Continuing Mission of the National Reform Association -NRA

abstract: the deficiency of any constitutional safeguarding of man's rights that does not ground the protection of these rights in God and His law

by John Fielding

Editor's Note: The following is the text of an address delivered by NRA president John Fielding on November 14, 2003 at the annual meeting of the NRA in Pittsburgh, Pennsylvania.

One of my favorite TV series growing up was Star Trek. Of course, the original series debuted in the mid to late 60's. At that time, William Shatner would announce during the opening credits that the Enterprise had a "five-year mission... to boldly go where no one had gone before," giving rise to the most famous split infinitive in recent history. More recently, not wishing to be limited to merely a five-year mission, recognizing both the demands of Star Fleet and the Nielson ratings, "Star Trek--the Next Generation" now has a "continuing mission." The present and next generation of the National Reform Association must similarly recognize that it, too, has a continuing and renewed mission: to recognize the standard of God's unchanging law in our national governing documents.

This year of 2003 has brought forth two significant events that point to a fresh relevance for the distinctive position of the National Reform Association. The first was the issuance of the United States Supreme Court opinion in Lawrence v. Texas and the second was the ordered removal of Chief Justice Roy Moore's monument to the Ten Commandments in the Alabama State capitol building by Federal District Court judge Myron Thompson in Glassroth v. Moore.

In the first case, the Supreme Court's opinion in Lawrence v. Texas, while not entirely unexpected, was disappointing, nonetheless. The key problem with the decision is that the Court has deprived the states of their ability to protect the public morality, stating that "[o]ur obligation is...not to mandate our own moral code."1 To the contrary, as I have pointed out elsewhere,2 a moral code is being mandated everyday in such decisions: the moral code that states that, on the surface, we are all disconnected individuals constituting our own moral universes, but really only grants admission to the club to those moral statements that ratify the idea of man at the center of those universes. God need not apply. In this, the Court has stood the usual constitutional analysis on its head.

The usual constitutional analysis subjects challenged state statutes to a three level analysis depending on the activities regulated. The most stringent, reserved for fundamental liberty interests, is "strict scrutiny," which requires an infringing state law to be narrowly tailored to serve a compelling state interest; the least stringent is the "rational basis" test. The rational basis test permits a state to regulate activity not implicating fundamental liberties3 if the regulation is rationally related to a legitimate state interest. "Rational," in this instance, means "any rational basis for the law whatsoever."4 The reason this is relevant for the Lawrence case is that the majority opinion in Lawrence did not find a constitutional right implicated in the sexual activity regulated by Texas. Nonetheless, it struck down the law for the lack of a rational basis. The most obvious conclusion to be drawn from this is that if the Court cannot find a rational basis for a state's regulation of this kind of activity, it is difficult to imagine how a rational basis could be imagined for the regulation of any private consensual activity.5 In his dissent, Scalia concludes that "[stating that there cannot even be a rational basis] effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review."6 Contrary to its insistence that the government "not...mandate our own moral code," the Lawrence decision reeks with moral teaching: homosexual conduct is acceptable, and efforts to outlaw it are wrong.

The attack on the posting of the Ten Commandments in the capitol rotunda in Birmingham, Alabama has its genesis in the departure of constitutional interpretation from the guidance of a law above and beyond positive law, on the one hand, and the shifting ground of societal values, on the other. This has been ongoing for years. The unique facet of the Glassroth case is that Chief Justice Moore's argument specifically flowed from a contention that the National Reform Association would find near and dear: that "American law embraces the sovereignty of God over the state." The District Court's Judge Myron Thompson specifically states that:

A more direct attack on the purposes and goals of the National Reform Association cannot be conceived. The Glassroth case is unique for its specific stated reliance on the lack of mention of the specific legal and moral basis for the doctrines and procedures outlined in the Declaration of Independence and the United States Constitution.

Thus, even though the Lawrence and Glassroth decisions, to all appearances, seem to issue forth from distinctive streams of constitutional thought and analysis, what has happened instead is a unique confluence of humanistic thinking on the declaration of a lack of a moral or religious basis of American law in Glassroth, on the one hand, and the results of the lack of such a declaration and the effects of a corrosive pluralism on the body politic in Lawrence, on the other. Pluralism prohibits us from declaring allegiance to the sovereign Law-Word of the King of the universe, on the one hand, and forbids us from using that Law-Word either nationally or locally to pass enforceable morals legislation, on the other.

Unfortunately, the tools that the twentieth century's various schools of constitutional interpretation use afford little help. On the one hand, the late Justice William Brennan tied constitutional interpretation to the evolving "demands of human dignity." These turned out to not be even limited to the present demands of human dignity, but the good justice's present evaluation of what those future demands would be. Chief Justice Rehnquist and the "states' rights conservatives," on the other hand, state that constitutions do not have any ground in any "idea of natural justice" but rather the changing value judgments of a majority of the American people. Brennan's approach is overarching vague principles of justice with no relationship to the text while Rehnquist is all text and legislation with no reference to any stable principles of justice. What they have in common is that they are all opponents of true original intent. "Like the apologists for slavery of an earlier time, they 'rejected the ground of the Constitution in natural justice....'", a natural justice grounded in the law of nature and of nature's God as proposed in the Declaration of Independence.8 Thus, Bruce Ledewitz summarizes:

What both liberal and conservative views have in common is that they have accepted a standard other than the unchanging law of nature and of nature's God as found in the Declaration of Independence.

The problem becomes one of the proper Christian solution. If one is a "states' rights" conservative, the answer is relatively easy: the federal judiciary has no business interfering in the states' efforts at regulating the morals of their own citizens according to the laws passed by the legislators representing the majority of the good citizens of each particular state. As Greg Durand, one recent states' rights conservative, has stated: "[a] U.S. Government, which mandates Christianity as the 'law of the land,' would be just as unconstitutional as a Government which intrudes into the purely local affairs of one of the States and forbids it from displaying a monument--any monument--on its own property."11 As Alan Keyes further remarks:

States' rights conservatives, such as Durand, would say that "the National Reform Association and the courts are in error in interpreting 'We the People' in the Preamble of the Constitution as they do."13 One difficulty with this statement is that, according to its documents, there is no one way that the NRA interprets "We the People." Some members interpret it in a nationalistic sense (e.g., Andrew Jackson and Daniel Webster); some do not. There is no one official interpretation approved by the NRA.

The states' rights conservatives, however, are right about one thing: the Founders did believe that individual rights were better protected by local and state government; that is to say, by government entities closer to the people and, therefore, presumed to be more responsive. But the states' rights conservatives themselves do not seem to believe in individual rights that are held by the people apart from any government recognition of them. In keeping with his political progenitor, John C. Calhoun, Robert Bork would claim that the rights "retained by the people" under the Ninth Amendment are only those guaranteed in various state government constitutions.14 This is in keeping with Calhoun's insistence that there are no natural rights or natural law principles in the sense intended by the Founders15 because, for Calhoun, man was "impelled irresistibly" into the political community: man did not exist apart from society which, in turn, did not exist apart from government. Calhoun writes:

John C. Calhoun did not believe that a state of nature consisting of sovereign individuals preceded society or community: thus, society cannot exist without government, sovereignty belongs to the state and is "sui generis, not derived from any antecedent principle or right."17 Thus, to Calhoun, the Declaration of Independence put forward a false statement of the state of reality. All men were not created equal, because all were not created. Only two individuals were created and the rest born into societal relations which were unequal.18 The natural rights position of the Declaration led to the conclusion that all were endowed with rights antecedent to society and government.19 On the contrary, Calhoun felt that science had demonstrated that individuals did not exist apart from society, and that society and government were combined into one organism that was possessed of sovereignty. Since there were no individual rights in the people prior to their existence in the states, the states became the sole grantors or specifiers of the rights of the people.20 Consequently, there were no individual rights that existed prior to man's participation in society, or government recognition or establishment of them.21 But does the answer lie with ideas propounded by the Founders in the writings surrounding the Declaration of Independence and given prominent exposition by Abraham Lincoln?

I personally do not believe that the view of the Framers is properly reflected by a position stating that the American people as one big mass ratified the Constitution, nor do I believe it is properly reflected by a position stating that it was the people comprising "separate" and "sovereign" states. My view is set forth in my article in The Christian Statesman, Refighting the Civil War: The Case Against Secession,22 and I see no reason to change it. Under the scheme envisioned by the Framers, the people are the holders of sovereignty because they individually and sovereignly hold their rights under the Declaration, which was declared to be the fundamental act of union of the United States by James Madison.23 That work was not an attempt at originality nor was it an attempt to base our separation from England by appeal to our "chartered privileges" as supposed by Calhoun24; it was an attempt to base the separation on an appeal to the basic rights enjoyed by every human being as found in the state of nature.25 Thus, in other documents of the period, it is clear that in the Founders' view, the rights of the people arose from the state of nature and were retained by the people unless expressly relinquished via the social contract.26 The relinquishment in the Declaration came via a unanimous consent among equal contractors to authorize the majority to institute government to do all that all men could justifiably perform to each other individually, and to provide for adequate protection for these antecedent and inalienable rights.

The Framers intended that individuals retain their natural rights as expressed in the Declaration, and that the powers possessed by government at any level is limited to those necessary to secure liberty, with individuals retaining all rights not explicitly surrendered. As Thomas Jefferson declared, "Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law."27 The apportionment of powers between national and state governments, to say nothing of the apportionment within the national government with its three branches, reflected the concern of the Framers of how to effectively protect individual liberty. Under the Madisonian system, both the national and state governments are agents of the people, and are bound ultimately by the authority of the people.28

Even though he had misgivings, Madison did see the states as the chief protectors of the individual rights mentioned in the Ninth and Tenth Amendments.29 However, this regard for the place of the states was hijacked by the nascent romanticism of Calhoun and his doctrine of the state as an organism in which the citizens were simply parts. Thus, during the 19th century, the state governments emerged as a greater threat to individual liberty, particularly with respect to the issue of human slavery. As a result of the state governments demonstrating that they had just as much trouble protecting individual liberty, despite their closeness to the people, the national Congress passed the Fourteenth Amendment granting extensive powers to the national government for the purpose of protecting individual liberty against deprivations by state governments.30 Has this resulted, though, in more or less actual freedom?

What then, in light of this history, is the "continuing mission" of the National Reform Association? With Calhoun, and according to biblical law, I claim that man is made for society. Thus, we have three societal spheres of jurisdiction in the Scriptures that receive explicit divine sanction: family, church, and state. With the Madisonians, I claim, however, that men have liberties granted to them by God by virtue of His restriction of those spheres to their appropriate jurisdictions under His law. Thus, I claim that the people are not permitted in their individual states to define their individual rights apart from the "laws of nature and nature's God." Since, however, this statement from the Declaration is not a model of clarity (as one would expect from "nature"), it is necessary to amend the founding documents of this nation to include a Christian definition of the extent of those liberties. Needless to say, if one were included, perhaps the Supreme Court would not have found it so easy to exegete around the doctrine of "substantive due process" to tell the states that they were not able to regulate their own citizens' morality according to each state's individual understanding of that morality within a general Christian legal context, as in Lawrence v. Texas.

As well, if a statement of the Sovereignty of Jesus Christ and His Law-Word defining the extent of men's liberties was part of our national documents, the federal courts would know the limits of the vindication of individual "rights" regarding the religious preferences of the citizens. The Ten Commandments, as in the Glassroth v. Moore case, could be posted because they were explicitly part of the law structure of this government, both state and national. Judge Thompson would not have to be so vague about what the national documents prescribed. Atheists might grumble, but they would not be given credence in the courts, state or federal. Durand's statement that "compacting States in 1787 delegated to their agent no such authority ...[to] intrude into the purely local affairs of one of the States...." was true only because both entities, state and federal, were equally the individual persons' agents with regard to the protection of their liberties, but it is not now true because the Fourteenth Amendment recognizes an equal agency in the national government for the protection of individual rights that the states attempt to deny. Under the Madisonian system outlined above, states do not delegate or possess sovereignty apart from that granted by the people in the state of nature. The issue is not locality; the issue is the maximization of individual liberty. Since the boundaries of that liberty are naturalistic and not biblical, the biblical limits need to be defined by amending the documents of both agents. The National Reform Association, being "national," naturally tends to concentrate on the national documents. I look forward to joining with my Southern brethren in defining the limits of state governments as well.

With respect to the Ten Commandments issue unfolding in Alabama, my position is that expecting a structural argument alone to solve the problem that we have before us is expecting too much. We need a Christian definition of individual rights that is incorporated into the founding documents of the nation as well as the states. If that has already been done in some of the states so much the better. But for Mr. Durand to say "[a] U.S. Government, which mandates Christianity as the 'law of the land,' would be just as unconstitutional as a Government which intrudes into the purely local affairs of one of the States and forbids it from displaying a monument--any monument--on its own property" simply begs the question. It is not unconstitutional, depending, of course, on the confession mandated, as some of those who have investigated the issue of separation of church and state have suggested. If there is, as I suggest, an amendment of the national documents further clarifying the relationship of individual rights and liberties to Jesus Christ's sovereign Law-Word, it would not be "unconstitutional" at all. In postbellum America, with a federal judiciary charged as it is with recognizing "fundamental liberties," it is more important than ever that our national documents recognize this authority.

The "continuing mission" of the National Reform Association is primarily educational. It calls upon the nation to recognize God and His law as the source of all liberties and responsibilities. It calls upon the churches to rise up and take back their role of prophets to kings. It calls upon families to raise up a new generation ready and willing to take on the hard task of infiltrating a culture as it implodes around them, a generation ready and willing to give a reason for the hope that is in them, and a generation ready and willing to do the spadework necessary to reestablish the greatest nation of the world on the firm footing of God's Law. Finally, it calls upon individuals to take advantage of the liberties that still exist as a result of the deposit of Christian civilization surrounding them to engage the enemy in all facets of the world, challenging their claims to hegemony and taking back global and cultural territory in service of the Great King.

Endnotes

1. Lawrence v. Texas, ___U.S.___, 156 L.Ed.2d, 123 S.Ct. 2472, 2480 (2003) (quoting Planned Parenthood of Southeastern PA v. Casey, 505 U.S. 833, 850, 112 S.Ct. 2791, 120 L.Ed.2d 674 [2002]).

3. Whether the Fourteenth Amendment should apply the Bill of Rights to the states is another discussion for another day.

5. Justice Scalia, in a stinging dissent, states as much: "Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: '[R]espondent would have us announce...a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.' 478 U.S. at 191. Instead the Court simply describes petitioners' conduct as 'an exercise of their liberty'--which it undoubtedly is--and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case." (Ante, at 2476). Lawrence v. Texas, 123 S.Ct. at 2488 (Scalia, dissenting).

8. Bruce Ledewitz, "Judicial Conscience and Natural Rights: A Reply to Professor Jaffa," in Original Intent and the Framers of the Constitution, Harry V. Jaffa, with Bruce Ledewitz, Robert L. Stone, and George Anastaplo (Washington, D.C.: Regnery Gateway, 1994), p. 111 (quoting from Harry V. Jaffa, "What Were the 'Original Intentions' of the Framers of the Constitution of the United States," 10 U. Puget Sound L. Rev. 351, 362 [1987]).

10. Harry V. Jaffa, "Judicial Conscience and Natural Rights," in Original Intent and the Framers of the Constitution, p. 238.

11. Greg Durand (Crown Right Book Company) to Raymond Joseph, E-mail, Theonomy-L E-mail list, August 30, 2003.

12. Alan Keyes, The Rule of Law, (http://www.visionforum.com, August 25, 2003), p. 1.

13. Greg Durand (Crown Right Book Company) to Raymond Joseph, E-mail, Theonomy-L E-mail list, August 30, 2003.

14. Robert H. Bork, The Tempting of America (New York: Free Press, 1990), p. 185.

15. John C. Calhoun, "Speech on the Oregon Bill," in Union and Liberty: The Political Philosophy of John C. Calhoun, ed. Ross M. Lence, ed. (Indianapolis: Liberty Fund, 1992), p. 566.

17. Harry V. Jaffa, Original Intent and the Framers of the Constitution, p. 24. See also John C. Calhoun, "A Disquisition on Government," in Union and Liberty: The Political Philosophy of John C. Calhoun, Ross. M. Lence, ed. (Indianapolis: Liberty, 1992), pp. 5-6, 44-45.

18. Calhoun, "Disquisition," pp. 44-45; Calhoun, "Speech on the Oregon Bill," pp. 565-70.

19. For example, on the antecedent right to contract, Chief Justice John Marshall has this to say: "The defendants maintain that an error lies at the very foundation of this argument. It assumes that contract is the mere creature of society, and derives all its obligation from human legislation. That it is not the stipulation an individual makes which binds him, but some declaration of the supreme power of a State to which he belongs, that he shall perform what he has undertaken to perform. That though this original declaration may be lost in remote antiquity, it must be presumed as the origin of the obligation of contracts. This postulate the defendants deny, and, we think, with great reason. It is an argument of no inconsiderable weight against it, that we find no trace of such an enactment. So far back as human research carries us, we find the judicial power as a part of the executive, administering justice by the application of remedies to violated rights, or broken contracts. We find that power applying these remedies on the idea of a pre-existing obligation on every man to do what he has promised on consideration to do; that the breach of this obligation is an injury for which the injured party has a just claim to compensation, and that society ought to afford him a remedy for that injury. We find allusions to the mode of acquiring property, but we find no allusion, from the earliest time, to any supposed act of the governing power giving obligation to contracts. On the contrary, the proceedings respecting them of which we know any thing, evince the idea of a pre-existing intrinsic obligation which human law enforces. If, on tracing the right to contract, and the obligations created by contract, to their source, we find them to exist anterior to, and independent of society, we may reasonably conclude that those original and pre-existing principles are, like many other natural rights, brought with man into society; and, although they may be controlled, are not given by human legislation [emphasis supplied]. Ogden v. Saunders, 25 U.S. 213, 344-45 (1827) (Chief Justice John Marshall, concurring).

20. Once this identification of rights with the states' sovereign definition of them, the defense of states' rights and sovereignty and the defense of slavery became likewise identical. If the state is the sole specifier of human rights and no individual human rights are antecedent or, at least, separable, no court of appeal exists to vindicate those rights.

23. Madison states: 'I have looked with attention over your intended proposal of a text book for the Law School. It is certainly the very material that the true doctrines of liberty, as exemplified in our Political system, should be inculcated on those who are to sustain and administer it. It is, at the same time, not easy to find standard books that will be both guides & guards for the purpose. Sidney & Locke are admirably calculated to impress on young minds the right of Nations to establish their own Governments, and to inspire a love of free ones.... And on the distinctive principles of the Government of our own State, and that of the United States, the best guides are to be found in--

{Curator's note: the founding.com website seems to be misconfigured at the moment, but another copy of the document quoted here can be found at http://www.constitution.org/jm/18250208_tj.txt.}

25. Jefferson writes: "When forced, therefore, to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification. This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c." Thomas Jefferson, "Letter to Henry Lee" [May 8, 1825] in Thomas Jefferson, Writings (The Library of America; New York: Literary Classics of the United States, 1984), p. 1501.

26. "[T]hat it is an essential unalterable right in nature, ingrafted into the British constitution as a fundamental law, and ever held sacred and irrevocable by the subjects within the realm, that what a man hath honestly acquired is absolutely his own which he may freely give, but cannot be taken from him without his consent; that the American subjects may therefore, exclusive of any consideration of charter rights, with a decent firmness adapted to the character of freeman and subjects, assert this natural constitutional right" [emphasis supplied]. "Circular Letter from the House of Representatives of Massachusetts-Bay" [February 11, 1768] in Sources of the American Republic, eds. Marvin Meyers, Alexander Kern, and John G. Cawelti (Chicago: Scott, Foresman, 1960), pp. 127-28.

"The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good."

"All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness." "Constitution of Massachusetts" [October 25, 1780] (Sources of Our Liberties; ed. Richard L. Perry; Buffalo, NY: William S. Hein, 1990), pp. 373-74.

"That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." "Virginia Declaration of Rights" [June 12, 1776] in The Avalon Project at Yale Law School (http://www.yale.edu/lawweb/avalon/virginia.htm).

27. "Letter of Thomas Jefferson to Spencer Roane" [September 6, 1819] in From Revolution to Reconstruction (http://odur.let.rug.nl/~usa/P/tj3/writings/brf/jefl257.htm) {Curator's note: The printed copy carried the URL (http://odur.let.rug.nl/~usa/P/tj3/writings/brf/tjefl257.htm) which does not work today.}

28. James Madison wrote, "The Federal and State Governments are in fact but different agents and trustees of the people, constituted with different powers, and designated for different purposes.... These gentlemen must be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone." James Madison, "Federalist No. 46," in The Debate on the Constitution, 2 vols., Bernard Bailyn, ed. (New York: Literary Classics of the United States, Inc., 1993), 2:109.

29. Madison feared that smaller governments were more likely to be controlled by those representing a strong majority and therefore more apt to repress minority views. James Madison, "Federalist No. 10" in The Debate on the Constitution, 2 vols., Bernard Bailyn, ed. (New York: Literary Classics of the United States, Inc., 1993), 1:404-411.

30. A few things should be noted at this point. I am not making a claim for the biblical basis for any of this. I am not claiming that the abuses of national power attendant upon the misinterpretation of the 14th Amendment by the mangling of the commerce clause are laudable. Further, the 14th Amendment has been emptied of what good it could accomplish by its misinterpretation in the Slaughterhouse cases and their progeny. The result has been an ad hoc mess of constitutional interpretation by liberals and conservatives who alternately interpret the Constitution according to national power or state power (i.e., "states' rights") depending on the result desired. I believe that, as a result, the states many times are the most effective protector of individual rights today. It bears noting, however, that when the conservatives took over the Supreme Court, the liberals, led by Justice Brennan, suddenly discovered a heretofore undiscovered allegiance to "states' rights" and federalism when the states could be encouraged to become laboratories for liberal social welfare experiments. The conservatives, for their part, suddenly discovered that projection of power by the national government was not so bad after all.

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