LIBERTY LETTERS WITH STEVE FARRELL
Back in August of 2010, Judge Vaughn Walker engaged in what has become an increasingly played tyrannical game: “Stroke of the pen. Law of the land. Kinda cool!” when with no other authority than his opinion of what California and American law ought to become, rather than what both the Calironia and U.S. Constitutions required – which requirements judges are sworn to uphold – he struck down California’s Constitutional Marriage Amendment (previously known as Proposition 8).
We all remember this. And do remember the following as well? Without a second thought many “conservatives” (by this term I mean to say anyone who still holds to the view that the Constitution is worth conserving) instantly screamed in protest: “One judge wiped away the votes of seven million people!”
Of course, they were right. But was that the best they could do? At the time, Associate Editor, Selwyn Duke, protested that the argument of his fellow conservatives had rhetorical value, but little else. “The reality is that if the Proposition 8 vote had been swung a few percentage points the other way, the measure wouldn’t have passed, and the left could be citing the will of the people to buttress its cause.”
“Right and wrong,” he continued, “aren’t determined by popular will.”
What some Americans miss by reasoning on such a superficial level of “we won the vote! And that’s all that matters!” is that we are in the midst of a very real and a very hot ideological war which will end in either liberty or slavery depending on which side comes out on top. Will it be the secular humanists and their determined communist, socialist, fascist, and anarchist allies? Or will it be the Judeo-Christians and their constitutionally conservative, pro-limited government, featuring an American political and legal tradition built upon the foundation of fixed, fundamental, and eternal laws? When engaging in such a showdown as this, and more specifically, when confronting forces bent on destroying the sacred institutions of marriage and family, it seems shorsighted and shallow indeed, to let their fate be decided once and for all on the shifting sands of majority opinion.
Don’t we need to stand up for those great moral and legal fundamentals boldly, and do so with intelligence and persuasion, humility and love, and with a better sweep of how such isssues fits into the big picture?—a big picture that includes this: the American Founders gave us a republic not a democracy, or what both Jefferson and Adams called “a government of laws and not of men”?
I think we know the answer. As to putting too much credence in majority opinions—and worse than that, “polling data”—the Founders by in large flatly rejected the ill-founded and presumptuous idea that the democratic will as found in the majority view is “the voice of God.” Yet we occasionally still hear it. And sure enough someone will quote Benjamin Franklin saying: “The judgment of a whole people is infallible,” to prove their point. But before they do, I will kindly remind them what Franklin really said:
The judgment of a whole people if unbiased by faction, undeluded by the tricks of designing men, is infallible.
And that makes all the difference! The whole people rarely, if ever, have been unbiased by faction or undeluded by the tricks of designing men. Nor can we expect otherwise until the King of Kings whose right it is to reign on Earth comes in all His Glory and saves us from ignorance and sin. Barring that, James Madison, the Father of the Constitution, warned of the reality of things at present: “men are not angels” (see Federalist 51); and so wisdom dictates that we should never run the risk of concentrating political power; no, not in the hands of the one (Monarchy), the few (Aristocracy), or the many (Democracy).
What Madison and his fellow founders proposed and produced as the solution to those three defective systems (pure democracy generally thought of as the most volatile, violent, revolutionary, and short lived of them all) was:
- a mixed government that offers the best elements of each;
- mixed forms of representation (the House elected directly by the people, the Senate by their respective state legislatures, the President by specially selected electors, and Supreme Court justices by the nomination of the President and the 2/3rds sustaining vote of the Senate);
- frequent elections (but even this is mixed with elections every two years for the House, every six years for the Senate, via a biennial 1/3 rotation, every four years for the President, and as to the judges, which are appointed not elected, appointment for life dependent upon good behavior);
- separation of the three great powers (legislative, executive, and judicial);
- a variety of checks and balances to make this separation meaningful and workable;
- a unique system of federalism or mixed sovereignty (between the federal and state governments) that specifies which few powers (and no more) are delegated to the federal government with all the remainder, the great bulk of them, retained by the states and the people;
- a Bill of Rights that upholds the Higher Laws of Nature (discovered by Reason) and of Nature’s God (confirmed by Revelation) including most vitally: freedom of religion, speech, and press, the right to habeas corpus, the right to trial by a jury of peers, the right to face one’s accusers, the right to have witnesses in one’s defense, the right to petition, and so forth,
- a written Constitution that all the people can read, easily comprehend, and cite in their defense.
Or in other words, not a democracy at all, but an inspired republic, the greatest republic ever devised – even a republic that permits, encourages, and protects input from the people, or self government – yes indeed – but which does so in a very elaborate, guarded fashion which brilliantly places preventive checks upon weakness, lust, and ambition of imperfect men from concentrating the power such moral flaws inspire in men, in any one place, thus decreasing the likelihood of the overthrow of liberty in a single day, or by a single vote.
And besides this, the Founders understood for even this system to work and endure the people needed to be educated and moral. Rarely taught today is that fundamental reason the Founders thought freedom of religion and speech vital to the health of the republic, that is, their hope that left unmolested, truth and morality would triumph among the people, producing, in turn, an electorate moral enough and educated enough to uphold a free state. Or to put it another way, the founders didn’t believe the definition of successful self-government was ‘the right of the people to vote on which neighbor to rob, which church to blow up, which industry to pillage, whose or which rights to subvert, which group to favor and disfavor, and whether or not it would be okay to commit national suicide. Yet without education, without God, without people smart enough and disciplined enough to live wise and moral lives these are the very things the people get into their heads and their hearts that they do have the right to do.
An ancient prophet leader gives this common sense warning:
For as their laws and their governments were established by the voice of the people, and they who chose evil were more numerous than they who chose good, therefore they were ripening for destruction, for the laws had become corrupted.
Yea, and this was not all; they were a stiffnecked people, insomuch that they could not be governed by the law nor justice, save it were to their destruction.
Which is precisely the problem with democratic forms of government. One mob decision, one majority vote to impose wickedness, sin, and tyranny on one’s neighbor or competitor, however justified, and political, economic, and religious liberty may end there and then, or in a week, or in a month, or in a year or decade later.
But our republic has survived these 227 years and counting!
Simply, this is why it lacks wisdom to make our first or primary appeal to justify vital matters like the defense of marriage, or to appoint a man or woman to what has become (without justification in the Constitution) so powerful an office as the President of the United States (I refer to the growing movement in the states to scrap the Electoral College), by way of a mere majority vote, or worse yet, by opinion poll, and worst of all, by way of one man or one courts or one administration’s so-called perception of the public pulse.
Again, by way of contrast, our Founders’ republic makes the road to tyranny via the plans of conspirators or the wanderings of the ignorant or the misguided desires of the lazy and lustful a far more arduous, complicated ordeal. It makes it so that each change in the law fights a difficult, prolonged battle between competing forces and interests, all mixed up as they are, checking and balancing each as they ought, rarely harmonizing in an instant or even a decade. Thus, the good, the just, and the wise are given time to rally their forces, get the word out in hope that wisdom and virtue, truth and knowledge may yet prevail … and so that the voice of God may actually, on occasion find a home in the law, or in a Congress, and perhaps lodge there for a season. And that makes all the difference too.