FOREWARNING:

The subject of this report, INTERPOSITION: THE REVOLT OF THE LESSER MAGISTRATE,  written February 1997, is another in a series of reports which call society and church to upright and responsible action. The historic Christian consensus which laid the basis for western civilization hangs imperiled at the very edge of the precipice of global, socialistic tyranny. What this generation does to combat the rise of such barbarism will determine the freedoms our posterity will inherit as well as the course of civilization for, perhaps, many generations to come. Indeed, historically, the moral fiber necessary to rescue a beleaguered culture has come from the clergy of the Church of Christ. That failing, society will plunge into a gulf of despair and leave to our posterity only years of heartache to endure, a succession of conflicts to fight, expansive ruins to rebuild… and our irresponsible memory to curse.

THE CURRENT CRISIS (in 1997)

Judge Roy Moore is drawing a line in the sand. As an Alabama judge, he has refused to remove a copy of the Ten Commandments from his courtroom wall. In addition, he has always invited ministers to pray with the jurors when deliberating a case. His position has drawn legal challenges from (who else?) the ACLU. However, his position is being decided in the appellate levels of the judiciary. Despite this fact, Judge Moore has taken this position because he believes that justice is grounded in “a higher law”… God’s Law. As he explains it, “If you recognize a higher law, then you’re bound by a higher law.” In this case, that Law is nothing less than the Law of God.

The judge sees this issue as a necessity for the age in which we live. It is his position that the Constitution, in its “separation of church and state” codifications, was not designed to eliminate the God of the Scripture from the judiciary of the United States.., much less from the entire legal system of this country. Such an understanding would destroy the foundations of a just and upright society, in the judge’s opinion. In other words, this judge believes that man and government have, at most, only derived authority from the Governor of the Universe. In stark contradiction to the words of the Greek philosopher, Protagoras, “man”, most definitely, is NOT “the measure of all things.”

From an historical, constitutional standpoint, the judge is correct. In 1892, the Supreme Court stated in Church of the Holy Trinity v. United States:

This is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation … these are not incidental sayings, declarations of private persons: they are organic utterances; they speak the voice of the entire people.., these and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. (1)

In 1931, the Supreme Court stated in its decision in United States v. Macintosh: “We are a Christian people.., according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God.” (2) Many other examples could be cited, but the point remains. Judge Moore is defending a valid constitutional issue in his Court.

Moreover, there is another aspect to this current debacle which is every bit as important as Judge Moore’s stand. Even though the matter is headed to the state Supreme Court. the Governor of Alabama, Fob James, has pledged to use the National Guard and state troopers to defend the court position of Judge Moore. “The only way those Ten Commandants and prayer would be stripped from that courtroom is with the force of arms”, the Governor said recently. This kind of declaration is not only heroic, it is historic. Indeed, it stands in a long line of “constitutional moments”.

Historically, such a stand is known as interposition. When interposition is asserted, such a constitutional contest ensues as to send shock waves throughout the culture.., and bring the dawning of new hope in many hearts.

INTERPOSITION: TEMPORAL DELIVERANCE AND REFUGE

Interposition is that calling of God which causes one to step into the gap–willingly placing oneself between the oppressor and his intended victim. In the history of Israel. Jonathan. heir-apparent to the throne of his father, King Saul, provided help and refuge for David, the anointed of the Lord. Jonathan provided such protection against the usurpation and aggression of his own father, despite the fact that he was providing justice for a potential rival for the throne. He quite literally became David’s temporal refuge from the unrighteous persecution of Saul. Such love is the kind of interposition spoken of by Christ when He said, “Greater love hath no man than this, that a man lay down his life for his friends.” Of course, Christ would go on to apply this as a description of the salvation He would achieve for His people.

However, interposition has a special constitutional application. When the upper tier of government becomes oppressive and is “out of control”, the lesser magistrate, using the full force of his office, interposes that office between the oppressive upper tier and its intended victim or object. This has sometimes been called “the revolt of the lesser magistrate.” Magna Carte was signed by the oppressive King John of England, thus conceding to the people of England their cherished liberties. But the King signed Magna Carta only when the lesser magistrates of England, the lesser nobility in this case, forced his hand on the plain at Runnymede. ..and only at the point of their combined swords. Thus, by way of application, they institutionalized refuge for the common man by codifying constitutional protections into the law of the land. This, of course, provides a much more dependable and secure system of temporal refuge (constitutional right and liberties for society instead of the extraordinarily heroic stand of a Jonathan, which is limited in scope and not accessible to all against the rage of the persecutor.

In our own American history, the Declaration of Independence was a revolt of lesser magistrates. The various colonies sent lesser magistrates to Philadelphia in order to represent them in the face of British usurpation. Those assemblies were known as the First and Second Continental Congresses. The Declaration was the testimony which cited the offenses of the upper tier of British government–King George and Parliament. This was especially necessary in light of the fact that the Parliament had no legitimate authority in the colonies because the colonies had been established by charters from the kings of England and were represented by their own colonial legislatures. “No taxation without representation” referred to the fact that the colonies, unlike other realms of the British Empire, had no representation in Parliament and wanted none. But like the federal bureaucracies of today, Parliament had gradually assumed one power after another over a period of many decades, usurping authority from colony and King alike (often with the connivance of both) thus becoming an overarching oppressor of the colonies.

But what happens when such a power hears no petitions, turns a deaf ear to all supplications, and tramples underfoot cherished liberties, beliefs and convictions using governmental mischief, legal terrorism, endless audits, debilitating lawsuits, misrepresentation in the press and police coercion? Honorable people do not seek bloodshed and armed conflict, and sense that the decision to resist such usurpation must have a basis in lawful authority. Further frustration is increased by the realization that a single individual is dwarfed by the comparatively infinite power of the state. Patrick Henry voiced the prevailing frustration of the colonists when he decried such evil in his famous “Give me liberty or give me death” speech:

We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the… Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insults; our supplications have been disregarded and we have been spurned, with contempt, from the foot of the throne. In vain, after these things, may we indulge the fond hope of peace and reconciliation…

But Patrick Henry and his speech became famous because he was a lesser magistrate in the Virginia legislature, the House of Burgesses. When, as a lesser magistrate, he stood up, the common folk took hope and rallied to this revolt of the lesser magistrate. Such interposition, as undertaken by duly constituted authority, has many advantages not accessible by a common man who might be persuaded to resist unlawful encroachments by his own strength. Listing such advantages may be helpful.

 

INTERPOSITION: ADVANTAGES OF THE LESSER MAGISTRATE

1) Lesser magistrates have a base of lawful power which they may invoke. Governor James has stirred the rage of the humanistic left because he has promised to resist them with lawfully assembled TROOPS and POLICE. We must always remember the simple lesson of rule:
government is force. Laws are really people enforcing dictates of authority. The only question to be settled is what will be enforced and toward whom.
2) The lesser magistrate, by virtue of his office, calms the pangs of conscience, doubt and indecision which would otherwise tend to neutralize resolution in the heads of common folk in that he has true authority to resist.., and people respond to honorable and authoritative leadership.
3) Such a magistrate usually has constitutional precedent and law on his side. In other words, there is some heritage to which he can appeal.
4) He also has access to a public forum which can articulate the particulars of the grievances involved.
5) Because he has been supported by many in his successful bid to achieve office, he has an established power base of popular support already in place.
6) He can provide relief and refuge, protection and support for the distressed more readily than can ordinary individuals. In short, by his office, he becomes temporal deliverance/salvation for the distressed. More to the point, his office is INSTITUTIONALIZED, temporal deliverance, a theme reiterated in Scripture time after time.
7) In addition, he can strike terror into the hearts of oppressors, flushing them out into the open and exposing them for what they really are as they do all they can to attack his position in office.
8) Finally. God declares a willingness to support and strengthen such a civil minister (Romans 13) in his capacity and office to save. This is due to the fact that he actually represents what God instituted government to be–a picture of true justice to the culture at large and an empowered deliverance against the onslaughts of oppression and evil. Such a position gives people hope and a foundation upon which to erect a just and upright system of constitutional protections and proper “due process” of law in the future… as bulwarks against tyranny.

NULLIFICATION: THE SOLUTION OFFERED BY INTERPOSITION

In 1798, the Congress of the United States and President John Adams passed a series of laws which were designed to protect the country against foreign subversion. These laws were known as the Alien and Sedition Acts. However, what they actually did was to expand federal power to the point of muzzling all domestic criticism of the federal government, the President and the Congress through heavy penalties, fines and imprisonment.

The response to this unconstitutional assertion of federal authority was undertaken by Thomas Jefferson and James Madison when they wrote, respectively, the Kentucky and Virginia Resolutions. Put simply, these Resolutions advanced the proposition that when the federal tier of our government exerts itself beyond its constitutionally delegated limitations, an individual state has the power to interpose its sovereign authority between the usurping authority and the common individual. Thus, each state had the right to “nullify” (i.e., to deprive of legal power) such federal action by asserting the constitutional authority of the state against it. Think of it! The author of the Declaration of Independence (Thomas Jefferson) and the “Father of the Constitution” (James Madison) declared that the power of the federal government may be made invalid by the individual states.

It should be noted here that the concept of nullification involves more than state nullification, as asserted by Jefferson and Madison. It can involve, for example, the concept of “jury nullification” where a local jury can judge the merit of a case “both as to facts and as to law.” This concept is already a part of our judicial framework, but judges do everything to obviate such authority by carefully constructed jury instructions, Since most Americans think it is exclusively the province of the judge to determine law, the jurors are led to believe that they can only determine if a person violated that law. However, jurors have the power to determine if the law being violated is just and upright, valid in itself. Simply put, if the jury believes a law to be unconstitutional, it can free a defendant on that basis, even if he did violate the ordinance. Indeed, one of the functions of the judiciary, with its jurors, is to restrain the legislature, not simply to examine fault in a defendant. Such “jury nullification” would not lead to judicial chaos as some allege, but would cause greater circumspection in the passage of laws at all levels of government. The judicial chaos currently reigning in our country is the result of a controlled judiciary headed by the Supreme Court, not juror error.

Thomas Jefferson did not address himself to “jury nullification” in 1798, because that was not the issue (though it was accepted doctrine in his day). In addressing state nullification, he was highlighting certain key points for consideration. He wrote in the Kentucky Resolutions, “The several states… are not united on the principle of unlimited submission to their general government. – In other words, the Constitution was designed to protect the states and its people by restricting the federal government from invasive acts which would imperil freedom and life. To allow the federal authority to assert unqualified powers would be to destroy the very object for which the Constitution was written, namely liberty and justice for the individual with safety from tyrannical abuse.

Continuing his argument, Jefferson stated that if the federal government were allowed to usurp power without the restraints imposed by the lesser magistrates (the individual states), then the discretion of the federal government would become the “final judge” and the “measure of its own powers” instead of the Constitution itself.

Put bluntly, the federal government cannot be allowed to be accountable only to itself–the very position we find ourselves in as a nation, with the Supreme Court acting as the final arbiter of ALL law and behavior. Jefferson argues that the federal government is accountable to the other partners which formed the Constitution–the individual states.

Finally, he warns all of us that confidence in the “good graces” of government is the basis for tyranny. He concluded, “In questions of power, then, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution.” On November 16 and December 24, 1798, the Kentucky and Virginia legislatures, respectively, did just that by passing the Resolutions, thus affirming state authority to determine the validity of federal acts… “binding them with the chains of the Constitution.”

Written by Dr. Wayne C. Sedlak
Pastor Reformation Hope Church
Brookfield WI 53005

(1)Myth of Separation, David Barton p. 83
(2)Ibid. p. 76