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America’s Heritage: Constitutional Liberty

by Herbert W. Titus and Gerald R. Thompson


A COVENANT PEOPLE

The Current Constitutional Crisis
The Battle Over Free Speech
Restoring Liberty Through Covenant Renewal
The Marshall Legacy of Covenant Faithfulness

Now it shall be, if you will diligently obey the Lord your God, being careful to do all His commandments which I command you today, the Lord your God will set you high above all the nations of the earth. And all these blessings shall come upon you and overtake you, if you will obey the Lord your God. . . . The Lord will cause your enemies who rise up against you to be defeated before you . . . and the Lord will make you abound in prosperity . . . [only] do not turn aside from any of the words which I command you today, to the right or to the left. . . . But it shall come about, if you will not obey the Lord your God, to observe to do all His commandments and His statutes which I charge you today, that all these curses shall come upon you and overtake you. . . . So your life shall hang in doubt before you; and you shall be in dread night and day, and shall have no assurance of your life. . . . And you shall be driven mad by the sight of what you see.  [Deuteronomy 28:1,2,7,11,14,15,66,34]

THE CURRENT CONSTITUTIONAL CRISIS

Our nation is plagued with enormous problems. According to recent studies, the population is experiencing a rising infertility rate. There is a continuing threat of environmental disasters, such as acid rain, which affect even America’s international relations. News reports indicate that although crime rates vary annually, the trend is that criminal activity, including violent crimes, is on the rise. The war against drugs is being lost, in spite of state and federal efforts to eradicate the problem. Teenage pregnancy is a major problem, even though contraceptives are widely available. And, economic insecurity is widespread: the inflation rate waxes and wanes, but never goes away; and debt, both consumer and governmental, continues to climb upward without apparent end.

What is the solution to these massive problems? A better President, one who is a more effective leader? A shift in the political bent of Congress, or less corruption in the judiciary? Is technology the answer, to be prescribed by doctors, scientists and Ph.D.’s? Would things be better if the Federal Reserve Board changed its monetary policy, or more federal regulation was imposed on private activities offensive to the majority of the people? What if more tax moneys were dumped into social programs, or new programs created? Will our problems be solved if we just get secular humanism out of the public schools? The answer is “no.” Nothing short of returning to a faithful adherence to the terms of our nation’s covenant will succeed in solving our nation’s problems.

This is the lesson to be learned from the nation of Israel. Deuteronomy 28 teaches that covenant keeping results in blessing, and covenant breaking results in cursing. The history of Israel is intended by God to be an example to all the nations of the importance of keeping the covenants to which men are bound. Paul admonished, in 1 Corinthians 10:6,11:

Now these things happened as examples for us, that we should not crave evil things, as [Israel] also craved. . . . These things happened to them as an example, and they were written for our instruction, upon whom the ends of the ages has come.

Deuteronomy 28 contains a detailed description of the manifold blessings which will inure to the benefit of Israel if they keep their covenant with God. Among the promised blessings are many children, productive crops and herds, the routing of enemies, a good reputation, material wealth and prosperity, and positions of great authority. Also described in detail are the cursings procured by covenant disobedience. Among the promised curses are confusion, rebuke, pestilence, disease, defeat by enemies, slavery, starvation, unproductive land and animals, madness, darkness, destruction, spoil and despair. Surely, God will visit judgment on all men for the many transgressions against His covenants with all the nations.

The importance of keeping covenant commitments cannot be overemphasized. It is the nature of a covenant to be perpetual and binding on future generations. When covenant heirs stray from the covenant obligations of their ancestors, they breach their own covenant obligations. Since most covenants are entered into with an oath, God is called as a witness against those who violate the covenant. The oath, in turn, calls for God to execute judgment on covenant breakers, and the parties to the oath waive any defense to this judgment, both for themselves and for their heirs. Thus, it is to be expected that when a covenant is broken, judgment will result.

Accordingly, covenant faithfulness is the key to liberty. When man violates his covenant obligations, he incurs the wrath of God, and suffers for his misdeeds. But, when man keeps his covenant obligations faithfully, he is spared judgment and enjoys great liberty. Man’s liberty is directly proportional to the extent of his faithfulness to the covenants by which he is bound. This is true whether it is a covenant between God and man, or a covenant between men.

Hence, judgment will fall upon the United States for transgressions against its national covenant no less than upon Israel for sins against its national covenant. As America moves further away from obedience to its own covenants, judgment will draw closer. In the final analysis, this is the true nature of the battle over the Constitution. It is not so much a question of whether to follow this or that interpretation of the Constitution, but whether we as a people are willing to obey the Constitution at all. Indeed, there are many people who believe that we should not, some of whom are in high places of our government.

Recall that Supreme Court Justice Brennan endorses the view that constitutional language is fluid and malleable. In Marsh v. Chambers he wrote that “the Constitution is not a static document whose meaning on every detail is fixed for all time by the life experience of the Framers.” In other words, Justice Brennan believes that the Constitution is what the judges say it is, not what the framers meant it to be. Contrast this view with that of U.S. Attorney General Meese, echoing the words of James Madison, that if “‘the sense in which the Constitution was accepted and ratified by the nation is not the guide for expounding it, there can be no security for a faithful exercise of its powers.'”

Although the debate over “original intent” being waged between Justice Brennan and Attorney General Meese is current, it is not new. Chief Justice Taney, in the infamous Dred Scott case, wrote essentially that the current state of public opinion controlled the meaning and purpose of the constitutional text, thereby making the law subservient to the facts of the case. If Taney were alive today, he would side with Brennan, not Meese. Harry V. Jaffa, in Crisis of the House Divided, commented on the legacy of Taney’s logic, as evidenced in official responses to the race riots of the 1960’s:

chief blame for the urban rioting was placed upon white racism, and the endemic character of that racism was held to be exhibited above all in the fact that the Declaration of Independence had failed to include within its scope the members of the Negro race! Taney’s opinion in the case of Dred Scott – that the Founders believed that Negroes had no rights which white men were bound to respect – had now become the hallmark of official liberalism.

It is no surprise, in light of this misconstruction of original intent, that Supreme Court Justice Thurgood Marshall, a former counsel for the NAACP, in May 1987 commented on the bicentennial anniversary of the U.S. Constitution with these words:

I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia convention. Nor do I find the wisdom, foresight and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.

THE BATTLE OVER FREE SPEECH

When modern judges hold views such as this, it is no wonder that the judicial opinions they write fail to uphold the Constitutional text as it was intended. This is especially true in the area of “free speech.” In Roth v. United States, Justice Brennan concluded after a review of 18th century state constitutions and state laws that “the unconditional phrasing of the First Amendment was not intended to protect every utterance.” He drew this conclusion primarily because statutes prohibiting libel, profanity and blasphemy coexisted with early constitutional free speech and free press guarantees. He explained that the First Amendment guarantees of free speech and free press were “fashioned to assure unfettered interchange of ideas for the bringing about of political and social change desired by the people.”

All ideas having even the slightest redeeming importance – unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion – have the full protection of the guarantees, unless excludable because they encroach upon the limited area of more important interests.

Justice Brennan did not cite a single authority on the 18th century development of American constitutional law to support the notion that the marketplace of ideas theory was originally intended to be the foundation of the free speech clause. Instead, he relied primarily upon an earlier Supreme Court case, Chaplinsky v. New Hampshire, which held that:

the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words . . . are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

This opinion, in turn, relied upon a single authority, Zechariah Chafee, a professor of law at Harvard. Chafee developed a free marketplace of ideas theory only after rejecting the intent of the Constitution’s framers. “Into the making of the constitutional conception of free speech have gone . . . the philosophical speculations of John Stuart Mill.” According to Mill’s utilitarian defense of free speech and free press, these liberties required a balancing of the benefits of individual freedom with the necessities of social order to determine whether, in a particular case, an individual was free to speak without interference from the state.

The Supreme Court picked up the Mill/Chafee utilitarian view and superimposed it on the First Amendment in total disregard of constitutional views of America’s founding fathers. The justices plainly desired not to be bound by any constitutional restraint imposed by the drafter’s language or intent. Thus, in Thornhill v. Alabama, Justice Murphy declared that “freedom of discussion . . . must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” Not surprisingly, once the Court adopted this utilitarian and evolutionary marketplace of ideas rationale for free speech and free press, it began to depart from its adherence to the traditional views about libel and obscenity.

As long as the Court subscribes to such views, it will inevitably usurp the authority of state and local governments. The marketplace of ideas rationale for free speech necessitates judicial lawmaking because it rests upon a view of constitutional law in which there are no rules, but only judicial orders issued in response to the evidence presented in each case. Professor Chafee put it this way:

it is useless to define free speech by talk about rights. . . . To find the boundary line of any right, we must get behind the rules of law to human facts. . . . That is, in technical language, there are individual interests and social interests, which must be balanced against each other, if they conflict, in order to determine which interest shall be sacrificed under the circumstances and which shall be protected and become the foundation of a legal right.

Chafee’s view of rights, and the modern Supreme Court’s like-minded views, are not those of America’s founding fathers. The fathers believed in rights, in absolute standards, that did not depend upon the facts. Among such absolutes were free speech and free press, not a marketplace of ideas adjusted case by case by the balancing of the interests of individual freedom on the one hand and of civil order on the other. Men like Madison and Jefferson believed that rights were God given and God designed to govern man’s needs and desires, not man invented to satisfy such needs and desires. The words of the Declaration of Independence, referring to “certain unalienable rights,” stands in stark contrast with those of Chafee and numerous Supreme Court decisions.

If the Court is to return to the true meaning of free speech, it must first return to the worldview of America’s founding fathers. That worldview of unalienable rights given by God to man established a new constitutional order that forbade the civil government from imposing a political orthodoxy on the people in the name of the security of the nation. Civil government, according to the Declaration, had been instituted among men by the consent of the people for the sole purpose of securing the people’s God given rights. The free speech and free press clauses were designed to protect the people from civil rulers who would pervert the purposes of government from protection to oppression of the people.

America’s 18th century patriots knew the several techniques that the English crown and other European monarchs had used to take away the people’s God given rights. The English judiciary had expanded the statutes prohibiting treason by creating the crime of “constructive treason,” namely, compassing or imagining the death of the king. The English Parliament had used seditious libel laws to punish those who published views that damaged the king’s reputation. Finally, the the crown resorted to licensing laws and taxation subsidies to suppress the dissenting views of some people and to finance the supporting views of other people.

At the heart of these efforts to control the thoughts and minds of the people was the belief that the very identity and security of the nation depended upon the preservation of the civil rulers. Chief Justice Holt of the King’s Bench summarized this political faith in the 1704 opinion of Rex v. Tutchin upholding a conviction for seditious libel:

If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it. And nothing can be worse to any government than to endeavor to procure animosities as to the management of it; this has always been looked upon as a crime, and no government can be safe without it.

But the political faith of England did not become the political faith of America. At the heart of the new nation’s formation was the identity of the nation with the governed, not the governors. The latter were to serve the people, not to be served by them. Consequently, the people had an “indefeasible right to reform, alter, or abolish the government in such manner as shall be judged most conducive to the public weal.” See the Constitution of Virginia, June 12, 1776. The security and well-being of the states and the nation lay with the people, not with any particular royal family or other identifiable group of civil authorities. The implications of this political philosophy for free speech and free press were immediate and profound.

First, the offense of “constructive treason” became a constitutional impossibility. Any offense, the proof of which required only that a defendant had “compassed and imagined the death” of the king, no longer threatened the life of the nation because that life no longer resided in the political life of any one civil ruler or administration. Consequently, Article III, Section 3 of the U.S. Constitution defined treason in such a way that it could be proved only by evidence of “levying war against” the UNited States or of “adhering to their enemies, giving them aid and comfort.” The First Amendment’s free speech and free press clauses reinforced this limitation by protecting any and all discussion that advocated change of political leadership, even if it called the people to revolution.

Second, not only did the Constitution outlaw the offense of “constructive treason,” its First Amendment eliminated the offense of seditious libel. That offense was based upon the assumption that the king, as the fountainhead of law and justice, was beyond criticism. While Congress enacted the Sedition Act of 1798, its repudiation by the victorious Republicans under the leadership of Thomas Jefferson brought the American people to an understanding that the new Bill of Rights protected them from being convicted of a crime for having “defamed” any civil ruler in his official capacity.

Third, the Free speech and press clause affirmed the Blackstonian view of “the liberty of the press” prohibiting any “previous restraints upon publications” through licensing or other like schemes. See Near v. Minnesota. Again, the political philosophy of our forefathers was reflected in the elimination of any policy that, as Blackstone said it, subjected “the press to the restrictive power of a licenser” and that, thereby, subjected “all freedom of sentiment to the prejudices of one man . . . by [making] him the arbitrary and infallible judge of all controverted points in learning, religion, and government.” The free speech and free press clauses declared that the truth about such matters as education, religion, and government belonged to the people, not to any civil magistrate.

Last, the Constitutional guarantees outlawed the hated practice of using tax revenues to subsidize popular writers to write articles, pamphlets and books which put the current civil administration in a favorable light. If speech and the press were to be free, then they had to be financed solely and voluntarily by the people. The free speech and free press guarantees were designed to secure one object, namely, to protect the people from any law the policy of which was to preserve and to protect the ruling civil authorities. That great principle did not threaten either the common law of libel or of obscenity because the object of those offenses was to preserve the moral and physical order of the community.

When the First Amendment was adopted, America’s legal and political authorities unanimously regarded slander, libel, fighting words, and pornography all as expressions of “licentiousness” not protected by free speech or free press guarantees. Even Thomas Jefferson used “licentiousness” to denote speech which fell outside of constitutional guarantees. Jefferson said, in a series of letters to John Adams, that there were two primary purposes of the free speech and press clauses. The first purpose was to prohibit the federal government from passing laws making it a crime to criticize the government.

The second purpose was to keep the federal government from intruding into the right of the people of the several states to punish licentious speech according to local law. He warned that his opposition to federal regulation of speech should not be construed to apply to states as well. He fully supported the rights of states to punish slander, libel, and all other forms of licentious speech and believed that the federal government could not stop them. Because the libel and obscenity laws protected the people, not the ruling authorities in their political offices, such laws peacefully coexisted without question under the state and United States constitutions for over 160 years.

RESTORING LIBERTY THROUGH COVENANT RENEWAL

In spite of flagrant deviations from the framers’ intent in the free speech area and other matters of constitutional law, there is still hope in Jesus. All is not lost when a covenant has been broken. It is possible to restore faithfulness to the covenant, and in the process, restore liberty. The biblical steps of restoring covenant faithfulness and liberty are: first, a rediscovery or reacquaintance with the terms of the covenant; second, a repentance of unfaithfulness to the covenant, usually following the execution of judgment for breach; and third, a recommitment to obey the covenant. This restoration process is first exemplified in Deuteronomy.

Remember, Israel was given the Ten Commandments in Exodus 20, and the people ratified the covenant of the Ten Commandments in Exodus 24. Later, in Numbers 13, Moses sent out the twelve spies into Canaan, who came back with a bad report. Upon hearing the bad report, the people of Israel rebelled against the command of the Lord to enter Canaan, and were sentenced by God to wander in the Sinai for forty years. In effect, the people had spurned their covenant with the Lord.

The restoration of the covenant came only after judgment on the perverse generation of the people had been completed. The first step of restoration was a reacquaintance with the law previously given, in the book of Deuteronomy. (“Deuteronomy” means the second giving of the law.) Repentance was implied, or at least presumed, because all the people who had rejected the original covenant were dead. And, the covenant was renewed after the law was redelivered. See Deuteronomy 29:1. Only at this time was Israel permitted to go into Canaan, and enjoy the full blessings of liberty that came from obedience to the law of the covenant in the promised land.

This pattern was repeated in the time of Josiah, king of Judah. Whereas many of the kings of Judah did great evil before God, Josiah followed the Lord with his whole heart. 2 Kings 22 records that in Josiah’s eighteenth year of reign, Hilkiah the high priest found the book of the law in the temple, which had been lost. Immediately, Josiah had the law read to him by Shaphan the scribe. Josiah then confessed the sins of Israel, and in chapter 23 took bold action to eradicate all vestiges of idolatry in the kingdom, evidencing a sure repentance from national sins. 2 Kings 23:3 also describes how the king and the people renewed their covenant with the Lord, “to carry out the words of this covenant that were written in this book.”

But, perhaps the best example of a restoration of liberty achieved by covenant renewal is found in the book of Nehemiah. Nehemiah went to Jerusalem to rebuild its walls following the seventy years of captivity Israel had suffered for its earlier disobedience. Nehemiah 8 records that after the walls had been rebuilt, all the people gathered “as one man” to hear Ezra the scribe read the law of Moses. The law was read before all those who could understand, and the Levites went around explaining the law to the people where they stood, “translating to give the sense so that [the people] understood the reading.” This was done for seven days. In this way, the people reacquainted themselves with the terms of the covenant.

Next, the people repented for their prior unfaithfulness to the covenant, once they heard the terms they had violated. Nehemiah 9:1-3 records that

the sons of Israel assembled with fasting, in sackcloth, and with dirt upon them. And the descendants of Israel separated themselves from all foreigners, and stood and confessed their sins and the iniquities of their fathers. While they stood in their place, they read from the book of the law of the Lord their God for a fourth of the day; and for another fourth they confessed and worshiped the Lord their God.

The rest of chapter 9 chronicles how, in the history of Israel, there had been a repeated pattern of covenant promise, disobedience to the law, and restoration of blessings and liberty following a repentance from sin.

A recommitment to the covenant is indicated in Nehemiah 9:38. “Now because of all this we are making an agreement in writing: and on the sealed document are the names of our leaders, our Levites and our priests.” Thus, in chapter 10, the agreement of covenant renewal is set forth, and the people signing the document are named. The act of covenant renewal is summarized in verses 28 and 29:

Now the rest of the people . . . [and] all those who had knowledge and understanding, are joining with their kinsmen, their nobles, and are taking on themselves a curse and an oath to walk in God’s law, which was given through Moses, God’s servant, and to keep and to observe all the commandments of God our Lord, and His ordinances and His statutes.

THE MARSHALL LEGACY OF COVENANT FAITHFULNESS

The relationship between covenant faithfulness and liberty, and the pattern for covenant renewal, is applicable to the U.S. Constitution as well to any other covenant among men. Galatians 3:15 reminds us that “even though it is only a man’s covenant, yet when it is ratified, no one sets it aside or adds conditions to it.” This too, is the constitutional legacy left to us by Chief Justice John Marshall, contrary to the wayward legacy of modern U.S. Supreme Court Justices.

Central to John Marshall’s faith about the Constitution was a faithful adherence to, and exposition of, the documentary text. He summarized the “principles of construction, which ought to be applied to the Constitution” in Ogden v. Saunders, as follows:

To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them nor contemplated by its framers, is to repeat what has been already said more at large, and is all that can be necessary.

This rule of construction necessarily followed from Marshall’s commitment in Marbury v. Madison to a constitution that embodies fixed principles of law that are changeable only through the extraordinary amendment process:

The principles . . . are deemed fundamental . . . they are designed to be permanent. . . . The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. . . . The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

Of course, Marshall believed that not only the legislature, but also the executive and the judiciary were similarly bound by the text of the Constitution. In fact, the heart of Marshall’s justification of judicial review was his reliance on the written nature of the U.S. Constitution. Quoting again from Marbury:

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation. . . . Those then who contradict the principle . . . would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. . . . [I]t thus reduces to nothing what we have deemed to be the greatest improvement in political institutions – a written constitution . . ..

The Marshall legacy, then, has not only been a commitment to the unquestioned primacy of the written constitutional text as understood by the framers, but to a worldview that posited a Creator God who had given man universal and unchanging law, and who had guided man to establish civil government under a written covenant containing fixed principles. Thus, Marshall believed that the task of the judge was to discover and to apply the law written in the Constitution, not to create it and to change it as the judge saw fit.

It is incumbent upon “We the people,” at this time of the bicentennial anniversary of the U.S. Constitution and thereafter, with respect to it and the several state constitutions, to enter into a period of covenant renewal. We must first rediscover and reacquaint ourselves with the terms of our covenants, then repent from our unfaithfulness to the covenants, and renew our commitment to obey the them. Changing constitutional principles in order to accommodate changes in circumstances and values does not yield a “living constitution” as some believe. To the contrary, adhering strictly to the original terms, neither adding to nor subtracting from them, is the only assurance of the true liberty and prosperity. It is as Moses spoke to the people of Israel:

So keep the words of this covenant to do them, that you may prosper in all that you do. Deuteronomy 29:9.

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NOTE

*   Copyright © 1987, 2006 Herbert W. Titus and Gerald R. Thompson. Used with permission.