A LOOK AT LAW THROUGH LUTHERAN LENSES

John Eidsmoe1 Like other Christians, Lutherans are often reluctant to talk about civil government. Politics belongs to that other kingdom, the "kingdom of the left" as Lutherans often call the state. The church, the "kingdom of the right," is much more familiar and much more comfortable. But Luther s !ords might sur"rise us# $ have !ritten more s"lendidl% and "rofitabl% of civil authorit% than an% teacher has ever done &e'ce"t "erha"s (t. )ugustine* since the da%s of the a"ostles. $n this $ ma% glor% !ith a good conscience and !ith the testimon% of the !orld.+ ,aving studied la! himself,- Luther had much to sa% about la! and government. .od created this "kingdom of the left" /ust as ,e created the "kingdom of the right." Christians are citi0ens of both, have duties to!ard both, and need to understand both. )s $ "resent a Lutheran "ers"ective, $ !ill begin b% stressing the man% areas in !hich the Lutheran a""roach is similar to that of Christians generall%. $ !ill then "resent the distinctives about a Lutheran vie! of la! and government, and $ !ill then a""l% a Lutheran !orldvie! to )merican constitutional /uris"rudence toda%. Because so man% conflicting "ers"ectives are "resented as Lutheran, $ have 1uoted e'tensivel% from the 2eformer in his o!n !ords. This does not mean that $ consider 3artin Luther to have been infallible or that $ consider his "ronouncements to have e1ual authorit% !ith (cri"ture. Luther himself !ould have been aghast at an% such suggestion. 2ather, $ have cited Luther so e'tensivel% because this essa% is intended to be an e'amination of Luther s vie!s of la! and government. )fter Luther s death, various theologians further develo"ed a Lutheran vie! of la! and government. The !ritings of Phili" 3elanchthon, Johann 4ldendor", and others

Pastor, )ssociation of 5ree Lutheran Congregations6 Lt. Colonel, 7()52&2et.*6 Colonel, )labama (tate 8efense 5orce6 Professor of La! Emeritus, Thomas .oode Jones (chool of La!6 (enior (taff )ttorne%, )labama (u"reme Court6 Board of 8irectors, Lutherans for Life. Colonel Eidsmoe thanks 8r. 5rancis 3onseth, 8ean of the 5ree Lutheran Theological (eminar%, for his hel"ful suggestions that have im"roved this essa%. + 3artin Luther, 9 -: $$, 11: ; E -1, -< ;; (L +:, +11+, 1uoted in E!ald 3. Plass, What Luther Says: A Practical In-Home Anthology for the Active Christian &(t. Louis# Concordia, 1=<=, 1==>*, ". <?<. Professor Plass adds, "(omeone has said that the state o!es 3artin Luther almost as much as does the church." &". <?<*. )ccording to the traditional account, Luther left the stud% of la! after a dreadful thunderstorm during !hich he "romised (t. )nne that, if his life !ere s"ared, he !ould become a monk. $ have occasionall% told m% la! students &/okingl%* that Luther made u" the thunderstorm stor% because he did not !ant to take the bar e'am@

are most !orth% of stud%, but the% are be%ond the sco"e of this essa%. > ("ace re1uires that $ limit this essa% to the vie!s of Luther himself. Conservative Lutherans agree !ith other orthodo' Christians that the Bible is the ins"ired and inerrant 9ord of .od and the infallible rule for faith and "ractice. The% acce"t the )"ostlesA Creed and the Bicene Creed, and agree !ith the traditional formulation of the Trinit% and the h%"ostatic union of .od and man in Jesus Christ. The% agree that man is born into sin and sins in thought, !ord and deed, that Jesus Christ died on the Cross as our substitute, and that !e are saved b% grace through faith in ,im. Common Principles of the Reformation Lutherans em"hasi0e, !ith Calvinists and man% other Protestants, the basic doctrines of the 2eformation# Sola Scriptura: (cri"ture alone. Lutherans value the great scholars and teachers of the Church, no! and through the "ast t!ent% centuries of Christian histor%, Lutheran and other!ise. But the% em"hasi0e that (cri"ture alone is authoritative, and that ever% Christian has the right and dut% to read and inter"ret the (cri"ture for himself or herself. )nd !hile Lutherans value the role of "astors and other church leaders, the% believe Christians do not need an intercessor to come to Christ, but rather each believer comes directl% to the Throne of .race &,ebre!s >#1C*, Jesus Christ ,imself being our great ,igh Priest. This doctrine is kno!n as the Priesthood of )ll Believers, meaning that ever% believer is a "riest before .od. This doctrine has several "ractical "olitical im"lications# $f, as Luther said, ever% "lo!bo% should be able to read and inter"ret the (cri"ture for himself, then !e need to make sure that ever% "lo!bo% kno!s ho! to read. ,istoricall% this has led to high rates of literac% in Protestant countries, and "erha"s no!here more than in colonial Be! England, !hich of course !as influenced more b% Calvin than b% Luther. The conce"t that ever% believer is a "riest before .od im"lies a certain degree of s"iritual e1ualit% and hel"s to la% the ground!ork for "olitical and legal e1ualit%. The "riesthood of all believers conce"t influenced man% Protestant churches to ado"t less hierarchical forms of church government, government b% the local congregation &congregationalism* or government b% local s%nods &"resb%terianism*. This "rovided an im"etus and "ractical e'"erience in re"resentative government and decentrali0ed government in the "olitical realm as !ell.

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5or a discussion of the legal and "olitical vie!s of later Lutheran thinkers, see ,arold J. Berman, Law and Revolution II &Cambridge, 3)# ,arvard 7 Press, +::-*, "". -=;==6 John 9itte, Jr., Law and Protestantism: he Legal eachings of the Lutheran Reformation &Cambridge, 7D# Cambridge 7. Press, +::+*.

$f ever% believer is a "riest before .od, then ever% believerAs !ork is a form of ministr%. This led to the Lutheran doctrine of the (acredness of )ll Eocations. ) ChristianAs "rofession or /ob is more than /ust a means of earning a living6 it is a ministr% before .od and should therefore be done heartil% as unto the Lord &Colossians -#+-*. This led to the Protestant !ork ethic.

Sola Gratia. (alvation is b% grace alone. $f, as Paul sa%s, "in m% flesh d!elleth no good thing" &2omans ?#1F*, then salvation must be entirel% b% grace. .ood !orks are im"ortant, but as a res"onse to salvation and as a result of salvation, not as a means of salvation. This led Luther to em"hasi0e his doctrine of the total de"ravit% of human nature, a doctrine he shared !ith Calvin. The doctrine of total de"ravit% led Luther to several conclusions. 5irst, he kne! "eo"le could not live in a state of anarch% or, being the de"raved sinners that the% !ere, "eo"le !ould murder, rob, assault and enslave one another and no oneAs life, libert% or "ro"ert% !ould be secure. Luther therefore favored a government that is strong enough to maintain la! and order. $n 1<+- he !rote, Ga "rinceAs dut% is fourfold# $t consists &1* in true confidence in .od and in sincere "ra%er6 &+* in love for his sub/ects and in Christian service6 &-* in a discriminating mind and unfettered /udgment to!ard his counselors and men of influence6 &>* in moderate severit% and strictness to!ard evildoers. $f he "ractices these virtues, his "osition !ill be "ro"erl% taken care of out!ardl% and in!ardl% and !ill be "leasing to .od and to the "eo"le. But he must e'"ect much env% and trouble. The cross !ill soon rest on the shoulders of a ruler !ho has such a "rogram.< But total de"ravit% is a great leveler6 it means kings and "rinces, /udges and governors, "rosecutors and "olice officers have the same sinful nature as ever%bod% else. 5or that reason Luther recogni0ed that, /ust as !eak government leads to anarch%, absolute "o!er in the hands of government officials leads to t%rann%. Luther therefore favored limited government. ,e !rote in 1<+:, The e'"erience recorded in all chronicles and in the ,ol% (cri"ture besides teaches this truth# The less la!, the more /ustice6 the fe!er commandments, the more good !orks. Bo communit% that had man% la!s !as ever, for at least a long "eriod of time, !ell governed.C 4n another occasion he !rote, Bet!een tem"oral government and a t%rannical rule a "ermanent difference should certainl% obtain. ) t%rant takes from his sub/ects as long as he finds something to take. This "rivilege the Lord does not here !ant to concede to government. 4n the contrar%, b% the fact that ,e commands the sub/ects# ".ive
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Luther, 9 11, +?F ;; E ++, 1:+ f ;; (L 1:, >1>6 1uoted in Plass, ". <F-. Luther, 9 1-, <<1 ;; E o" e' +F ;; (L 1>, 1=F-6 1uoted in Plass, ??+.

unto Caesar that !hich is Caesar s" he also !ants to give governments or the em"erors to understand that the% are not to demand and take more than is theirs. Therefore ,e distinguishes that !hich is %ours from that of %our o!n !hich %ou are to give to government. 5or governments have not been instituted for the "ur"ose of turning "eo"le into mere beggars and seeing to it that no one kee"s an%thing. Ta'es, revenues, or im"osts are given to government that the sub/ects ma% retain their o!n, seek a livelihood, and honorabl% su""ort themselves and those !ho are theirs. But !hen the need arises and one is called u"on to do something for the maintenance of the common "eace against enemies, no one should s"are himself6 but ever%one should ste" to the side of government !ith bod% and "ossessions and hel" it. But, aside from this common need, government should not rule in a t%rannical manner, should not im"ose too man% burdens on its sub/ects, but should be satisfied !ith ordinar% and tolerable im"osts. 4ther!ise it takes !hat is not its o!n and arouses the !rath of .od, !ho has a !a% of "unishing t%rants b% revolts, foreign enemies, and other methods.? Luther !ould have o""osed the English (tuart monarchs doctrine of the "divine right of kings." $n his E'"osition of 8euteronom% &1<+<* he !rote, ,ere %ou see that government !magisterius" should be elected b% the votes of the "eo"le. 2eason also dictates thisG . 5or to force a government u"on a "eo"le against its !ill is "erilous and "ernicious.F ,e e'"ressed his desire for balance bet!een the countervailing forces of t%rann% and anarch% in 1<+># $ !ill, if it "lease .od, flatter no "rince. But far less !ill $ "ut u" !ith the instigation of riots and disobedience among the common "eo"le to the contem"t of tem"oral government.= (o far !eAve looked at "rinci"les u"on !hich Luther, Calvin and man% other 2eformers !ould agree, and !ith !hich man% 2oman Catholics and Eastern 4rthodo' !ould agree at least in "art. LetAs no! look at a fe! distinctives of Lutheran thought. Lutheran istincti!es The Law/Gospel Distinction. )s !e talk about la! and government, it is eas% to forget that !e are not saved b% kee"ing the La!6 !e are saved b% the finished !ork of Jesus Christ on the Cross. Central to LutherAs theolog% is the distinction bet!een La! and .os"el. $t is an oversim"lification to sa% that the 4ld Testament is La! and the Be! Testament is .os"el. There is .os"el in the 4ld Testament# HBoah found grace in the e%es of the
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Luther, 9 <+, <-Cf ;; E -, 1F- ;; (L 1-a, =?+6 1uoted in Plass, <=>. Luther, 9 1>, <<+ ;; E o" e' 1-, 1+: f ;; (L -, 1-F+6 1uoted in Plass, <??. = Luther, 9 1F, <C ;; E +=, 1C+ ;; (L, +:, 1<F6 1uoted in Plass, <FC.

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Lord.I&.enesis C#F6 see also Psalm -+* )nd there is La! in the Be! Testament# Ever% one of the Ten Commandments is re"eated in the Be! Testament e'ce"t the (abbath commandment. Luther defined the difference as sim"l% this# The La! sa%s, This %ou must do for .od. The .os"el sa%s, This is !hat .od has done for %ou. )s Luther !rote, The voice of the La! terrifies in that it sings to those !ho are secure# $n the midst of earthl% life (nares of death surround us. But the voice of the .os"el buo%s a "erson u" again b% singing# $n the midst of death !e are in life.1: But both "la% a vital role in salvation, for the La! leads us to the conviction of sin and the need for salvation. Before %ou comfort the afflicted, %ou must afflict the comfortable. Jou afflict the comfortable !ith the terrors of the La!6 and then %ou comfort the afflicted !ith the /o% of the .os"el. Luther clearl% recogni0ed, !ith Paul in 2omans C#1<, that "!e are not under la!, but under grace." But !e need to ask, as Luther re"eatedl% asked in his Catechism, "9hat does this meanK" Let me offer several suggestions as to Paul s &and Luther * meaning# L 9e are not under the condemnation of the La! because Christ has "aid the "enalt% for us. L 9e are not under the La! as a means of salvation. 9e never !ere6 even in the 4ld Testament believers !ere saved b% grace through faith in the coming 3essiah. But some of the Je!s of Paul s time had distorted the La! into a means of salvation, and Paul !rote to correct that error. L 9e are not under the ceremonial la!, as distinguished from the moral la!. The ceremonial la! is valid toda% for teaching "ur"oses, but !e are not obligated to "erform the sacrifices, kee" the feasts, and "erform the other 4ld Testament rituals. The% have been fulfilled in the 5irst )dvent of Jesus Christ. L 9e are not under the e'tra;biblical la!, !hether the Je!ish Talmud or the e'trabiblical taboos of modern Christians. 3an% of these rules ma% have a valid "ur"ose, but the% are not binding on us. L 9e are not under the La! as covenant obligation. The 3osaic La! !as "art of .od s covenant !ith $srael, and $srael !as obliged to obe% it6 but !e are not under that covenant, an% more than !e are obligated to obe% the traffic la!s of )labama !hile driving in 3ontana. But !hile !e are not "under la!," the La! has valid uses or a""lications.
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Luther, 9 >: $$$, >=C ;; E o" e' 1F, +?- ;; (L <, ?>16 1uoted in Plass, ?--.

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The Three Uses of the Law Luther taught that the La! of .od has three uses toda%# The Ci!il Use, b% !hich la! restrains the e'ercise of sin and thereb% makes it "ossible for "eo"le to live together "eaceabl% in a civil societ%. The magistrate furthers the civil use of the la! !hen he !ields the s!ord as a terror to evil !orks &2omans 1-#>*. This does not "roduce "iet%, but it does "reserve la! and order. Luther said in 1<-:, H$t is the !ork and the glor% of the ministr% to make real saints out of sinners, living souls out of the dead, saved souls out of the damned, children of .od out of servants of the devil. Just so it is the !ork and the glor% of tem"oral government to make human beings out of !ild beasts and to kee" human beings from turning into !ild beasts.I The Pe"a#o#ical Use, b% !hich Hthe la! !as our schoolmaster to bring us unto Christ, that !e might be /ustified b% faith.I &.alatians -#+>* The La! sho!s us .odAs "erfect standard of righteousness and convicts us that !e cannot meet that standard and need merc%. $n this !a% the La! leads us to the foot of the Cross. The i"actic Use, b% !hich Christians gro! in Christian maturit% and sanctification. The La! sho!s us the mind and !ill of Christ, and as !e take in .odAs 9ord, the ,ol% ("irit !orks through the 9ord to conform us to the !ill of .od.11

4f these three uses, the Civil 7se most directl% involves civil government. The Decalogue, Natural Law, and Other Bi lical Law Luther believed in natural la!, !hich he e1uated !ith the !ill of .od. ,is vie! of natural la! did not differ substantiall% from that of (t. Thomas )1uinas and other 2oman Catholic theologians6 ho!ever, he "laced adherence to natural la! more in the conscience than in the intellect. Luther did not go as far as some Calvinists and Puritans in a""l%ing the 3osaic La! as a !hole to civil government toda%. ,e shar"l% distinguished bet!een the Ten Commandments and the rest of the 4ld Testament La!. ,e !rote, The 8ecalog is not of 3oses, nor did .od give it to him first. 4n the contrar%, the 8ecalog belongs to the !hole !orld6 it !as !ritten and engraved in the minds of all human beings from the beginning of the !orld.1+ )nd in 1<>: he !rote,

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The long;term controvers% over !hether Luther taught the third use of the la! or !hether this conce"t !as develo"ed b% later Lutherans, is be%ond the sco"e of this treatise. The first or civil use of the la! is most relevant to la! and government. 1+ Luther, 9 -= $, >?F6 1uoted in Plass, ?>F.

Batural la! is the Ten Commandments. $t is !ritten in the heart of ever% human being b% creation. $t !as clearl% and com"rehensivel% "ut on 3ount (inai, finer indeed than an% "hiloso"her has ever stated it. Batural la!, then, is created and !ritten in the heart6 it does not come from men but is a created La! to !hich ever%one !ho hears it cannot but consent.1The Ten Commandments, in LutherAs vie!, are universall% valid, binding and a""licable in all societies at all times in histor%. 4ther "ortions of the 4ld Testament La! are im"lementing legislation for $srael. (ome of these la!s ma% serve as good e'am"les for other societies to follo! &8euteronom% >#<;F*, but the% are not binding u"on other societies as the% are u"on $srael. Luther s"oke of natural la! &geset#" and natural /ustice !recht", and the Ten Commandments !ere "art of this universal natural la!. ,o!ever, much of the Je!ish la! !as Sachsens$iegal% la!s uni1ue to $srael that are no more binding on us than the la!s of 5rance are binding in .erman%. 1> Luther identified natural la! and /ustice !ith the old Teutonic common la!, the decentrali0ed and individualistic s%stem of la! that ,ermann &)rminius* the Liberator had defended against the 2oman legions at Teutoberg 5orest in = ).8.,1< the understanding of la! that the )ngles and (a'ons brought to England in the <th and Cth centuries ).8.1C Luther lived and studied la! at a time of crisis, !hen a concerted effort !as under!a% to su""lant the Teutonic common la! !ith the more centrali0ed and authoritarian conce"ts of 2oman la!. Luther defended the Teutonic common la!, as did the "rinces of northern .erman%. )s he !rote in his A$$eal to the &erman 'o(ility, (urel% good governors, in addition to the ,ol% (cri"tures, !ould be la! enough, as (t. Paul sa%s# "$s it so, that there is not a !ise man among %ouK no, not one that shall be able to /udge bet!een his brethrenK" $ think also that the common la! and the usage of the countr% should be "referred to the la! of the em"ire, and that the la! of the em"ire should onl% be used in cases of necessit%. )nd !ould to .od that, as each land has its o!n "eculiar character and nature, the% could all be governed b% their o!n sim"le la!s, /ust as the% !ere governed before the la! of the em"ire !as devised, and as man% are governed even no!@1? The Two !ingdo"s
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Luther, 9 >=, 1 f6 1uoted in Plass, ??-. ,einrich Bornkamm, Luther)s World of hought trans. 3artin ,. Bertram &(t. Louis# Concordia, 1=<F, +::<*, "". +:-;:>. 1< (ee generall%, Peter (. 9ells, he *attle that Sto$$ed Rome &Be! Jork# 9.9. Borton M Co., +::-*. Luther !as enamoured !ith the Cheruscan Prince )rminius and "ossibl% !as the first to give him the .ermanici0ed name ,ermann. Luther sa! ,ermann as a forerunner of the .erman vol+ !hich !as the basis of the .erman nation. 1C 5rederic (eebohm, ri(al Custom in Anglo-Sa,on Law &London# Longmans, .reen M Co., 1=11*6 Ancient Laws and Institutes of -ngland. Com$rising Laws -nacted /nder the Anglo-Sa,on 0ings from Aethel(irht to Cnut% with an -nglish ranslation of the Sa,on% 1ols2 I 3 II &London# Commissioners of the Public 2ecords of the Dingdom, 1F-1, 1F>:*. 1? Luther, A$$eal to the &erman 'o(ility% 1uoted in Luther ,ess 9aring, he Political heories of 4artin Luther &Be! Jork# .. P. Putnam s (ons, 1=1:, ". 11=.

Central to a Lutheran understanding of la! and government is the doctrine of the T!o Dingdoms. The conce"t is not original !ith Luther6 it has its roots in the 4ld Testament. 7nlike the surrounding "agan nations that "racticed state;!orshi" and em"eror;!orshi", $srael "racticed se"aration of church and state# the kings came out of the Tribe of Judah, !hile the "riests came out of the Tribe of Levi6 %et both derived their authorit% from the La! of .od &8euteronom% 1?#1>;+:*. Jesus im"lied a similar /urisdictional se"aration !hen ,e ans!ered the chief "riests and scribes, H2ender therefore unto Caesar the things !hich be CaesarAs, and unto .od the things !hich be .odAs.I &Luke +:#1=;+C* )ugustine of ,i""o !rote of the Cit% of .od and the Cit% of 3an, though he did not distinctl% identif% them !ith church and state, and medieval theologians generall% s"oke of the t!o s!ords, the s!ord of the church and the s!ord of the state. The% em"hasi0ed, ho!ever, that !hile .od had ordained these t!o kingdoms, the church !as the su"erior kingdom, because the church is eternal !hile the state is onl% tem"oral, and the church must ans!er to .od for the actions of the state.1F $n LutherAs doctrine of church and state, neither kingdom is su"erior to the other. .od has established both and has delegated authorit% to each. Lutherans commonl% talk about the t!o kingdoms, the kingdom of the right &the church* and the kingdom of the left &the state*, !hile Calvinists commonl% em"hasi0e three divine institutions, church, state, and famil%. Luther did recogni0e the famil% as a divine institution# These three ;; the ministr% of the 9ord, the state, and marriage ;; .od !anted to set in order again before Judgment 8a%. 5or since the times of the a"ostles the office of the state has never been "raised in the manner in !hich !e have "raised it.1= The famil% is definitel% a divine institution. But rather than vie!ing the famil% as a "kingdom" "arallel to the church and the state, Luther sa! the famil% as an organi0ational unit bet!een the individual and the state. This does not mean the famil% is an institution inferior to the state. Nuite the o""osite. The famil% is the basic unit of societ%. Political "o!er does not flo! do!n!ard from .od to the em"eror and do!n!ard further to the "rincesOelectors and from them to the famil%. 2ather, "olitical "o!er flo!s from .od to the famil%, from the famil% to the "rinces, and from the "rinces to the em"eror. $n o""osition to medieval Catholic theolog%, Luther taught that the state s authorit% comes not from the Church but rather from the home, for the commandment ",onor th% father and th% mother" is the basis for state authorit% as !ell as famil% authorit%# $nto a treatment of this Commandment belongs a further statement about all kinds of obedience to "ersons in authorit%, !hose dut% it is to command and govern. 5or all other authorit% flo!s and is develo"ed from "arental authorit%. $f a father is unable to educate his child alone, he em"lo%s a teacher to instruct it6 if he is too feeble, he obtains the hel" of his friends and neighbors6 if he de"arts this
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4liver 4 8onovan and Joan Lock!ood 4 8onovan, 5rom Irenaeus to &rotius: A Source(oo+ in Christian Political hought &.rand 2a"ids# Eerdmans, 1===*, contains an e'cellent discussion of medieval Catholic theolog% of the t!o kingdoms. 1= Luther, 9;T 1, Bo. >--6 1uoted in Plass, <?<.

life, he commits and delegates his "o!er and sovereignt% to others, !ho are a""ointed for the "ur"ose. )gain, he must also have domestics ;; menservants and maidservants ;; under him for the management of the household. ,ence all !hom !e call masters stand in the "lace of "arents and must derive from them their "o!er and authorit% to govern. This is !h% all of them are also called fathers according to (cri"ture# in their government the% "erform the functions of a father and should "ossess a "aternal heart to!ard their "eo"le.+: Church and state are both instituted b% .od, but each has a distinctive /urisdiction and "ur"ose. The "olitical situation in 1Cth centur% .erman% ma% have influenced LutherAs thinking in this area. $n the 1--F $m"erial 8iet at 5rankfurt, in res"onse to the Po"eAs claim that he had the authorit% to de"ose the Em"eror, the .erman "rinces ado"ted the Licet 6uris in !hich the% declared that the "rinces and em"erors have "o!ers inde"endent of the Po"e and 2ome. The% !ere not anti;Christian or even anti;Church6 rather, the% relied u"on canon and civil la! to "rove that civil authorit% comes directl% from the (on of .od and not through the Church.+1 The .erman "rincesA struggle for freedom from "a"al domination coincided !ith the tension bet!een the local "rinces and the em"erors over the relative "o!ers of each. This era also sa! an effort to introduce 2oman la! to re"lace the older .ermanic la!, !hile man% including Luther sa! the 2oman la! as reducing "easants to a state of slaver% and inade1uatel% "rotecting their rights against abuse b% the state and the ruling classes. Luther s defense of the Teutonic common la! and the authorit% of the local "rinces or electors did not sha"e his theolog%, but it !as consistent !ith his theolog%. The state, Luther believed, !as natural and necessar% for man and therefore "art of .odAs econom% for man. The )ugsburg Confession of 1<-: declares, PE$. Civil .overnment $t is taught among us that all government in the !orld and all established rule and la!s !ere instituted and ordained b% .od for the sake of good order, and that Christians ma% !ithout sin occu"% civil offices or serve as "rinces and /udges, render decisions and "ass sentence according to im"erial and other e'isting la!s, "unish evildoers !ith the s!ord, engage in /ust !ars, serve as soldiers, bu% and sell, take re1uired oaths, "ossess "ro"ert%, be married, etc. Condemned here are the )naba"tists !ho teach that none of the things indicated above is Christian. )lso condemned are those !ho teach that Christian "erfection re1uires the forsaking of house and home, !ife and child, and the renunciation of such activities as are mentioned above. )ctuall%, true "erfection consists alone of "ro"er fear of .od and real faith in .od, for the .os"el does not teach an out!ard and tem"oral but an in!ard and eternal mode of e'istence and righteousness of the heart. The .os"el does not overthro! civil authorit%, the state, and marriage but re1uires that
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Luther, 9 -: $, 1<+ ;; E +1, <= ;; (L 1:, <Cf6 1uoted in Plass, <?C;??. Luther ,ess 9aring, he Political heories of 4artin Luther &Be! Jork# ..P. Putnam s (ons, 1=1:*, "". +>;+C.

all these be ke"t as true orders of .od and that ever%one, each according to his o!n calling, manifest Christian love and genuine good !orks in his station of life. )ccordingl% Christians are obliged to be sub/ect to civil authorit% and obe% its commands and la!s in all that can be done !ithout sin. But !hen commands of the civil authorit% cannot be obe%ed !ithout sin, !e must obe% .od rather than men. &)cts <#+=*++ Each kingdom, Church and (tate, has its o!n role, and H5or this reason these t!o kingdoms must be carefull% distinguished, and both be "ermitted to remain Q the one to "roduce "iet%, the other to create e'ternal "eace and to "revent evil deeds. Beither is sufficient in the !orld !ithout the other.I+.od ordained the state, and .od gave to the (tate "o!er to "unish criminals, engage in /ust !arfare, "rotect "eo"le against mono"olies, e'tortion, gambling and "ublic immoralit%, "reserve marriage, educate children both as to academic skills and as to moral and godl% values. The (tate has /urisdiction over all !ho live !ithin its borders, including Christians and even including the clerg%. But the state has no "o!er to interfere !ith religious and civil libert% of conscience, s"eech and "ress, as these are unalienable rights !hich belong to the individual.+> Luther believed Christian "rinces, and all !ho are involved in government, should activel% !ork to reform in/ustices. ,e declared, 9e are to rebuke our Pilates in their bra0enness and defiance. But then the% sa%, Jou are slandering and dishonoring the ma/est% of "rinces. To this !e re"l%# 9e should and shall endure at their hands !hat the% do to us6 but !e certainl% do not intend to be 1uiet or sa%# .racious Lord, %ou are doing !hat is right. 5or there is a great difference bet!een these t!o# suffering in/ustice and violence and being 1uiet about it. 4ne should suffer in/ustice and violence, but one is not to remain 1uiet. 5or a Christian should testif% to the truth and die for the sake of the truth.+< But he adamantl% o""osed la!lessness and mob rule# "$ ... "ra% for our government that the devil ma% not turn us into a mob. 5or if government !ere to be laid lo! in this !a%, !e !ould have no "eace. .od does not !ant the common rabble to rule."+C O edience to #i$il Go$ern"ent 8es"ite his strong su""ort for civil authorit% and his o""osition to la!lessness, Luther did not believe government "o!er is absolute, nor did he totall% re/ect civil disobedience or even resistance. The believer is to honor government and "ra% for its
++ +-

)ugsburg Confession, 1<-:, he *oo+ of Concord &Philadel"hia# 5ortress Press, 1=<=* "". -?;-F. Luther, 9 11, +<+ ;; E ++, C= f ;;(L 1:, -F- f6 1uoted in Plass, <FF. +> Luther, 9 1+, --> f ;; E <1, >1= ;; (L =, 1:>+6 9 >C, ?-? f ;; E >C, 1FC f ;; (L ?, 1?=1 56 1uoted in Plass, C:1. +< Luther, 9 +F, -C1 ;; E <:, -?: ;; (L F, =-<f6 1uoted in Plass, <=+. +C Luther, 9 1?$, +11 ;; E 1?, 1=1 ;; (L 1+, +:>+6 1uoted in Plass, <FC.

1:

officers# "2es"ect for a government official is a ver% necessar% re1uirement !ordinatio" in a state. Therefore !e should "ra% to .od for the officers of the state6 for the% can ver% easil% become corru"t, since honores mutant mores% num7uam in meliores &honors change morals, never for the better*, and the% are easil% turned into t%rants."+? )nd !e obe% and res"ect even an incom"etent or un/ust government, and in man% instances !e are to suffer its in/ustices# "5or to suffer !rong destro%s no one s soul, na%, it im"roves the soul, although it does inflict loss on the bod% and on "ro"ert%."+F 9hen government becomes t%rannical and un/ust, the believer has several o"tions. 4ne is to submit to the in/ustice, and this ma% be the best o"tion if one can submit !ithout committing sin. But occasions arise !hen that is im"ossible, and in those circumstances "assive resistance ma% be re1uired# 9e are to be sub/ect to governmental "o!er and do !hat it bids, as long as it does not bind our conscience but legislates onl% concerning out!ard matters. 9e are to submit even though it !ere to abuse us t%rannicall%6 for if an%one takes a!a% our coat, !e should let him have our cloak also. But if it invades the s"iritual domain and constrains the conscience, over !hich .od onl% must "reside and rule, !e should not obe% at all but rather lose our necks. Tem"oral authorit% and government e'tend no further than to matters !hich are e'ternal and cor"oreal.+= (ince some later Lutherans have been confused on this "oint, let us cite Luther again# $f tem"oral government !ants "eo"le to render the sort of obedience !hich makes obedience to .od im"ossible, it is committing a grievous and great sin. This is done !hen, for instance, government forbids the true doctrine, "unishes its sub/ects !hen the% receive the (acrament as Christ has ordained it, and forces "eo"le to engage in idolatrous "ractices !ith 3asses for the dead, indulgences, "ra%ers to saints, and other things. $n these and other matters governmental authorities go be%ond their office that belongs to .od6 for above all things .od demands of us that !e hear ,is 9ord and follo! it at all times and in ever% instance. $f the government makes this im"ossible, sub/ects should kno! that the% are not obliged to obe% its commands6 for it is !ritten# "9e ought to obe% .od rather than men" &)cts <#+=*. )nd in the "assage before us the Lord asks us to give not onl% to Caesar !hat is Caesar s but also to .od !hat is .od s. Bo! if tem"oral government !ants to be angr% because of this attitude and !ants to "unish its sub/ects b% "utting them under lock and ke% or even b% taking their lives because of it, matters must be "ermitted to take their course, and "eo"le must hold to the comfort of the thought# The em"eror or tem"oral government is our master, that is true6 but nevertheless he is not our onl% master. 5or !e have an additional Lord, !ho is greater, namel%, our Lord .od in heaven. Bo! if one of these t!o lords must be incensed b% our becoming disobedient to
+? +F

Luther, 9;T <, Bo. C11F6 1uoted in Plass, <=:. Luther, 9 C, +<= ;; E 1C, 1=F ;; (L 1:, 1-CFf 6 cf Luther, 9 1: $, +, >+C ;; E 1>, -:Cf ;; (L 11, 1F1>f6 both 1uoted in Plass, <=1. += Luther, 9 1+, -->f ;; E <1,>1= ;; (L =, 1:>+6 1uoted in Plass, C:1.

11

either .od or the em"eror, it is better to anger the em"eror !ith our disobedience than to anger .od.-: But can resistance go be%ond "assive disobedienceK )re Christian citi0ens ever /ustified in taking "art in armed revoltK Luther !as ver% critical of armed revolt, "artl% because he !as re"ulsed b% some of the e'tremists of his da%, "artl% because his "a"al o""onents !ould have relished the o""ortunit% to "aint him as a subversive. ,e believed armed revolt is unscri"tural, usuall% hurts innocent "eo"le, and makes conditions !orse than before, for "the mob has no moderation and kno!s none, and in ever% individual there are more than five t%rants. Bo! it is better to suffer !rong from one t%rant, that is, form the ruler, than from unnumbered t%rants, that is, from the mob."-1 Luther had su""orted some of the "easants demands for reform, but !hen the% turned to mob violence, he e'horted the "rinces to "strike, smite, stab and sla%" them. Those !ho critici0e Luther s harsh !ords seem to forget that b% this time the Peasants 2evolt had gone be%ond "eaceful demonstrators carr%ing "lacards6 the% !ere engaged in mob violence including arson and the murder of innocent "ersons. Even so ;; and the critics seem determined to ignore this "oint ;; Luther urged the "rinces to tem"er their res"onse to s"are the innocent. ,e declared, There is no sense in rebellion6 and usuall% it is directed against the innocent more than against the guilt%. That is !h% no rebellion is /ustified, ho!ever /ustified its grievance ma% be6 and more in/ur% than im"rovement al!a%s follo!s u"on it, in order to verif% the "roverb# Things go from bad to !orse. Therefore government and the "o!er to inflict ca"ital "unishment have been a""ointed to "unish the !icked and to "rotect the "ious that rebellion ma% be averted, as (t. Paul sa%s &2omans 1-#>* and as (t. Peter sa%s &$ Peter +#1-;1>*. But !hen 3r. Ever%bod% arises, he can neither determine nor observe this difference bet!een the !icked and the "ious. ,e strikes into the mob and hits !hom he ma%. (uch conduct cannot go on !ithout "roducing great and horrible !rongs. ... $ side and !ill ever side !ith the "art% that suffers rebellion, ho!ever un/ust a cause it ma% have6 and $ !ill o""ose the "art% that starts a rebellion, ho!ever /ust a cause it ma% have. $ take this "osition because a rebellion cannot be carried on !ithout shedding innocent blood or in/uring the guiltless.-+ But there !as another o"tion ;; la!ful inter"osition, b% !hich lesser magistrates inter"ose themselves bet!een their sub/ects and the higher magistrate, !hen the higher magistrate has gone be%ond his la!ful authorit% and has become a t%rant. ,istorical e'am"les include the actions of )rchbisho" (te"hen Langton of Canterbur%, !ho gathered the barons and bisho"s of England to meet Ding John at 2unn%meade in 1+1< and forced him to sign the 3agna Carta6 the .lorious &and bloodless* 2evolution of 1CFF in !hich the Puritan;controlled Parliament of England forced Ding James $$ to abdicate6

-: -1

Luther, 9 <+, <--f ;; E -, 1?Ff ;; (L 1-a, =CFf6 1uoted in Plass, C::;:1. Luther, 9 1=, C-< ;; E ++, +<= ;; (L 1:, <:+6 1uoted in Plass, <==. -+ Luther, 9 F, CF: ;; E ++, >= f ;; (L 1:, -C<6 1uoted in Plass, <=F.

1+

and the )merican 8eclaration of $nde"endence of 1??C b% !hich the legall%;constituted colonial authorities removed the colonies from the t%rann% of Ding .eorge $$$. $n the .erman% of Luther s time, the ,ol% 2oman Em"ire !as a constitutional monarch%. The local "rinces or electors elected the em"eror, and the% had the "o!er to de"ose him. Luther ,ess 9aring sa%s Luther "maintained that if the la!s binding a ruler are disregarded and violated, he is sub/ect to account and dismissal from office."-9aring continues, Luther maintained that, under certain circumstances, even as to tem"oral matters, self;defense is the right of the Christian, and es"eciall% so in the case of t%rann%. 9hen the "rince is in the !rong, the sub/ect is not under obligation to su""ort him and fight for him. $f the em"eror himself violate the constitution and do not "erform his dut% in accordance !ith his oath, let him be formall% de"osed b% the im"erial electors6 but, until and unless formall% and legall% de"osed, he is to be res"ected and obe%ed as em"eror.-> 9aring notes that the electors had in fact de"osed ,ol% 2oman Em"erors on several occasions# )dol"hus of Bassau in 1+=F, and 9enceslaus in the earl% 1>::s. "This de"osition !as "ronounced in the name and b% the authorit% of the electors, and confirmed b% certain "relates and barons of the em"ire !ho !ere "resent."-< )t times LutherAs !ritings on resistance are difficult to s%stemati0e. $n some of his !ritings he sa%s the "rince should resist the em"eror !ho t%ranni0es his sub/ects6-C in others he sa%s the "rince should not resist the em"erorAs t%rann% but also should not coo"erate !ith the em"eror on such matters.-? 9aring sa%s that as of 1<-1, $n a letter !ritten about eight months after the famous 8iet of )ugsburg, Luther takes occasion to den% a rumour that there has been a change in his attitude on the sub/ect. ,e still maintains that full obedience is to be rendered the civil authorities, e'ce"t in so far as the "o!ers of the ruler ma% be sub/ect to constitutional limitations, or he ma% have !aived and agreed to certain sti"ulations or conditions, or ma% have e'ceeded his authorit%, ;; as the courts ma% investigate and determine. $n the case in hand ;; as to resistance to Charles E ;; he declares that he a!aits the decision of the /urists. $n a letter !ritten a month later, Luther re"eats his conviction that a Christian must not resist the "o!ers that be6 but he makes a distinction bet!een the Christian and the citi0en, that is, bet!een the member of the bod% of Christ and the member of the bod% "olitic. )s a citi0en, he agrees !ith the /urists that resistance against the em"eror is admissible6 and, although as a theologian he !ill

-->

9aring, 1-F. Id2 1-=. -< Id2 -C Luther, 9;Br C, <C ;; E <>, ++1 ;; (L 1:, <CF f6 1uoted in Plass, C::. -? 9aring, 1<1;<+.

1-

not advise an% Christian to resist, he leaves it to each individual to decide ho! he should act.-F Luther s thought gre! and develo"ed !ith time, and the "olitical conditions of .erman% might have influenced his thinking. Earlier, he sa! the ,ol% 2oman Em"eror, a constitutional monarch elected b% the .erman "rinces, as a bul!ark against "a"al "o!er and 2oman la!. But as time "rogressed, Luther became increasingl% a""rehensive that the "o"e and the bisho"s might "revail u"on the Em"eror Charles E, a 2oman Catholic, to !ar u"on the northern Lutheran "rinces. )s earl% as 1<-1 Luther !rote, This is m% honest advice in case the em"eror !ere to declare !ar against us on account of the "o"e s affairs or our teaching ;; though $ do not believe it of him as %et6 that no one should let himself be so used, or obe% the em"eror, but be assured that in such a matter he is strictl% forbidden b% .od to obe% him, and let him kno! !ho does obe% him that he is disobe%ing .od and !ill eternall% lose bod% and soul6 for the em"eror then conducts himself not onl% contrar% to .od and ,is la!, but like!ise contrar% to his o!n im"erial rights, oaths, dut%, seal, and letters. )nd that %ou ma% not think that this is merel% m% fanc% or that $ give this counsel out of m% o!n head, $ set forth the ground and reasons for the same so strong and clear that %ou ma% understand that it is not merel% m% "ersonal advice, but the earnest and manifold strong command of .od, 9hose !rath %ou should and finall% must fear. The first reason !h% %ou should not obe% and fight for the em"eror in such a matter is that %ou ;; as !ell as the em"eror himself ;; vo!ed in ba"tism to defend, and not "ersecute or den%, the .os"el of Christ. ... The second reason is that, !ere our teaching not true, ;; though ever%bod% kno!s other!ise ;; %ou should be deterred from "artici"ating in and becoming guilt% before .od of the atrocities that have taken "lace and !ill take "lace under the "a"ac%. The third reason !h% %ou should not obe% such a mandate of the em"eror is that, if %ou did so, %ou !ould not onl% "artici"ate in and hel" strengthen such abominations, but that %ou !ould also hel" to destro% and root u" all the good that is "roduced and done through the ,ol% .os"el. $f %ou are o"en to advice, %ou have !arning enough here that %ou should not obe% the em"eror and %our "rinces in such case, as the )"ostle declares# "9e ought to obe% .od rather than men." &)cts v., +=*.-= B% 1<-=, Luther s "osition had solidified. ,e still ho"ed the em"eror !ould not make !ar u"on the Lutheran "rinces6 but if he !ere to do so, Luther insisted, the Lutheran "rinces !ould have the same right and dut% to defend themselves and their kingdoms against the em"eror and the "o"e as the% !ould to defend their kingdoms against an attack b% the Turkish t%rants# 4ur "rinces have therefore decided that in such case his im"erial ma/est% is not em"eror but a !arrior, servant, and robber of the "o"e, as the latter in such a !ar
-F -=

Id2 1<+;<-. Luther, 1<-1, 1uoted b% 9aring, "". 1<>;<<.

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is the real leader and em"eror. This is the attitude of our estates. The .erman "rinces have more right as against the em"eror than the "eo"le in that da% had against (aul, and )hikam against Jehoiakim. The em"eror is not an autocrat6 and it is not !ithin his authorit% to de"ose the electoral "rinces and change the form and glor% of the em"ire6 and it is not to be "ermitted, should he attem"t it. $nasmuch as this could not and dare not be "ermitted in an% !a% as affecting business matters and tem"oral affairs, ho! much less is it to be endured if his im"erial ma/est% begin and !age a !ar for a foreign cause and in the interests of the devil. $f his ma/est% does not kno! that the cause is so evil, it is nevertheless sufficient for us that !e kno! it and are certain of it.>: Luther never became a radical or a revolutionar%. ,e held firml% to the conviction that .od has ordained civil government, and Christian citi0ens have a dut% to obe% its la!s. But as a conservative he recogni0ed that .od has given onl% limited authorit% to civil government, and the Christian citi0en has a dut% to kee" government !ithin its .od;a""ointed limits, even if, in e'treme circumstances, that includes a dut% to resist or inter"ose. )s 9aring sa%s, Luther cannot be 1uoted in su""ort of absolute t%rann%, or unconstitutional acts of governments or rulers. 4ne sees in him the manl% Teutonic sense of la! and libert%, and it is a mischievous misuse of his authorit% for absolutists falsel% to misa""l% his "ious veneration of .od s "o!er, that is also to be seen in civil authorit%, to servile sub/ection under ever% t%rann%. >1 The Church and the (tate, then, are .od;ordained institutions, !ith the famil% o"erating as the basic unit of societ% !ithin both Church and (tate. The Church has authorit% over believers, !hile the (tate has authorit% over both believers and unbelievers. The Christian, then, is a citi0en of both kingdoms, and .odAs link bet!een the t!o kingdoms. (ome claim Luther believed that certain "su"erheroes" !gesunde helden" or "miracle men" stand above the la! and are free to disregard it. $ believe this is a distortion of Luther s teaching. These su"erheroes or miracle men are not free to disregard the la!6 rather, the% have the skill and !isdom to look be%ond the letter of the la! and to discern its true "ur"ose and meaning.>+ ) rough e'am"le might be the store clerk !ho rotel% and rigidl% adheres to the store s "olic% on returned merchandise, in contrast to the store manager !ho can look be%ond the literal "olic% and see the "ur"ose behind it, and !ho can make an e'ce"tion to the "olic% !hen an e'ce"tion !ould better serve the store s "ur"ose. Luther s gesunde helden is in no !a% com"arable to Biet0che s u(ermensch &"overman" or "su"erman"*, the full% evolved "beast of "re%" !ho stands above la! and moralit%.

>: >1

Luther, 1uoted b% 9aring, "". 1<=;C:. 9aring, ". 1>>. >+ Bornkamm, ". +1-.

1<

To understand ho! the Christian functions !ithin both of these kingdoms, !e need to address another Lutheran distinctive Q the relationshi" of 2evelation and 2eason. %e$elation and %eason .od has given us t!o tools for understanding truth Q revelation and reason. 2evelation is .odAs revealed truth, the Bible. 2eason is manAs .od;given abilit% to understand truth using evidence and logic, inductive and deductive reasoning. LutherAs !ritings, it must be admitted, are less s%stematic than those of Calvin or )1uinas. $t has been said that Luther !as Hnever un!illing to contradict himselfI>- and that he referred to reason as a H!horeI or H!eather!itch.I or the "devil s "rostitute.">> But his criticism !as not directed to!ard reason itself but to!ard manAs misuse of reason. 2eason is like a Hhired gun6I the "rosecutor uses "rinci"les of reason and evidence to "rove the defendant guilt%, and the defense uses the same "rinci"les of reason and evidence to "rove the defendant innocent. "Bothing is so closel% reasoned that it cannot be contradicted b% counter;reasoning.">< LutherAs !ritings are hard to se"arate from his "ersonalit%. 8evoted to the 9ord of .od as ultimate truth, Luther !ould rather let t!o seemingl% contradictor% "rinci"les from the 9ord stand, than stretch either or both be%ond its "lain meaning. CalvinAs doctrine of double "redestination is arguabl% more logical than LutherAs doctrine of single "redestination. But Luther !ould "refer to sa%, .odAs 9ord teaches both "redestination and free !ill. 5ree !ill, in Luther s vie!, is the abilit% or freedom to resist the ,ol% ("irit6 ho!ever, the unaided !ill is not free to acce"t the grace of .od in Christ a"art from the leading of the ,ol% ("irit. Luther !ould recogni0e that he cannot full% reconcile these seemingl% conflicting truths, though he trusted that .od can reconcile them6 so he sim"l% set forth these t!o seemingl% contradictor% truths for his readers to do !ith as the% !ill. Luther sa%s the "rimar% tool to be used in church matters is revelation, the 9ord of .od. The "rimar% tool to be used in state matters is reason. ,e does not mean that reason has no "lace in church matters, nor that revelation has no "lace in state matters. But !e should recogni0e the "rimar% tool to be used in each kingdom. Luther believed the "rinci"les of .odAs 9ord do a""l% to civil government, but sometimes the% are a""lied in a different !a%, because the "rince has duties that do not a""l% to the "rivate citi0en. 5or e'am"le, Paul sa%s in 2omans 1+#1=, "8earl% beloved, avenge not %ourselves, but rather give "lace unto !rath# for it is !ritten, Eengeance is mine, $ !ill re"a%, saith the Lord." But in the ver% ne't cha"ter he sa%s the ruler is "the minister of .od, a revenger to e'ecute !rath u"on him that doeth evil." &2omans 1-#>* This is not a contradiction6 2omans 1+ is directed to!ard "rivate citi0ens, !hile 2omans
>-

3ichael 9al0er, he Revolution of the Saints: A Study in the 8rigins of Radical Politics &Cambridge# ,arvard 7niversit% Press, 1=C<*, ". +-. >> Luther, 9 1F, 1C> ;; E +=, +>1 ;; (L +:, +-+6 1uoted in Plass, 11C1. >< Luther, 9 ?, CF> ;; E +?, -:+ ;; (L 1F, 1->F6 1uoted in Plass, 11C:.

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1- addresses the civil ruler to !hom .od has delegated a "ortion of ,is authorit% to avenge evil. Luther !rote in 1<+-, The reasonable 1uestion has been "ut !hether it is better to have a good but im"rudent ruler or a "rudent but "ersonall% bad one. 3oses here certainl% calls for both# a good ruler and a "rudent ruler. ,o!ever, if both 1ualifications cannot be had, a "rudent ruler !ho is not "ersonall% good is better than a good one !ho is not "rudent, because a good one rules nothing but is onl% ruled Q and onl% b% the !orst of "eo"le. Even though a "rudent but "ersonall% bad ruler ma% harm the good "eo"le, he nevertheless rules the evil ones at the same time6 and this is more necessar% and "ro"er for the !orld, since the !orld is nothing but a mass of evil "eo"le.>C Bot!ithstanding, LutherAs ideal is the godl% Christian "rince# H) "rince must also act in a Christian !a% to!ard .od, that is, he must sub/ect himself to ,im in entire confidence and "ra% for !isdom to rule !ell, as (olomon did.I ,o!ever, "To be 1ualified to rule, it is not enough to be "ious. ) /ackass is also "ious. )bilit% and e'"erience are re1uired in order to rule. 4ne ma% find a "ious "erson !ho can hardl% count to five. ,e !ho is to rule dare not lack reason, "rudence, !ith, and !isdom if he does not !ant to !ork great harm in his government6 for government is sub/ect to reason.">? LetAs a""l% these "rinci"les to a cou"le of current issues. $n 1==- $ !rote m% 2esearch Pa"er for the )ir 9ar College on !hether homose'uals should serve in the armed forces, an issue that inflamed the "assions of man% )mericans in the 1==:s and continues to do so toda%. $ formulated m% "osition on this issue based u"on revelation, the numerous 4ld and Be! Testament scri"tures !hich teach that homose'ual conduct is !rong# Leviticus 1F#++, 8euteronom% +-#1?, 2omans 1#+C;+?, $ Corinthians C#=;1:, $ Timoth% 1#=;1:, and other "assages. But $ defended m% "osition based u"on reason and evidence# the relationshi" of homose'ualit% to various kinds of disease, the violence and child abuse among homose'uals, the threat to heterose'ual "rivac%, the effect of homose'uals u"on combat bonding, and other arguments that !ould "ersuade a hardened "olitician, even if he had no res"ect for the 9ord of .od, that admitting homose'uals into the militar% !ill not be conducive to the building of a fit fighting force. 3% research "a"er !as made into a book,>F and a friend of mine also !rote a book on ga%s in the militar%. ,e told me he did not make use of these arguments based on reason and evidence6 to be faithful to .od, he said, he had to stand on .odAs 9ord alone. 9ith all due res"ect, $ disagree !ith him. .od has given us, not onl% (cri"ture, but also reason and evidence. $t is ,is !ill, $ believe, that !e use reason and evidence to advance ,is !ill in the secular arena.
>C >?

Luther, 9 1>, <<- ;; E o" e' 1-, 1:- ;; (L -, 1-F-6 1uoted in Plass, <F+. Luther, 9 1C, >:F ;; E -C, 1Cf ;; (L -, 1:1?6 1uoted in Plass, <F+. >F John Eidsmoe, &ays and &uns: he Case Against Homose,uals in the 4ilitary &Lafa%ette, L)# ,untington ,ouse, 1==-*.

1?

9e can a""l% the same "rinci"les to sub/ects like abortion. $ formulate m% belief that the unborn child is a living human being and therefore entitled to the right to life, based u"on m% stud% of the (cri"tures.>= But !hen $ serve as a delegate to a "olitical convention, or !hen $ address a legislative committee on abortion legislation, $ defend m% "osition !ith the medical evidence that establishes the humanit% of the unborn child. )nd consider the issue of ca"ital "unishment. $ believe the 4ld Testament and Be! Testament both endorse ca"ital "unishment as a "unishment for crime and a deterrent to crime &2omans 1-#1;?*. But does that automaticall% mean $ su""ort ca"ital "unishment toda%K Bot necessaril%6 m% vie!s on the sub/ect are mi'ed. Ca"ital "unishment is clearl% authori0ed in (cri"ture, but the (cri"ture seems to "resume a /udicial s%stem that is determined to arrive at the truth, re1uiring t!o or three !itnesses to "rove u" a case and im"osing ver% strict "unishments u"on "er/ur%. $s our legal s%stem toda% determined to get at the truthK Too man% of our rules of evidence obscure the truth rather than reveal it. $nvestigators are often more interested in "roving someone guilt% than finding the truth. 4ften !e base our cases on the testimon% of fello! criminals !ho agree to turn HstateAs evidenceI in return for a "lea;bargain, and the more /uic% the% can make their testimon%, the better deal the%All get from the "rosecutor. (hould such a s%stem be authori0ed to take human lifeK $tAs a 1uestion !orth% of serious deliberation. Luther$s Worl"!ie% an" American Constitutionalism Living from 1>F- to 1<>F, Luther obviousl% did not foresee the )merican constitutional s%stem of government. But if he had, $ think he !ould have generall% a""roved. )s !e have seen, Luther believed that government is instituted b% .od to "reserve order, and $ think he !ould have found the 7nited (tates Constitution, established according to its "reamble to "form a more "erfect 7nion" and "insure domestic Tran1uilit%," consistent !ith his convictions about the role of government. Luther believed government should remain limited and not consume the liberties and resources of the "eo"le6 the constitutional "rinci"le assumed throughout the document and embodied in the Tenth )mendment that the federal government has onl% limited and delegated "o!ers and the "o!ers not delegated are reserved to the states or to the "eo"le, !ould have been ver% much to his liking. Luther liked the .erman "rinci"le of federalism that left the basic governing authorit% to the local "rinces or electors and gave onl% limited constitutional "o!ers to the em"eror !ho !as elected b% the "rinces6 accordingl%, he !ould have a""roved the )merican "rinci"le of federalism b% !hich limited "o!ers !ere delegated to the national government and basic governing authorit% !as reserved to the states. Luther !as
>=

3% book &od and Caesar: *i(lical 5aith and Political Action &Eugene, 42# 9i"f and (tock, 1=F>, +::<*, contains a cha"ter titled "The 2ight to Life" !hich anal%0es the Biblical "assages !hich demonstrate that the unborn child is a living human being, "". 1?:;=+.

1F

concerned that, because of the de"ravit% of human nature, rulers !ith unchecked "o!er !ere likel% to become t%rants6 he !ould have thought the )merican s%stem of se"aration of "o!ers into legislative, e'ecutive and /udicial branches, !ith checks and balances b% !hich the% restrain each other, an e'cellent solution to the "roblem of entrusting "o!er to sinful rulers. )s an admirer of the Teutonic common la! !ith its em"hasis on the rights of the "eo"le, Luther !ould have liked )nglo;)merican common la! &much of !hich came from the )nglo;(a'ons of northern .erman%* and the Bill of 2ights to the 7nited (tates Constitution. )nd believing that .od has established t!o kingdoms, church and state, and has given authorit% to each, Luther !ould have strongl% endorsed the 5irst )mendment guarantee that "Congress shall make no la! res"ecting an establishment of religion, or "rohibiting the free e'ercise thereof...," though he !ould have de"lored the radical se"arationist inter"retation given to the 5irst )mendment in recent decades. $ believe Luther !ould have strongl% a""roved earl% )merican theories of constitutional inter"retation, !ith em"hasis on /uris"rudence of original intent. But $ believe Luther !ould have de"lored the modern vie! of a "living Constitution" that is to be inter"reted according to an evolving standard. Sola Scriptura and &urisprudence of Original 'ntent )s !e have seen, 3artin Luther, like other Protestant 2eformers, believed (cri"ture is the highest and final authorit% for the determination of true doctrine. Pastors, "rofessors, "riests, "o"es, and church councils could be hel"ful in understanding and teaching truth, but ultimatel% (cri"ture and (cri"ture alone governs. The% strongl% dis"uted the 2oman Catholic vie! of the time that Church tradition carries authorit% com"arable to (cri"ture itself. The differing "ositions !ere sometimes cast as Scri$ture Alone &the 2eformers vie!* versus Scri$ture Plus radition &the 2oman Catholic vie!*. )s the 5ormula of Concord begins, 1. 9e believe, teach, and confess that the "ro"hetic and a"ostolic !ritings of the 4ld and Be! Testaments are the onl% rule and norm according to !hich all doctrines and teachers alike must be a""raised and /udged, as it is !ritten in Ps. 11=#1:<, "Th% !ord is a lam" to m% feet and a light to m% "ath."<: 3ost of the 5ramers of the 7nited (tates Constitution came out of a Christian background. The << delegates to the Constitutional Convention of 1?F? included +F )nglicans, F Presb%terians, ? Congregationalists, + Lutherans, + 2eformed, + 3ethodists, + 2oman Catholics, 1 !hose religious "reference is uncertain, and - !ho might be considered unorthodo' in their religious beliefs.<1

<: <1

5ormula of Concord, 1<F:, he *oo+ of Concord% >C>. 3.E. Bradford, A Worthy Com$any: *rief Lives of the 5ramers of the /nited States Constitution &Pl%mouth, 3)# Pl%mouth 2ock 5oundation, 1=F+*, "". iv;v.

1=

5urthermore, in their !ritings the% cited "rimaril% Christian sources as authorit% for their convictions. ) stud% of some 1<,::: !ritings of leading )merican "olitical figures from 1?C:;1F:< reveals that full% ->R of all of the sources the% cited in their !ritings !ere from the Bible, follo!ed b% the 2oman Catholic Baron 3ontes1uieu !ith F.-R, the )nglican (ir 9illiam Blackstone !ith ?.=R, and John Locke !ith +.=R.<+ $n m% book Christianity and the Constitution: he 5aith of 8ur 5ounding 5athers%9: $ have carefull% e'amined and documented the religious beliefs of the 5ramers and, $ believe, have thoroughl% refuted the modern notion that the% !ere 8eists and ske"tics. ) fe!, such as Ben/amin 5ranklin, held unorthodo' religious beliefs, but even the% believed in a .od !ho is activel% involved in human affairs and could "erha"s be better described as 7nitarians than as 8eists. Thomas Jefferson held beliefs similar to those of 5ranklin, but !hile Jefferson !as the "rimar% author of the 8eclaration of $nde"endence, he !as in 5rance at the time the Constitutional Convention took "lace. )s Bradford s figures demonstrate, not onl% !ere the 5ramers over!helmingl% Christian6 the% !ere also over!helmingl% Protestant, and almost as over!helmingl% Calvinist. Besides the Presb%terians and Congregationalists &Be! England Puritans*, the +F )nglicans should be considered Calvinist, because b% this time the Church of England had ado"ted the Calvinistic Thirt%;Bine )rticles as "art of their confession.<> 4nl% t!o Lutherans served as delegates to the Convention, Thomas 3ifflin of Penns%lvania and Jacob Broom of 8ela!are. John ,ansen, !ho served as President of the Continental Congress, !as Lutheran,<< and 2ev. 5rederick Conrad )ugustus 3uhlenburg, a Lutheran clerg%man from Penns%lvania, served as the first ("eaker of the 7.(. ,ouse of 2e"resentatives in 1?F=;=:.<C ) fe! Lutherans had come to the )merican colonies in the 1C::s, settling mostl% in Be! Jork, Penns%lvania, Be! Jerse%, Eirginia, and 8ela!are, but immigrants from Lutheran countries did not arrive in large numbers until the 1F::s. 9ent0 !rites that "E'ce"ting a fe! of these so;called 4ld Lutherans, !ho remained Tor%, the Lutheran element of the "o"ulation !as "redominantl% on the
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8onald (. Lut0, "The 2elative $nfluence of Euro"ean 9riters on Late Eighteenth Centur% )merican Political Thought," American Political Science Review 1F= &1=F>* 1F=;=?6 see also, Charles (. ,%neman and 8onald (. Lut0, American Political Writing in the 5ounding -ra ;<=>-;?>9 &$ndiana"olis# Libert% Press, 1=F-*. <John Eidsmoe, Christianity and the Constitution: he 5aith of 8ur 5ounding 5athers &.rand 2a"ids# Baker Book ,ouse, 1=F?, 1==<, +::>*. <> Loraine Boettner, he Reformed @octrine of Predestination &&Philadel"hia# Presb%terian and 2eformed, 1=?+*, ". -F+# "$t is estimated that of the -,:::,::: )mericans at the time of the )merican 2evolution, =::,::: !ere of (cotch or (cotch;$rish origin, C::,::: !ere Puritan English, and >::,::: !ee .erman or 8utch 2eformed. $n addition to this the E"isco"alians had a Calvinistic confession in their Thirt%;nine )rticles6 and man% 5rench ,uguenots also had come to this !estern !orld. Thus !e see that about t!o; thirds of the colonial "o"ulation had been trained in the school of Calvin." << )bdel 2oss 9ent0, A *asic History of Lutheranism in America &Philadel"hia# 3uhlenberg Press, 1=<<*, ". <1. ,ansen, aka ,anson, has been called the first President of the 7nited (tates, but this is true onl% in a limited sense. The President of the Continental Congress did not have the e'ecutive "o!ers given to the President under the Constitution of 1?F?6 he !as more like the ("eaker of the ,ouse than an actual chief e'ecutive. ,ansen !as not the first President of the Continental Congress, but he !as President at the time the office !as legall% established b% the ratification of the )rticles of Confederation. <C 9ent0, ". <1.

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side of )merican inde"endence."<? ,e adds that unlike the Lutherans, man% of the .erman immigrants to )merica at this time !ere 3ennonites, 8unkards, )mish, and 3oravians of a "acifist "ersuasion. "Colonial governments had often left .erman farmers on the frontiers e'"osed to the terrible de"redations of $ndians, hence the .ermans united !ith the (cotch;$rish, both in arms and in "olitics, to secure ade1uate defense of their homes.<F Besides their commitment to defense, Calvinists and Lutherans shared the 2eformation em"hasis on (ola (cri"tura, (ola .ratia, and (ola 5ide. ) "arallel can be dra!n bet!een the 2eformers commitment to (ola (cri"tura and the 5ramers belief in original intent. The 5ramers shared the 2eformers vie! of (cri"ture and a vie! of truth itself as .od;ordained, absolute, universal and unchanging. $n this res"ect the !orld vie! of (cri"ture, the 2eformers, and (ir $saac Be!ton coincide. James 3adison, !hom man% call the "5ather of the Constitution" and !ho studied for the ministr% at the College of Be! Jerse% &no! Princeton*, a Presb%terian institution, under 2ev. John 9ithers"oon, !rote, S$fT the sense in !hich the Constitution !as acce"ted and ratified b% the Bation ... be not the guide in e'"ounding it, there can be no securit% for a faithful e'ercise of its "o!ers.<= Thomas Jefferson, an admirer of (ir $saac Be!ton, e'"ressed the same understanding# The Constitution on !hich our 7nion rests, shall be administered b% me according to the safe and honest meaning contem"lated b% the "lain understanding of the "eo"le of the 7nited (tates, at the time of its ado"tion.C: )nd in 1F+- he e'"ressed the same vie!# 4n ever% 1uestion of construction, Slet usT carr% ourselves back to the time !hen the Constitution !as ado"ted, recollect the s"irit manifested in the debates, and instead of sa%ing !hat meaning ma% be s1uee0ed out of the te't, or invented against it, conform to the "robable one in !hich it !as "assed.C1 The late 8r. Jaroslav Pelikan suggested that the Constitution is like ")merican (cri"ture," although he sa%s the term might more a""ro"riatel% describe the 8eclaration of $nde"endence and the .ett%sburg )ddress.C+ But the 5ramers !ould never have "ut
<? <F

Id2 ". >F Id2 <= James 3adison, he Writings of 6ames 4adison, ed. .. ,unt &1F==;1=1:*, ". 1=1. C: Thomas Jefferson, 1F:16 re"rinted in )lbert Eller%Bergh, ed., he Writings of homas 6efferson% +: vols. &9ashington# The Thomas Jefferson 3emorial )ssociation, 1=:?*, 1:#+>F. C1 Thomas Jefferson, 1F+-6 re"rinted in Bergh, 1<#>>=. C+ Jaroslav Pelikan, Inter$reting the *i(le and the Constitution &Be! ,aven# Jale 7niversit% Press, +::>*, "". 1F;1=. Pelikan ma% have been correct in his observation that the Lincoln s .ett%sburg )ddress has been used to "romote an e'"anded conce"t of e1ualit%. 4thers have observed that Lincoln and the 9ar Bet!een the (tates fundamentall% altered the )merican nation from a confederation of states to a national

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)merica s founding documents on a "lane !ith (cri"ture. The% never considered )merica s founding documents to be either divinel% ins"ired or inerrant. The 5ramers of the Constitution included a "rovision &)rticle E* for its amendment6 there are no "rovisions for "amending" the Bible &2evelation ++#1F;1=*. .eorge 9ashington, !ho served as President of the Constitutional Convention, said in his 5are!ell )ddress, $f, in the o"inion of the "eo"le, the distribution or modification of the Constitutional "o!ers be at an% "articular !rong, let it be corrected b% an amendment in the !a% the Constitution designates. But let there be no change b% usur"ation6 though this ma% in one instance be the instrument of good, it is the customar% !ea"on b% !hich free governments are destro%ed.C8r. Pelikan observed that Christian theolog% builds u"on the Bible, and )merican /uris"rudence builds u"on the Constitution, and that this construction goes be%ond the "lain te't of both. 5or e'am"le, the doctrine of the Trinit% has its roots in (cri"ture but is not e'"ressl% and s%stematicall% set forth therein. Building u"on (cri"ture, the various church councils have develo"ed the doctrine of the Trinit% through the various creeds# the )"ostles Creed, the Bicene Creed, the )thanasian Creed, and others. Like!ise, )merican /urists have built constitutional doctrines such as the meaning of due "rocess of la!, se"aration of "o!ers, e1ual "rotection of the la!, freedom of e'"ression, and others, based u"on "rovisions of the Constitution or its amendments6 ho!ever, these constitutional doctrines !ere never e'"licitl% set forth in the Constitution or in an% other !ritings of the time.C> 8r. Pelikan further suggested that the "rinci"les for develo"ment of doctrine found in John ,enr% Be!man s An -ssay on the @evelo$ment of Christian @octrine=9 ma% serve as a model for both the develo"ment of Christian doctrine and the develo"ment of constitutional doctrine. Be!man had suggested seven tests or "rinci"les !hich Pelikan further e'"lained and endorsed# 1. The develo"ment of doctrine must "reserve the original t%"e ;; the form of e'"ression such as "!e believe and confess" that is consistent throughout the creeds, the language of "due "rocess of la!" that is consistent in unfolding constitutional cases. +. The develo"ment must "reserve the continuit% of "rinci"les ;; that is, a common thread of "rinci"le must run through the develo"ment of doctrine from its (cri"tural or constitutional roots on through the most recent creeds or cases.

union !ith the states reduced to mere administrative subdivisions. But !hile some see this as a "ositive develo"ment, $ believe it has destro%ed the "rinci"le of federalism that !as the 5ramers formula for limiting national "o!er and "reserving individual freedom. C.eorge 9ashington, "5are!ell )ddress," 1?=?, re"rinted in American Historical @ocuments &Be! Jork# Barnes and Boble, 1=C:*, ". 1>>. C> Pelikan, "". ?C;11>. C< John ,enr% Be!man, An -ssay on the @evelo$ment of Christian @octrine +ed. &Botre 8ame, $nd.# 7 of Botre 8ame Press, 1F?F, 1=F=*.

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-. The develo"ing doctrine must be ca"able of assimilation into the basic bod% of doctrine that has alread% been established u"on the base of (cri"ture or the Constitution. $n other !ords, it must be consistent !ith the overall bod% of doctrine, even though it ma% re1uire changing or overruling a "articular "oint of doctrine or a "revious case. >. The develo"ing doctrine must follo! in logical se1uence from "reviousl%; stated doctrines. Pelikan sa! the develo"ment of the doctrine of the t!o natures of Christ as a logical "rogression from (cri"ture through "revious creeds to the "resent. Like!ise the "rinci"le of /udicial revie! !as articulated narro!l% in 4ar(ury v2 4adison== in 1F:-, e'"anded in 4artin v2 Hunter)s Lessee=< in 1F1C, and graduaall% !idened into the all;encom"assing "o!er it has become toda%. <. The develo"ing doctrine must antici"ate its future, that is, those !ho develo" it must foresee the logical conclusions to !hich it could lead, and, if those conclusions could be absurd or undesirable, the% should reconsider the doctrine or make a course correction. C. The develo"ing doctrine must be a "conservative action u"on its "ast," that is, it should be a "reservative addition. 9estern Christians considered the "5ilio1ue," the "hrase of the Bicene Creed that declares that the ,ol% ("irit "roceeds from both the 5ather and the (on, !as a "reservative necessar% to set forth the truth of (cri"ture, !hile Eastern Christians considered it an un!arranted and unscri"tural addition. Like!ise, the clause of )rticle $, (ection F of the Constitution giving Congress the "o!er "to coin mone%" could be inter"reted literall% to mean onl% metallic "coin" and not "a"er currenc%, but the Court held that the "o!er included currenc% because the government must do !hat is necessar% for its self;"reservation.CF ?. The develo"ing doctrine must have "chronic vigor," that is, it must be a doctrine that !ill be vital and enduring for the ages.C= 8r. Pelikan s book contains much !isdom, and he has honestl% faced the fact that some Christian doctrines are built u"on (cri"ture but not e'"ressl% set forth therein, and some constitutional doctrines are built u"on the Constitution but not e'"ressl% set forth therein. But there is danger in the a""roach of Pelikan, the Lutheran "rofessor !ho converted to Eastern 4rthodo'%, /ust as there is danger in the anal%sis of Be!man, the )nglican turned Catholic cardinal. "8evelo"ment of doctrine" is best understood as a develo"ment "internall%" in (cri"ture as .od unfolds ,is truth from the 4ld Testament to the Be! Testament. The onl% e'ternal develo"ment that can take "lace for those !ho hold to Sola Scri$tura is a develo"ment of understanding through .od s revelation in ,is 9ord. The 5ramers believed that !ith the unfolding of time, /udges and constitutional scholars !ould fine;tune our understanding of the various "rovisions of the Constitution.
CC C?

< 7.(. 1-? &1F:-*. 1> 7.(. -:> &1F1C*. CF He$(urn v2 &riswold% ?< 7.(. C1< &1FC=*6 Legal ender Cases% ?= 7.(. <>> &1F?1*. C= Pelikan, "". 11<;>=.

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But the effect of this fine;tuning !ould be to bring the design and intent of the 5ramers into shar"er and clearer focus. 7nfortunatel%, that is not the !a% constitutional /uris"rudence has develo"ed. 3uch constitutional doctrine has been built, ste" b% ste", each "oint a logical "rogression or e'tension, until the doctrine no longer resembles its constitutional roots. 5or e'am"le, )rticle $, (ection F of the Constitution em"o!ers Congress to "regulate Commerce !ith foreign Bations, and among the several (tates, and !ith the $ndian Tribes." Based u"on the legal doctrine of inclusio unius% e,clusio alterius &the inclusion of one constitutes the e'clusion of others* and the Tenth )mendment "rinci"le that the "o!ers not delegated to the national government are reserved to the states, the traditional understanding had been that Congress can regulate interstate commerce but intrastate commerce is left to the states. But in 1=-?, b% a <;> vote, the (u"reme Court u"held the "o!er of the Bational Labor 2elations Board to regulate a local labor dis"ute in Jones M Laughlin (teel.?: The ma/orit% reasoned that unresolved labor dis"utes could lead to strikes in the steel industr%6 steel strikes could lead to a shutdo!n of steel "roduction6 a shutdo!n of steel "roduction could disru"t the flo! of steel in interstate commerce6 therefore, Congress s "o!er to regulate interstate commerce includes the "o!er to regulate local labor dis"utes ;; a stretch, but still a !ith a thread of logic, even if it !as an elastic thread. But four %ears later, in /nited States v2 @ar(y<;% the Court e'"anded the 6ones 3 Laughlin Steel ruling to hold that Congress can regulate the "roduction of an%thing that is intended for sale in interstate commerce. )nd then, in the 1=>+ case of Wic+ard v2 5il(urn,?+ the Court considered the "lea of a farmer !ho had been fined for raising +acres of !heat above and be%ond the 1uota established b% Congress. 5armer 5ilburn argued he could not "ossibl% be engaged in interstate commerce, because he fed all of the e'cess !heat to his o!n livestock. But the Court reasoned that if had not raised the e'cess !heat, he !ould have had to either bu% !heat on the market to feed to his livestock, or feed the !heat from his alloted acreage to his livestock, meaning he !ould have less !heat to sell on the market. Either !a%, the Court said, 5ilburn had affected interstate commerce, and Congress could fine him for doing so. )gain, one can see an elastic thread of logic running from )rticle $, (ection F through 6ones and @ar(y to 5il(urn2 But the end result turns the original article on its head, and the result is that Congress can regulate an% t%"e of commerce or "roduction it chooses. )nd similar "rogressions or regressions of the Court s doctrine have done similar violence to the .eneral 9elfare Clause of )rticle $, (ection F, the $m"airment of Contracts Clause of )rticle $, (ection 1:, the Takings Clause of the 5ifth )mendment, and man% other "ortions of the Constitution.

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'ational La(or Relations *oard v2 6ones 3 Laughlin Steel% -:1 7.(. 1 &1=-?*. /nited States v2 @ar(y% -1+ 7.(. 1::, -1+ 7.(. C<? &1=>1*. ?+ Wic+ard v2 5il(urn% -1? 7.(. 111 &1=>+*.

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)t the ver% least, the Be!manOPelikan a""roach to develo"ment of doctrine needs a strong corrective in the form of an eighth test# !ould the original authors recogni0e it and claim itK $f the )"ostle Paul &and the other authors of (cri"ture* could someho! have been "resent at the Council of Bicea or the Council of Calcedon, !ould he sa%, "Jes, that s a good s%stemati0ation of the truths $ set forth in m% letters," or !ould he sa%, "That s not !hat $ meant at all@ $ don t recogni0e this@" $f James 3adison &and the other 5ramers of the Constitution* could read the later decisions of the 7nited (tates (u"reme Court, !ould the% consider them true to the constitutional "rinci"les the% set forthK 4r !ould the% !onder !hat constitution the Court !as e'"oundingK?The ($olutionar) *orld$iew and #onstitutional 'nterpretation $n 5ederalist 'o2 <?% )le'ander ,amilton argued that "the /udiciar%, from the nature of its functions, !ill al!a%s be the least dangerous to the "olitical rights of the constitution6 because it !ill be least in a ca"acit% to anno% or in/ure them."?> But as Professor Lino .raglia has observed, ...SJTudicial usur"ation of legislative "o!er has become so common and so com"lete that the (u"reme Court has become our most "o!erful and im"ortant instrument of government in terms of determining the nature and 1ualit% of )merican life. ... The result is that the central truth of constitutional la! toda% is that it has nothing to do !ith the Constitution e'ce"t that the !ords "due "rocess" or "e1ual "rotection" are almost al!a%s used b% the /udges in stating their conclusions. ... SCTonstitutional la! has become a fraud, a cover for a s%stem of government b% the ma/orit% vote of a nine;"erson committee of la!%ers, unelected and holding office for life.?< ,o! could ,amilton have so mis/udged the danger of /udicial usur"ation of "o!erK $ suggest that ,amilton, like the other 5ramers, believed !ith the authors of (cri"ture, !ith Luther and Calvin, !ith (ir $saac Be!ton and others, that la!, like truth is absolute, unchanging, and ordained b% .od ,imself. The 8eclaration of $nde"endence had been based on the eternal and unchanging "La!s of Bature and of Bature s .od," and recogni0ed the "self;evident" truths that "all men are created e1ual, that the% are endo!ed b% their Creator !ith certain unalienable 2ights... ."?C The Constitution !as their
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,ere the analog% bet!een the authors of (cri"ture and the framers of the Constitution is im"erfect. The Bible consists of CC books !ritten b% man% different authors at various "laces over the course of at least 1,<:: %ears6 the delegates to the Convention !ere gathered at one "lace at one time. 4n the other hand, the authors of (cri"ture had the su"erintending ins"iration of the ,ol% ("irit to give them unit%6 the delegates to the Convention finall% agreed on a Constitution but "robabl% never !ere com"letel% unified in their thinking. 5urthermore, the intent of the framers can be changed b% a constitutional amendment6 there are no "rovisions for amending the Bible. ?> )le'ander ,amilton, "The 5ederalist Bo. ?F%" he 5ederalist &$ndiana"olis# Libert% 5und, 1?FF, +::1*, ". >:+. ?< Lino ). .raglia, "Judicial 2evie! on the Basis of 2egime Princi"les # ) Prescri"tion for .overnment b% Judges," South e,as Law 6ournal% Eol. +C, Bo. - &5all 1=F<*, ". >>1. ?C $n the 1C::s the )merican colonies, es"eciall% those of the Be! England Puritans, based their la!s e'"licitl% on (cri"ture. $n the late 1C::s and earl% 1?::s the colonies e'"erienced some decline of the old

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mechanism for "utting into "ractice the fundamental truths of the 8eclaration, and the% assumed that the Constitution s meaning !as fi'ed and unchanging unless and until amended. $ believe the% failed to antici"ate that, in the 1=th and +:th centuries, the vie! of la!, like the vie! of truth, !ould change dramaticall%. 9e can trace this change from ,egel &1??:;1F-1* !ho taught that truth is a dialectical changing "rocess of "becoming" rather than a fi'ed state of "being," Comte &1?=F;1F<?* !ho taught the "ositivist doctrine that the onl% meaningful truth is that !hich can be em"iricall% verified, and 8ar!in &1F:=;1FF+* !ho taught an evolutionar% vie! of origins. But although his name is less !ell kno!n toda%, it !as ,erbert ("encer &1F+:;1=:-* !ho took 8ar!in s theor% of origins and develo"ed it into a com"rehensive "hiloso"h% and !orldvie!. ,untington Cairns e'"lains the life and thought of ("encer# ,erbert ("encer, in his autobiogra"h%, has related ho!, in the last da%s of 1F<?, at about the age of -?, !hen he !as collecting, revising and "ublishing a number of essa%s, he !as im"ressed !ith the kinshi" and connections bet!een the ideas of his various articles. (uddenl% there came to him the thought that the concrete sciences at large ;; astronom%, geolog%, biolog%, "s%cholog%, and sociolog% ;; should have their various classes of facts "resented in subordination to the universal "rinci"le of evolution. Clearl%, it seemed to him, these sciences form a connected and unified aggregate of "henomena, and clearl%, therefore, the% should be arranged into a coherent bod% of doctrine. Thereafter, he set himself to the formidable task of com"osing the volumes !hich !ould relate all de"artments of kno!ledge, !hich he believed !ere se"arated onl% b% conventions, to the theor% of evolution. ... 5or the ne't fort%;odd %ears ("encer carried out his "lan of demonstrating the universal a""lication of this formula.?? )nd ("encer s influence !as far;reaching. )s 2ichard ,ofstadter e'"lains, The generation that acclaimed .rant as its hero took ("encer as its thinker. "Probabl% no other "hiloso"her," !rote ,enr% ,olt in later %ears, ... ...ever had such a vogue as ("encer had from about 1F?: to 1F=:. 3ost "receding "hiloso"hers had "resumabl% been mainl% restricted to readers habituall% given to the stud% of "hiloso"h%, but not onl% !as ("encer
Puritan 0eal, though the religious revival kno!n as the 5irst .reat )!akening &1?>:s* to a large e'tent arrested and reversed that decline. But the 8eclaration of $nde"endence, !hile entirel% consistent !ith Christianit%, is based not e'"licitl% on (cri"ture but u"on broader "rinci"les of natural la!. $t ma% be, as one "resenter at the +::< Confessional Christian 9orldvie! Conference suggested, that the 5ounding 5athers had moved from a Calvinistic or Puritan understanding of la! and government, to!ard a Lutheran understanding of government based u"on geset# &natural la!* and recht &natural /ustice* ;; "erha"s !ithout reali0ing it. ?? ,untington Cairns, Law and the Social Sciences &Be! Jork# )ugustus 3. Dell%, 1=-<, 1=C=*, "". 1-C; -?.

+C

considerabl% read and generall% talked about b% the !hole intelligent !orld in England and )merica, but that !orld !as !ider than an% that "receded it. ("encer s im"act u"on the common man in the 7nited (tates is im"ossible to gauge, although its effects are diml% "erce"tible. That he !as !idel% read b% "ersons !ho !ere "artl% or largel% self;educated, b% those !ho !ere laboriousl% "lodding their !a% out of theological orthodo'% in a thousand to!ns and hamlets, is suggested b% casual references to him in the lives of men !ho later achieved some fame. Theodore 8reiser, Jack London, Clarence 8arro!, and ,amlin .arland have given intimations of ("encer s influence on their formative %ears...?F Boting that in the three decades after the 9ar Bet!een the (tates it !as "im"ossible to be active in an% field of intellectual !ork !ithout mastering ("encer,"?= ,ofstadter makes the bold claim# 3an% scientific discoveries affect !a%s of living more "rofoundl% than evolution did6 but none have had a greater im"act on !a%s of thinking and believing. $n this res"ect, the s"ace age does not "romise even remotel% to match it.F: 8ar!in and ("encer became "o"ular, not because their evidence !as so convincing or their logic so over!helming, but because man% of that generation !ere in rebellion against Christian orthodo'%. 3an% !anted to re/ect .od and embrace materialism, but the lack of a "lausible materialistic e'"lanation of origins stood in the !a% of their com"lete re/ection of .od and the Bible. 8ar!in "rovided that materialistic e'"lanation. )s ,allo!ell sa%s, The "o"ularit% of 8ar!in s theor% is to be accounted for, at least in "art, b% the fact that it suited the times in !hich it !as formulated, it confirmed man% individuals in believing !hat the% alread% !anted to believe. )s Jac1ues Bar0un declares, it "ca"tivated a generation of thinkers !hose greatest desire !as to get rid of vitalism, !ill, "ur"ose, or design as e'"lanation of life, and to substitute for them an automatic material cause."F1 ("encer s%stematicall% develo"ed a com"rehensive !orldvie! based on 8ar!inian evolution, !riting on such sub/ects as economics, "s%cholog%, sociolog%, anthro"olog%, government, and even theolog%. Julius 9ellhausen, architect of the .raf; 9ellhausen theor% that the first five books of the Bible !ere not .od s revelation to 3oses but rather !ere the result of an evolutionar% "rocess of at least four authors kno!n as J, E, 8, and P, based his vie! not on the evidence but on evolutionar% theor% !hich assumed that the loft%, monotheistic conce"ts of the Book of .enesis !ere far too
?F

2ichard ,ofstadter, Social @arwinism in American hought &Be! Jork# .eorge Bra0iller, $nc., 1=>>, 1=<<*, ". ->. ?= Id2 ". --. F: Id2 ". -. F1 John ,. ,allo!ell, 4ain Currents in 4odern Political hought &Be! Jork# ,olt, 2inehart M 9inston, 1=<:, 1=C:*, ". -:-.

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advanced for a "rimitive like )braham.F+ Leading liberal theologian 9alter 2auschenbusch !rote that his conce"t of the social gos"el !as based on evolutionar% thought# Translate the evolutionar% theories into religious faith, and %ou have the doctrine of the Dingdom of .od. This combination !ith scientific evolutionar% thought has freed the kingdom ideal of its catastro"hic setting and its background of demonism, and so a""lied it to the climate of the modern !orld.F$nevitabl%, "erha"s, the evolutionar% !orldvie! of 8ar!in and ("encer made itself felt in la!. )t the ,arvard La! (chool in the 1F?:s, 8ean Christo"her Columbus Langdell re/ected the traditional conce"t of la! taught b% (ir 9illiam Blackstone and others, that human la! in order to be valid must reflect the higher la! of .od as found in the 2evealed La! of (cri"ture and the La! of Bature. $nstead, 8ean Langdell "resented a theor% kno!n as legal "ositivism, !hich could be summari0ed in five basic "remises# 1. 8enial of 8ivine absolutes. .od has not "romulgated an% "rinci"les of la!, or if ,e has, the% are irrelevant to the modern legal s%stem. +. La! is man;made. $f .od is not the )uthor of la!, la! must be sim"l% the !ork of man, or more s"ecificall%, of the highest human instrumentalit%, the (tate. -. La! evolves as man evolves. This naturall% follo!s if there is no ,igher )uthorit% to hold la! constant. >. Judges guide the evolution of la!. Judges do not sim"l% inter"ret and a""l% la!, as Blackstone taught6 rather, /udges "make" la! as the% issue their decisions. <. To stud% la! the "scientific" !a%, stud% the decisions of /udges. )s a result of the Langdellian revolution, the stud% of la! no! consists not so much of reading treatises and statutes, but rather of reading "casebooks" !hich are com"ilations of o"inions !ritten b% /udges. $n the vie! of 8ean Langdell and the legal "ositivists, these cases are the true source of la!.F> 9oodro! 9ilson, in his 1=1> book he 'ew 5reedom% a""lied the 8ar!inian !orldvie! to the 7nited (tates Constitution# ...S$Tn ever% generation all sorts of s"eculation and thinking tend to fall under the formula of the dominant thought of the age. 5or e'am"le, after the Be!tonian Theor% of the 7niverse had been develo"ed, almost all thinking tended to e'"ress itself in the analogies of the Be!tonian Theor% and since the 8ar!inian Theor% has reigned amongst us, ever%bod% is likel% to e'"ress
F+

,erbert 5. ,ahn, he 8ld estament in 4odern Research &Philadel"hia# 5ortress Press, 1=<>, 1=CC*, "". F, =;1:, 1+, >C;C?, =1. F9alter 2auschenbusch, Christiani#ing the Social 8rder% ". =:6 1uoted in ,ofstadter, ". 1:F. F> $ have e'"lained the conce"t of legal "ositivism in greater detail in m% book he Christian Legal Advisor &3ilford, 3$# 3ott 3edia, 1=F>, 1=F?*, "". ?>;F>, and in Christianity and the Constitution% o". cit., "". -FF;>:>.

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!hatever he !ishes to e'"ound in terms of develo"ment and accommodation to environment. ...STThe Constitution of the 7nited (tates had been made under the dominion of the Be!tonian theor%. Jou have onl% to read the "a"ers of he 5ederalist to see that fact !ritten on ever% "age. The% s"eak of the "checks and balances" of the Constitution, and use to e'"ress their idea the simile of the organi0ation of the universe, and "articularl% of the solar s%stem, ho! b% the attraction of gravitation the various "arts are held in their orbits6 and then the% "roceed to re"resent Congress, the Judiciar%, and the President as a sort of imitation of the solar s%stem. ... The trouble !ith the theor% is that government is not a machine, but a living thing. $t falls, not under the theor% of the universe, but under the theor% of organic life. $t is accountable to 8ar!in, not to Be!ton. $t is modified b% its environment, necessitated b% its tasks, sha"ed to its functions b% the sheer "ressure of life. Bo living thing can have its organs offset against each other, as checks, and live. ... Living "olitical constitutions must be 8ar!inian in structure and in "ractice. (ociet% is a living organism and must obe% the la!s of Life, not of mechanics6 it must develo". )ll that "rogressives ask or desire is "ermission ;; in an era !hen "develo"ment," "evolution," is the scientific !ord ;; to inter"ret the Constitution according to the 8ar!inian "rinci"le6 all the% ask is recognition of the fact that a nation is a living thing and not a machine.F< The case of 5urman v2 &eorgia?= illustrates the evolutionar% a""roach to the Constitution. 5ive of the Justices ruled that ca"ital "unishment, as a""lied in that case, !as unconstitutional, though the% did not agree on their reasons. T!o of the Justices, 9illiam Brennan and Thurgood 3arshall, argued that ca"ital "unishment is "cruel and unusual" in violation of the Eighth )mendment. The% ackno!ledged that the 5ramers of the Constitution and the Eighth )mendment !ould not have considered ca"ital "unishment cruel and unusual, but the% insisted, citing an earlier cases, that "the !ords of the )mendment are not "recise, and that their sco"e is not static. The )mendment must dra! its meaning from the evolving standards of decenc% that mark the "rogress of a maturing societ%."F? $n a 1=F< address to the )merican Bar )ssociation, 7.(. )ttorne% .eneral Ed!in 3eese, a devout Lutheran, !arned of the dangers inherent in de"arting from original intent# $t !as not long ago !hen constitutional inter"retation !as understood to move bet!een the "oles of "strict construction" and "loose construction." Toda%,
F< FC

9oodro! 9ilson, he 'ew 5reedom &Be! Jork# 8oubleda%, 1=1-, 1=1>*, "". >>;>F. >:F 7.(. +-F &1=?+*. F? Id2 4ne might argue, consistent !ith original intent, that unlike other "ortions of the Constitution, the a""lication of the term "unusual" can change !ith time6 automobiles !ere "unusual" in 1=:C but common"lace in +::C. $f the Eighth )mendment "rohibited "unishments !hich are either "cruel or unusual," this argument might have merit. But the )mendment "rohibits onl% those "unishments !hich are both "cruel and unusual," and the term "cruel" has a fi'ed and ob/ective meaning.

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it is argued that constitutional inter"retation moves bet!een "inter"retive revie!" and "non;inter"retive revie!." )s one observer has "ointed out, under the old s%stem the 1uestion !as how to read the Constitution6 under the ne! a""roach, the 1uestion is whether to read the Constitution. ... The result is that some /udges and academics feel free &to borro! the language of the great Be! Jork /urist, Chancellor James Dent* to "roam at large in the trackless fields of their o!n imaginations."FF Later in 1=F<, Justice Brennan, !ho had s"oken of the "evolving standard of decenc%" in 5urman% res"onded to 3eese in a s%m"osium at .eorgeto!n 7niversit%. ,e declared that "the genius of the Constitution rests not in an% static meaning it might have had in a !orld that is dead and gone," but rather, it must manifest itself through an "evolutionar% "rocess SthatT is inevitable and, indeed, it is the true inter"retive genius of the te't."F= ) "roblem !ith the "evolving Constitution" a""roach is that the evolution of a legal doctrine can "roceed in more than one direction. Justice Brennan seemed to assume that societ% !ould al!a%s be evolving u"!ard to!ard a greater recognition of human dignit%, human e1ualit%, human freedom and human rights. But histor% affords no assurance that societ% al!a%s, or even usuall%, "roceeds in that u"!ard direction. ,istor% demonstrates that "eriods of human freedom are rare and short;lived, that free and humane societies occasionall% rise and flourish, and then sink back into t%rann% and barbarism. 5orms of "unishment that the 5ramers !ould have considered cruel and unusual, like man% forms that have been utili0ed b% various nations throughout histor% including "dra!ing and 1uartering" that "revailed in England, might someda% be deemed acce"table b% some future Court that a""lies an "evolving standard of decenc%." )nother "roblem is that unelected federal /udges control the "evolution" of la!. 9hen their "o!er of inter"retation is limited b% the "lain meaning of the Constitution as intended b% its 5ramers, the% are indeed the "least dangerous" branch described b% ,amilton. But !hen the% are free to read into the Constitution meanings the 5ramers never intended and never even imagined, their "o!er increases e'"onentiall%. + ,ost"odern #onstitutionBut the evolutionar% a""roach to constitutional inter"retation at least assumes an ob/ective, if changing, meaning. Even that a""roach, ho!ever, seems to be evolving into "ostmodernism.=:

FF

Ed!in 3eese, $$$, address to the )merican Bar )ssociation, 1=F<6 ada"ted in "To!ard a Juris"rudence of 4riginal $ntention," *enchmar+, Eol. $$, Bo. 1, Januar%;5ebruar% 1=FC, "". 1;1:, at C. F= 9illiam J. Brennan, Jr., "The Constitution of the 7nited (tates# Contem"orar% 2atification," Teaching (%m"osium, .eorgeto!n 7niversit%, 9ashington, 8.C., 4ctober 1+, 1=F<, "". -=;<1. =: T!o e'cellent discussions of "ostmodernism from a Christian "ers"ective are .ene Ed!ard Eeith, Jr., Postmodern imes: A Christian &uide to Contem$orary hought and Culture &9heaton, $L# Cross!a% Books, 1==>*6 and Christian A$ologetics in the Postmodern World% ed. Timoth% 2. Philli"s and 8ennis L. 4kholm &8o!ners .rove, $L# $nterEarsit% Press, 1==<*.

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Postmodernism is a broad and multifaceted movement and therefore difficult to define, es"eciall% !ithout defining the modernit% that "ostmodernism claims to su"ercede. )t the risk of oversim"lif%ing, $ suggest that modernit% !as a reaction against traditionalism and claimed to substitute rationalit% in "lace of authorit% as the "rimar% means of a""rehending truth. Postmodernism is a reaction against the sterile rationalism of modernit%, !ithout going back to traditionalism. Postmodernism is not content to sa% that truth evolves and changes. 2ather, "ostmodernism considers ob/ective truth to be an illusion and a social construct. Truth is sub/ective, not ob/ective. Perce"tion is realit%, and truth is therefore !hat %ou "erceive it to be. $n this res"ect the Be! )ge and the "ostmodern have much in common. 4ne as"ect of "ostmodernism is language deconstruction. 8econstructionists insist that !ords, like truth itself, are social constructs and have no intrinsic or ob/ective meaning. The true meaning of a !ord, or a sentence, or a book, is not the dictionar% definition or the author s intent. 2ather, the meaning rests in !hat the reader or vie!er chooses to attach to it. Consider the im"lications of this a""roach. ) classical "roducer of (hakes"earean "la%s is likel% to "resent "2omeo and Juliet" as closel% as "ossible to the !a% (hakes"eare intended it. But a "ostmodern "roducer is likel% to decide that (hakes"eare s intent is irrelevant, and !hat reall% matters is !hatever !e !ant to read into the "la% toda%. )nd so, if the "ostmodern "roducer transforms "2omeo and Juliet" into a glorified "9est (ide (tor%," so be it. The danger this "oses to drama might seem minimal, unless the distorted "la% ha""ens to be %ours. But consider the im"lications for la!. The "ostmodern /udge ;; !hether he has consciousl% embraced "ostmodernism or sim"l% has been schooled in "ostmodern thought !ithout even reali0ing it ;; is likel% to conclude that the !ords of the Constitution have no intrinsic meaning, and the intent of those !ho framed it does not matter. 9hat reall% matters is the meaning that $, the /udge, choose to give the "rovision toda%. 4ne is reminded of an e'change in Le!is Carroll s hrough the Loo+ing &lass: "$ don t kno! !hat %ou mean b% glor%, )lice said. ,um"t% 8um"t% smiled contem"tuousl%. "4f course %ou don t ;; till $ tell %ou. $ meant there s a nice knock;do!n argument for %ou@ " "But glor% doesn t mean a nice knock;do!n argument, " )lice ob/ected. "9hen I use a !ord," ,um"t% 8um"t% said in a rather scornful tone, "it means /ust !hat $ choose it to mean ;; neither more nor less." "The 1uestion is," said )lice, "!hether %ou can make !ords mean different things."

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"The 1uestion is," said ,um"t% 8um"t%, "!hich is to be master ;; that s all."
=1

Let s look at an e'am"le of "ostmodern /uris"rudence. $n 1=C< the 7.(. (u"reme Court considered &riswold v2 Connecticut%AB the constitutionalit% of a Connecticut la! that "rohibited birth control devices ;; and the issue before the Court !as not !hether birth control is moral or immoral, or !hether la!s "rohibiting birth control are !ise or un!ise, but !hether such la!s violate the Constitution. Justice 9illiam 4. 8ouglas ruled that Connecticut s la! violated a constitutional guarantee of "rivac%. But !here is ""rivac%" mentioned in the ConstitutionK 4bserve Justice 8ouglas s reasoning# SPreviousT cases suggest that s"ecific guarantees in the Bill of 2ights have "enumbras, formed b% emanations from those guarantees that hel" give them life and substance. ... Earious guarantees create 0ones of "rivac%. The right of association contained in the "enumbra of the 5irst )mendment is one, as !e have seen. The Third )mendment in its "rohibition against the 1uartering of soldiers "in an% house" in time of "eace !ithout the consent of the o!ner is another facet of that "rivac%. The 5ourth )mendment e'"licitl% affirms the "right of the "eo"le to be secure in their "ersons, houses, "a"ers, and effects, against unreasonable searches and sei0ures." The 5ifth )mendment in its (elf;$ncrimination Clause enables the citi0en to create a 0one of "rivac% !hich government ma% not force him to surrender to his detriment. ... The "resent case, then, concerns a relationshi" l%ing !ithin the 0one of "rivac% created b% several fundamental constitutional guarantees.=) ""enumbra" is a shado! or an aura. Justice 8ouglas argued that the Constitution, and "articularl% "rovisions of the Bill of 2ights, have "emanations" radiating from them that form ""enumbras" some!here in the margins or bet!een the "aragra"hs, and that these "enumbras contain rights not mentioned in the Constitution, like ""rivac%." This right of "rivac%, 8ouglas concluded, included the right of married cou"les to "ractice birth control. The "rivac% right Justice 8ouglas recogni0ed in &riswold !as narro!l% limited to the marriage relationshi", and man% !ould agree that the state has no business interfering !ith the famil% b% telling married cou"les !hat the% ma% and ma% not do in their o!n bedrooms. But the !isdom of birth control legislation !as for the legislature to determine6 the Court !as authori0ed to consider onl% its constitutionalit%. Justice ,ugo Black, not generall% regarded as a conservative /urist, !rote in a strong dissent# $n order that there ma% be no room at all to doubt !h% $ vote as $ do, $ feel constrained to add that the la! is ever% bit as offensive to me as it is to m% Brethren. ...
=1

Le!is Carroll, hrough the Loo+ing &lass. he *est of Lewis Carroll &(ecaucus, BJ# Castle, n.d.*, ". +-F. =+ -F1 7.(. >?= &1=C<*. =Id2

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$ get no!here in this case b% talk about a constitutional "right of "rivac%" as an emanation from one or more constitutional "rovisions. $ like m% "rivac% as !ell as the ne't one, but $ am nevertheless com"elled to admit that government has a right to invade it unless "rohibited b% some s"ecific constitutional "rovision. 5or these reasons $ cannot agree !ith the Court s /udgment and the reasons it gives for holding this Connecticut la! unconstitutional. ... $ reali0e that man% good and able men have elo1uentl% s"oken and !ritten, sometimes in rha"sodical strains, about the dut% of this Court to kee" the Constitution in tune !ith the times. The idea is that the constitution must be changed from time to time and that this Court is charged !ith a dut% to make those changes. 5or m%self, $ must !ith all deference re/ect that "hiloso"h%. The Constitution makers kne! the need for change and "rovided for it. )mendments suggested b% the "eo"le s elected re"resentatives can be submitted to the "eo"le or their selected agents for ratification. That method of change !as good for our 5athers, and being some!hat old;fashioned $ must add it is good enough for me.=> But Justice 8ouglas "revailed, and the right of "rivac% !as recogni0ed. $t !as a narro! right, a""l%ing onl% to the sacred marriage relationshi". But it !as 1uickl% broadened. $n 1=?+ the Court e'"anded &riswold to include unmarried "ersons6=< !hat began as res"ect for the marriage relationshi" no! became an individual right. ) %ear later, in Roe v2 Wade%A= the Court held that this right to famil% "lanning included abortion. )nd in Lawrence v2 e,asA< in +::-, the Court e'"anded the right be%ond the realm of famil% "lanning and held that "rivac% includes the right to engage in homose'ual sodom%. 3% "ersonal o""osition to abortion and sodom% is not the central issue. 3% "rimar% "oint is that, b% creating ne! rights like abortion and sodom% out of emanations and "enumbras, the Court has disregarded the "lain meaning of the Constitution as intended b% its 5ramers, has removed the Constitution from ob/ective scholarshi" and indulged in "ure sub/ectivism, and has created a Be! )ge or "ostmodern Constitution that can mean an%thing a federal /udge !ants it to mean. The !ords of Chief Justice Charles Evans ,ughes have become a realit%# "9e are under a Constitution, but the Constitution is !hat the /udges sa% it is."=F The dangers of this a""roach are obvious# The "o!ers of government e'"and as the Commerce Clause and the .eneral 9elfare Clause and others are stretched be%ond their 5ramers recognition. )nd individual rights become insecure. The same Court that can read into the Constitution rights that sim"l% aren t there, can also read out of the Constitution, or !ater do!n, rights that are there ;; and in recent %ears the Court has

=> =<

Id2 -isenstadt v2 *aird, >:< 7.(. >-F &1=?+*. =C >1: 7.(. 11- &1=?-*. =? <-= 7.(. <<F &+::-*. =F Charles Evans ,ughes, 1uoted b% Craig 2. 8ucat and ,arold 9. Chase, Constitutional Inter$retation &(t. Paul# 9est Publishing Co., 1=?>, 1=F-*, ". -. ,ughes served as an )ssociate Justice of the 7.(. (u"reme Court 1=1:;1=1C and as Chief Justice 1=-:;1=>1, but at the time he made this statement he !as .overnor of Be! Jork.

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!eakened vital constitutional rights, like the right to free e'ercise of religion,== the right to kee" and bear arms,1:: the right to o!n and use "ro"ert%,1:1 and the right to make and enforce a contract.1:+ )s attractive as the term ma% sound, the "Living Constitution" is a dangerous conce"t. $t is actuall% a "(ill% Putt% Constitution" that can mean an%thing an% unelected federal /udge !ants it to mean. $nstead, !e need an "Enduring Constitution" that !ill "rotect our rights for ages to come. A Closin# Wor" 9hat, then, !ould Luther sa% to Christians toda% about their res"onsibilit% to!ard the "kingdom of the leftK" 5irst, he !ould sa% that "olitics and governmental service are honorable !a%s to serve .od. 9e should train our brightest %oung "eo"le for government service, and !e should fulfill our duties as citi0ens b% "ra%ing for those in authorit%, serving in the armed forces if needed, "a%ing the ta'es that !e rightfull% o!e, learning the issues and voting intelligentl%, "artaking in government affairs, and !orking to cure in/ustices. 5or although ministr% in the Church is a higher calling than service in government, government service is more difficult and re1uires more ca"able "ersons# $t is certainl% a shameful des"ising of .od that !e do not let our children "erform this great and divine !ork and onl% "ut them into the service of the bell% and of avarice. $t is a shame that !e let them stud% nothing e'ce"t ho! to make a living ;; like s!ine, !allo!ing forever in the mud !ith their noses ;; and do not train them to fill a "osition and !alk of life so !orth%. (urel%, !e must either be made or !ithout real love for our children. ... 3oreover, this "osition needs abler "ersons than the office of the ministr%. Therefore it is necessar% to kee" the best bo%s for this !ork, for in the ministr% Christ does ever%thing through ,is ("irit. But in the kingdom of the !orld one must use reason &from !hich, indeed, the la!s have come*6 for .od has sub/ected tem"oral rule and the things of the bod% to reason &.en. +#1=* and has not sent the ,ol% ("irit from heaven to do this !ork. .overning is, therefore, the more difficult task6 for men cannot rule over consciences and must, so to s"eak, act in the dark.1:(econd, he !ould sa% that !e should obe% government e'ce"t !here civil governmentAs commands violate the higher la! of .od. 9e should resist t%rann%, but !e should do so !ith force onl% as a last resort, and it is better for the lesser magistrates to "ractice inter"osition if the% are !illing and able to do so.

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8regon v2 Smith% >=> 7.(. F?+ &1==:*. /nited States v2 4iller% -:? 7.(. 1?> &1=-=*. 1:1 City of 'ew 8rleans v2 @u+es% >+? 7.(. +=? &1=?C*6 0elo v2 City of 'ew London% 1+< (.Ct. +C<< &+::<*. 1:+ Home *uilding and Loan Association v2 *laisdell% +=: 7.(. -=F &1=->*. 1:Luther, 9 -: $$, <C1f ;; E 1?, >:C ;; (L 1:, >>- f6 1uoted in Plass, <F1;F+.
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Third, he !ould sa% that !e should !ork for the election for rulers !ho are godl% Christian "eo"le. $n his A$$eal to the &erman 'o(ility he declared that (ince, then, !e have received this em"ire through .odAs "rovidence and the schemes of evil men, $ !ould not advise that !e should give it u", but that !e should govern it honestl%, in the fear of .od, as long as he is "leased to let us hold it. G The Ding of Bab%lon obtained his kingdom b% force and robber%6 %et .od !ould have it governed b% the hol% "rinces 8aniel, ,ananiah, )0ariah, and 3ishael. 3uch more, then, does ,e re1uire this em"ire to be governed b% the Christian "rinces of .erman%, though the Po"e ma% have stolen, or robbed, or ne!l% fashioned it. $t is all .od s ordering, !hich came to "ass before !e kne! of it.1:> .od has "laced us in this !estern societ%, !ith all of its blessings and all of its "roblems, and ,e intends to use us. $n man% !a%s, )merica is no longer the confederate re"ublic envisioned b% our 5ounding 5athers. Like 2ome, )merica has gro!n from a re"ublic to an em"ire. )nd !hile $ do not believe this betra%al of our heritage !as the !ill of .od, .od can still use the )merican Em"ire. $n the t!entieth centur% ,e used the )merican Em"ire to contain and defeat Ba0ism and Communism. $n the t!ent%;first centur% ,e ma% use the )merican Em"ire to contain and defeat $slam. $ believe Luther !ould advise us, as Jeremiah advised his "eo"le during the Bab%lonian ca"tivit% &Jeremiah +=#>;?*, to be good citi0ens of the em"ire !hile !orking for the restoration of the re"ublic. Bevertheless, he !ould still remind us that there are t!o kingdoms, church and state, and that one should not intrude u"on the /urisdiction of the other. The state does not take u"on itself the "reaching of the .os"el or other functions of the church. ,o!ever, the state does have a dut% to "rotect the church, and to "rohibit and "unish blas"hem%, because the state has a dut% to "rotect the !elfare of the "eo"le, and blas"hem% brings .od s /udgment u"on the nation.1:< )nd !hile encouraging us to be "oliticall% active citi0ens, he !ould !arn us not to e'"ect too much from civil government# 9hen a "rince so rules his "eo"le that he does not "ermit in/ustice to be done to an%one and "unishes transgressors, he does !ell and is "raised. 5or in the area of government this is the rule# Pa% !hat thou o!est6 if not, thou shalt be cast into "rison. ;; 9e must have that sort of government. But one does not get to heaven in this !a%, nor is the !orld saved thereb%. ,o!ever, it is necessar% to kee" the !orld from becoming !orse. $t is merel% a "rotection against and a check of !ickedness.1:C

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Luther, A$$eal to the &erman 'o(ility% 1uoted in 9aring, ". 1++. Bornkamm, "". 1F=, +:?. 1:C Luther, 9 1+, C?<f ;; E 1>, +F1 ;; (L 11, 1?F=6 1uoted in Plass, <??;?F,

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9e can !ork through the "olitical "rocess to elect leaders of godl% character and Christian "rinci"les. 9e can serve in government to make the s%stem run more efficientl%, to hel" ensure the courts in fact do /ustice, to reform in/ustices, and to "revent t%rann% b% kee"ing government !ithin its a""ointed constitutional limits. But !e cannot e'"ect government to do !hat onl% .od and the Church can do# save souls, and "roduce in "eo"le a trul% godl% character. Bor can !e e'"ect civil government to bring unto fruition the Dingdom of .od on earth. $n fact, a health% ske"ticism about !hat government and "olitics can accom"lish, can kee" us from being discouraged !hen !e donAt accom"lish all that !e ho"e. But let us remember, too, that !e ma% never kno! the full effect of !hat !e do, and that sometimes our greatest accom"lishments are not in the good !e have achieved, but in the evil !e have "revented. )fter over fort% %ears of "olitical activism, the 1uestion $ must ask is not, ho! much better are things toda% because $ !as involved, but ho! much !orse !ould things be toda% if $ hadnAt been involvedK The ans!er to that 1uestion is kno!n onl% to .od, so !e do our dut%, and leave the conse1uences to ,im. 5inall%, Luther !ould remind us that the bul!ark of "rotection against both anarch% and t%rann% is la! based u"on .od s natural la! !geset#" and natural /ustice !recht" as "erfectl% set forth in the 8ecalogue. (ir 9illiam Blackstone s"oke of the La! of Bature !hich he described as "the eternal, immutable la!s of good and evil" !hich are "dictated b% .od ,imself," and the 2evealed La! !hich is "to be found onl% in the ,ol% (cri"tures." "7"on these t!o foundations, the la! of nature and the la! of revelation, de"end all human la!s6 that is to sa%, no human la! should be suffered to contradict these."1:? Blackstone s"oke elo1uentl% and !ell. But Luther said it even better# )n% "rohibition that is contrar% to the command of .od means nothing !hatever, though all the angels !ere to issue it.1:F

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(ir 9illiam Blackstone, Commentaries on the Laws of -ngland > vols., &Philadel"hia# 2obert Bell, 1??1*, $#>:;>+. 1:F Luther, 9 1: $, +, +: ;; E ?, >> ;; (L 1+, 1F6 1uoted in Plass, ?<:.

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