This and the article to follow were inspired by a mailing I recently received from Pastor Matthew Trewhella,1 containing an article entitled “The Early Years of the Supreme Court’s March to Destroy the Sovereignty of the States.”
Pastor Trewhella’s article is not all that different from what I’ve received from many others who are equally concerned about today’s judicial supremacy. All of these good men, I’m certain, would be aghast at the title I’ve assigned this article. To them, judicial supremacy is the polar opposite of what I have expressed in the title above. To them, judicial supremacy is the problem, not part of the solution, as I maintain it is. For example, Pastor Trewhella wrote:
[B]y 1823, Thomas Jefferson penned the following, “At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous.”2
The reason Jefferson made this statement, and the reason he spent the last 23 years of his life at war with the Supreme Court [SCOTUS], was because the Supreme Court spent the first 40 years of its existence trampling the sovereignty of the states.3
The reason for this difference in assessment concerning judicial supremacy is because I’m working from a biblical paradigm whereas Pastor Trewhella’s approach is constitutional, as demonstrated throughout his article and especially in his concluding remarks:
In a true federalism—which is what our founders established—there is no final arbiter of constitutional questions; there is no oligarchy to which all other branches of government must bow and which tramples representative government. That is the beauty of checks and balances. That is the beauty of federalism. The states must assert their sovereignty.3
Justified Concern
Many Christians and patriots are rightfully concerned about today’s judicial supremacy (aka, judicial activism) in violation of the original intent of the constitutional framers. Some of the 18th-century founding fathers warned against this abuse of power. Thomas Jefferson and George Mason were prophetic in some of their comments regarding this exploitation by the third branch of the Constitutional Republic, which was already occurring in their day:
The constitution … is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.4
It has long, however, been my opinion, and I have never shrunk from its expression … that the germ of dissolution of our federal government is in the constitution of the federal Judiciary … working like gravity by night and by day, gaining a little to-day and a little to-morrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.5
The Judiciary of the United States is so constructed and extended, as to absorb and destroy the Judiciaries of the several States; thereby rendering Law as tedious, intricate, and expensive, and Justice as unattainable, by a great part of the Community, as in England, and enabling the Rich to oppress and ruin the poor.6
The abuse they witnessed in their day has only intensified in ours. Grave concern is therefore justified. However, judicial abuse under the Constitutional Republic was inevitable for two principle reasons:
Reason #1
Any government not founded on an immutable/unchanging moral standard (found only in Yahweh’s7 triune moral law8) as its supreme law invariably deteriorates from bad to worse, regardless how good such a government may at first appear. It’s what God depicts as the whirlwind effect:
[B]ecause they have … trespassed against my law … they have sown the wind, and they shall reap the whirlwind…. (Hosea 8:1, 7)
That today’s Constitutional Republic’s judiciary has gone bad is not so much the consequence of today’s progressive judges as it is the consequence of the 18th-century progressive founding fathers. Liberal progressivism on a national basis officially commenced in America in 1787 when a cadre of Enlightenment and Masonic theistic rationalists9 replaced the early 17th-century colonial governments of, by, and for God expressly established upon His moral law for their own humanistic government of, by, and for the people based upon capricious man-made traditions.10
That the entire Constitutional Republic (all three branches) has progressively degenerated since its inception shouldn’t surprise anyone who understands the inherent fallibility of man’s edicts as juxtaposed with the perfection of God’s law:
The law of Yahweh is perfect, converting the soul: the testimony of Yahweh is sure, making wise the simple. The statutes of Yahweh are right, rejoicing the heart: the commandment of Yahweh is pure, enlightening the eyes. The fear of Yahweh is clean, enduring for ever: the judgments of Yahweh are true and righteous altogether. More to be desired are they than gold, yea, than much fine gold: sweeter also than honey and the honeycomb. Moreover by them is thy servant warned: and in keeping of them there is great reward. (Psalm 19:7-11)11
The devolution of any government not established upon God’s perfect law and altogether righteous judgments is to be expected and can only get worse as time progresses. Consequently, despite how vigorously some people may try to do so, remedying today’s whirlwind will never be achieved by appealing to the wind responsible for spawning the whirlwind.
Among other things, this deterioration has manifested itself in the Constitutional Republic’s judicial branch’s predictable rise to power.
Although Article 6 declares the Constitution the supreme law of the land,12 whoever has the power to interpret that law is the supreme legislator. Chief Justice Warren Burger commented on the landmark case Marbury v. Madison, which established judicial review under Article 3 of the Constitution:
The cornerstone of our constitutional history and system remains the firm adherence of the Supreme Court to the Marbury principle of judicial review that “someone must decide” what the Constitution means.13
James Madison concurred:
I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the Judiciary.14
French historian Alexis de Tocqueville observed:
There is hardly a political question in the United States which does not sooner or later turn into a judicial one.15
The Supreme Court, composed of one chief justice and eight associate justices, with its power to not only judge the facts of any case but also to interpret and overrule any “law”16 passed by Congress (what Dr. Gary North describes as “retroactive legitimacy to legislation”17), makes the Supreme Court the powerhouse of today’s renegade government.
The power of the people of the United States of America and their representatives is subject to the Judicial Branch, and ultimately the Supreme Court, which is essentially immune from any kind of censure. The real power or sovereignty of the United States Constitutional Republic resides in a biblically unqualified and nearly always biblically adverse five to four majority, regardless their Party affiliation.
The United States government is ultimately under the control and direction of five “lawyers.”18 And why not? In 1787, it was predominately “lawyers” (thirty-four of the fifty-five delegates were “lawyers”) who framed the Constitution and gave ultimate power into the hands of their own trade, whether intentionally or not.
Supreme Court Associate Justice Charles Evan Hughes also commented upon the inescapable reality of judicial supremacy:
Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” …[But it] is emphatically the province and duty of the judicial department to say what the law is…. It follows that the interpretation of the [Constitution] enunciated by this Court … is the supreme law of the land….19
Constitutionalists may protest, but this is nonetheless a practical reality. It was inevitable that the Supreme Court would dominate the Constitutional Republic’s three branches. But judicial supremacy is not the problem. The problem is the caliber of men (and women20) overseeing the Constitutional Republic’s judicial branch and the “law” they’re interpreting.
Compounding the Problem
For all practical purposes, the Constitution is whatever the Supreme Court—at any given time—says it is. Because the United States Constitution is based upon capricious man-made traditions and the Supreme Court ruled by biblically unqualified fickle finite men and women, it invariably changes. Judicial records expose this capricious tendency of the Constitutional Republic’s juridical system:
The Court had reversed itself in 219 cases by 2000. Of this total, all but seven instances came after the Civil War. All but 28 came after 1913. Over 60 percent came after 1941. This process is accelerating.21
Judicial “standards now change as rapidly as the Justices. This causes an uncertainty for society; and, in fact, often establishes a dubious standard which, in effect, is no standard at all.”22 This should not surprise anyone. Such volatility is precisely what we should expect from a man-made arbitrary system, adjudicated by biblically unqualified fickle justices. Unlike the Bible, the Constitution is not an infallible standard. Thus, returning to a “purer” constitutionalism is not the answer for our nation. The answer is found in returning to Yahweh’s perfect law and altogether righteous judgments:
Without God’s word as our anchor for law, we are ultimately governed by activist judges and their judicial whims. Under that standard, law is manipulated to correspond … to what the judges think it should say rather than what it actually says…. Law becomes whatever a few elitist judges say it is….23
Under biblical government, such a judiciary would be considered treasonous. At the very least, any judge involved in such insurrection would be immediately removed from the bench. He would furthermore be held complicit in any injustice adjudicated upon the innocent, as determined by God’s law.
Compounding the Problem Even More
Because under the Constitutional Republic’s spurious system, the Constitution is the supreme law of the land, constitutional judges are required to render verdicts in agreement with the Constitution rather than the Bible anytime the two are in disagreement, as attested to by Constitution signatory (and later Supreme Court Justice) James Wilson at the Pennsylvania Ratification Debates:
[W] hen they … find it [any law] to be incompatible with the superior power of the Constitution, it is their duty to pronounce it void.24
This was later confirmed in the renowned Supreme Court case Marbury v. Madison:
[A] law repugnant to the Constitution is void.25
What does this say about the numerous biblical laws in disagreement with the Constitution?26
There’s only one standard by which everything (including the Constitution) is to be ethically evaluated: By God’s unchanging morality as reflected in His Ten Commandments and their respective statutes and judgments. When the Constitution is actually examined by this standard (instead of a bunch of dead politicians’ cherry-picked quotations), it’s found to be anything but biblically compatible. In fact, there’s hardly an Article or Amendment that’s not antithetical, if not seditious, to Yahweh’s sovereignty and morality. Consequently, there are multifarious examples in which God’s law is in conflict with the Constitution.26
Add to this, Reynolds v. United States, arguably the most consequential of all Supreme Court decisions. Reynolds addressed the Mormon Church’s claim that polygamy was a right afforded them under Amendment 1. Because most Americans find polygamy repugnant, the magnitude of Supreme Court Justice Morrison R. Waite’s decision is lost on them:
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?… So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land.27
Contrary to Matthew 7:21-2728 and James 1:22-25,29 the Supreme Court ruled that a man’s actions can be severed and isolated from his faith and judged illegal according to the Constitution and its supplemental edicts. This precedent paved the way for any Christian30 action based upon a biblical conviction—such as refusing to bake a wedding cake for two sodomites, or preaching against sodomy—to be arbitrarily outlawed in the same fashion. Had the framers instead established Yahweh’s law and its predetermined and immutable morality as the supreme law of the land, polygamy and human sacrifice (and all other issues) would have fallen under its jurisdiction and thereby determined to be either lawful or unlawful.
As Expected
All of the foregoing shines a spotlight on what’s predictable from any government constructed upon man-made edicts rather than upon Yahweh’s perfect law of liberty. Judicial abuse was thus inherent in the Constitutional Republic from its inception and can be expected to only progressively get worse.
In closing, I repeat: Despite how vigorously some people may try to do so, remedying today’s whirlwind (including today’s judicial supremacy) will never be achieved by appealing to the wind (including Amendment 10’s state sovereignty31) responsible for spawning the whirlwind.
On February 27, 2009, James Dobson conceded that we have lost the culture wars. This is the consequence of Christians having spent the last two centuries lopping at the rotten branches of our culture’s corrupt tree while watering and fertilizing its roots.
We should lop away at the tree’s corrupt branches (in utero infanticide, sodomy, the economy, etc.) every opportunity we get. However, until the root of these problems is biblically addressed, we will never shut down the infanticide mills, we will never defeat the sodomites, and we will never fix the economy. In short, we will never win the culture wars. This issue is more than important for anyone concerned about God, our nation, and the future of our posterity, it’s the cutting-edge issue of our day.32
Stay tuned for Part 2.
Related posts:
Law and Kingdom: Their Relevance Under the New Covenant
A Biblical Constitution: A Scriptural Replacement for Secular Government
Chapter 6 “Article 3: Judicial Usurpation” of Bible Law vs. the United States Constitution: The Christian Perspective
Chapter 9 “Article 6: The Supreme Law of the Land of free online book Bible Law vs. the United States Constitution: The Christian Perspective
Bible Law vs. the United States Constitution: The Christian Perspective
End Notes:
1. These articles are not meant to be an attack upon Pastor Trewhella, whom I appreciate very much, especially for his courageous stand on behalf of the unborn. I view his article as merely an opportunity to hopefully enlighten him and other good men as to the reason America finds herself precipitously teetering on the precipice of moral depravity and destruction, and the only solution to the same.
2. Thomas Jefferson, Letter to Adamantios Coray, October 31, 1823, quoted by Pastor Trewhella.
3. Pastor Matthew Trewhella, “The Early Years of the Supreme Court’s March to Destroy the Sovereignty of the States.”
4. Thomas Jefferson, H.A. Washington, ed., The Writings of Thomas Jefferson, 9 vols. (Washington DC: Taylor & Maury, 1854) vol. 8, p. 134.
5. Thomas Jefferson, Andrew A. Lipscomb, ed., The Writings of Thomas Jefferson, 20 vols. (Washington, DC: The Thomas Jefferson Memorial Association of the United States, 1905) vol. 15, pp. 331-32.
6. George Mason, David Wootten ed., The Essential Federalist and Anti–Federalist Papers (Indianapolis, IN: Hackett Publishing Company, 2003) pp. 1-2.
7. YHWH, the English transliteration of the Tetragrammaton, is most often pronounced Yahweh. It is the principal Hebrew name of the God of the Bible and was divinely inspired to appear nearly 7,000 times in the Old Testament. In obedience to the Third Commandment and in honor of His memorial name (Exodus 3:15), and the multitudes of Scriptures that charge us to proclaim, swear by, praise, extol, call upon, bless, glorify, and hold fast to His name, I have chosen to use His name throughout this article. For a more thorough explanation concerning important reasons for using the sacred name of God, see “The Third Commandment,” the third in a series of ten free online books on each of the Ten Commandments and their respective statutes and judgments.
8. Yahweh’s triune moral law is cited numerous times in the Bible. For example: “Now these are the commandments, the statutes, and the judgments, which Yahweh your God commanded to teach you, that you might do them….” (Deuteronomy 6:1)
For more on how Yahweh’s immutable moral law applies and should be implemented today, see free online book Law and Kingdom: Their Relevance Under the New Covenant.
9. For more regarding the late 18th-century founders’ religious persuasions, see Dr. Albert Mohler’s interview with Dr. Gregg Frazer. Dr. Frazer proves from the key founders’ own writings (without cherry picking them) that they were neither Deists in the purest sense of the word, nor were they Christians in the biblical sense of the word. Instead, they were theistic rationalists.
Dr. Mohler is President of the Southern Baptist Theological Seminary. Dr. Frazer is Professor of History of the Master’s College in California.
10. For more regarding these two polar opposite forms of governments, see Chapter 3 “The Preamble: WE THE PEOPLE vs. YAHWEH” of free online book Bible Law vs. the United States Constitution: The Christian Perspective.
11. See also Deuteronomy 4:5-8; 28:1-14; Romans 2:20; 7:12; 1 Timothy 1:8; etc.
For more on how Yahweh’s immutable moral law applies and should be implemented today, see free online book Law and Kingdom: Their Relevance Under the New Covenant.
Then A Biblical Constitution: A Scriptural Replacement for Secular Government
12. Chapter 9 “Article 6: The Supreme Law of the Land of free online book Bible Law vs. the United States Constitution: The Christian Perspective
13. Chief Justice Warren E. Burger, Introduction, William Swindler, The Constitution and Chief Justice Marshall (New York, NY: Dodd, Mead & Company, 1978) p. xiii.
14. James Madison, June 17, 1789, The Debates and Proceedings in the Congress of the United States (Washington, DC: Gales and Seaton, 1834) vol. 1, p. 520.
15. Alexis de Tocqueville, Democracy in America and Two Essays on America (London, UK: Penguin Books Ltd., 2003) p. 315.
16. Isaiah 33:22 and James 4:12 depict Yahweh as the only lawgiver. Thus, only His law is genuine law.
17. Gary North, Political Polytheism: The Myth of Pluralism (Tyler, TX: Institute for Christian Economics, 1989) p. 502.
18. Isaiah 33:22 and James 4:12 depict Yahweh as the only lawgiver. Thus, only His law is genuine law. Therefore, only those who represent His law are lawyers. Those representing the biblically seditious Constitution are legalers, not lawyers. See blog article “Lawyers vs. Legalers.”
19. Cooper v. Aaron, 358, U.S. 1 (1958)
20. Chapter 28 “Amendment 19: The Curse of Women’s Suffrage” of free online book Bible Law vs. the United States Constitution: The Christian Perspective
21. Gary North, Conspiracy in Philadelphia: The Broken Covenant of the U.S. Constitution (Draper, VA: Nicene Council.com, 2004) p. 278.
22. David Barton, Original Intent: The Courts, the Constitution, & Religion (Aledo, TX: Wallbuilder Press, 2005) p. 233.
23. Mark A. Beliles, Douglas S. Anderson, Contending for the Constitution: Recalling the Christian Influence on the Writing of the Constitution and the Biblical Basis of American Law and Liberty (Charlottesville, VA: Providence Foundation, 2005) pp. 138-39.
24. James Wilson, at the Pennsylvania Ratification Debates on Saturday, December 1, 1787, Debates in the Several State Conventions on the Adoption of the Federal Constitution, Jonathan Elliot, ed., 5 vols. (Washington, DC: Printed for Jonathan Elliot, 1836) vol. 2, p. 446.
25. Marbury v. Madison, 5 US (2 Cranch) 137, 164, 176 (1803)
26. See free online book Bible Law vs. the United States Constitution: The Christian Perspective in which every Article and Amendment is examined by the Bible.
27. Reynolds v. United States, 98 U.S. 145 (1879)
28. “Not every one that saith unto me, Lord, Lord, shall enter into the kingdom of heaven; but he that doeth the will of my Father which is in heaven. Many will say to me in that day, Lord, Lord, have we not prophesied in thy name? and in thy name have cast out devils? and in thy name done many wonderful works? And then will I profess unto them, I never knew you: depart from me, ye that work iniquity [anomia, lawlessness]. Therefore whosoever heareth these sayings of mine, and doeth them, I will liken him unto a wise man, which built his house upon a rock: And the rain descended, and the floods came, and the winds blew, and beat upon that house; and it fell not: for it was founded upon a rock. And every one that heareth these sayings of mine, and doeth them not, shall be likened unto a foolish man, which built his house upon the sand: And the rain descended, and the floods came, and the winds blew, and beat upon that house; and it fell: and great was the fall of it.” (Matthew 7:21-27)
29. “But be ye doers of the word, and not hearers only, deceiving your own selves. For if any be a hearer of the word, and not a doer, he is like unto a man beholding his natural face in a glass: For he beholdeth himself, and goeth his way, and straightway forgetteth what manner of man he was. But whoso looketh into the perfect law of liberty, and continueth therein, he being not a forgetful hearer, but a doer of the work, this man shall be blessed in his deed.” (James 1:22-25)
30. This is not to say the Mormon Church is Christian. It is not Christian but rather a cult masquerading as Christian.
31. I will address the inherent problem with Amendment 10’s provision for state sovereignty in Part 2.
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There is a “true crime” cable TV network called “ID/Discovery.” Most of the programs are docudramas of some of the most hideous murders. At the end of the show, they tell you the court’s punishment of the convicted murderer. With few exceptions, the punishment of serial murderers is usually “life” in prison [not “death” as God’s law mandates]… and many murderers get much less time in prison and are eventually freed to continue to prey on society. It is quite revealing when you see it right before you eyes…. how when a nation forsakes God’s criminal laws, criminals run amok. It gives the meme, “no justice, no peace”, a divine meaning.
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Tragically so!
I used to think that the judiciary was our main enemy in government. Then a brother mentioned that in Scripture, the judiciary is the magistrate for judgment. God instituted no legislative bodies. I find that is true. The judiciary should be a place where the right application of God‘s law in our time and place is deeply and widely studied and applied in the judgments.
Amen, Joe!
Yaz, but is there any court anywhere than can be trusted? No.
About 27 years ago, I was preaching in Kansas City to a group of men, some who were “CONstitutionalists.” My message was about forsaking men’s governments and following only the Kingdom of Christ and Government based on the Scripture. After the message, one of the men was visibly upset at my message. He said to me, “Don’t you know the CONstitution is based on the Bible?” Though it absolutely is not – I responded, “Well then, can’t I just keep the Bible?” If the CONstitution is “based on the Bible” – why do I need something else? The reality is that it is NOT based on the Bible. There is really only one thing in the entire document that can be traced to the Scriptures and that is the clause regarding the mandate of gold and silver as currency. But just as you discussed the destroying effects of the “supreme court” when the CONstitution says that “Congress will decide and regulate the value of the gold and silver” – they destroy any positive Biblical blessings that could come about because of the use of a Biblically based principle. Of course, the entirety of the gold and silver mandate has long been adjudicated away from the people.
Blessings, Ted on another excellent article. May Yahweh use this to awaken those who are truly seeking the Kingdom of Christ – as I believe Matt to be one of those.
Amen, Charlie!
Thanks for your excellent input.