Friday, April 30, 2004
THE LAST APPEAL
So the Alabama Supreme Court has denied hearing Chief Justice Moore's appeal from a disciplinary court. It's sad. It still shows the bad paradigm that exists in Constitutional Law, in which there isonly one real legislative branch, and that is the federal courts. Whatever the States pass as laws...it means nothing until it gets the stamp of approval by the federal courts.
The myth is still carried on that the federal court are superior to the state courts. As with most myths, there is some truth to that proposition, but having a little bit of truth does notmake the proposition absolutely true. The federal courts, and the U.S. Supreme Court, do have jurisdiction over the States when their actions directly violate the Constitution. For instance, if the States have legislation to coin money, then the courts can rule that unconstitutional since it does directly violate the Constitution. However, this does not mean that every alleged act made by the federal courts in the name of the Constitution is constitutional, and neither does this mean the federal courts are always superior to the state courts. That was never the intention of the founders. The federal courts have jurisdiction over federal matters, and and matter that explicitly violates the Constitution, since the 10th Amendment gives the rest to the States and people.
THe Alabama Supreme Court's reliance on Marbury v. Madison is likewise anachronistically suspect. The point at the time dealt with a federal law that violated the Constitution. In particular, the problem was with the granting of the U.S. Supreme Court jurisdiction the Constitution did not give it. In this context, the Court ruled that it has the power to interpret the Constitution, and it should since the power is given to it to judge laws and facts that are in accordance with the Constitution. There is a general aura of supremacy of the federal government over the States, which the Marbury court did note, and that comes in the Constitution. The laws of the United States which are made in pursuance of the U.S. Constitution are supreme. Again, note the qualifier. This does not mean that every law passed by Congress is supreme over the states, but consitutional laws, such as those regulating interstate commerce, are.
Therefore, the Alabama Court's reliance on Marbury v. Madison and the supremacy clause of the Constitution is suspect. The right course of action was to rule on the merits of the federal court order. Even with the 14th Amendment, it says nothing applying the Bill of Rights to the States. The 14th in no way overruled the 10th, but it did make (ominously) the federal government the grantor of rights (and this is something the Supreme Court would realize in the Slaughterhouse Cases, but would not be fully realized until FDR's court stacking proposal.) Was the district court's order constitutional, and furthermore, was it constitutional simply because the court said something. The obvious answer is no. If any court says anything that violated the constitution, even if they claim to do so in the name of the Constitution, then it is void.
At a later time, I'll discuss how the 11th Circuit tried to get around this, and how their arguments have about as much intellectual content as a baked potato.
Tuesday, April 27, 2004
SEE? THEY CAN GET ALONG
Well, this last Saturday, I went to a formal debate on baptism. It was between the Rev. Roger Wagner and the Rev. Gene Cook, Jr.
I have to say I expected a cordial debate between the two, and I was not disappointed. I think what made the debate go well is that they are like-minded in what they believe about the covenant. There are obvious exceptions, since Rev. Cook is a Reformed Baptist.
I have heard most of the presentation by Rev. Cook in other places, but there was a new argument I hadn't heard before that he brought up. It was in regards to the similarities between John's baptism Jesus' disciples' baptism prior to CHrist's death. I really can't explain the argument in detail, and others might have heard it and can articulate it better than I can. I would have to hear the tapes again because I don't want to advance the argument and then find out I was totally wrong in what he had said.
I do think that Rev. Cook got zinged on one of his arguments during the cross-examination, but I'm not going to give it away. I'd rather leave that work up to you. :)
Anyway, it was an enjoyable debate, and I respect both of the speakers, so I recommend purchasing the debate. I talked to Rev. Wagner, and he said he will either send a copy to Covenant Media Foundetion, or it'll be on the church's web site: www.bayviewopc.org It might also show up on Rev. Cook's sermonaudio site. It's definitely worth a listen to
Saturday, April 24, 2004
The Rev. Wilson has a blog!
And the crowds rejoiced
Wednesday, April 07, 2004
SPLIT THE 9TH?
Let's hope so.
Tuesday, April 06, 2004
Given some recent events that I've observed happening among some friends (some close, some not), the one thing I have noticed is that one of my friends has been told that his views have changed. Now given the tone of the charge, it would appear that this were a bad thing. This is not necessarily the case.
Now I do believe that consistency is something that we should strive for, but it's not always a virtue, and not all changes are a vice. Some change can actually be good, especially if it goes to back to what was originally taught. I mean, let's look at a contemporary example, the U.S. Constitution.
There are some standard teachings that are taught to most kinds in the schools today, and are continually told in the media. For instance, people say that the 1st Ammendment guarantees everyone the unequivocal right to free speech. Furthermore, it's also accepted knowledge that the Supreme Court can invalidate laws passed by the States. Of course, there's the always popular seperation of church and state that everyone says is in the 1st Ammendment.
Now these are common dogmas, and people are very good at expounding Constitutional law based on these dogmas. The Supreme Court does it every year, as do the lower federal courts and the state courts, and these issues are debated over and over again. That's beyond dispute.
So what does this have to do with change? Well, the problem is that despite the dogmas that are currently taught as orthodoxy, that does not necessarily mean that those dogmas are in fact orthodox at all. What if the meaning of the Constitution changed since the original writing of the COnstitution? In fact, there are many (such as me) who will claim that this has indeed happened, and that constitutional law has been turned on its ear because of this radical change from the past. As I wrote in an earlier blog, Chief Justice Taney wrote that the United States was based on a principal of limited government that was bound by the Constitution. Whatever the Constitution did not grant to the federal government, that was reserved to the States or the people. Safe to say, this is not the view of the modern constitutional scholar, nor of lawmakers, and nor of the majority of federal judges. As one goes further back in history, the view of Chief Justice Taney holds out...it was the overwhelming position of the Founders. But that's not the position now.
So, the paradigm has changed. We now have the modern standard which is wholly different than the historical standard. Now, if someone decides to go back to that historical standard of the Constitution, one would be labeled as a wacko, and even unorthodox in their view of the Constitution. Let's take the example of Chief Justice Moore. He argued that the 1st Ammendment only applies to Congress and does not apply to the States. This is blasphemy to the modern mind. If you don't believe me,just read the 11th Circuit Court of Appeals decision in this case. One of the things that the Court said was that to follow Chief Justice Moore's interpretation would overthrow much of constitutional jurisprudence. Yes it would, and a lot of people would no longer have jobs, but Chief Justice Moore's position is the historical position. So basically, the court is ignoring the Constitution's historicity for the sake of pragmaticism.
Now, let's look at the situation of my friend. His position has changed over the years. For instance, he said that in a paper, he called the early Church people who had an affinity for relics (he can explain this better than I) superstitious, and he was challenged by his professorfor that remark. So, in researching and studying church history, he has come to learn that not all the characterizations that some might give the early Church followers are necessarily correct. Furthermore, he has gone back to study in the originals and through other scholars what the issues were during the time of the Reformation. And he has come to a conclusion that I am sure has startled him: some of the things he had been taught and had been taken for granted might be wrong. Furthermore, as he compares and contrasts the writers with the modern times, he sees that paradigms are different, and that somewhere along the way, there was a radical shift. (Using the Reformation as an example, of course the event that caused the shift (not like it was one event in itself) was the Renessaince and the Enlightnment. Whether one agrees with this assessment, the point is that the Enlightment was a significant event).
So, what we have is two paradigms...one that seems to be historical, and one that doesn't. The majority position is the latter position, and hence, when one upsets that balance, people react, just as the 11th Circuit did when it decided Chief Justice Moore's case.
Now, this does not mean that my friend is right. Although I do think he is closer to being right than my other friends, he may be totally wrong in his interpretation, or those views may in fact be the minority position, or (since the Reformation had Biblical implications) the historical position that he sees may be totally wrong even if those are the views that they held at the time. But what if he is right? What if the modern position is overly dominated by Enlightenment thinking? Philosophically, that's the really interesting question because one could be changing to the correct position.
Now again, let me state again, this does not mean that he is correct. However, it does mean that change is not necessarily a bad thing.
May God grant all of my friends peace and understanding.
Monday, April 05, 2004
Wow, and to think this, this (the 3/31 entry with the 38 comments), and this (any entry dealing with the above), among many, many MANY other blog entries, all started because of one question from this Roman Catholic.
I wonder if anyone really remembers what the original issue was.