Christians Make the Best Judges
The Christian principles of a judge or judicial nominee should never be held against her; quite the contrary: for Christians make the best judges.
Staying True to the Founders' Vision
It is the Christian mindset that the legal profession needs to regain again, if American constitutional law (and American law generally) is ever to return to the "originalist" view of America's founding era.
The Christian viewpoint prevalent in the Early American legal profession was manifested in A Course of Legal Study, Addressed to Students and the Profession Generally (2nd ed.: Baltimore, 1836), authored by David Hoffman (1784-1854), the law professor at the University of Maryland. Beginning Volume 1 (1:49) with a "Prayer Before the Study of Law. By Dr. Samuel Johnson. September 26, 1765. Almighty God, the Giver of wisdom, [...] grant that I may use that knowledge which I shall attain, to Thy glory, and my own salvation; for Jesus Christ's sake. Amen.", Hoffman (1:59) began his Syllabus of study with the heading "Moral and Political Philosophy", and the very first book he listed under that header was "The Bible".
In his "Notes on the First Title", Hoffman wrote (1:64-67, 71-72):
"The Bible forms a very natural introduction to this Course, as recording a form of government and law originating in the great Legislator of the universe; whose pleasure it was to enjoin, by a direct communication of his will, those duties, and declare those obligations which, when by reasoning on the nature and relations of man, we have concluded to be such, we consider as the dictates of nature. Those ordinances also, which were not designed to be of universal authority, but only to regulate the polity of the particular people to whom they were delivered, should however be minutely known; as they are, in many instances, the foundation of the law, and the clue to the controversies of the Canonists.
"The Bible is valuable also in two other points of light: it affords the only authentic history of the origin and multiplication of mankind; and by exhibiting the actual manner in which society was generated, and communities were formed, offers the best theory of the social compact; a point on which there has been no small misconception. Its historical parts will tend to show with great probability, that those general principles of morals prevalent among the rudest and most unlettered nations, and which have perhaps been too hastily attributed to the efforts of natural reason, are more rationally to be ascribed to direct revelation, and will appear, with all the errors and impunities which time, situation, and the proclivity to corruption may have produced, to have been the broken glimpses of a fuller and clearer light, originally radiated directly from heaven. [***]
"The purity and sublimity of the morals of the Bible have at no time been questioned; it is the foundation of the common law of every Christian nation. The Christian religion is a part of the law of the land, and, as such, should certainly receive no inconsiderable portion of the lawyer's attention. In vain do we look among the writings of the ancient philosophers for a system of moral law comparable with that of the Old and New Testament. How meager and lifeless are even the "Ethics" of Aristotle, the "Morals" of Seneca, the "Memorabilia" of Xenophon, or the "Offices" of Cicero, compared with it. [*****]
"So also, Mr. Locke remarks, that in morality there have been books enough written, both by ancient and modern philosophers, but that the morality of the Gospel so exceeds them all, that to give a man a complete knowledge of genuine morals, he would send him no other book but the Testament. [*****]
"If treatises on morals should be the first which are placed in the hands of the student, and the structure of his legal education should be raised on the broad and solid foundation of ethics, what book so proper to be thoroughly studied with this view, if no other, as the Bible?
"But the religion and morals of the Scriptures by no means constitute the only claim which this inestimable volume possesses on the earnest attention of the legal student. There is much law in it, and a great deal which sheds more than a glimmering light on a variety of legal topics. Political science is certainly indebted to it for an accurate account of the origin of society, government, and property. The subjects of marriage, the alienation of property inter vivos, its acquisition by inheritance and bequest, the obligation of an oath, the relations of governor and governed, of master and servant, husband and wife, the nature and punishment of a variety of crimes and offenses, [...] etc. still receive illustration from this copious source; and this high authority is often appealed to by legal writers, either as decisive or argumentative of their doctrines. This view of the Scriptures is strongly entertained by the late Dr. Campbell, who in his lectures on ecclesiastical history, remarks that, 'When we consider attentively the institutions of Moses, we perceive that they comprehend every thing necessary for forming a civil establishment; not only precepts regarding the morals of the people, and the public and private offices of religion, but also laws of jurisprudence; such as regulate the formalities of private contracts, inheritance, succession and purchases; such as fix the limits of jurisdiction, and subordination of judicatories, appoint the method of procedure in trials, both civil and criminal, and punishments to be awarded by the judges to the several crimes. [*****]'
"In the morals of the New Testament we have the fullness of light, the radiance of divine truth. [*****]
"We have been thus particular on the subject of the utility of the Bible to the lawyer, from a deep conviction that its ethics, history, and law cannot fail of being eminently serviceable to him; from our observation that young lawyers frequently read any other book but this; and lastly, from the fact, that nearly all the distinguished lawyers with whom we have been personally, or through the medium of books, or otherwise acquainted, have not only professed a high veneration for biblical learning, but were themselves considerably versed in it. Lord Coke had, no doubt, made the Scriptures his study, long before Archbishop Whitgift sent him a copy of the New Testament, with a request, that he, who had so thoroughly mastered the common law, should study the law of God: be this as it may, his writings abound with arguments and illustrations taken from that source. The names, also, of Bacon, Hale, Holt, Jones, Erskine, Yates, Grotius, D'Agnesseau, and very many others, who have testified their respect for this knowledge, by frequent reference to the sacred volume; added to the like tribute, so often paid to it by poets and orators, were a sufficient warrant, if one were needed, for the urgent manner in which I press this subject on the student's attention. And though it is very far from my design, to recommend law students to the same careful examination of these ancient and admirable writings, as is demanded of theological students; yet, as I am satisfied that the too common reluctance, manifested by them, to regard this volume as coming within the limits of a course of legal study, proceeds, in a great degree, from ignorance as to the proper mode of studying the Bible, and especially as to the sources of elementary and illustrative knowledge on this subject, with which our libraries abound; I shall not hesitate to make a few remarks on these topics [....]"
An "Originalist" Judicial Philosophy
In his section on "The Constitution and Laws of the United States" in A Course of Legal Study (1:565-566), Hoffman sketched out the proper attitude toward judicial review:
"The constitutional law of the United States illustrates, we think, in the clearest manner, the co-existence of two facts, which, though perfectly in unison with each other, are at first, seemingly, at variance---viz.: first, a constitutional code, consisting of but a few pages, which regulates many of the most important interests of twenty-four sovereign states [in 1836], and of a great nation educed out of them all; and secondly, the exercise of interpretative powers, swelling into volumes, and yet in no instance departing from the clear letter, or manifest spirit of the instrument, and never falling into the vice of judicial legislation. Our Constitution seems to be a happy exemplar of the practicableness and utility of philosophical codefication, which ought never to have been understood by any one, as aiming at the exclusion of judicial interpretation, or the just application of the concisely expressed law to numerous facts and to their infinite combinations and modifications. If a code, of small extent, can be so formed as to embrace within its terms, or obvious spirit, every circumstance that shall arise during the lapse of ages, its authors have proved themselves wise legislators; have conferred on their country a great and lasting benefit; and established in the science of legislation, a truth of the highest importance: and this, we conceive, has been eminently accomplished in the Constitution of these United States."
It was on this originalist basis that Christian conservative Supreme Court Justice Samuel Chase (1741-1811) (a signer of the Declaration of Independence) legitimized the idea of judicial review. (And this was before United States Supreme Court Chief Justice John Marshall (1755-1835) wrote Marbury v. Madison, 5 U.S. 137 (1803), which expounded the doctrine of judicial review of Congressional acts.)
The correct philosophical basis for judicial review---the "constitutional code", the "philosophical codeficiation" "consisting of but a few pages" which, nevertheless, exhibits an "obvious spirit" "within its terms" (to use the words of Hoffman)---was expounded by United States Supreme Court Justice Samuel Chase in Calder v. Bull, 3 U.S. 386, 387-388 (1798) (emphasis is in the original):
"[***] I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State. The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The Legislature may enjoin, permit, forbid, and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments."
And, as Hoffman made clear, America's "republican principles" were---and should be---the principles of Christ.
Justice Brewer Was Right: A Christian Nation
A United States Supreme Court opinion often cited for declaring the United States to be a Christian nation, but which also serves as an example of common sense jurisprudence, was United States Supreme Court Justice David Josiah Brewer's opinion for the court in Church of the Holy Trinity v. United States, 143 U.S. 457 (1892). Holy Trinity was decided at a time when at least some members of the United States Supreme Court still were trained in the principles of moral philosophy (i.e., before the rampant rise of legal positivism: the notion that all positive law is to be legitimized, even if, in the words of Chase, a statute (or a judicial decision whose end effect ends up being treated as the same), "authorize[s] manifest injustice by positive law").
(Justice Brewer's lectures on the United States as a Christian nation, and the intrinsic interconnection between Christianity and the public good of the United States, were printed as The United States: A Christian Nation by a Philadelphia publisher in 1905, and were reprinted by a Georgia publisher in 1996. In these lectures, Brewer extensively revealed his Christian jurisprudence.)
The brilliantly-written Holy Trinity opinion demonstrates that the U.S. Supreme Court can return to these same principles again: an acknowledgment of God's sovereignty over government. This allows room for the exercise of equity, expressed through the exercise of judicial conscience, independent of wrong precedents about which Justice Chase would say, "I cannot call it a law".
Holy Trinity was summarized in the following manner in Public Citizen v. United States Department of Justice, 491 U.S. 440, 467, 472-474 (1989) (Kennedy, J., joined by Rehnquist, C.J. and O'Connor, J. concurring in the judgment) ("object[ing] to the use of the Holy Trinity doctrine") ("[T]he classic Holy Trinity argument. '[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.' Holy Trinity, supra, at 459. [***]"):
"[***] In Holy Trinity, the Court was faced with the interpretation of a statute which made it unlawful for
'any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States ..., under contract or agreement ... made previous to the importation or migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States.' 143 U.S., at 458.
"The Church of the Holy Trinity entered into a contract with an alien residing in England to come to the United States to serve as the director and pastor of the church. Notwithstanding the fact that this agreement fell within the plain language of the statute, which was conceded to be the case, see ibid., the Court overrode the plain language, drawing instead on the background and purposes of the statute to conclude that Congress did not intend its broad prohibition to cover the importation of Christian ministers. The central support for the Court's ultimate conclusion that Congress did not intend the law to cover Christian ministers is its lengthy review of the 'mass of organic utterances' establishing that 'this is a Christian nation,' and which were taken to prove that it could not 'be believed that a Congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation.' Id., at 471. [***]"
Though this concurring opinion in Public Citizen refused to "embrace" this (conscientious) reasoning by Christian Justice Brewer, one could make the argument that Christian Justice Samuel Chase might well have agreed (in the words of his Calder opinion) that such a statute worked "manifest injustice by positive law" as applied to teachers of Christian principles ("vital principles in our free Republican governments") in such a Christian-based nation.
Actually, rather than being an instance of "judicial activism", Justice Brewer's opinion was in the 19th-century Republican tradition of proper statutory interpretation. David Brewer (1837-1910), one of the finest, most brilliant, and openly-avowed Christian, U.S. Supreme Court Justices (serving from 1890 to 1910, appointed by Republican President Benjamin Harrison), explained in Holy Trinity that he was not imposing his own judicial will in place of the legislature's; rather, he saw an overbroad statute whose application in that particular instance would have led to "absurd results" (143 U.S. at 459). In other words, such an absurd application of the statute in that particular instance would go against common sense and right reason.
The unreasonable absurdity consisted in this: since the judge is to assume that legislators intend to enact good laws, not bad ones, the statute was rationally not designed to prohibit the importation of foreign teachers and intellectuals whose efforts were actually beneficial to the United States. Christian ministers fell within the beneficial category because the United States was a Christian nation, and it made no sense to exclude Christian ministers---as if their work was somehow alien to this country---when in actuality the United States was founded upon the very principles which the foreign Christian minister espoused. Surely the legislators couldn't have meant to frame such a statute, because excluding the minister would not achieve the goal of the statute's legislative framers. The wording of the statute and its title led one to a commonsense conclusion that the legislators were talking about immigrant manual laborers, and it would make sense to bar their immigration if they were feared to be detrimental to the United States' economy at that particular place and time.
The statute as written appeared overbroad in relation to its intended purpose. Brewer cited, among other authorities: a quote from Lord Coke, the famous English common law jurist mentioned also by Hoffman; the "'endowed by their Creator with certain unalienable rights'", "'Supreme Judge of the world'", and "'Divine Providence'" language of the Declaration of Independence; Chancellor Kent's opinion in The People v. Ruggles (see The Reconstruction of Public Values for a discussion of this opinion); and the court opinion in U.S. v. Kirby, which cited the common sense (i.e., moral sense) view of natural law philosopher Samuel Pufendorf (1632-1694), and which said that "'All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always therefore be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter.'" (143 U.S. at 461).
Brewer thought that for the legislator to intend this particular result (a prohibition on importing non-manual labor, specifically, a teacher, intellectual, or Christian minister) was "unreasonable" (143 U.S. at 459). The purpose of the statute, Brewer opined, was to stop the practice of businessmen importing large numbers of foreign manual laborers who flooded the labor market, which at that time was apparently a common practice. The exclusion of such "cheap, unskilled labor" (143 U.S. at 464) was thus premised upon an economic rationale. By logical extension, the legislature didn't intend to prohibit the importation of foreign teachers and intellectuals. Brewer buttressed his discussion of statutory construction with a historical discussion about the United States being a "Christian nation"---a fact "historically true" (143 U.S. at 466, 471). Brewer (a Christian whose parents were Christian missionaries; one of his uncles was named Jonathan Edwards Field) extensively documented America's Christian heritage to illustrate his point that no legislature would legislate against Christian religion, since Christianity was such an important component of American national and state governments.
Brewer (who incidentally was the nephew of United States Supreme Court Justice (1863-1897) Stephen J. Field (1816-1899)) understood that a judge is to judge---not act as a rubberstamp for the legislature---and part of that judging function is statutory interpretation and the proper, constitutional exercise of judicial review. One could say that Leviticus 19:35-36 generally covers Biblical (moral law) principles of judging: "'You shall do no wrong in judgment, in measures of length or weight or quantity. You shall have just balances, just weights, a just ephah, and a just hin: I am the LORD your God [....]'" Of course, this involves the moral sense: the judge's wisdom should come into play, and she should have sense enough to discern whether a law is overbroad or void for vagueness.
It is part of the judicial function, part of judicial review, to determine whether or not a statute violates a constitutional provision. To do otherwise would be effectively to determine that the U.S. Constitution permits unBiblical injustice and arbitrariness to enter into the interpretation of constitutional decisions---but arbitrariness was what the Founders hated; it was one of their main complaints against the then-oppressive British central government. To determine, therefore, that the Founding generation intended for the U.S. Constitution to be interpreted to allow arbitrary and anti-life results, would be unreasonable: an arbitrary Constitution would negate the entire reason for the American Revolution in the first place. The Founding generation never wanted that to happen. And their published remarks---such as Samuel Langdon's The Republic of the Israelites an Example to the American States (1788)---reveal the real feelings of some of those who ratified the United States Constitution.
Arbitrariness, unreasonableness, harshness, oppression, unfairness, and anti-life decisions go against the Bible, and thus go against the United States' founding principles. That's why the American Revolutionaries deplored these traits when they appeared in the 18th-century British empire; that's why the United States deplored these traits when they appeared in 20th-century totalitarian societies.
That's why the United States legal system needs to pursue Christian procedural and substantive due process: due process based on the Bible.
"When the righteous increase, the people rejoice,
but when the wicked rule, the people groan.
"A righteous man knows the rights of the poor;
a wicked man does not understand such knowledge."
(Proverbs 29:2, 7)
That's why (serious and sincere) Christians historically have made the best judges---and why they always will.
Scripture quotations are from The Holy Bible, English Standard Version, copyright © 2001 by Crossway Bibles, a division of Good News Publishers. Used by permission. All rights reserved.
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