In this article, I address another of the Constitution’s more serious “camels”—which Christians should be choking on instead of swallowing.
Article 3’s Judicial Usurpation
On June 27, 2005, in Van Orden v. Perry, Supreme Court Justice Clarence Thomas declared, “All told, this Court’s jurisprudence leaves courts, governments, and believers and nonbelievers alike confused—an observation that is hardly new.” If only it were a matter of confusion:
- 1962, Engel v. Vitale; Supreme Court finds prayer in schools unconstitutional.
- 1963, Abington v. Schempp; Supreme Court rules that Bible reading in public schools is unconstitutional.
- 1973, Roe v. Wade; Supreme court finds that the right to personal privacy includes infanticide.
- 1980, Stone v. Graham; Supreme court strikes down a Kentucky statute requiring display of the Ten Commandments in public schools.
- 2002, Newdow v. U.S.; 9th Circuit Court of Appeals rules that reciting “under God” in the Pledge of Allegiance in public schools is an unconstitutional endorsement of religion.
- 2003, Lawrence v. Texas; Supreme Court strikes down a Texas law prohibiting sodomy.
- 2003, Glassroth v. Moore; 11th Circuit Court of Appeals rules that a monument to the Ten Commandments placed in Alabama’s judiciary building must be removed.
- 2003, Goodridge v. Department of Public Health; Massachusetts Supreme Court rules that same-sex couples can marry under the laws of that state.
- 2004, Massachusetts Supreme Court sanctions same-sex marriage; it declares that the state legislature may not offer “civil union” as an alternative to same-sex marriage, paving the way for the first state-recognized homosexual marriages in U.S. history….
These [and countless other] court decisions are not the consequence of the courts’ departure from the Constitution, but instead the consequence of the constitutional framers establishing a judiciary without specifying that it was to be governed by Yahweh’s1 law.2
French statesman and historian Alexis de Tocqueville wrote, “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”3
The Supreme Court, composed of one chief justice and eight associate justices, with its power to not only judge the facts of any case but also to interpret, judge, and overrule any “law” passed by Congress (what Gary North described as “retroactive legitimacy to legislation”4), makes the Supreme Court the powerhouse or “big god” of this polytheistic system….
The power of the people of the United States of America and their representatives is subject to the Judicial Branch, and ultimately the Supreme Court, which is essentially immune from any kind of censure. The real power or sovereignty of the United States Constitutional Republic resides in a Biblically unqualified and nearly always Biblically adverse five to four majority. The United States government is ultimately under the control and direction of five lawyers. And why not? In 1787, it was predominately lawyers (thirty-four of the fifty-five delegates were lawyers) who framed the Constitution and gave ultimate power into the hands of their own trade….
Although Article 6 declares the Constitution the supreme law of the land, whoever has the power to interpret that law is the supreme legislator. Chief Justice Warren Burger commented on the landmark case Marbury v. Madison (1803), which established judicial review under Article 3 of the Constitution:
“The cornerstone of our constitutional history and system remains the firm adherence of the Supreme Court to the Marbury principle of judicial review that “someone must decide” what the Constitution means.” (Chief Justice Warren E. Burger, Introduction, William Swindler, The Constitution and Chief Justice Marshall (New York, NY: Dodd, Mead & Company, 1978) p. xiii.)
James Madison concurred:
“I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the Judiciary.” (James Madison, June 17, 1789, The Debates and Proceedings in the Congress of the United States (Washington, DC: Gales and Seaton, 1834) vol. 1, p. 520.)5
This is troubling because the Constitutional Republic’s judicial system is inherently flawed:
Constitutionalists believe the superiority of the United States juridical system is demonstrated in that even Supreme Court decisions can be overturned and made right by either future Supreme Court justices or by constitutional amendment. But history has proven the opposite is more likely. Furthermore, the injustices that often occur in the interim between a bad decision and a better decision would seldom, if ever, occur in a Biblical court.
Nothing demonstrates this fundamental defect better than Roe v. Wade, which constitutionally has provided for an endless number of infants to be murdered. While Christian Constitutionalists wait for the Constitutional Republic’s system to (they hope) correct itself, millions more infants are being murdered. Under Yahweh’s law, not one infant would have been murdered [under cover of law].
Even when wrong decisions are overturned, they can be overturned again by a later court. Judicial records expose this capricious tendency of the United States juridical system:
“…law not founded upon absolutes is very dangerous to society. Consider that without absolutes, the Supreme Court has reversed itself over 100 separate times!” (Mark A. Beliles, Douglas S. Anderson, Contending for the Constitution: Recalling the Christian Influence on the Writing of the Constitution and the Biblical Basis of American Law and Liberty (Charlottesville, VA: Providence Foundation, 2005) p. 146.)
The actual number is more than double this figure:
“The Court had reversed itself in 219 cases by 2000. Of this total, all but seven instances came after the Civil War. All but 28 came after 1913. Over 60 percent came after 1941. This process is accelerating.” (Gary North, Conspiracy in Philadelphia: The Broken Covenant of the U.S. Constitution (Draper, VA: Nicene Council.com, 2004) p. 278.)
Judicial “standards now change as rapidly as the Justices. This causes an uncertainty for society; and, in fact, often establishes a dubious standard which, in effect, is no standard at all.”6 Unlike the Bible, the Constitution is not an infallible standard. Returning to a more “pure” constitutionalism is not the answer. The answer is found in returning to Yahweh’s perfect law and altogether righteous judgments.7
Such judicial volatility would be impossible under Yahweh’s immutable justice as codified in His triune law. This juridical instability was inevitable because the Constitution nowhere stipulates that judges must rule on behalf of Yahweh or render decisions based upon His commandments, statutes, and judgments:
And he [King Jehoshaphat] set judges in the land throughout all the fenced cities of Judah, city by city, and said to the judges, Take heed what ye do: for ye judge not for man, but for YHWH, who is with you in the judgment…. And he charged them, saying, Thus shall ye do in the fear of YHWH, faithfully, and with a perfect heart. (2 Chronicles 19:5-9)
That not even one constitutional framer contended for Yahweh, as did King Jehoshaphat, speaks volumes about the framers’ disregard for Him and His judicial system.
When the only constitutional qualification for judges is (undefined) “good behavior,” is it any wonder so little justice is found in the United States Department of Justice? Among other things, Exodus 18:21-22 stipulates that judicial appointees must be men of truth who fear Yahweh and hate covetousness.
Without Yahweh as its focus and His immutable law as its foundation, the Constitution’s judicial branch is but another usurpation of His sovereignty as King, Judge, and Lawgiver.
Stay tuned for Part 7.
Related posts:
Chapter 6 “Article 3: Judicial Usurpation”
1. YHWH, the English transliteration of the Tetragrammaton, is most often pronounced Yahweh. It is the principal Hebrew name of the God of the Bible and was inspired to appear nearly 7,000 times in the Old Testament. In obedience to the Third Commandment and in honor of His memorial name (Exodus 3:15), and the multitudes of Scriptures that charge us to proclaim, swear by, praise, extol, call upon, bless, glorify, and hold fast to His name, I have chosen to use His name throughout this blog. For a more thorough explanation concerning important reasons for using the sacred name of God, see “The Third Commandment.”
2. Chapter 6 “Article 3: Judicial Usurpation” of Bible Law vs. the United States Constitution: The Christian Perspective.
3. Alexis de Tocqueville, Democracy in America and Two Essays on America (London, UK: Penguin Books Ltd., 2003) p. 315.
4. Gary North, Political Polytheism: The Myth of Pluralism (Tyler, TX: Institute for Christian Economics, 1989) p. 502.
5. Chapter 6 “Article 3: Judicial Usurpation” of Bible Law vs. the United States Constitution: The Christian Perspective.
6. David Barton, Original Intent: The Courts, the Constitution, & Religion (Aledo, TX: Wallbuilder Press, 2005) p. 233.
7. Chapter 6 “Article 3: Judicial Usurpation” of Bible Law vs. the United States Constitution: The Christian Perspective.
Ted, I fear that you are greatly lacking in your understanding of the American judicial system. Let’s take the Roe v. Wade decision as just one example. You said that, in this case, the “Supreme court finds that the right to personal privacy includes infanticide.” That is most definitely not what the Court decided in this case.
First, and foremost, the Roe court never even considered the issue of infanticide. Infanticide is defined in the law as the killing of a newborn child. It is not the same as an abortion which would be more properly called foeticide. There is no provision in Roe v. Wade or in any other Supreme Court decision which permits infanticide.
Second, the Roe court did not unconditionally state that abortion or foeticide is included in the right to personal privacy. The Court recognized the existence of a right to privacy pursuant to the Fourth Amendment, and they concluded that if the unborn child is not a person, then (and only then) the right to privacy includes the right to obtain an abortion. The state of Texas, the defendant in the case, argued that the unborn child is a person, but the Court correctly noted that if the unborn child is a person, then the Texas law against abortion was written in a way that violated that child’s right to equal protection under the law. The Court then decided that the Texas law was unconstitutional as written. The Court did not decide whether or not the unborn child was a person and therefore protected by the Constitution. They simply ruled that the Texas statute against abortion was written in a manner contrary to the Constitution.
Third, according to the McArthur v. Scott decision, the opinions of the courts are not binding on any party which is not named in that opinion. The McArthur Court stated that:
“upon a review of the cases no precedent has been found, either in a court of probate or in a court of chancery, in which a decree disallowing a will, rendered in a suit brought to set it aside, or to assert an adverse title in the estate, without making such executors, or an administrator with the will annexed, a party to the suit, has been held binding upon persons not before the court … The record of the decree setting aside the will showed that neither these plaintiffs, nor any executors or successors of executors in the trust, were parties to the suit; and consequently that the plaintiffs’ title under the will, as originally admitted to probate, was not affected by that decree.”
This means, for instance, that Roe v. Wade is only binding on the state of Texas and not on any other state since no other state was named as a party in that case. The court only ruled that a particular Texas law was unconstitutional for very particular reasons. Technically speaking, the other states are free to maintain and enforce laws identical to the one struck down in Texas until such a time as they are each tried in a federal court. It is only the fear of losing such a case which prevents the states from doing so.
Furthermore, Texas has every right to restructure its law against abortion in a way which conforms to the Roe opinion. All they would have to do is remove the life-of-the-mother exception from their anti-abortion law, and that law would immediately become a valid ban on abortion under the Roe decision. That Texas and every other state has chosen not to remove this exception from their anti-abortion laws is not the fault of the Supreme Court but rather the fault of the various state legislatures.
Bill, I fear you don’t understand that when a child in the womb is killed that to Yahweh it’s infant murder–therefore, infanticide. The Greek word “brephos” in the New Testament is used for both infants in the womb and those already born.
The suffix “cide” means to kill or murder. You cannot kill an abort. A miscarriage is an abortion. Because the English word fetus is often used today by the left to dehumanize it, infanticide is much more effective.
Bill, I fear that you are greatly lacking in your understanding of the Biblical judicial system, as well as Biblical definitions and terminology. It’s amazing that you rely upon man’s legal system in attempting to refute an argument concerning Christian law. Abortion and foeticide are NOT interchangeable. Your argument works only if you agree that life begins at birth, not conception. Since Scripture clearly teaches us that life begins at conception, infant and fetus are the same Biblically, regardless of birth status. Therefore , you are merely once again being pharisaical, continually “straining at gnats, and swallowing camels”. Foeticide is murder. Abortion is not necessarily murder. My wife has suffered eight abortions, one of them twins. The medical definition of miscarriage is “spontaneous abortion”. To equate the loss of our eight unborn children with foeticide is unconscionable. And before you once again respond with “what a joke!”, please explain how that in any way exhibits a Christian demeanor.
Bill: “Technically speaking, the other states are free to maintain and enforce laws identical to the one struck down in Texas until such a time as they are each tried in a federal court. It is only the fear of losing such a case which prevents the states from doing so.”
This is disingenuous, to say the least. Other states HAVE tried this approach. Every single time, without fail, injunctions have been issued to prevent enactment of such laws pending a federal hearing. Whether or not you care to admit it, Roe v. Wade has most certainly been binding on all fifty states, as well as all U.S. territories and military bases. It matters not that the binding effect is de facto, not de jure.
Bill: “Furthermore, Texas has every right to restructure its law against abortion in a way which conforms to the Roe opinion. All they would have to do is remove the life-of-the-mother exception from their anti-abortion law, and that law would immediately become a valid ban on abortion under the Roe decision. That Texas and every other state has chosen not to remove this exception from their anti-abortion laws is not the fault of the Supreme Court but rather the fault of the various state legislatures.”
I was personally involved with several attempts by the Louisiana Legislature to craft just such legislation more than two decades ago. It was certainly NOT the fault of the state legislature for being unable to draft a bill that would withstand the scrutiny of the courts. The judicial tyranny under which we live today is due to the antichristian usurpation of Yahweh’s law that you continue to champion.
Your basing the weight of your argument on what is nothing more than semantic tomfoolery, actually aids the cause of the enemies of Christ, who have succeeded in waging a word war against us by convincing us to adopt their linguistic revisionism.
That’s very interesting, Ted. Would you mind sharing the text and the bill numbers of the legislation that you helped to craft in Louisiana? I would like to know more about the language of those bills and the opposition that they faced.
I can’t, for the life of me, think of a single reason why that would interest me in the least. Feel free to research the archives of the Louisiana Legislature to your heart’s content. I have much better things to do than to engage in such silly, juvenile games.
I would be more than happy to research it myself. Would you mind at least telling me the year and the bill numbers?
By the way, I agree that I was mistaken to equate abortion with foeticide. I should have used a qualifier such as intentional abortion instead of simply the word “abortion” without appropriate context to allow you to understand my meaning.
You actually believe I misunderstood your meaning? I simply chose to exhibit how easy it is to “strain at gnats”, as you have so masterfully done. What ARROGANCE!