard the law as unconstitutional” (in the sense of agreeing that the Court decided rightly) nor must they “accept and follow the rationale” that the Court offered. They are free to think the Court decided wrongly. However, even if they disagree with the ruling, they have to obey the ruling until it is overturned. That’s true whether it’s a really controversial Constitutional issue or a less controversial legislative issue. And that is how the system works. It’s easier to overturn decisions about the meaning of statutes and much harder to overturn interpretations of the constitution. But the same rule applies.

According to Whelan, the Court didn’t come up with judicial supremacy until 1958. That kind of claim runs face-first into a more complete history of the situation (see here, for example). Famous cases along the way include the Court striking down the original income tax law, leading to a Constitutional Amendment to overturn the court’s decision.

The most bizarre part of Whelan’s argument is this: “But none of this speaks with clarity or force to the judicial-supremacist claim that other governmental actors must abide by a federal judge’s view that a law is unconstitutional.” What would be the point of having a judiciary that no one had to obey? The idea that the Supreme Court’s decisions on constitutional matters are just advisory is just nuts. One doesn’t have to agree with the Court, but one does have to obey the Court.


Judicial Supremacy

September 22, 2015

In a number of great posts at Triablogue, Steve Hays has raised the question of the legitimacy of what he terms Judicial Supremacy. His question is not totally illegitimate, even though it in no way rebuts (in fact, it presupposes) my argument that Obergefell is law. So, let’s briefly consider the question of so-called Judicial Supremacy.

The US Constitution is a great document, but it has certain gaps that have been noticed over the last two centuries of use. One of those gaps is the question of whether the Supreme Court’s interpretation of the Constitution should be treated as better than the President’s interpretation of the Constitution or the Congress’s interpretation. When the branches of government disagree about what the Constitution means, who wins?

In practice, i.e. the way things are, the Supreme Court’s interpretation wins. That’s the way it has been, almost without interruption since the time of the founders. There are some rare situations that have challenged that status quo, such as when around 1832, President Jackson supposedly said “John Marshall has made his decision; now let him enforce it!” Nevertheless, if someone wants to know how the American system actually works, the answer is that the Supreme Court’s interpretation wins.

In theory, the answer is not quite so clear. After all, each branch swears allegiance to the Constitution. If the Supreme Court’s decision is not just wrong, but actually contrary to the U.S. Constitution, then the Congress should not make laws consistent with the Court’s decision and the President should not enforce either the Court’s decision or any other unconstitutional laws. In other words, each branch seems to have an independent duty to make sure that the Constitution is obeyed.

Of course, a lot of the controversial Supreme Court decisions don’t fall into that theoretical category where the President would have to choose between contradicting the Constitution and following the Court or contradicting the Court and following the Constitution. For example, while the recent Obergefell decision may not be an objectively correct interpretation of the Constitution, it’s much harder to argue that obeying the rule in Obergefell would violate some other part of the Constitution.

If one wished to argue that it does violate it, one would presumably rely on the “reservation of powers” clause or something like that, and suggest that obeying the Supreme Court would require usurping rights reserved to the states. On the other hand, that argument does not seem to have a lot of teeth. The real problem with Obergefell is its objective immorality and/or its objectively unreasonable interpretation of the Constitution.

It seems to be much less compelling that the President or Congress could simply disregard a Supreme Court decision because they don’t think it was justified, even if they don’t think it would violate the Constitution. After all, what if the Court did that? In other words, what if the Court didn’t say laws were unconstitutional, but simply refused to treat as valid laws it didn’t think were justified? That would seemingly potentially cause chaos.

Thus, in cases where there is not a clear inherent conflict between following the Court and following the Constitution, it seems that even on a theoretical level there is a legal (though not moral) obligation to follow the Court.

That’s still not actual Judicial Supremacy (just so-called supremacy) because – as I’ve previously pointed out – there are checks and balances against a runaway judiciary. One check is that judges can be removed. Another check is that Constitution can be amended. The former option can provide new judicial precedent that overrules prior precedent. The latter can simply directly overrule the precedent.

Steve’s biggest challenge to this was:

But since you refuse to challenge judicial supremacy, your appeal to impeachment or the amendment process is preemptively derailed by the very institution you presume to rein in, given the incontrovertible prerogative you ascribe to it. If the Constitution only means whatever judges say it means (a la Chief Justice Hughes), then they can “interpret” the Constitution to immunize judges from impeachment or forbid the abridgment of their authority.

Steve’s argument here is wrong. What Steve should say is that if the Supreme Court were consistently given an incontrovertible prerogative, they could avoid impeachment and ignore Constitutional amendments. But the current American system does not give them that level of incontrovertible prerogative. The American system lacks that kind of consistency, and as a result does not have that absurd outcome.

Steve may want to argue that the American system would be better if some changes were made, or Steve may want to argue that the American system is inconsistent. Both of those may even be legitimate criticisms (not of me, but of the American system). But both of those arguments from Steve presuppose the point my original article made, one which my friends need to hear, namely that although Obergefell is a very bad law, in the American system it is law.

Bad Law is Still Law

September 21, 2015

Steve Hays has a thought-provoking post (link) sparked by my own previous post (link). Since his post doesn’t seem to directly dispute the central thesis of my own post, namely that Obergefell is law, no rebuttal is needed. In fact, I find a lot of points in Steve’s post with which I agree – or at least I think that there are issues worth considering.

For example, Steve wrote: “Whether executive agency regulations should have the force of law is hardly indisputable.” Whether they do have the force of law is different from whether they should have the force of law. In practice, they have a slightly different effect from legislative law, but they are (in general) still laws that people have to abide by. Whether this should or shouldn’t be the case is essentially academic.

Moreover, Steve’s point about executive agency regulations helps underscore the point of my original post. After all, while agency regulations may have disputable standing on some academic level, judicial precedent is not disputable.

Steve commented (regarding agency regulations): “To my knowledge, that’s not something the Founding Fathers envisioned.” Whether or not they did, they definitely envisioned judicial precedent as law.

Skipping over other interesting things Steve said, toward the conclusion of the post, Steve raises a question of whether there should be judicial supremacy. If the question here is founder’s intent, it’s worth noting that Judicial supremacy goes back to 1803 in which the Supreme Court first declared a law void based on the law being unconstitutional. That was in a case brought against President Madison, who was one of the founders. Once again, there is a sort of academic argument to be made that the final determination of constitutionality should lie in the Executive or Legislative branches, but in practice that’s not where the American system is today.

Today, even when the Supreme Court makes bad Constitutional decisions, its decisions stand as law until either they are overruled by subsequent Supreme Court decisions or the U.S. Constitution is amended. That’s how the system is, whether or not that’s how the system should be. I leave the should be question to the academics and the rich.

As a result, Christians should not go around making foolish claims that Obergefell isn’t law. They may oppose it, but they should recognize it for what it is.

Obergefell is Law

September 17, 2015

Some dear friends have been going around claiming that Obergefell(fn1) isn’t the law of the land. These dear friends are wrong.

But the Constitution vests all legislative authority in the Congress!

Yes all federal legislative authority is Congressional, but legislation isn’t the only kind of law. There are also laws that come from the executive branch (e.g. regulations) and laws that come from the judicial branch (e.g. judicial precedent). There are even treaties, which the President enters into with the consent of the Senate.

But the Founders never intended for judicial precedent to be law!

Actually, the founders accepted the idea of judicial precedent as law. They all had as their framework the English “common law” system, in which judicial precedent was treated as law. The Constitution doesn’t oppose this framework. In the historical context in which the Constitution was written, it was assumed that judicial precedent would be treated as law.

But this is Legislating from the Bench!

What you really mean is, you don’t agree with the justices’ decision. You think they were wrong to conclude as they did. That doesn’t make this legislation from the bench. It’s just judicial precedent.

But it’s just an Opinion, look it says “Opinion” right on it!

This has to be the most ignorant (or deceptive) objection I’ve heard. Yes, judicial decision is typically called an “opinion.” That doesn’t mean it’s simply some kind of personal opinion that lacks the force of law. The majority opinion of the Supreme Court is legal precedent that controls – lower courts must follow it.

But Kentucky’s law is different

When Federal law and Kentucky state law come into conflict, Federal law wins (US Constitution, Article VI).

But Article VI doesn’t mention judicial precedent!

Even if that mattered, it mentions the US Constitution and – according to Obergefell – the US Constitution conflicts with some state laws.

Doctrine of the Lesser Magistrate!

Suffice to say that this doctrine is one that relates to rebellion by the lesser magistrate against the greater magistrate. When or whether such rebellion may be Scripturally warranted is a different topic, but the point is that we are no longer talking about whether Obergefell is law, but whether the lesser magistrate is going to obey that law or rebel against that law. In principle, there are times when lesser magistrates ought to rebel against the law, but it is still rebellion against the law. Those who rebel against the de facto authorities, including an unjust greater magistrate, should fully expect to reap the consequences of death, imprisonment, loss of property, and so on.

But #datnotpostmil!

Just because we know that God’s kingdom will continue to advance doesn’t mean we know how precisely that will come to be. Perhaps it will be a reformation in this land. Perhaps it will be through God bringing just judgment in this land. I hope it will be the former, but the more bad laws we have, the more we invite the latter.

But then what can we do?

Within the law, we can remove Supreme Court justices for bad behavior and install those who will overturn bad precedent. Alternatively, we can amend the Constitution to overcome bad judicial precedent regarding the Constitution.

More significantly, we can proclaim the truth that is revealed in Scriptures to those around us. The Word of God is more powerful than you think, no matter how powerful you think it is. It’s ok for us to use the political process, but that’s not the primary way by which #datpostmil will come about.


FN1: For those living under a rock, Obergefell held: “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”

Calvinism vs. Reformed Molinism Debate

September 10, 2015

The debate has been posted at the Seeing God Ministries website (link to page)(direct link to mp3). The debate pitted Reformed Molinists Richard Bushey and Zachary Lawson against myself and Josh Sommer.

Unlawful Orders and Options – Some Thoughts on Persecution

September 6, 2015

Steve Hays has already provided some excellent thoughts on the issue of unlawful orders over at Triablogue (link). In supplement of those thoughts, I wanted to add a couple of additional semi-related points.

1) Distinguishing Permitted Disobedience from Required Disobedience

In some cases, when someone in authority over us commands us to do something, we are required by God’s law not to follow those orders. Often, there are two ways in which can “no follow orders.”

For example, if a judge ordered a clerk to issue a “gay marriage” certificate, the clerk has a moral obligation under God’s law not to follow that order, assuming following that order was sinful. However, there are at least two real alternatives this hypothetical clerk has. The clerk could simply refuse (i.e. disobey the order) or the clerk could resign (i.e. avoid the order). Both of these alternatives are legitimate.

Some people seem to think that a Christian’s duty to disobey also entails a duty to do so following the path of least resistance. In other words, some people seem to be arguing that our hypothetical clerk must resign, rather than simply disobeying orders. This view seems to suggest that disobedience can only be a last resort – we can only disobey when our back is to the wall, so to speak.

That rationale seems intuitively wrong. It seems as though the midwives in Egypt could have sought other career options instead of continuing to deliver babies, but their choice to continue delivering babies while disobeying orders seems praiseworthy.

There may be cases where we cannot resign our way out of direct disobedience. For example, I don’t think anyone believes that the apostles had the option of resigning their apostolic office in order to avoid directly disobeying the Sanhedrin.

On the other hand, that does not mean that direct disobedience is always mandatory. Remember that sometimes Christians are called to flee persecution. For example,

Matthew 10:23 But when they persecute you in this city, flee ye into another: for verily I say unto you, Ye shall not have gone over the cities of Israel, till the Son of man be come.

So, in our hypothetical example, the clerk is permitted to flee persecution, for example by simply resigning.

This is distinct from cases where we may not have any way of fleeing the persecution and disobedience is our only option, as with the Apostles in front of the Sanhedrin. Still, it is important to recognize the distinction and to permit Christians their liberty in Christ to elect between enduring persecution for the name of Christ and fleeing that persecution.

While enduring such persecution is noble and praiseworthy, it is not mandatory in every case. Therefore, while we should praise those who suffer for the sake of the kingdom, we must not condemn those who flee into another city, so to speak.


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