Archive for the ‘Law’ Category

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) http://turretinfan.blogspot.com/2015/09/taking-un-american-stance.html
2) Look up what it means that America is a “Common Law” jurisdiction as distinction from a “Civil Code” jurisdiction.
https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/
https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html
https://en.wikipedia.org/wiki/Common_law
3) Look up what the expression “case law” means (not in reference to the Torah, but in reference to the American legal system)
http://dictionary.law.com/Default.aspx?selected=148

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.

-TurretinFan

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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“The judgment of a competent, court, until reversed or otherwise superseded, is law, as much as any statute.”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

4.
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.

-TurretinFan

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.

-TurretinFan

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.

-TurretinFan

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.”

The Law Justified Christ

April 11, 2011

Someone going by “Todd” (profile not available) wrote:

Your first counterargument is that “Christ fulfilled the law. The law didn’t condemn Christ, it justified Him.” I’m going to ignore the bizarre phrasing that the Law justified Christ, which hints at all sorts of problems. But more to the point, you seem to completely miss who the Law is for. Is it for God? Or did God give it to us sinners? You’d think the answer would be obvious, and yet you feels the need to point out that Christ was not a sinner. Duh. When Lutherans say “the Law always accuses”, we are not talking to Jesus, we are talking to fellow sinners.

I answer:

It’s a pity Todd ignored it. It’s an important point, something that Todd may not understand. Justification is a declaration of righteousness. As to those who are under the law, the law declares all (except Christ) to be sinners. The law accuses them.

This is why works righteousness as means of salvation is not just wrong, it’s stupid. Scripture puts it this way:

Romans 3:19-20

Now we know that what things soever the law saith, it saith to them who are under the law: that every mouth may be stopped, and all the world may become guilty before God. Therefore by the deeds of the law there shall no flesh be justified in his sight: for by the law is the knowledge of sin.

The way that law could, in theory, justify someone is by the person perfectly obeying the law.

Romans 2:13

(For not the hearers of the law are just before God, but the doers of the law shall be justified.

Christ was justified in this way: he obeyed the law perfectly. This use of the term justify is found not only in the New Testament, but in the Old Testament:

Deuteronomy 25:1

If there be a controversy between men, and they come unto judgment, that the judges may judge them; then they shall justify the righteous, and condemn the wicked.

That is the role of judges: to declare the righteous and the innocent.

Moreover, the idea of justifying God is similarly to be found in the Old Testament:

Job 32:2

Then was kindled the wrath of Elihu the son of Barachel the Buzite, of the kindred of Ram: against Job was his wrath kindled, because he justified himself rather than God.

Notice that what Elihu wanted was for Job to declare God righteous and for Job to declare himself to be a sinner. But Elihu felt as if Job had declared himself to be righteous.

David provides us with a positive example:

Psalm 51:4

Against thee, thee only, have I sinned, and done this evil in thy sight: that thou mightest be justified when thou speakest, and be clear when thou judgest.

See this similar New Testament example:

Luke 7:29

And all the people that heard him, and the publicans, justified God, being baptized with the baptism of John.

So, you see, if one gets too immersed in justification by faith, one may miss the broader context of justification as a declaration of righteousness.

We actually see the idea of an imputed righteousness (negatively) in the Old Testament:

Isaiah 5:23

Which justify the wicked for reward, and take away the righteousness of the righteous from him!

What is remarkable here is that unjust judges are being blamed for accepting a bribe to declare a guilty person as not being guilty.

Later in Isaiah, however, we see that something similar (though proper and legitimate) is going to take place in Christ:

Isaiah 45:25

In the LORD shall all the seed of Israel be justified, and shall glory.

Isaiah 53:11

He shall see of the travail of his soul, and shall be satisfied: by his knowledge shall my righteous servant justify many; for he shall bear their iniquities.

This gospel message is later explained by the apostles:

Acts 13:39

And by him all that believe are justified from all things, from which ye could not be justified by the law of Moses.

This is, indeed, the critical point that struck home with Luther as it should also with you:

Galatians 2:16-17

Knowing that a man is not justified by the works of the law, but by the faith of Jesus Christ, even we have believed in Jesus Christ, that we might be justified by the faith of Christ, and not by the works of the law: for by the works of the law shall no flesh be justified. But if, while we seek to be justified by Christ, we ourselves also are found sinners, is therefore Christ the minister of sin? God forbid.

Roman apologists (and not just them) love to try to tell folks that the law here means simply circumcision and the ceremonial laws. But Paul goes on to explain the imputation of Christ’s righteousness rather than our personal righteousness, explaining it this way:

Galatians 2:18-21

For if I build again the things which I destroyed, I make myself a transgressor. For I through the law am dead to the law, that I might live unto God. I am crucified with Christ: nevertheless I live; yet not I, but Christ liveth in me: and the life which I now live in the flesh I live by the faith of the Son of God, who loved me, and gave himself for me. I do not frustrate the grace of God: for if righteousness come by the law, then Christ is dead in vain.

In short, therefore, recall that we are justified by faith. We trust in Christ for our righteousness – not in our own works or in the works of some other creature, whether Mary, a martyr, or a saint. In Christ we die to the law. In that dread transaction, our sins are laid to his account, and though the law justified him, we are declared righteous, he is declared unrighteous, and he is crucified for us. We take his death for our sins, and we therefore live. Thus, our righteousness does not come by the law, but by the grace of God in Christ. The law no longer accuses us (as I explained in my previous post), because we are no longer under the law.

Paul beautifully explains it this way (by the inspiration of the Holy Spirit):

Galatians 4:3-5

Even so we, when we were children, were in bondage under the elements of the world: but when the fulness of the time was come, God sent forth his Son, made of a woman, made under the law, to redeem them that were under the law, that we might receive the adoption of sons.

-TurretinFan

Lex Semper Accusat? Does the law always accuse?

April 8, 2011

Some folks like to throw around the mantra “lex semper accusat” (the law always accuses). This mantra may have value, and may even serve a didactic purpose in certain contexts. It is, however, theologically inaccurate.

A First Exception: Christ
Christ fulfilled the law. The law didn’t condemn Christ, it justified Him. Pilate testified to this:

Luke 23:4 Then said Pilate to the chief priests and to the people, I find no fault in this man.

Luke 23:14 Said unto them, Ye have brought this man unto me, as one that perverteth the people: and, behold, I, having examined him before you, have found no fault in this man touching those things whereof ye accuse him:

John 18:38 Pilate saith unto him, What is truth? And when he had said this, he went out again unto the Jews, and saith unto them, I find in him no fault at all.

John 19:4 Pilate therefore went forth again, and saith unto them, Behold, I bring him forth to you, that ye may know that I find no fault in him.

John 19:6 When the chief priests therefore and officers saw him, they cried out, saying, Crucify him, crucify him. Pilate saith unto them, Take ye him, and crucify him: for I find no fault in him.

A General Condemnation
Aside from Christ, the law condemns everyone, for all have sinned.

Romans 3:23 For all have sinned, and come short of the glory of God;

And consequently (Christ excluded) the law cannot justify anyone:

Romans 3:20 Therefore by the deeds of the law there shall no flesh be justified in his sight: for by the law is the knowledge of sin.

Romans 2:13 (For not the hearers of the law are just before God, but the doers of the law shall be justified.

Law’s Condemnatory Power Destroyed
But for those who are in Christ, the law has lost its condemnatory power.

Romans 8:1 There is therefore now no condemnation to them which are in Christ Jesus, who walk not after the flesh, but after the Spirit.

Indeed, it is impossible for those who are justified to be condemned by the law any longer.

Romans 8:33 Who shall lay any thing to the charge of God’s elect? It is God that justifieth.

Law’s Other Uses
Moreover, both before and after we are justified by grace through faith in Christ alone, the law has other uses. For example, the law has an evangelical use – it brings us to Christ:

Galatians 3:24 Wherefore the law was our schoolmaster to bring us unto Christ, that we might be justified by faith.

Moreover, the law enables us to express our love to God:

John 14:15 If ye love me, keep my commandments.

1 John 5:3 For this is the love of God, that we keep his commandments: and his commandments are not grievous.

And I could go on and on. The law has a thousand uses, many of which are celebrated in Psalm 119.

-TurretinFan

Frame on the Law/Gospel Distinction

March 15, 2011

Frame writes:

So the definitions that sharply separate law and gospel break down on careful analysis. In both law and gospel, then, God proclaims his saving work, and he demands that his people respond by obeying his commands. The terms “law” and “gospel” differ in emphasis, but they overlap and intersect. They present the whole Word of God from different perspectives. Indeed, we can say that our Bible as a whole is both law (because as a whole it speaks with divine authority and requires belief) and gospel (because as a whole it is good news to fallen creatures). Each concept is meaningless apart from the other. Each implies the other.

For those who have been spending a lot of time listening to the White Horse Inn, I think Frame’s article (available here) may be a challenging and important counter-point.

Thanks to Ronald W. Di Giacomo and Steve Hays for bringing this to my attention.

-TurretinFan

The real Francis Turretin on: Uses of the Law

July 4, 2009

The relation of the law and Christ is the subject of an interesting quotation from the real Francis Turretin helpfully provided by Proki (link). Check it out!

-TurretinFan


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