Positive Law
Our Constitution was made only for a moral and religious people.
John Adams
Americans take things for granted; it’s human nature. I’ll switch to the personal pronoun and say I expect to wake up every morning and everything will still work. Unfortunately, my 73-year-old body no longer awakens pain free as it did when I was young. In fact, a good day is when I have less than two niggling infirmities to deal with. Becky and I understand this price of life and consequently never throw away various braces, splints, wraps and microwavable hot packs which we’ve acquired and store in our “orthopedic” foot locker.
In a somewhat similar vein, inculcated in Americans is the concept of free speech. This does not exist elsewhere in the world where there is no foundational First Amendment. In fact, when The Constitution was written, James Madison and other Founders refused to sign the document without the assurance that The Constitution would be immediately amended with what we call The Bill of Rights.
There have been 27 Constitutional Amendments, but these first ten are integral to Americanism, especially The First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
We hear a lot about the prohibition of a state religion, but seem to disregard the free exercise clause. In fact, Obama complained that The Constitution was a “set of negative liberties.” Absolutely! The Constitution was designed to limit the government, not We The People.
The Founders were a diverse bunch of various Protestant groups, Catholics, Quakers, Jews, Deists, even atheists. Nonetheless, the Declaration of Independence and The Constitution reveal the foundational principles of America.
You might think The Constitution says there should be a “wall of separation” between church and state. Actually, it does not. Shortly after Thomas Jefferson was elected president in 1800, he wrote a letter to Baptists in Danbury, Connecticut, reassuring them that their legislature was not going to establish a state religion as existed in England, because there existed “a wall of separation between Church and State.”
However, in 1947 Supreme Court Justice Hugo Black used Jefferson’s obscure metaphor in the Everson v. Board of Education decision thereby “constitutionalizing” the private writings of Jefferson which were never intended for the Constitution.
The First Amendment also guarantees freedom of the press and the right of citizens to petition the government. However, my focus of this essay is freedom and speech, which is under attack worldwide and in America.
Recently, Macron’s French government arrested Telegram CEO Pavel Duron claiming he doesn’t police content on his chat messenger. Britain just passed an “extremism” law warning people – including Americans – of arrest for posting what they deem as objectionable “hate speech.” Elon Musk’s X was just banned in Brazil when Musk refused to accept the government’s censorship. The EU has similarly threatened X. Zelensky shut down the Ukrainian Orthodox Church. Venezuela’s Maduro arrested his opposition leader after a tainted election, just like the Democrats are trying to lock up President Trump. Leftist journalists in America are calling for the arrest of Elon Musk because they don’t like his politics. And in 2019 Kamala Harris said Trump should be removed from Twitter (now called X).
This June the Supremes decided in Murphy v Missouri that social media platforms can censor speech. The case was brought against the Biden/Harris administration for coercing platforms to suppress speech with which they disagreed. Of course, this was before Zuckerberg admitted during congressional testimony under oath that the Biden/Harris administration did pressure platforms to suppress free speech.
I’m a free speech advocate because suppressing speech and information is far worse. Furthermore, who gets to determine what is objectionable or wrong, what is hateful or evil? I believe the consensus of Americans would agree that slavery is wrong, pedophilia is sick and Nazis were evil. But what do you do with radicals at Columbia who promote antisemitism? What about Muslims slaughtering Christians in Nigeria?
The reason I’m an absolutist is because without an absolute standard of right, everything is relative. I believe there is an absolute good which I see as God. I measure myself against that standard. Actually, all our laws derive from this foundational truth. President Trump said, “Without religion there are no guardrails,” and we’ve begun to see what happens when there is a “wall of separation between church and state.”
In the 13th century Thomas Aquinas and the Scholastics devised a series of hierarchical laws which I envision as concentric spheres. The Scholastics imagined everything as existing within God’s Universal Law. Within that sphere were God’s laws, like The Ten Commandments. And within that are the laws of nature. Finally, the lowest level of function and the smallest sphere is the so-called positive law of man.
Some years ago, the phrase “What would Jesus do?” was popular. I still use this metaphorical yardstick. I don’t steal or lie and mostly obey the speed limit. I certainly don’t murder or use the Lord’s name in vain. I obey Man’s laws of speed limits and the Constitution because there are consequences for disobedience. But more important than man’s laws, I answer to God for my actions. Jesus is my guardrail.
The ancients thought a civilization could be constructed on what we now refer to as the Cardinal virtues. These are: common sense, courage, justice and moderation. Then Paul in 1 Corinthians 13, wrote what we refer to as the Theological virtues of faith, hope and love (charity). I see these as the metaphorical rudder for my ship, afloat on the celestial sea of Creation.
And so we come full circle. We have laws which were designed to promote “life, liberty and the pursuit of happiness.” We exist in God’s Creation (nature), sustained by His love and grace. And we were given virtues to navigate through life and be prosperous. C. S. Lewis described what we “ought” to do or ignore at our peril.
Pay attention, folks. God is watching and nudging your conscience. Don’t ignore Him.
