December 08, 2019
Our psalm is a prayer for good government:
Give the King your justice, O God,
And your righteousness to the King’s Son;
That he may rule your people righteously
And the poor with justice.[i]
Such a government would be godlike in its impartiality, and for its care, top to bottom, for the common good.
We now interpret “King” democratically, with separated powers:
Give the president your justice, O God,
And your righteousness to congress.
If Washington, Hamilton and Madison were father to those revisions, their grandfather was John Locke. According to Locke, government exists to preserve a community, small or large, and protect the natural rights, God-given, of its people. The powers of government are given with trust for the attainment of these ends.[ii]
Locke knew that wars complicate this formulation.
I have been reading James Michener’s novel The Source, an eight thousand year stroll through the history of the Holy Land. In 336 BCE, Alexander the Great conquered Israel for Greece. His successor Antiochus IV decided that it would serve the empire best if all its peoples practiced one religion, centered on Zeus, whom he personified. He renamed himself Antiochus Epiphanes, “God-Made-Manifest.”[iii] Under penalties up to and including death, a Jew “could neither keep the Sabbath, nor observe the feasts of his fathers, nor so much as confess himself to be a Jew.”[iv] Many faithful Jews refused to obey and were executed. In 166 BCE, Judah Maccabee led a Jewish revolt that drove the Greeks from Israel.
The Greeks were followed by the Romans, who ruled Israel through Herod, a puppet king. John the Baptist chastised Herod for breaking divine law, and was beheaded.
Such things don’t happen in our country as a rule. Our founders placed a hard stop on religious executions. These founders were wise to human nature’s mix of great and terrible potential, and masterful at giving freedom air to breathe while frustrating its appetite for power.
One of their best designs was the 1st Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That plan would have spared John the Baptist and saved the Jews from Antiochus Epiphanes.”
We call it “separation of church and state.”
Karl Barth, the theologian, deeply approved that separation. Barth appreciated the state, ideally, as an instrument of God:
Scripture tells us that . . . the state has by divine appointment the task of providing for justice and peace. The church acknowledges the benefit of this divine appointment in gratitude and reverence before him.[v]
But Barth knew his own country’s government was the opposite of Godlike. He lived in Hitler’s Germany where, in 1934, he led one of the bravest protests in the modern history of the church, against the state—worthy of John the Baptist.
It happened in the town of Barmen, at a church meeting not unlike the Continental Congress. The Nazis had taken control of the state-established German church and, along with other atrocities, had segregated congregations racially. Christians with Jewish blood were being forced out of Aryan German congregations, another step towards Holocaust. In response, Barth drafted what became known as the Barmen Declaration.
Christ, not Hitler, “is the revelation of God,” it said. Christ is God’s assurance of divine forgiveness and “in the same way and with the same seriousness, he is also God’s mighty claim upon our whole life.” The declaration names separate roles for church and state under God’s dominion, rejecting “false doctrines” of both .
The false doctrine of state was the Nazis’ expansion of government beyond its God given task of providing for justice and peace, “to become the single and totalitarian order of human life.” Equally false would be any attempt by the church to “appropriate the character, the tastes, and the dignity of the state.” Church isn’t church and state isn’t state when either usurps the other’s function.
To that point, a fine Arkansas Judge, William Overton, once quoted a great Supreme Court Justice, Felix Frankfurter:
We have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion. If nowhere else, in the relation between church and state good fences make good neighbors.
That was from Judge Overton’s opinion in McLean v. Arkansas Board of Education, overturning Governor Frank White’s Act 590, the Arkansas Creation Science law of 1981. The court reinforced our national wall of separation––for the sake of religious impartiality and the common good. Judge Overton’s decision was good government.
Of course, with every doctrine there are questions. What do we do when we perceive a conflict between laws of state and the law of God?
To answer, let’s define law.
Richard Hooker, whom John Locke cites favorably throughout his treatises on government, defined law as “any kind of rule whereby actions are framed,” which Hooker applies from God on down to city council. People have been making laws since cave dwellers learned the hard way that the rule of “every man for himself” was not a recipe for happiness. “Positive law” is the philosopher’s term for these human rules that frame our life in common. Such positive laws are the stuff that lawyers have to do with daily: What’s on the books? they ask, and how does that apply to the case at hand? Our judges wear their robes as though they were the mantle of a sacred duty, and they are.
Now the plot thickens. Locke made a case that there are natural moral laws, discernible not only to faith but even to reason, that overrule human legislation. For example, Locke identified a natural right to self defense. Any human law that would deny someone that right is overruled by this higher law of nature.
In church we hear of God’s law: you shall not steal, you shall do no murder, love your neighbor as yourself etc. Thus our question: What do we do when we perceive a conflict between the law of God—as Abraham Lincoln put it, “the right as God gives us to see the right”[vi]–– and some positive law of city, state, or country?
In The Source, a certain Rabbi Akiba pondered how as a Jew he could “at the same time be faithful to God who controlled heaven and obedient to the Romans who controlled the earth.” Giving the state the benefit of every doubt, he compromised with Rome until he could not. “Every possible concession he made to Rome, but in the end he had to proclaim that when the will of God and the law of empire clash the former must prevail.”[vii]
Michener wrote The Source in early 1960’s, the era of Martin Luther King. In the south, King challenged human-made laws enforcing racial segregation. When persuasion did not work, King disobeyed the laws sometimes, explaining: “God walks with us. He has placed within the very structure of the universe certain absolute moral laws. If we disobey them they will break us.”[viii] That is what Barth meant by “God’s mighty claim upon our whole life.”
What would Judge Overton, a good and conscientious jurist, have said to that? Suppose he had been a southern state circuit court judge ruling in a case involving Dr. King, in jail for disobeying a law segregating bus seats or restaurants? In his conscience, our judge would have agreed with King that he laws he had broken were spoiled by racial partiality. But as a judge he was sworn to uphold the law as written. When laws of various kinds seriously conflict, that is a problem, sometimes rising to a crisis, for a thoughtful, faithful, conscientious person.
I am guessing, but I think his duty would have been clear to Judge Overton. By his oath of office he was conscience bound to apply the laws of state even if or when he also saw a higher law above them.
We have different parts to play in a society. Preachers, professors, and reformers have latitude that judges and cops do not. They cannot enforce the law and break it too. King would have played his role, and Judge Overton his, and both would have done so conscientiously, for the common good. That way we render unto Caesar, and to God, in law. In the end King’s disobedience forced the issue on the nation’s conscience—and our laws were changed.
It is for reasons like that, that America is great. I’ve continued to bring that up these last several years because I see Americans left and right forgetting it, denying it, or fretting that we’ve lost it.
We haven’t. We could. Let’s not.
We have it so good here, comparatively, that Mary Antin, a Jewish immigrant to America a hundred years ago, titled her book about her immigrant experience in this country Promised Land. Jews found themselves more safe, more free in the United States than they had been anywhere in history since the Romans had destroyed their Temple and dispersed them into exile.
Our having it so good is not because Americans are better people. Our souls are standard issue.
What is exceptional is this: our founding principles are magnetic by design. They bend our laws towards justice. When King broke local laws he could do so by appeal to that national design––our highest principles which were, he knew, of God. Human government doesn’t get much better than that, I think. Through our founders God has blessed us.
Let’s let that inspire us to be thankful . . . and impartial . . . and attentive, top to bottom, to the common good.
[i] Psalm 72:1-2
[ii] John Locke, Second Treatise of Government (Hackett Classics, Kindle edition, 78)
[iii] James Michener, The Source, Kindle Edition, location 6531.