Higher Law and Human Law: The Religious Roots of American Freedom
A just law is a man-made code that squares with the moral law or the law of God.
This was written by a man imprisoned by the secular democratic authorities of his day.
His point seems essentially revolutionary — the laws of earthly authority are not just in their own right, but only inasmuch as they conform to a higher authority.
A dangerous man? A subversive seeking to overthrow the political order?
Edgar Hoover thought so, subjecting the author to wiretaps and non-stop investigation until his death at the hands of an assassin.
The author of the above quote is Martin Luther King. He wrote from the Birmingham, Alabama city jail, where he had been confined for leading the fight there against the demeaning Jim Crow laws. Those illegitimate laws had kept up a de facto slavery for decades after America lost the political will to enforce the new amendments to the Constitution and the new post- Civil War laws that had finally required political equality for black Americans.
American constitutional government guarantees religious freedom because it admits that laws and policies of a human government, even a government of, by, and for the people, are not necessarily just. As Madison reminds us in arguing for the Constitution in The Federalist, we are not angels, and therefore we need to accept limits on our power. Because we are fallible, the laws and policies we might establish might not be just. Therefore, the people have unalienable rights to protest, to elect different people to power, and, under religious freedom, to assert allegiance to a power higher than any human government.
Madison had made his argument for the Constitution’s limits on government when the memory of the War of Independence was still fresh. The fight for freedom had been spurred by the ringing words of the Declaration, which asserted that our political rights came from Nature and Nature’s God. The acts of King and Parliament were not the final word in justice. Even the highest governmental power is subject to a transcendent law that is beyond human manipulation. Thus, we have the idea that Franklin memorably summarized in his proposal for a national seal for the new country, which would show Moses at the splitting of the sea and would be captioned “Rebellion to tyrants is obedience to God.”
But the First Amendment did not make any particular religion supreme over the government. What it did instead was to disable each from exerting control over the other. Religions may not establish themselves as state religions, identifying themselves with the coercive power of government while shutting out all rivals from that same power. That freedom from state coercion that each religion extends to all other religionists is each religion’s covenantal commitment that establishes the freedom from state compulsion it itself desires or might in the future.
Do we wish to say that the Jim Crow laws were just because they were indeed recognized by the government as law of the land in the states where they held sway? The vast majority of Americans have answered “no” to that for a long time. That is why the dogma of the DEI race-baiters was so warped and could only be held in place artificially by the corrupt politics of the new carpetbaggers, the grifters eager to suck from the big-government nipple, exposed for all to see in Minnesota and California.
The devotees of the Islamic empire revanchism, the Left’s new strange allies, have never left their medieval mindset.
The key to the equality that guaranteed Martin Luther King the right to differ with law on a religious basis was nowhere identified more clearly than by George Washington. The key came in the first president’s rejection of the concept of toleration as being that which guides America in its understanding of religious freedom.
In his 1992 critique of how American law and politics were trivializing religious devotion, The Culture of Disbelief, Stephen L. Carter defined the problem with toleration:
Tolerance without respect means little; if I tolerate you but do not respect you, the message of my tolerance, day after day, is that my forbearance, not your right, and certainly not the nation’s commitment to equality, that frees you to practice your religion. You do it by my sufferance, but not with my approval. And since I merely tolerate, but neither respect nor approve, I might at any time kick away the props and bring the puny structure down around your ears.
This is how George Washington addressed the same topic, almost exactly two hundred years prior to Carter’s book:
All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
There are no preconditions to the freedom and equality offered by the American covenant. Membership in that covenant is on equal terms to all citizens, and a citizenly demeanor — meaning accepting personal responsibility to give the country their effectual support — is all that is required in return.
“Effectual support” would include the moral insights of one’s own religion, argued for honestly, but not qualifying as support only by dint of its religious pedigree, but by prevailing in the political debate in which all others may be coming from their religious perspective as well. Thus Dr. King’s religious argument for racial equality, proposed and argued for as biblical insight, but triumphant because that argument rang true to most Americans, even the many who did not share King’s denomination or even his Christianity.
For a hundred years, the progressive leaders of American culture tried to push an argument that ignored the role of religion. It described the advance of political freedom in the West as being caused primarily by religion’s inexorable retreat from learned and powerful circles, having been exposed as a fraud by philosophy and science. For the dominant swath of powerful cultural and political insiders, this is treated as a given. Anyone who denies it is excluded from consideration or tolerance. As Carter put it in his book,
One good way to end a conversation — or start an argument — is to tell a group of well-educated professionals that you hold a political position (preferably a controversial one, such as being against abortion or pornography) because it is required by your understanding of God’s will.
But there stands the cry of Dr. King to the contrary. And as long as we are dealing with the issue of racial and religious equality, everywhere you turn, you see the most consequential leaders mostly spoke from the same base, whether it was Roger Williams and George Whitefield in America or William Wilberforce in England, their religion was the driving force behind their successful political arguments.
More importantly, there is the history of the modern political push for freedom of religion that shows that the arguments that launched the movement were based in Bible and in the realm, newly opened to Christian scholarship, of rabbinic literature. Eric Nelson wrote of this in his groundbreaking study The Hebrew Republic:
We are told that the rise of [religious] toleration depended upon the advance of secularization, both historically and at the level of theory; that only when religion had finally lost its grip on the European imagination could theorists begin to contemplate broad protection for nonconformist religious belief and practice … My argument … is that both of these assertions are largely mistaken. The pursuit of toleration was primarily nurtured by deeply felt religious convictions, not by their absence; and … I argue that the Hebrew revival played a crucial role.
What does Nelson find the truth to be on this weighty topic? He writes that during the 16th and 17th centuries,
Christians began to regard the Hebrew Bible as a political constitution, designed by God himself for the children of Israel. They also came to see the full array of newly available rabbinic materials as authoritative guides to the institutions and practices of this perfect republic.
In other words, the genesis of religious freedom in the West came not as a drive for freedom from religion, but as stemming from the Western religious inheritance properly understood. That proper understanding, gleaned from the Hebrew Bible and rabbinic thought, demanded the end of using state power to enforce religious uniformity, and thus to bring an end — on religious terms — to the religious warfare that had so plagued Europe.
The Left has still not grasped the fallacy that underlies their self-conception as being heroes of freedom. Their ahistorical approach allows them to maintain their own unacknowledged religion, which is still stuck in the Middle Ages, always looking for heretics, always seeking to use the state to compel uniformity of thought and expression.
The devotees of the Islamic empire revanchism, the Left’s new strange allies, have never left their medieval mindset, though they have proven themselves shameless acolytes of the worst of the West, whether of the fanaticism of the Spanish Inquisition or of Nazi annihilationist Jew-hatred or of the destructive capabilities of its science.
Both these faiths — for the Left are indeed true believers in their own revealed doctrine — have come together over hatred of those who have through the ages carried forward the religious imperative of worshipping God freely and of allegiance to a law that is higher than any government or sovereignty.
Those who value the heritage of religious freedom, on the other hand, are coming together in love and appreciation, and seeing how every day, they walk converging paths towards the same goal.
And as King Solomon affirmed in his Song of Songs, love is stronger than death. That faith will be tried in the events of our day, to whose challenge we have been called to respond. With God’s help, we shall not fail.
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