Bias in the Halls of Justice

by Gerald R. Thompson

According to an old lawyer’s joke, “When the facts are against you, argue the law. When the law is against you, argue the facts. When both the law and the facts are against you, scream for justice!” Implicit in the joke is an acceptance of a subjective view of justice – that justice triumphs whenever our side wins. This view is accepted by society because it has abandoned all hope of finding an objective standard of justice. Yet, society still claims to administer a system of justice which is impartial. How is this possible?

First, it denies that there is, or can be, any truly objective legal system – everyone is presumed to be biased in reality. Second, society views public perception as more important than reality – even though everyone is really biased, the system will work so long as we all hide our biases and pretend to be neutral.

Those who don’t agree to play by these rules are viewed as troublemakers. First, there are the people who claim to have discovered an objective basis for justice – making everyone else look biased. Second, there are public officials who disclose a personal faith in religion (especially Christianity) who, God forbid, aren’t promoting the accepted perception of neutrality. And how does society reward these people?

Just ask U.S. Supreme Court Justice Antonin Scalia. When he addressed the Mississippi College School of Law in early 1996, he told them, “One can be sophisticated and believe in God.” “We are fools for Christ’s sake. We must pray for courage to endure the scorn of the sophisticated world.” If one could believe the media, Scalia’s remarks were a slap in the face of justice. According to the Washington Post, Scalia could not “give First Amendment issues a fair and reasoned hearing.” Other critics questioned his general objectivity as a judge.

Or ask former Alabama Judge Roy S. Moore, who had the audacity to hang a placque depicting the Ten Commandments of the Bible in a state courtroom. For this conduct, he was sued by the ACLU, and later removed from the bench. A spokesman for the ACLU said, “No one should have to pass a religious test to receive justice in a courtroom.” The ACLU views the Ten Commandments as a “religious symbol” which, “in its context, has the effect of endorsing religion in general and Christianity in particular and therefore violates the Establishment Clause.”

But, let’s try to get a bigger view of what’s going on. Granted, everyone, including Justice Scalia, Judge Moore, the ACLU and society in general, all would say they want an impartial system of justice. Where would anyone go to find such a system?

In the words of Jean Jacques Rousseau (1712-1778), “to discover the rules of society best suited to nations, a superior intelligence beholding all passions of men without experiencing any of them would be needed. This intelligence would have to be wholly unrelated to our nature, while knowing it through and through . . .. It would take gods to give man laws.” [Social Contract, Book 2, Chap. 7.]

This was the view embraced by America’s founders. They even went so far as to justify the separation of the United States from Great Britain on the basis of the laws of nature and of nature’s God. In so doing, the Declaration of Independence established the laws of nature and of nature’s God as the express legal context for the nation. By implication, so long as the United States exists, this legal context governs its institutions and laws, including the Constitution.

The laws of nature and of nature’s God was not a new or novel legal concept. Rather, it was a short-hand phrase for the law of nature (as defined by historic legal writers), and the law of nature’s God (historically referred to as the divine law, the revealed law, or the law of God) as revealed in the Bible. In other words, the Declaration expressly incorporated the law of God as revealed in the Bible into the legal context of the United States, and made it the basis of all our laws.

But someone will say, “This can’t be – the Bible is a religious book! And besides, whatever views were expressed in the Declaration were superseded by: a) the Constitution; b) the First Amendment; and c) subsequent Supreme Court opinions, etc.”

It is certainly true that Rousseau’s view isn’t politically correct today. It is also true that the Declaration is an embarrassment to the neutrally perceived elite – which is why it is largely ignored and its legal significance downplayed or ridiculed. But this doesn’t answer the question – where would you go to find a truly objective system of justice? To feminist or Marxist ideology? To the members of political parties? To people who know they have a bias but won’t disclose it?

America’s founders, like Rousseau, wanted to rise above these options. They sought a system of justice based upon the Creator of the world and His laws. The presumption was, that any law of the Creator of the human race would be equally disposed towards all, and partial towards none. After all, who could possibly be more impartial than the Creator?

But someone will say, “doesn’t this necessarily make religion the controlling influence in civil government? And didn’t the First Amendment reject this religious influence in government?” Well, consider this: mere belief in a Creator is not a religious belief. Nor is the Bible merely a religious book. “Wait a minute – doesn’t the Bible talk about Jesus and sin and redemption and stuff like that? So it’s religious, right?”

Yes, the Bible does have religious “stuff” in it. But that’s not the point – the Bible isn’t exclusively religious. Nor does a person have to be religious to read it. Thomas Jefferson read the Bible throughout his life, but to the best of anyone’s knowledge, he was not a Christian – and he certainly never claimed to be one. Yet, he was the person who wrote the Declaration of Independence using all that nice “laws of nature’s God” and “endowed by our Creator” language. Was he really a closet Christian? As if someone wouldn’t have discovered that by now!?

Plus, Article VI, Clause 3 of the Constitution provides, “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Not only was this provision written by people who knew full well what the Declaration said, but the same clause contains a requirement that all public officers at the state and federal levels, “shall be bound by oath or affirmation, to support this constitution.” Thus, the swearing of an oath, which acknowledges the existence of God, must not be legally equivalent to a religious test.

Consequently, mere belief in God is not, constitutionally, “religious.” Nor, by implication, is the acknowledgement of a Creator. And if Jefferson is any example, it is actually possible to read the Bible to discover “the laws of nature’s God” without experiencing personal redemption or a religious conversion.

Remember, Jefferson was also the one who wrote the Virginia Bill for Religious Freedom (in 1779) which outlawed the “sinful and tyrannical” practice of promoting religious ideas by public officials. Does anyone really think he was unable or unwilling to recognize a conflict between what he wrote in the Declaration in 1776 and the Bill for Religious Freedom in 1779 if it actually existed? Maybe there wasn’t a conflict at all?

So, who would you rather have sitting as a judge in your case? Justice Scalia, who believes in God and looks to Him for guidance in administering justice impartially? Judge Moore, who believes the Ten Commandments just might be a succinct description of the “laws of nature’s God” upon which this nation was founded? Or the great secular pretenders of our time, who deny God’s existence, deny any objective basis for justice, and who harbor secret biases they are unwilling to disclose, all the while dispensing ‘justice’ defined according to when their side wins?


*   Copyright © 1998, 2006 Gerald R. Thompson. Used by permission.