Is the Supreme Court
Beyond Discipline?

[A letter to the editor.]

December 10, 1996

First Things
156 5th Ave., Suite 400
New York, NY 10010

Dear Editors et al:

Some excellent and long overdue points were made in your November 1996 symposium on "The End of Democracy?"  I would note that I had made most of those points in an article I sent to you about a year ago concerning a previous symposium on killing abortionists.  [The article was Directed Force, Responsible Action, and Grace - vs. - the Abortionist -- available in print or on the ROAD to EMMAUS==>> BBS.]

My article (an abbreviated version of which you printed as a letter) drew some limited conclusions concerning our de facto functioning oligarchy, and that at least in a limited sense, yes, our present government had already trespassed beyond the place where we owe it unqualified obedience.

The point I see missing in both symposia is the logical place of the law of God in human law.  It is a fairly obvious logical fact that the creator of an item is the only being who can determine the reason for the being of that item.  Others can guess, but only the creator can actually determine and say why it exists. The creator of the cosmos in like manner is the only being who can say why the cosmos and everything in it exists.

If it is true, as I believe can be shown, that our reason for existence is the only basis for an objective morality, then it follows that the existence of something like the Biblical God is required for any notion of moral obligation, including political obligation.

If there is one and only one source of moral obligation, the will or law of God, then it also follows that there is in fact only one law in the cosmos.  All else is either ignorance or rebellion.  Or, as William Blackstone, the pre-eminent 18th century legal expert said, simply echoing the standard Biblical position, no human law can contravene the law of God. All law is subject to the law of God.

So when the Supreme Court took it upon itself to tell God in 1962 that He could no longer speak to our children when they were in government funded schools, and our children that they could not speak to God, the logical effect of that was to remove all obligation on the part of the people to obey the Supreme Court. The Court had dismissed the only possible ultimate source for any obligation at all, and so they had vacated their authority to be obeyed by anyone at all. As Judge Bork said, "The government of the United States no longer governs by the consent of the governed." More importantly, it no longer governs under the consent of God.

So our obligation to remain in obedience to the Supreme Court, so far as it remains, holds true only to the degree that what the Court denies to be true is in fact true, namely that the Ten Commandments posted right behind them represent the ultimate law under which they govern.

In the Biblical world, there are, I believe, four governments. In order of historical appearance and, in some respects in order of authority, they are: family, self-governing individual, church (any community of belief), and civil. Civil government is the taming of coercive force, set up to draw the distinction between those moral obligations which are rightly enforced at gunpoint and those which are better left to public persuasion, etc.

But, as we have it in a democratic republic under God, those who hold the gun, our civil governors, do not get to say how the gun shall be used. The people in open public debate, with consciences freely informed through their families and churches, are to discern the will of God, and vote that will into law through their elected representatives.

So those in the debate can no longer hold the gun, and he who holds the gun, the executive power, may not enter the debate. He who holds the gun is a referee to ensure a fair debate, no more.

When the referee in a football game begins to throw blocks, the offended team rightly objects and has the referee thrown out of the game.  For reasons I do not understand, the possibility of the relevant (in)justices on the Court being impeached by Congress for violation of their vows to protect and uphold the constitution was not raised.  I hereby raise it.

It is difficult for people who have done the same things to impeach the accused.  It was pointed out that all branches and indeed the voters themselves have by our silence and, one must say, cowardice, been accomplice to this betrayal of our constitutional order. But we had better get our own personal and local houses in order and serve notice to the Court and to the President that we will no longer tolerate a reading of the Constitution that has not been openly discussed and ratified by we, the people.

Judicial review is a good idea, but unelected officials ought never, never to be given the ultimate and last word in the matter.  I would therefore support Judge Bork's suggestion of an amendment to make any judicial review appealable to Congress.  That is the only way to preserve the authority of the people to tell the Court what the Constitution means rather than have them tell us.  The judicial review of the Court then becomes, as it should be, advisory, not determinative.

If there is no real moral plumb line, as some justices say, no judicial review of the Court itself, then by that very fact, the opinions of the Court are merely the opinions of the Court, with no objective binding power on anyone.  Is it not curious that the justices who tell us that there are no objective standards by which law and morality can be judged are trying to turn their own wills into that standard?  One suspects that they are telling us there is no standard precisely so that they can be the standard: "My will is the plumbline by which you will be judged."  And is it not more curious and shameful that we have let them get away with such arrant nonsense?  The hallowed hall of justice has become a hollow hall of arrogance for five or more self-willed oligarchs.

We are yet a distance from justified armed insurrection.  But we had better fire a legal shot across their bow through duly elected representatives in Congress, or we will not far down the road find ourselves in that terrible predicament where the other governments (families, self-governing individuals, and churches) must take overt action to bring the civil government back under the rule of law.

Faithfully in Christ,

Earle Fox

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