Colson continues...
But would even active disobedience be
effective against our current judicial state? When peaceable means and limited
civil disobedience fail--at least according to the Protestant theologians [John]
Knox and [Samuel] Rutherford--revolution can be justified from a Christian viewpoint.
Thankfully, at the end of his essay, Colson acknowledged
that the tipping point towards military revolt had not yet been reached. Yeoman evangelicals were able to return their
pitchforks, muskets and torches to the garage for the time being. Yet Colson's anger at what he perceived
as a judicial usurpation of democracy continues to simmer in conservative
Christian circles.
In this post, I'd like to explore these questions: What is 'judicial activism?" Is "judicial activism" something Christians
should fear?
It's common in politically conservative circles to argue
that "judges should apply the law, not make law." Conservatives worry that judges no longer feel constrained
by the meaning of the legal texts, such as the U.S. Constitution, that govern
the cases they are deciding. Since
federal judges are not elected and are appointed for life, they argue, this
removes control over the government from the hands of the people.
This basic concern is not entirely unfounded. Perhaps the paradigmatic example of
this problem is the Supreme Court's opinion in Griswold
v. Connecticut, a case involving a challenge to a Connecticut statute that
banned the provision of contraceptives to married couples.
Although the Connecticut statute seems absurd, there is
nothing in the Constitution that would explicitly prohibit a state legislature
from enacting such a law.
Nevertheless, the Court stated that the "specific guarantees in the Bill
of Rights have penumbras, formed by emanations from those guarantees that help
give them life and substance." One
of these penumbral rights, according to the Court, is a broad, general right to
"privacy." The Court found that
the Connecticut contraception statute was an unconstitutional violation of the
right to privacy. This laid the
analytical groundwork for later constitutional challenges to other state laws
involving sexuality, including the right to abortion articulated in Roe
v. Wade.
Whatever one ultimately thinks about the constitutional
right to privacy, it's reasonable, I think, to be concerned about judges
invalidating state laws based only on "penumbras formed by emanations." It's fair to suggest that law should be
grounded in text, precedent and history, rather than divined from "penumbras."
At the same time, however, it's not true that the judicial
role is always and only to "apply" laws enacted by democratically elected legislatures. In fact, much of the law that governs
our everyday activities - including the law of contracts, property, torts, and
criminal law - has its roots in the "common law," which is a system of judge-made
law. In the traditional formalist
/ natural law vein, the judge's role regarding the common law was to discern
and codify legal principles evident in the order of nature. I suspect that this historic practice
vests more authority in judges than most conservatives today would appreciate.
Moreover, judges must "interpret" constitutional, statutory
and regulatory law. An act of
"interpretation" is never merely passive, as reader-response theory and other
contemporary hermeneutical models demonstrate. Although some judges purport to be "strict
constructionists," we can question whether there really ever is such a thing as
"strict construction" of any received text (as our frequent debates about
Biblical hermeneutics attest!).
Finally, there is a sense in which judges properly stand in
judgment over legislative and regulatory law, in that judges often must
evaluate whether these subsidiary norms comport with constitutional law. Supporters of this concept of "judicial
review," which was articulated in the famous 1803 Supreme Court case of Marbury
v. Madison, argue that this power provides an important check against
executive and legislative tyranny.
This is particularly significant, they suggest, when the issue involves
historically disenfranchised or oppressed minorities, such as in the historic
school desegregation case of Brown
v. Board of Education.
Sorry! I meant Bob Cornwall.
Ben, my comment regarding Timothy McVeigh is given in regard to Colson's rhetoric about the possible need for armed revolt. TO think that we are even close to a place where armed revolt is considered is beyond me, and to suggest that we should start considering it is problematic.
I am concerned as well by comments by others -- beyond Colson -- calling for/praying for the death of President Obama (Wiley Drake - former 2nd VP of the SBC), as well as earlier requests of God that particular supreme court justices die (can't remember if that was Falwell or Robertson).
Do you not see that there is a problem here?
@ Bob Cornwall:
No. I do not see that there is a problem. Drake and company are nobodies, and there have been no serious moves towards armed revolt or anything like it. Colson has not said anything related to armed revolt against Obama. Until you can come up with something more concrete than the hunches built upon your prejudices, I will interpret your words as attempts to bully your opponents into submission.
I go back to the creation mandate of filling the earth and exercising dominion. That includes the cultural mandate to create a world in which eikons individually and corporately work for the greatest shalom (healthy relationships with God, others, and creation; long life; health; well-being; safety, etc.)The two great commandments (loving God, loving neighbor) are the core ethical imperatives.
Sin entered the world and added to our creation mandate is the redemption mandate. Participation in God's redeeming work is now added to ... not put in place of ... the creation mandate. Two elements to the redemption mandate are "loving one another" ... being a community that gives evidence of the Kingdom ... and the Great Commission of drawing others in. But these are all done in the context of our creation mandate to exercise dominion over the earth.
Too much of the Anabaptist approach, to me, feels incomplete. Refusal to participate in creating human dominion that creates shalom, except in a mode of alternative protest, is not truly participating in the creation mandate.
The challenge is how to participate. Moral suasion of others through example and dialog seems to me to be the primary means of building a more wholesome society. In extreme cases, protest and civil disobedience may be necessary. That does not mean making everyone a Christian. One must simply persuade enough people of the merits of one's position for that position to become law. That Christians enter the market place and persuade others is not different than Jews, Muslims, and secularists bring their morals to bear in the public debate. Thus, when a law comes into effect that coincides with what Christians believe, it is not the church imposing its views on the society. It is the church having a role in the formation of the morality of citizens who in turn shape their society. The whole of idea of Christians imposing their will on others is a bit of a straw man.
I know I am late to this conversation, but I have two comments.
One problem I have with this whole conversation is that far too many "lay" people do not have the training to form an educated opinion. How many Democrats complain about Bush v. Gore and how many Republicans say the Court got it right with no understanding of how the Court arrived at its decision. As an attorney who took an election law class, I would have to go back and spend a few hours looking at the case (and the cited precedents) before I would feel comfortable discussing it. The problem is that the "lay" person is outcome oriented rather than process oriented and they applaud outcomes they like and disdain outcomes they don't like. One recent example is the recent case out of California and the Ninth Circuit involving the Pledge of Allegiance. The court rejected the case because the father did not have standing to bring the case. Evangelicals love the outcome because the Pledge is still "legal" and they don't even realize that the Court did not consider the question. The media does not help because their headlines and articles are outcome driven and this decision had headlines like "Court rules in favor of Pledge."
Daved, in post 16 you said:
"Finally, at the general level of Constitutional intent, I don't believe the intention behind establishing a constitutional democratic republic is for the founding documents to serve as detailed regulatory legislation. Such documents state broad general principles that have to be fleshed out diachronically through experience."
Which provisions to you are merely principles rather than regulations which should be specifically followed in perpetuity until changed by Constitutional amendment? The qualifications for office of president? The functions of the legislature? If you agree that there are parts of the Constitution which are completely regulatory in nature into perpetuity, how do you distinguish them from the mere principles? Who decides?
The problem I have with your comment is that there are large chunks of the Constitution which are obviously regulatory in nature and no one would challenge their perpetual operation. That being the case, I have to recognize that the entirety of the Constitution was enacted by a politcal body democratically representative of the entire populace and I am uncomfortable with any changes to the document by anything other than such a body.
Overall, great presentation of the topic so far. Thanks for your writing.
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