Tuesday, December 22, 2009

Romans 13, Justice Scalia, and Brad DeLong

As for economist Dr. J. Bradford DeLong's "Whoa! That Antonin Scalia Is One Mega Scary Unrighteous Dude, Man!" itself, well, let's stick to the original source instead, Justice Scalia's essay "God's Justice and Ours."

We must read any thinker as he understands himself.

The first thing to remember when reading Justice Scalia is that 99% of the time, he's talking about law and specifically the role of a judge, not of morality or philosophy.

To understand Dr. DeLong as he understands himself, any mention of the Bible by a Supreme Court justice tends to set any self-described "reality-based" teeth on edge [read: left-leaning teeth], especially if uttered by anyone with right-leaning teeth as Justice Scalia surely are.

Now that we've identified the players and their teeth, to business:

Romans 13 sayeth:

For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good.

So when Scalia writes:

All this, as I say, is most un-European, and helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as "the minister of God," to "execute wrath" upon the evildoer.

that's arguably "scary" to any gentleperson of the New Left. Even "Mega Scary." Theocracy! But theocracy isn't necessarily agreeable to the right either, Old or New, as we shall see.

For John Adams, no orthodox Christian he, wrote in 1799 in a call to prayer and thanksgiving:

...that He would bless all magistrates, from the highest to the lowest, give them the true spirit of their station, make them a terror to evil doers and a praise to them that do well...

Justice Scalia is clearly on very solid ground per the political theology of the American Founding. Some might find that theology---or any political theology---scary in the 21st century. But we can't help that. It's historical fact, and Scalia's merely noting it.

Now, Scalia's reason for bringing up Romans 13 isn't to argue that the Bible is true or even to argue God actually exists, but to consider the issue of capital punishment in terms of jurisprudence and America's Founding political theology.

It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies-including, for example, horse- thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today. There is plenty of room within this system for "evolving standards of decency," but the instrument of evolution (or, if you are more tolerant of the Court's approach, the herald that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.

Scalia argues here not for his own view of what is decent or moral or religious, and contra some of his critics, not undemocratically---he argues for democracy, and against the Divine Right of the Supreme Court, which is no more legitimate than the Divine Right of Kings. It's a clear argument.

Because if there's one thing that Scalia says over and over [and over!] again, including in this article, is that Scalia does not think it's his right or duty as a Supreme Court Justice to dictate how things should be, only to reasonably interpret the law as written by its rightful authors, the elected representatives of the people. Sovereignty rests with the people, not the government, another Founding ideal, and part of the Founding theology.

To accuse Justice Scalia of being undemocratic is to skip past half of everything he writes.

Back to Dr. DeLong for a necessary second: As is almost inevitable in the 21st century, he plays his trump, America's unfortunate and frequently evil history on race. It's all grist for the mill.

The Martin Luther King Card is the opposite face of the Hitler Card: If MLK did it, it must be right, and anything that doesn't accommodate MLK's actions must be evil.

But Scalia doesn't mention MLK atall in the essay. When he writes

The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects in other areas as well. It fosters civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law - even if it does not compel him to act unjustly - need not be obeyed.

"civil disobedience" does NOT mean Martin Luther King here---that's unfair and simplistic; it refers to a general subjectivity towards law, that we may pick and choose which laws to obey, depending on whether they agree with the individual's conscience.

Romans 13 says, and what every civilization that wishes to survive must say, is that the individual isn't free to disobey every law he thinks is unjust. Oy, that's anarchy. If all men were angels [or at least reasonable devils], we wouldn't need any laws atall.

So let's get past Civilization 101 and to the tougher stuff:

Of civil disobedience as philosophy, theology or morality, we have to read Scalia as he understands himself: He speaks as a judge, with a duty [and an oath!] to uphold the law. A judge cannot "let you slide" because he agrees with the moral reasons you disobeyed the law. That would defeat the whole purpose of civil disobedience--- to disobey the law and heroically suffer the consequences, so that the unjust law might be changed!

For as Dr. King himself wrote:

In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Justice Scalia could scarcely disagree, in fact, it's implicit in his writings. To pit Scalia against Martin Luther King is a brutality to the truth. And Scalia is not exactly silent afterall on what the individual conscience is obliged to do in the face of injustice:

I pause here to emphasize the point that in my view the choice for the judge
who believes the death penalty to be immoral is resignation, rather than simply
ignoring duly enacted, constitutional laws and sabotaging death penalty cases.

He has, after all, taken an oath to apply the laws and has been given no power
to supplant them with rules of his own. Of course if he feels strongly enough
he can go beyond mere resignation and lead a political campaign to abolish the
death penalty—and if that fails, lead a revolution. But rewrite the laws he
cannot do.

And this is Scalia's judicial philosophy, which he speaks of 99% of the time, because that's his job, his expertise and his oath.

If you want to see Scalia the human being, not the jurist, the philosophical aside is there, the missing 1%. The judge just gave a wink to whoever was reading him carefully...if you brought a magnifying glass to his essay instead of a flamethrower.

There must be a threshold for when civil disobedience is necessary and proper---you just don't disobey the law routinely. No society, no nation, no hamlet or village, can survive with a "cafeteria" approach to observing the law. [Not even a cafeteria can.] That's not a real scary proposition atall, it's common sense.

But if the individual and his conscience hit that threshold when it comes to capital punishment, well OK, then---resign your judgeship and become a political activist, run for Congress, chain yourself to the gates of the prison the night of an execution and accept the consequences. Or lead a revolution if necessary.

"A nation of laws, not men" is an interesting concept. But the door must swing both ways: We cannot be a nation of the "evolving standards of decency" of only 9 men [& women] on the Supreme Court; nor can we be a nation of men who disobey laws without consequences whenever they offend us. This is Scalia's argument, not as a political philosopher, but only as a judge.

As a human being like the rest of us, Nino winked. You just had to be ready to catch it. If absolutely necessary, start a revolution, another Founding ideal.


brad said...


You do understand that the "powers that be that are ordained of God" that St. Paul commands the Christians of Rome to obey is the Emperor Nero, don't you?

Brad DeLong

King of Ireland said...

Mr. Delong,

"You do understand that the "powers that be that are ordained of God" that St. Paul commands the Christians of Rome to obey is the Emperor Nero, don't you?"

That one has been tried here before. In fact, it is the best argument for the dogmatic Romans 13 crowd. So much so I was sitting up one morning as I was debating Gregg Frazer on this site and was beginning to do a post that he must be right.

I decided to check him on his history just in case he did not check on the dates. Well, Romans was written at least 10 years before Nero started to persecute Christians. So this is actually a pathetic argument for those that are too lazy to do a 2 minute check(that is all it took me to find the answer) and read things for themselves rather than repeat arguments of others.

No offense to you I do not even know you but I am honestly tired of hearing this horrible argument repeated over and over again. It simply makes no sense at all given that Nero had not done anything to Christians at the time of writing.

With that said, welcome to the discussion. This has been hashed through according to Jon Rowe 3 times now. I have read a lot of good insights.

King of Ireland said...

It might have been 8-10 I do not remember the exact dates.

King of Ireland said...


Good post, I think you are right about the context here. I do think he should emphasize the other half of Adams prayer that contains the Locke and Mayhew interpretation of Romans 13 when he talks about revolution. It would keep people from misquoting him.

I was reading Locke today and he talks just like Scalia when it comes to capital punishment. I also found exactly what he means when he talks about natural law in his first treatise that no one reads. It is absolutely not any close to what a Deist would say.

Tom Van Dyke said...

Thx for commenting, Dr. DeLong---Brad.

The body of my post remains unmolested. It was unfair to both men to pit Dr. King against Justice Scalia, for my stated reasons, and their stated reasons.

And no, Christian thought isn't as inflexible and dunderheaded as some would prefer it to be.

You may examine Locke's elegant argument re Romans 13 in his A Paraphrase and Notes on the Epistles of St. Paul, which he was working on at the very close of his life.

The "Christian" idea that Romans 13 might not demand enduring evil rulers like Nero dates back to at least the 12th century.

But nice to hear from you---sincerely. Should you be honestly interested in exploring the truth of this matter, stick around.

In the meantime:


You do understand that the "powers that be that are ordained of God" that St. Paul commands the Christians of Rome to obey is the Emperor Nero, don't you?

Brad DeLong

Ummm, unless you're a confessing Christian of some sort, Brad, it's not appropriate for you to advise Christians on what they should understand about the Bible. I'm sure you don't aspire to be some sort of pope.

And even if you were, Christians of good conscience might validly disagree. I hope you'll rethink your post linked here.

jimmiraybob said...

TVD - Ummm, unless you're a confessing Christian of some sort, Brad, it's not appropriate for you to advise Christians on what they should understand about the Bible.

Really? Nice way to intellectually engage.

But then maybe this might be a starting point for what is and isn't a "Christian idea." Is a Christian idea whatever is held by a professing Christian of some sort? Do non-professing Christians have a right to comment on Christian ideas, or is it confined to the club members only? Do professing Christians of some sort have a right to intrude upon the ideas of non-professing Christian ideas or the ideas of professing Christians of another sort? Can a non-professing Christian exist? Can non-Christians of other faiths, let's say monotheistic faiths for simplicity, comment upon the ideas of professing Christians of this sort or that? Of course we all know that atheists should just shut the hell up anyway and then burn in a lake of fire for eternity - so they're excluded from participation on general principles. Can a Christian idea obtain a patent or copyright protection to help us clarify who has rights to whose/what ideas? What would be the criteria? Do angels really dance upon the heads of pins? Have I violated the firewall by asking? Can I have a Catholic friend ask for me or should it be a Baptist friend?

Tom Van Dyke said...

I don't think you're characterizing what I wrote properly, JRB. I would not tell a Muslim what the Quran requires him to believe. I'm sure you wouldn't either.

And I engaged Brad's point substantively, with the example of Locke, who disagreed with Brad's interpretation of Romans 13.

As did the Founders.

jimmiraybob said...

KOI mischaracterizes what brad wrote -

brad - "You do understand that the 'powers that be that are ordained of God' that St. Paul commands the Christians of Rome to obey is the Emperor Nero..."

This is true regardless of when Romans was written unless Paul was silent on this or repudiated it after the writing. If I were to quibble it would be with the term "commands" as I don't think Paul was in a position to command but rather to persuade.


As I was pondering what KOI had said and considering the response I just posted, I read your comment, "...unless you're a confessing Christian of some sort, Brad, it's not appropriate for you to advise Christians on what they should understand about the Bible." to which my comment was directed. Brad was making a temporal point, right or wrong, and not giving advise. This, to me, sounded as if you were saying that commenting on Christian/Biblical themes/facts without being a professing Christian was off limits.

If this is the case then I couldn't disagree more and a lot of founding literature is going to have to be taken off the table. If I read you wrong then my apologies.

Tom Van Dyke said...

I mean that Brad has no right to tell Christians how they must read Romans 13.

In fact, in a historical discussion, nobody has the right to insist any one interpretation is "correct." The Founders came up with their own, and that's our only concern. Scalia merely reports that it has been America's history to consider obeying the law to have religious implications.

As for the rest of my post, it appears Dr. DeLong has no objections to my objections to his own post.

brad said...

I would appreciate it if you would talk to Tom Van Dyke about how to behave in polite company...

The founders' interpretation of Romans 13 was definitely not Scalia's. Scalia, you will note, uses Romans 13 as a weapon against the idea of civil disobedience--his point is that, because the powers that be are ordained of God, someone like Martin Luther King Jr. who disobeys the rulers' commands is not just a criminal but a sinner.

John Adams's interpretation of the Bible (and John Locke's!) is, needless to say, very, very different. Theirs is the traditional interpretation of Romans 13 on this continent. Scalia's, by contrast, is one we find in pre-1860 sermons by slaveholders to their slaves, but rarely elsewhere...

Tom Van Dyke said...

Heh. Dr. DeLong. The only thing I'll apologize for is cleaning your clock. Your race-baiting on Scalia is what's out of line here and now I've set it straight.

Laszlo Toth, Jr. said...

I would think the problem here is one of thinking Saul of Tarsus speaks in any way for sincere followers of Jesus Christ.

As Christ said in Matthew 24:24, "For there shall arise false Christs, and false prophets, and shall shew great signs and wonders; insomuch that, if it were possible, they shall deceive the very elect."

Given the number of times Saul directly contradicts Christ, it's hard to see how anyone can follow Christ and Saul at the same time... Let alone elevate the words of Saul above the words of Christ, as happens so often. We are enjoined to judge not, but... I wish people with such a point of view the best of luck, come judgement day.

As for Mr. Scalia, I'd be more persuaded he's interested in the modest role of a judge who is bound by law if there were any demonstrable times he's claimed he disagreed with the Founders (or precedent), but felt he had to follow them anyway. As near as I can tell from the evidence available, he merely picks and chooses so the Founders *remarkably* concur with his own personal desires anyway.

To imagine such a position is "conservative" and not judicial activism of the most rank sort... Is not unlike picturing a world where even "the very elect" may be deceived.

Laszlo Toth, Jr. said...

Oh, and while we're on the topic of ill-thought-out theology...

"...unless you're a confessing Christian of some sort..."

It's tough to see how one can follow the words of Christ, and yet publicly proclaim such. Matthew 6 in general comes to mind.

But also this hypothetical: Imagine it's judgement day. You're before the throne. And you say, "Lord -- I'm a Christian!"

And a voice comes down from on high: "NO, YOU'RE NOT!"

Who wins that discussion?

Play it the other way -- "Lord -- I'm not a Christian!"


Again, who wins?

It matters not one whit whether one is a "confessing Christian" or not -- or at least, not unless you're in the habit of second-guessing God.

Again, good luck with that.

brad said...

Just a note that Nero's reign began in 54, and Romans is, I think, dated to around 57...

Brad DeLong