The world has become a very negative place. Rarely do we find proponents of good things but are more likely to find detractors of bad things. This is not the way President Reagan saw things. Like many of you, I am a product of this wayward thinking – ask my wife if I do well at encouraging. I take no joy in this deficiency and continue the battle to fully realize that character trait of building up instead of tearing down. It is a sad part of my fallen nature that I despise and struggle to defeat. Parents practice this negative approach with their children by articulating at a very young age what they are not to do but often fail to transition to the positive application of what children ought to do. Part of this is instilled by the Prussian education system that recognizes only perfection at the expense of improvement.

As nations are concerned, Germany is a good example of a negative approach to legislation. German laws are not necessarily bad but in restricting every area of life by law instead of by inward conviction (legislated morality) a cultural defect is made clear. The goal of government is to restrain and punish evil so that maximum liberty is sustained. However, to a great extent German laws would be rendered unnecessary were they to have the proper foundation. German laws have been enacted to protect a society whose roots in the Reformation have disintegrated under socialistic, government-run education. Prior generations may know the foundation on which “You will not mow your yard or make any noise on Sunday that might disrupt the rest of others” [paraphrased] is established and that “businesses will not be open on Sunday with certain exceptions” (hint: see Exodus 20:8-11). However, younger generations have lost the firm footing and are growing more like the United States culture of “situational morality.” In this example we see the negative tone “You will not…” that becomes the basis of many laws.

An interesting fact of prohibitions is that they necessarily contain positive elements of obligation. If noisy activities are prevented on Sunday, then promoting quiet and peace is an obligation. If stealing is prohibited, then preventing theft is also required. If murder is banned, then protecting life is essential. And conversely if loving your neighbor as yourself is your duty, then hating your neighbor is prohibited. If loving the One True God with all your mind, heart, soul and strength is your duty, then rejecting all other gods is also your duty.

My homeschool family enjoyed the 2011 Capitol Day in Lansing, Michigan on Tuesday. Many topics were discussed and two speakers stood out: Michigan Supreme Court Justice Stephen J. Markman and Rachael Denhollander, JD who teaches school-aged children the Foundations of U.S. government.

Justice Markman served President Ronald Reagan as Assistant Attorney General of the United States (http://www.courts.michigan.gov/supremecourt/aboutcourt/biography.htm). His insight into the role of the judiciary and Supreme Court was remarkable and a welcome relief from activist judicial opinion. His remarks can be summed up in his own words: “It is the responsibility of courts to say what the law IS not what it OUGHT to be.” This is done by assessing a law based on the plain intent of the constitution, that is, what the Founders meant when they wrote it. He rejected any notion of a “living constitution” that can be interpreted on present day feelings and emotions and posited that lawyers are uniquely trained to be judges because they are taught to reject emotion and opinion as the basis for judgments.

I must admit that I agree with Justice Markman but also believe that his understanding might not go far enough. (In his defense, we had only a short time for question and answer.) Our public education system does not particularly train lawyers to be any better at right judgments than any other institution. It is the character of a man having been trained properly by his parents that allows him to exercise right wisdom and judgment. While lawyers may be more familiar with law and certain institutions, like Patrick Henry College, are more capable of refining character to follow the principles Justice Markman articulates as required, it is the foundation established by parents that is the first, most critical element in determining suitability for public office.

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.” –Alexander Hamilton and James Madison: Federalist No. 62

I have great respect for Justice Markman’s perspective and would not question his character and suitability for the bench, but he likewise does not go far enough, in my opinion, on the courts responsibility to also positively affirm first principles where laws are rejected, an act which is not legislating from the bench but upholding first principles. Not only must the courts declare laws unconstitutional that violate the clear standards of the constitution, but the courts must also uphold those principles of the constitution itself and its Foundation when it is challenged by laws that infringe the rights and separations of our republic powers. The Founders recognized the requirement of the courts to not only uphold the Constitution but that the constitution must not infringe the divine rights and authority of the Creator.

“Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other. The divine law, as discovered by reason and the moral sense, forms an essential part of both.” –James Wilson

The courts were to defend the rights of each God-given “sphere” from infringement by another. This is how the Founders rejected a simple democracy and created a republic where God-given unalienable rights are protected and upheld first to protect against the abuses of Man.

“But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain…let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING.” –Thomas Paine

Mrs. Denhollander clearly demonstrated the deeper understanding and liberties that our courts should uphold in her remarks to the homeschool group. Homeschooled through her bachelor’s degree, Mrs. Denhollander faithfully represented the Founders specific reliance on and authority of God in our first national document, The Declaration of Independence, which is the foundation and starting point for understanding U.S. Constitution intent. To understand the first principles the Founders established for this nation, one only need read the first sentence of this first national document: “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” Here we see a reliance and submission to “the Laws of Nature and of Nature’s God” as the solid foundation for the establishment of the new nation. This is the foundation on which the Founders declared us a nation and on which they stated:

“To grant that there is a supreme intelligence who rules the world and has established laws to regulate the actions of his creatures; and still to assert that man, in a state of nature, may be considered as perfectly free from all restraints of law and government, appears to a common understanding altogether irreconcilable. Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed that the deity, from the relations we stand in to himself and to each other, has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever. This is what is called the law of nature….Upon this law depend the natural rights of mankind.” –Alexander Hamilton

“The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded.” –Alexander Hamilton

And the “the powers upon which it [U.S. law] is founded” is God’s Law and as such, “[God’s Law] is King,” or ought to be!

“The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes [outlined in The Declaration of Independence], for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the Constitution.” –Joseph Story

The “Laws of Nature” are those imperatives imprinted upon all of Creation by the Creator – some call it conscience. But conscience is more than an emotion; it is an intrinsic value of good or evil as C.S. Lewis articulates in “The Abolition of Man.” The “Laws…of Nature’s God” are those explicit revelations found in Holy Scripture beginning with the order of creation, establishment of the family in marriage where one Woman (later called Eve by Adam) was presented by God to one man (Adam) to become one flesh, granting of dominion (stewardship) and continuing through the continuing covenant and His Law (Exodus 20, Deuteronomy 5, Matthew 5-7). These revealed Laws are themselves the duty of Man to uphold and be submitted unto. Here a statement is required: in our multi-religious world the Founders were not speaking of any religion but the Christian religion of the Old and New Testaments as brought over by their forefathers (and ours) from the European Reformation.

“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.” –George Washington

“Although guided by our excellent Constitution in the discharge of official duties, and actuated, through the whole course of my public life, solely by a wish to promote the best interests of our country; yet, without the beneficial interposition of the Supreme Ruler of the Universe, we could not have reached the distinguished situation which we have attained with such unprecedented rapidity. To HIM, therefore, should we bow with gratitude and reverence, and endeavor to merit a continuance of HIS special favors.” –George Washington

“We have been assured in the Sacred Writings that except the Lord build the house, they labor in vain that build it. I firmly believe this. I also believe that, without His concurring aid, we shall succeed in this political building no better than the builders of Babel.” –Benjamin Franklin

“The general principles upon which the Fathers achieved independence were the general principals of Christianity…” –John Adams

When the courts stop at the constitution, they miss the foundation and understanding from which the constitution was created as being “only for a moral and [Christian] people.” So we reenter the prior argument for affirming foundational principles where rejecting unconstitutional laws is the duty of the courts. For example, Texas and other states restricted the revised act of abortion, revised because abort/abortion used to be defined as “to miscarry in birth” or “producing young before the natural time” but is now redefined as “the termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or fetus: as a spontaneous expulsion of a human fetus during the first 12 weeks of gestation or inducted [i.e. forced] expulsion of a human fetus” which dramatically changes the discussion (see http://www.webster1828.com/websters1828/definition.aspx?word=Abortion and http://www.merriam-webster.com/dictionary/abortion). The result from the Supreme Court was the famous opinion in Roe v. Wade where the court struck down the law as unconstitutional. The failure of the court was not in striking down the law but in failing to positively uphold the higher standard of The Declaration of Independence and God’s ultimate universal Law. The court lacked understanding of the Foundation of the constitution, The Declaration of Independence and failed to uphold the unalienable right of “life.” In this case, the negative law to restrict should have been supplanted by a more comprehensive affirmation to protect life.

The Declaration invokes the “Laws…of Nature’s God,” “endowed by their Creator,” “appealing to the Supreme Judge of the world” and “the protection of Divine Providence.” As Mrs. Denhollander remarked, The Declaration of Independence is the vision for the country; the U.S. Constitution is the plan to carry out that vision. The constitution is dependent on the Declaration for if you look at a plan out of context or absent the vision, it can be twisted to mean whatever your emotions desire.

A return to the original duty of the courts would require not only rejecting unconstitutional laws but affirming the positive mandates which have a definite and broad application to proper civil order and upholding the national foundation of “the Laws of Nature and of Nature’s God.” Using Germany again for example, the laws could be written as “You will make every effort to advance the peace and rest of your neighbor on Sunday.” Or in the U.S. case of Roe v. Wade, “All life shall be equally protected and as God is the giver of life (Acts 17:22-31), so also He is the authority on the ending of a Life (Psalm 139:16).”

Of course, the Founders wrote True principles in The Declaration of Independence and the U.S. Constitution in such a clear manner that an abundance of laws need not be written to establish protection for preborn babies or guard against the evils of society like slavery. Lest we forget, the reason government is instituted among men by the Creator is “to secure these rights” given by the Creator which requires the restraint of evil and affirmation of “nature of the powers upon which it is founded.” By Biblical standards we are all slaves either to Satan or the One True God: Father, Son and Holy Spirit. The Founders intended that we would be slaves to God such that we have the greatest liberty possible through inward restraint (or conscience) derived from Christian morality.

“We lay it down as a fundamental, that laws, to be just, must give a reciprocation of right; that, without this, they are mere arbitrary rules of conduct, founded in force, and not in conscience.” –Thomas Jefferson

“Our constitution was made only for a moral and religious people.” –John Adams

Now would be a great time to review the 17 of 28 causes (at least) that prior administrations have won uncontested and incrementally and the injuries that the current administration has dramatically multiplied against its citizens as seen in the Declaration of Independence from the last national tyrant (https://patriotpost.us/document/the-declaration-of-independence/). If you have not done so, you may be compelled to add your endorsement to the Patriot Declaration following your return to coherence from Just anger (https://patriotpost.us/petition/declaration/).

[Thank you to Mr. Hardy for quotes from his Comments to the Brief – March 21, 2011 – and PatriotPost for the Founders Quote Database]