Presumptions of Validity and Legality

PRESUMPTIONS OF VALIDITY AND LEGALITY

Rather than addressing merely the sanctity of life, dignity of marriage and religious liberty, let’s say you now feel motivated to do something about the plethora of usurpations all around us, taking into account the full scope of God’s laws. Maybe you’d even consider doing something a tinge naughty, like civil disobedience. But doubts linger. Is that really a decision you can make on your own? Is it really acceptable with God if you decide to disobey? It can’t hurt to ask.

Presumptions of Validity

For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer. (Rom. 13:3-4).

We have already disposed of the false teachings that this text means civil rulers have a divine right to rule, they receive any direct authority from God, or that we as members of the public owe our civil rulers a slavish or a passive (unquestioning) obedience. Anyone who makes these arguments almost always has something to gain personally from making them, including religious leaders who use similar arguments to justify their religious overreaches. But as for me and my house, until Christ returns, I will bow the knee to no man. (It’s so American of me.)

But what about the conceptual cousins of these pernicious ideas, supposedly lesser and gentler in their effect? You know – either that: 1) all civil laws are entitled to a presumption of validity, or 2) as good citizens and God-fearing people, we owe a presumptive duty to obey all civil laws.

Let me start by noting that these are not the same. The first assertion presumes civil laws are valid unless and until the contrary has been shown, which is to say that the burden of proof for establishing that any particular law is not valid rests with the one who would oppose it. Or, the benefit of the doubt runs in favor of any duly enacted law.

The second assertion is worse – it presumes that all civil laws must be obeyed even if they are bad (or by some measure to be determined, invalid). Under the second assertion, it is not enough to show that a law is bad, it must also be shown that there is some grievous harm or direct disobedience to God that results from obeying the law, before any disobedience to it is justified. In other words, the burden of proof (for disobedience) is higher than it is under the first assertion. Why? Because (so the argument goes) God just wants us to be obedient all the time, even to sinful men who are behaving badly. I suppose some may even rationalize that kind of thinking as maintaining a good witness for Christ.

However, keep in mind that the second assertion takes a position exactly opposite to the Vindiciae Contra Tyrannos, quoted earlier. That document made it clear that the obedience of the people depends on the civil ruler governing justly, and where the civil ruler does not do so, obedience is not required. See how an argument that sounds plausible at first blush, can turn out to be something that was put to shame almost 450 years ago?

Against these two assertion I offer several arguments (in addition to what the Vindiciae said), including: 1) most government rules are not really laws at all (that is, the definition of duly enacted law is actually pretty narrow); 2) all authority (including civil authority) must be justified before it can be exercised; and 3) the burden of proof to show a law is invalid is actually pretty small. These arguments are sufficient in my mind to nullify both of the assertions in favor of the presumed validity of all civil laws and our supposed Christian duty to obey them.

Many government rules are not really laws at all

There are certain things you just cannot understand scripturally unless and until you factor in the legal sense of words. Words like authority, government, and rulers. And here we must determine what it means for something to be a law, because you cannot understand the extent we owe a duty to obey civil laws, if you do not first understand what a law is – and is not.

Let’s assume arguendo, that there is such a thing as a presumed validity or a duty to obey all civil laws. In that case, what would such a presumption or duty look like? What would we really be required to do? Are all commands, orders, rules and regulations issued by any government agency or civil ruler of equal authority, and are we to think of all such things equally as laws? Lord have mercy – NO.

Let’s start with the obvious. The presumption of validity does not attach to any purported laws which are not, in fact, duly enacted. Duly enacted laws means legislation which has been voted on and passed by the legislature, and then signed into law. In any system where separation of powers is the rule (as it is in America), no one except the legislature can make or enact laws.

Duly enacted laws do not include executive orders. Executive orders only apply to employees of the executive branch and (possibly) to people who enter into contracts with the government. Executive orders do not apply to ordinary citizens or residents. Presidents and governors do not make or enact laws – they simply sign (or veto) legislation brought to them.

Many of the rules and regulations adopted by non-elected officials in various government agencies are not really laws, either. Legislative power is something that cannot be delegated. Congress cannot simply delegate rule-making authority to the Internal Revenue Service, for example. Unless a rule has been passed by both houses of Congress and signed by the President, it is not a law. Therefore, all federal tax regulations are merely administrative interpretations of the law, suggested guidelines or safe harbors for complying with the law, and procedures for documenting your compliance with the law, but they are not laws themselves.

I always get a kick by the way tax regulations are regarded by accountants, as opposed to lawyers. Accountants (in my personal experience, anyway) tend to treat the regulations as gospel, whereas lawyers treat them as rules of thumb that, if someone will pay for it, we will gladly challenge any day of the week.

For example, the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” Just think about that in basic terms, setting aside the myriad of crap out there about church and state. An organized church (usually a corporation) is an establishment of religion. If Congress makes a law defining what a church is, then it has made a law respecting (i.e., concerning) an establishment (i.e., institution) of religion.

For that exact reason, no part of the federal tax code ever defines what a church is (other than to say a church is “a church, a denomination or an association of churches,” as if that helps), even though there are numerous provisions in the tax code specifically for or about churches. But that hasn’t stopped the IRS from adopting its own 14-part definition of what it means to be a church (although it should have). In my career, I have had fun several times in challenging the IRS’ authority to define a church, twisting and manipulating the definition for the benefit of my clients – precisely because I knew going into it that the IRS rule was on shaky ground. Not a law – only a suggestion.

See my essay on The Constitutional Authority to Define A “Church” for more information about this matter. But that is just one example. I regard all federal regulations the same way.

However, the most important caveat is that judicial opinions and orders are not laws. Yes, judicial orders are binding on the actual parties to the case (as I discuss below), but they are still orders, not laws. Orders are only binding on the people to whom they are specifically directed, whether executive or judicial. But courts are not legislatures, and courts have no legislative powers. I do not subscribe to the fanatical religious belief (currently in vogue) that judges do make laws.

The historic rule at common law was, jus dicere, non jus dare. Meaning, judges only declare pre-existing law, they do not make new laws. This was reflected in The Federalist, No. 78:

The legislature … prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, … can take no active resolution whatever. It [the judiciary] may truly be said to have neither FORCE nor WILL, but merely judgment.

I have previously written about this more extensively in Legal Foundations: The Framework of Law, Ch. 3 (“The Characteristics of Law”). Most people don’t even realize the U.S. Supreme Court never actually held that its decisions were law binding on all the states until the United States was 182 years old. Cooper v. Aaron, 358 U.S. 1 (1958). If you’re thinking of looking up the constitutional amendment that was adopted which authorized this holding, don’t bother – there isn’t one.

Neither the Code of Federal Regulations nor the case books of federal court opinions are recognized by the Constitution as duly enacted laws. (The same thing is true at the state and local level.) This is the equivalent of The Emperor’s New Clothes applied to the judicial branch – everyone sees what isn’t there, just to be accepted and approved by the people in charge. But it’s still just a fairy tale.

Who Really Has The Burden Of Proof?

All authority must be justified

We know from the Limitation Principle of Authority that anyone who receives delegated authority may exercise only what is expressly authorized, and may not do everything except what is expressly forbidden. This is the enumerated powers principle of life. Which is to say, that all authority must be justified before it is exercised. Certainly this principle applies to all of us as individuals. But it also applies to civil governments in general, and to all civil rulers, public officials and government employees, as well.

In fact, I suggest, it should apply more to civil government and public officials, than to all the rest of us. All individuals are created by God, and we derive our authority directly from Him. Civil government, on the other hand, is created by the people, and its authority is derived from them. Thus, not only the laws of nature and nature’s God, but also the laws of men, should be consulted before pronouncing a civil law authorized. Civil laws are subject to an extra layer of scrutiny, making them less likely to be authorized, not more.

We are accustomed to checks and balances within our system of government (that is, between the three branches of government) for one basic reason: to guard against the harmful aggregation of power by those in leadership positions. Why can’t the people be a check and balance for their civil rulers? Is it really likely that public officials will police themselves and restrain each other from the harmful aggregation power? How has that worked out for you so far?

Civil disobedience is, I suggest, a lot like jury nullification. Traditionally, in Anglo-American jurisprudence, juries are limited to being triers of fact (that is, juries decide what the facts are in a case), and judges are the ones who decide what the law is. Typically, judges will instruct a jury on what the applicable law is.

But what if the law is wrong? Which brings us to another legal tradition – lesser known, officially recognized but almost always discouraged, yet occasionally exercised anyway. Namely, jury nullification, where the jury takes it upon itself to decide the law as well as the facts in order to do justice. Usually, this means the jury finds that the law is wrong, or at a minimum, that the court’s view of what the law requires is wrong. Don’t think this is an obscure matter – it is right now (2018) the subject of litigation in the case of U.S. v. Manafort, in federal district court.

What is jury nullification (or for that matter, civil disobedience), except a form of check and balance on public officials by the people? Those in power would have us believe that they are special, i.e., more qualified to make legal and policy judgments than ordinary citizens. But the qualities which tend to get people elected (lying, manipulation, buying votes, etc.) are exactly the tendencies which make them less qualified to make legal and policy judgments than ordinary citizens.

Jury nullification, like all forms of civil disobedience, will never be approved by government leaders. They will always want unquestioned obedience by the people, and view nullification as a form of disobedience. But all the people are doing is making sure that the authority the court or the prosecutor’s office are trying to assert is really justified. And that is a good thing.

All lawful civil rule, regardless of what any particular civil ruler may claim, is constrained by the consent of the governed and the express terms of any delegations of powers by them. As a consequence, the authority to rule must continually be justified. It is not assumed. It is not to be taken for granted. It is always subject to review by the people on an ongoing basis.

Additionally, people are wicked by nature (due to the Fall), the human heart is predisposed to do evil, and the governments of this world are presently under the control of the great deceiver. Therefore, how can anyone argue, much less realistically expect, that the nations and governments of this world will consistently govern according to the laws of nature and nature’s God? It is a preposterous lunacy.

Shouldn’t we, if we are being realistic, fully expect that the vast majority of civil laws – yes, even in America, God’s country (sic) – are in fact contrary to God’s laws and our natural rights, rather than being consistent with them? Has there ever been a time when the governments of this world were more in compliance with lonang than out of compliance? If you think the answer is Yes, then you and I are living in different worlds.

I appreciate the historic legal writers who tried to integrate biblical principles with legal concepts. Unfortunately, most of the historic writers up through the mid-1700’s were still captive to the idea that a king was, if not chosen by God and divinely elevated to office, at least divinely empowered to carry out a holy civil purpose. This was the era of state established religions, when most people thought it was the normal business of civil government to promulgate true religion and enforce religious laws. These same writers conceived of kings as superiors, and the common people as inferiors. Ugh!

This, I believe, is the real origin of the presumptions that all civil laws are valid, or that we must obey all civil laws regardless of whether they are valid – i.e., the unholy commingling of civil governments and religion. Historically, this meant the state sponsored religious activities. We don’t see that as much today (except for so-called Islamic republics – an oxymoron if I ever saw one). But there always seem to be plenty of people around, bolstered by warm feelings of piety and a desire to be seen as holy, who insist that government officials rule by divine approval and are God’s appointed ministers. Like I said – an unholy commingling.

But once you remove all vestiges of state established religion, all claims of a divine right to rule, and all pretenses that civil laws are intended to implement the laws of God, there is no basis left for making these spurious presumptions. If you’re looking for a justification of civil authority, you can’t find it in past ideas rooted in religious entanglements.

Where does the burden of proof lie?

All of the above leads me to conclude that the burden of proof to show that a civil law is invalid or need not be obeyed is actually pretty small. Often, it’s not a difficult question at all (though the answer may be difficult to accept). In fact, I shouldn’t wonder if perhaps the burden of proof lies with those who would enact any law, not with those who oppose it.

For example, since God gave individuals jurisdiction over the mind and the heart (i.e., education and charity), when civil government regulates those things, who has the presumption of validity and who has the burden of proof to justify their authority? Same question, when government imposes taxes to fund and support public education and public charity (such as welfare), or worse yet, creates government agencies designed to implement educational and charitable programs?

Since God gave families jurisdiction over child-bearing (which includes all aspects of the parent-child relationship), and dominion (including economic rights, property, contracts, industry, labor, occupations and stewardship), when civil government regulates those things, or intervenes to second guess how families handle those things, who has the presumption of validity and who has the burden of proof to justify their authority?

Since God limited the authority of civil government to punishing those who do evil (which means government should not punish doing good, nor should government be in the business of doing good things), and praising those who do right (which includes the securing of individual rights), when civil government punishes doing good (think of religious adoption agencies), gets in the business of doing good things (think of government involvement in health care), or fails to uphold individual rights (think of the baker who refused to make a wedding cake for a gay couple), who has the presumption of validity and who has the burden of proof to justify their authority?

Since God gave the Church the authority to evangelize and to teach all nations the laws of God, when civil government restricts or regulates those things, who has the presumption of validity and who has the burden of proof to justify their authority? What’s that – you’re not feeling the government squeeze in religious matters yet? Start talking very loudly against global warming, diversity or LGBT rights, and see how long you remain free from persecution by all manner of legal and regulatory means.

Now in the grand scheme of things, while government restrictions on the Church (whether organized religion or individual Christians) are attention grabbing, they are not nearly as pervasive or intrusive as the universal and unlimited usurpation of the private sector relating to individual and family economic rights and liberties, education, and inter-family relationships.

This is the crux of the problem. Sure, religious freedom issues crop up every so often, but dominion – that is the real issue. Who rules this world anyway – civil government or the private sector? I’ll give you a hint – it’s not civil government. As you consider the subject of civil disobedience, don’t ignore the weightier matters of the law. See, Mat. 23:23. In other words, don’t focus on religion.

The Prohibition of Judging One’s Own Cause

In the event you ever find yourself in a situation where you disagree with a government rule or policy because it violates God’s law, no one from the government is ever going to offer a counter-argument from scripture, or debate the fine points of the laws of nature and nature’s God. No, the matter will simply come down to the question of who gets to decide who is right. And on that score, the outcome is fairly predictable. In the eyes of the government official they get to decide, with the result that you will always lose.

Unfortunately, many well-meaning (but uninformed) people think that is exactly the way things should be. The argument is often made that for a person to engage in civil disobedience is equivalent to “judging one’s own cause,” and therefore prohibited. But what really is the law about judging one’s own cause? To answer that question, we must look at the scripture in context.

“If any case arises … within your towns that is too difficult for you, then you shall arise and go up to the place that the Lord your God will choose. And you shall come to the Levitical priests and to the judge who is in office in those days, and you shall consult them, and they shall declare to you the decision. Then you shall do according to what they declare to you from that place that the Lord will choose. … You shall not turn aside from the verdict that they declare to you, either to the right hand or to the left. The man who acts presumptuously by not obeying the priest who stands to minister there before the Lord your God, or the judge, that man shall die. So you shall purge the evil from Israel.” (Deut. 17:8-12).

First, a word about the definition of cause. A cause of action is a lawsuit. Thus, this entire text is solely directed to judgments in legal cases. To judge your own cause means you are disobeying a judge’s order and acting as if you are the judge. And that’s all it means.

Also note that this scripture is specifically directed to ancient Israel, which limits its application. Specifically, the death penalty it imposes does not apply to nations today. Modern nations are under the general imposition of the death penalty in cases of murder only. Gen. 9:5-6. All other instances of the death penalty under the Mosaic law are specific to ancient Israel only.

We also must be careful not to ascribe any divine authority to a judge, nor to view any judge as a mediator between God and man (like a priest), nor to view any judge as expressing the judgment of God. Looking at Deut. 17, this is exactly how the ancient Israelites would have viewed their priests and judges. But ancient Israel was a true theocracy – God was the original king of the nation – and the laws of the nation were (every single one of them) God’s laws. No nation is a theocracy today, however. We cannot simply drop Deut. 17 into any modern judicial system and claim it to be God’s will.

There is no reason to assume that modern civil judgments are intended to enforce God’s laws or administer holy justice. I mean, have you ever been in a modern courtroom, by any chance? Justice has been totally redefined to mean simply whatever result the judicial system spits out after grinding you through the standard substandard process. You want to introduce a biblical rule in court? Prepare to be laughed at and scorned.

Nevertheless, I am willing to suppose merely for discussion purposes that buried in this scripture is a general principle that one should not violate a judicial order – a general principle binding on all people in all nations, wherever and whenever. Fine. What does that really mean?

It chiefly means that the general principle (of not acting presumptuously against legal decisions) applies only to actual judicial orders. It does not apply to statutes, i.e., actual laws. It does not apply to executive orders. It does not apply to judicial decisions in which you personally were not a party to the case. Judicial opinions of the U.S. Supreme Court – and indeed any court – only apply to the actual parties to the case. Those are the people to whom any judicial order is directed, and those people only.

No judicial case, and no judicial order or opinion, is binding on all people. Yes, I know in this day and age when madness prevails, that the religious idolatry of judge-made law is one of those things the legal profession likes to believe may not be questioned. It is truly the great sacred cow of our judicial system. Believe it if you want to – but I am not constrained by that way of thinking, and neither are you unless you submit to it. But one thing I can say for sure – Deut. 17 does not require us to obey judicial decisions to which we are not a party. Because Cooper v. Aaron isn’t binding on God.

Yet, even if I should obey a judicial order specifically directed to me as a party to a dispute, there still are exceptions. If a judge should order a person to stop teaching in the name of Jesus, may we all admit this might be a circumstance in which it would be perfectly appropriate to say back to the judge, “We must obey God rather than men”? But I have used a poor example. Don’t think for one second that there are not also very many other situations, involving the individual rights I have previously listed, in which it would be just as valid to make the same reply to the judge.

Suppose a judge ordered you to never use even very mild corporal punishment on your child? What if you are ordered to submit to re-education to remove your prejudice against LGBT rights? Suppose your business has a sign on the door that says, “We reserve the right to refuse service to anyone,” and you are ordered to remove it and take all comers? Religious liberty is not somehow more worthy of disobedience to judicial orders than other rights granted by God.

Which takes us right back where we started. When push comes to shove, the mere fact that the oppressive action of government comes in the form of a judicial order rather than a statute makes no real difference to whether man’s law or God’s law should prevail. God’s laws always prevail. A judge is no more entitled to violate my God-given natural rights than a legislator or any other public official. A judge, ultimately, is not held to a different standard or measure of lawfulness than other civil rulers. And a judge is not entitled to the benefit of a doubt any more than another government employee, simply because he or she is a judge.

Sure, I would think twice – and you should, too – about disobeying a judge’s order in a case where I was an actual party. If for no other reason, the spotlight is on you, you are under scrutiny, and it’s not likely you can successfully pull off a disobedience in secret. But even then, some things are worth bringing to the attention of others even at great personal cost, right? And where it’s not worth the cost (most cases), find something else to disobey, if you must.

Here’s the bottom line: let us assume the scriptures, “according to the decision which they pronounce to you, you shall do” and “we must obey God rather than men” are both true, valid and binding at the same time. What happens when compliance with these two rules pulls us in opposing directions? As long as a judge’s decision complies with the laws of God, well then, sure – by all means we should comply with the judge’s ruling because it also means we are complying with the will of God.

But when a judge rules contrary to the laws of God, can anyone seriously argue that obedience to the judge, and not to the laws of God, is what God requires? Especially in America, where the laws of nature and nature’s God form the express legal context for the nation and the law of the land, which every judge is bound to uphold – who do these judges think they are, to make contrary rulings?