Wednesday, September 27, 2017

Dreisbach: Liberty under law was always rooted in biblical principles

From Daniel Dreisbach's op-ed at The Hill

Most American founders regarded the Bible as a great handbook for nurturing morality and ethics; and even many who doubted the Bible’s divine origins appealed to Scripture. To be sure, the founders drew on and synthesized diverse intellectual traditions. Among them were British constitutionalism, Enlightenment liberalism, and classical and civic republicanism.

But the Bible was the most accessible, authoritative, and venerated text in 18th Century America. It was, by far, the most cited work in the political discourse of the age, referenced more frequently than the great political theorists John Locke and Baron de Montesquieu. The Constitution, as well as two dozen or so state constitutions framed in the wake of independence, was shaped by a legal culture and constitutional tradition influenced by Christianity and its sacred text. This includes measures separating and checking government powers in the hands of “fallen” public officials, mandating oaths of offices, and prohibiting double jeopardy.

...the Bible may have influenced some specific provisions written into the U.S. Constitution. To be sure, it is difficult to establish definitively that a specific constitutional provision was taken from a specific biblical passage; rather, it is more plausible that constitutional principles were indirectly influenced by biblical concepts that had long before found expression in western legal tradition, especially in the English common law, and, more recently, colonial laws.

Consider, for example, Article I, § 7, cl. 2 excepting Sundays from the 10 days within which a president must veto a bill. This is an implicit recognition of the Christian Sabbath, commemorating the Creator’s sanctification of the seventh day for rest (Genesis 2:1-3), the fourth commandment that the Sabbath be kept free from secular defilement (Exodus 20:8-11), and, in the Christian tradition, the resurrection of Jesus from the dead.

For one final example, the Fifth Amendment, crafted by the first federal Congress, prohibits double jeopardy, or trying a defendant twice for the same offense, which Saint Jerome in a late fourth-century commentary and legal scholars ever since have said was a principle found in the book of the prophet Nahum 1:9.

Legal commentators have pointed to additional examples of the Bible’s influence on specific constitutional provisions, including provisions on cruel and unusual punishment, the number of witnesses required in cases of treason, affirmation in the alternative to an oath, and corruption of blood.

Although the delegates to the Constitutional Convention in 1787 readily conceded that the document they wrote was imperfect, there was a consensus that it was the best that could be framed under the circumstances. And some, such as Benjamin Rush, “believed the hand of God was employed in this work,” just as surely as “God had divided the Red Sea to give a passage to the children of Israel.”

Even the skeptic Benjamin Franklin, while disclaiming that the Convention’s work was “divinely inspired,” remarked that he could not conceive such a momentous achievement as framing “the new federal constitution” without it “being in some degree influenced, guided, and governed by that omnipotent, omnipresent and beneficent Ruler.”


JMS said...


Tom Van Dyke said...

Whatever. You leftpersons are so lame. You don't even bother to defend your own bullshit anymore.

Legal historians trace the principle of double jeopardy in Western law to the church (e.g., Pollock and Maitland, A HISTORY OF ENGLISH LAW).[29] In his chapter, "The History of Double Jeopardy," Sigler writes: "In EARLY CHURCH LAW ... there arose the principle that God does not punish twice for the same transgression,"[30] and Friedlander writes that the adoption of the doctrine in English law stemmed "from ECCLESIASTICAL LAW."[31]