Legal

A primary problem today is that many lawyers don’t really believe in law, only a crude form of pragmatism by which they engage in judicial politics—predicting what courts will do.

WHAT IS MEANT BY THE WORD 'LAW'?

It has been said that “law, in its most general and comprehensive sense, signifies a rule of action. . . . And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey.”¹

This definition has the beauty of not only being simple in its construction, but in its conformity to everyone’s experience.

As children or teenagers or as parents of children and teenagers, we recognize that the fundamental point of conflict between parent and child is who is the superior and whether there is, therefore, a duty to obey the parent.

In the workplace, the rule is what the employer—the “superior” says—and the employee is “bound to obey” or go look for another job, either volitionally or out of the need for re-employment.

So, the question every citizen and elected official must answer with respect to law is who is the superior and in respect to what kind of matters?

Based on what they actually do, most lawyers and elected officials believe the U.S. Supreme Court is superior in regard to all matters of law and declares what “the law” is. So, if the United States says to do something or says “this is the law,” then the first instinct of many lawyers and elected officials is to do whatever the Court says or go along with whatever the Court says. That understanding of law is of relatively recent vintage in the Western legal tradition and is contrary to the understanding of law on which this country was founded.

THE VIEW OF MOST LAWYERS ON ‘THE SUPERIOR’ WHEN IT COMES TO LAW

Most lawyers are trained to believe that when it comes to law, human beings are the superior, and they cannot fathom any other conclusion. They make the law. The problem comes when they try to figure out who among the mass of human beings in a nation, state, county, or city is the superior who gets to make the law and, more importantly, why.

[1] William Blackstone, Commentaries on the Laws of England, Vol. 1., INTRODUCTION. Of the Study, Nature, and Extent of the Laws of England, Section II: OF THE NATURE OF LAWS IN GENERAL.

The Answers You're Most Likely to Hear

The first ‘pat’ answers most lawyers will give you.

The simplistic answer you’re most likely to hear is that people are superior. If law can only come from people, then all the people must be the superior to any one person or set of persons. This answer shows that lawyers haven’t thought through the question very deeply and haven’t learned much from history.

Pure democracies don’t work. Our Founding Fathers knew it, and that’s why we weren’t founded as one. The unworkability of democracies led to the idea of a republic—the delegation of powers—which is what the United States Constitution creates.

However, those to whom this power of the people is delegated can use it for personal gain and against the people from whom it came. So, the people must have authority to remove from power those to whom they have delegated their power.

That “power of removal”—what we call elections—can work to some extent as long as the people are willing to exercise their power; can effectively do so and, in fact, do so; and the minority among the people don’t mind getting trampled on by the majority or don’t get so trampled on by the majority that they rise up against their supposed superiors. (See the War of Independence, the French Revolution, and the Bolshevik Revolution).
The second ‘pat’ answer most lawyers will give you.

The other standard answer most lawyers will give you is “the Constitution.” The Constitution is the superior, because any law enacted by a legislative body contrary to the Constitution is not law.

But most lawyers give that answer lip service. What they really believe is that U.S. Supreme Court is the superior in our form of government, because they treat the Court’s opinions as equivalent to the words in the U.S. Constitution.

For example, one prominent lawyer in a large, well-known public interest law firm said back in October 2015 a few months after the Obergefell decision that “challenging Obergefell” was pointless “because the effort would run into conflict with the Supremacy Clause. You can’t get around that.”¹

That lawyer probably knows the Supremacy Clause in the U.S. Constitution is not a grant of power to the U.S. Supreme Court (or any branch of the federal government), but the statement shows that, at bottom, that lawyer believes Supreme Court opinions are law, otherwise the Supremacy Clause would not even apply. The Constitution is the superior law, so he believes the opinion is effectively “law” equivalent to the Constitution. That means the lawyer believes courts don’t just settle disputes by entering judgments but make law. He thinks the Constitution means whatever the U.S. Supreme Court says it means, even though the U.S. Supreme Court has said that isn’t true!²

That lawyer’s understanding of law reflects the predominant view among American lawyers.

[1] Apprendi v. New Jersey, 530 U.S. 466, 499 (2000).

[2] In Apprendi v. New Jersey, 530 U.S. 466, 499 (2000), the majority criticized the dissenting justice’s opinion because it was grounded “on the erroneous and all-too-common assumption that the Constitution means what [Supreme Court Justices] think it ought to mean. It does not; it means what it says.”
The answer many Christian lawyers give.

Politically conservative Christian lawyers will deny that human beings are the “superior” and will say that God is the superior, and many may even go so far as to say that God’s law is supreme over any law human beings might make. If so, they will enthusiastically be part of this initiative; however, many will make the kind of statement made by the lawyer referenced in the last section and, in doing so, indicate an indifference to whether human law contradicts God’s law.
What a lot of lawyers really and truly believe law is.

For many lawyers trained in law schools over the last 80 years, law is mere pragmatism. For example, the only question for them about Obergefell is a pragmatic one: Are there enough justices on the United States Supreme Court willing to overrule the reasons supporting the Court’s judgment and are we willing to do what we need to do to pursue that end based on what it might cost us in term of time, manpower, finances, and effect on our reputation?

Practicality might say that the resources and manpower needed to pursue a challenge to Obergefell are insufficient at the present moment and things cannot yet be reordered among other previously existing priorities to pursue that challenge, but pragmatism is different.

Pragmatism, whether applied in law or business, is a worldview that denies the existence of any truths by which decisions should be evaluated as right or wrong. The only question is whether we think what we’re doing will work or we will succeed (at least as far as the finite mind can anticipate).

Pragmatism is the view of law espoused by former Supreme Court Justice Oliver Wendell Holmes because it was the view of law that, to him, made the most sense given he did not believe any kind of law came from “a brooding omnipresence in the sky,” as he called it.

For Justice Holmes, “the object of our study [of the law], then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.”¹

In other words, law isn’t good or bad, just on your side or against your side. This, of course, makes judges very powerful for they now are the law, and they are no longer under the law. The saying “no person is above the law” cannot hold true when it comes to judges once we adopt a Holmesian view of law.

When U.S. Supreme Court justices invent “new rights” and purport to put them into the U.S. Constitution, they put themselves above the law.

When we—the people and our representatives—let them do that, we are conceding that justices are “above the law.”

[1] Wendell Holmes, 1897 Harvard Law School essay, The Path of the Law.

THE U.S. SUPREME COURT SIDES WITH PRAGMATISM AND HUMANISM

In 1938, in Erie Railroad v. Tompkins, the United States Supreme Court rejected the long-held doctrine that federal courts, exercising jurisdiction in cases involving parties from different states, could determine for themselves what common law principles should be applied to resolve a run-of-the-mill personal injury lawsuit between those citizens.

In doing so, the Court said this about the doctrine that allowed federal courts to decide what common law principles were applicable to the case without having to look at the common law principles of the states where the litigants were from: “[It] rests upon the assumption that there is ‘a transcendental body of law outside of any particular State . . . but law in the sense in which courts speak of it today does not exist without some definite authority behind it. [T]he authority and only authority is the State’. . . .”¹

In other words, there is no “superior” outside of the state itself and what it says the law is. This is the end of the kind of “unalienable rights” referenced in the Declaration of Independence. The state no longer secures our pre-existing rights but declares to us what they can be. The state and its civil government have now taken the place in law that the Creator God previously had.

THE INSOLVABLE PROBLEM THAT ARISES WHEN LAW IS BASED ON HUMANISM AND PRAGMATISM

Noted Yale University law professor Arthur Leff, a secular humanist, explored this question of who gets to be the superior in regard to law in an article published in 1979 in the Duke Law Journal. Here is what he wrote:

Either God exists or He does not, but if He does not, nothing and no one else can take His place. Under what other circumstances can the unexamined will of anyone else withstand the cosmic “says who” and come out similarly dispositive? There are no such circumstances. . . .

[I]n the Psalmist’s words, there is no one like unto the Lord. If He does not exist, there is no metaphoric equivalent. No person, no combination of people, no document however hallowed by time, no process, no premise, nothing is equivalent to an actual God in this central function as the un-examinable examiner of good and evil. The so-called death of God turns out not to have been just His funeral; it also seems to have effected the total elimination of any coherent, or even more-than-momentarily convincing, ethical or legal system dependent upon finally authoritative extra-systemic premises.

Here is professor Leff’s own summary conclusion:

Put briefly, if the law is “not a brooding omnipresence in the sky” [Oliver Wendell Holmes’ term for God], then it can be only one place: in us. If we are trying to find a substitute final evaluator, it must be one of us, some of us, all of us but it cannot be anything else. The result of that realization is what might be called an exhilarated vertigo, a simultaneous combination of an exultant “We’re free of God” and a despairing “Oh God, we’re free.”²

In other words, each of us can say, “Says who?” to another person who tries or group of persons who try to impose a rule of action on us. The pretend superior can give no substantively better answer other than “Because I said so.” Again, sounds a bit like a parent’s answer to the pestering “why” questions of a child.

For those who say “reason” is the answer to the why question, professor Leff responded by saying something like this: “Who decided that reason, rather than some means of force—power, money, or votes—shouldn’t be the basis for deciding what should be done?”

Moreover, reason doesn’t solve the problem because no one ever does anything he or she thinks is unreasonable. Same-sex marriage is perfectly reasonable if one assumes that the relationship we call marriage was created by laws enacted by civil government. If that’s the case, then it stands to reason that the “superiors” in civil government can make the word “marriage” apply to anything they want.

But there is an even bigger problem. Reason is simply the means by which we reach conclusions based on certain given and unproved premises. For example, one could say, “I am the superior, so it stands to reason that you should do what I say. Reason proves that you should obey me.” But reason cannot prove that that person is the superior.

So, the supposed superior would have to provide another premise to support the claim that he or she is the superior such as “I am older, bigger, have more money, am paying you for your services,” and the like. However, this leads to an infinite regression because the supposed inferior can always say, “Who says (fill in the blank) makes you superior to me? Why isn’t it (fill in the blank) instead?”

There is only one possible limit to this infinite regression of “Who says?” questions, and that is if law is grounded in ethical norms or laws imposed on us by someone superior to all of us.

That’s what Leff was saying and that’s what God-Given Marriage is saying in regard to marriage—it exists only when there is a union between one man and one woman because marriage is God-given.

Marriage is the name we have given to a relationship designed by God, and other relationships, as important as they may be, simply don’t constitute a marital relationship absent the commitment of one man to one woman and vice versa.

[1] Erie Railroad v. Tompkins, 304 U.S. 64, 79 (1938).
[2] Arthur Leff, “Unspeakable Ethics, Unnatural Law,” Duke University Law Review 1229 (1979): 6.

WHAT, THEN, IS ‘LAW’ IF IT IS NOT ‘MADE’ BY HUMAN BEINGS AND THE INSTITUTIONS OF CIVIL GOVERNMENT THEY HAVE CREATED?

It is called “the law of nature.” However, this word has an older and more modern meaning. And when the word “natural law” is used, one must always distinguish which of the two is intended.

James McClellan, in his excellent work Joseph Story and the American Constitution, put it this way:

[I]t may be said that throughout Western history, two hostile traditions of natural law are evident. The older and once dominant traditional natural law, encompassing the classical and Christian schools, subscribed to the view that a Divine Being, ruler of the universe through an eternal and universal law, is the supreme lawgiver and that natural law is an emanation of God’s reason and will. . . . The modern school [beginning with Hobbes] rejected the divine origin of natural law, exalted the autonomy of human reason and exhorted man to look for a law of nature in a secularized state of nature. (p. 70) (emphasis supplied)

The “classical school” of natural law is perhaps best represented by Marcus Tullius Cicero (106–43 B.C.) in Book III of his work The Republic:

True law is right reason in agreement with Nature. [I]t is of universal application, unchanging and everlasting; it summons to duty by its commands, and avers from wrongdoing by its prohibitions. . . It is a sin to try to alter this law, nor is it allowable to attempt to repeal a part of it, and it is impossible to abolish it entirely. . . . And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one rule, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge.

With the spread of Christianity, the “Christian school” of natural law developed and began to displace the “classical school” in England and can be represented by William Blackstone in his work Commentaries on the Laws of England (1765-1769):

When the supreme being formed the universe and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. If we further advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by law; more numerous indeed, but equally fixed and invariable. … and in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for it’s existence depends on that obedience.

Man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being … [A] state of dependence will inevitably oblige the inferior to take the will of him on whom he depends, as the rule of his conduct; not indeed in every particular, but in all those points where his dependence consists. This principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently as man depends upon his maker for everything, it is necessary that he should in all points conform to his maker’s will. This will of his maker is called the law of nature. ¹

There are a couple of very important implications for political power and its exercise under the Christian school of natural law:

Conceived by the Creator and revealed through Scripture, natural law served not only as a standard of justice for the application of common law principles, but also provided a limitation on political authority.²

In other words, as Henry of Bracton (often known as “Lord Bracton”), a famous expositor of the common law who lived in the 12th century, said,

The King himself, however, ought not to be under man, but under God, and under the law, because the Law makes the king. Therefore, let the king render back to the Law what the Law gives to him, namely, dominion and power; for there is no king where will, and not law, wields dominion.³

In fact, William Blackstone, in his Commentaries on the Law of England, said this:

The law of nature, being co-eval with man and dictated by God himself, is of course superior in obligation to any other. … [N]o human law is of any validity if contrary to this and such of them as are valid derive all their force and their authority mediately or immediately from this original.

In these last three statements is found the true meaning of the term “the rule of law” that we use today, though the phrase no longer carries this meaning because, as noted above, the U.S. Supreme Court has divorced law from any transcendent source.

McClellan summed up the effect of the “modern school” of natural law, which is dependent strictly on human reason, as follows:

Conceived in the mind of man and devoid of theological or historical foundation, the state of nature necessarily varied according to the excogitative genius of each philosopher ….Thus was the way prepared for a relativistic law of nature, which rested on the shifting sand of a totally subjective “model.”4 (emphasis supplied)

It is this modern rootless, subjective understanding of law to which professor Leff spoke in his article "Unspeakable Ethics, Unnatural Law" and on which the U.S. Supreme Court relied in Obergefell. Here is his final, sobering conclusion, the one we are all left with if some things, like marriage, are not God-given:

All I can say is this: it looks as if we are all we have. Given what we know about ourselves and each other, this is an extraordinarily unappetizing prospect; looking around the world, it appears that if all men are brothers, the ruling model is Cain and Abel. Neither reason nor love, nor even terror, seems to have worked to make us “good,” and worse than that, there is no reason why anything should. Only if ethics were something unspeakable by us, could law be . . . unchallengeable. As things now stand, everything is up for grabs.

Nevertheless:
Napalming babies is bad
Starving the poor is wicked.
Buying and selling each other is depraved
Those who stood up to and died resisting Hitler, Stalin, Amin, and Pol Pot – and General Custer too – have earned salvation.
Those who acquiesced deserve to be damned.
There is in the world such a thing as evil.
[All together now:] Sez who?
God help us. (emphasis added) ⁵

[1] William Blackstone, Commentaries on the Laws of England, Vol. 1., INTRODUCTION. Of the Study, Nature, and Extent of the Laws of England, Section II: OF THE NATURE OF LAWS IN GENERAL.

[2] James McClellan, Joseph Story and the American Constitution. (Norman: University of Oklahoma Press, 1971), 62.

[3] Russell Kirk, The Roots of American Order. Third Edition. (Washington, D.C: Regnery Gateway, 1991), 412.

[4] James McClellan, 71.

[5] Arthur Leff, “Unspeakable Ethics, Unnatural Law,” Duke University Law Review 1229 (1979): 6.

Legal Questions that some may pose.

Question #1

Does the Marital Contract Recording Act violate the Establishment Clause?

Short Answer:

No. The U.S. Constitution was framed on the basis of the common law and so is the proposed Marital Contract Recording Act (“MCRA”). That some may support the act for religious reasons does not make the act itself unconstitutional.

Expand Answer

There may be as many reasons for supporting the MCRA as there are supporters, so the fact that some supporters may do so for religious or theological reasons is not alone determinative of constitutionality. Virtually all legislation, even that supported by political liberals, is supported by some for religious or theological reasons.

If the MCRA Violates the Establishment Clause, Then Virtually All Laws Are Unconstitutional

If the fact that some support legislation for religious reasons makes the enactment of that legislation unconstitutional, then virtually all enacted legislation would be constitutionally suspect.

Consider, for example, the number of times in which ministers are brought in to testify in support of more politically liberal positions on issues like abortion rights, immigration, education, human sexuality, crime, and means and rates of taxation. Does their support for any legislation on those issues, if enacted, make that legislation constitutionally suspect?

Even organizations such as the ACLU and the Freedom From Religion Foundation make arguments for and against legislation based on their understanding of God/the Divine/the Supernatural and the relationship between those beliefs and proposed legislation. Consequently, enactment of legislation those organizations support would make those bills constitutionally suspect, too. “Religious” is a broad word, and it can’t be applied as if it’s a one-way street to an Establishment Clause violation only if the religious view is theistic.

But none of these more theological, philosophical, or metaphysical arguments should have any bearing on the constitutionality of the MCRA, because it rests on the existence of a relation recognized by common law, a privately-entered into (not government authorized) marital contract between a man and a woman.

What the U.S. Supreme Court Has Said About the Importance of Common Law to the U.S. Constitution

With respect to the common law, the United States Supreme Court has said:

[It]is the system from which our judicial ideas and legal definitions are derived. The language of the Constitution and of many acts of Congress could not be understood without reference to the common law.¹

The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. ²

[The Constitution] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. ³

Moreover, the relevance of the common law and its interpretative value relative to the U.S. Constitution is demonstrated by the Supreme Court’s high praise for and use of Sir William Blackstone’s Commentaries on the Law of England:

Sir William Blackstone’s . . . Commentaries on the Laws of England not only provided a definitive summary of the common law but was also a primary legal authority for 18th- and 19th-century American lawyers. ⁴

[Blackstone’s Commentaries] constituted the preeminent authority on English law for the founding generation. ⁵

Blackstone’s Commentaries are accepted as the most satisfactory exposition of the common law of England. . . . [U]ndoubtedly the framers of the Constitution were familiar with it. ⁶

U.S. Supreme Court Precedent Using the Common Law to Interpret the Constitution

Consistent with the preceding comments about the common law and Blackstone’s Commentaries, the common law was discussed and considered most recently in the majority opinions of the United States Supreme Court in Gamble v. United States (2019), to interpret the word “offense” in the Double Jeopardy Clause, and in Knick v. Township of Scott (2019) to discern the meaning of the word “taking” in the U.S. Constitution relative to eminent domain.

The common law has also been used to determine the meaning of the words “keep and bear arms,” as set forth in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783 (2008); the right to confront one’s accusers secured by the Sixth Amendment in Crawford v. Washington, 541 U.S. 36 (2004); the right to a jury for facts relative to sentencing in Apprendi v. New Jersey, 530 U.S. 466 (2000); the immunities recognized by the 11th Amendment in Alden v. Maine, 527 U.S. 706 (1999); and the word “crimes” relative to the right to a trial by jury in Bloom v. Illinois, 391 U.S. 194 (1968).

[1] Moore v. United States, 91 U.S. 270, 274 (1876), quoting Schick v. United States, 195 U. S. 65, 69 (1904).

[2] Smith v. Alabama, 124 U.S. 465, 478 (1888).

[3] United States v. Wong Kim Ark, 169 U.S. 649, 654 (1898), quoting and citing Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; and Smith v. Alabama, 124 U.S. 465.

[4] Washington v. Glucksberg, 521 U.S. 702, 712 (1997).

[5] District of Columbia v. Heller, 554 U.S. 570, ___, 128 S.Ct. 2783, 2798 (2008), quoting Alden v. Maine, 527 U.S. 706, 715, 119 S. Ct. 2240, 144 L.Ed.2d 636 (1999).

[6] Schick v. United States, 195 U. S. 65, 69 (1904).

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