The Briefing 1-14-16

Part I

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Supreme Court ruling on Florida death penalty affirms basic biblical principles

On Tuesday, the U.S. Supreme Court handed down a major decision by an 8-1 majority. The nation’s highest court ruled that Florida’s death penalty statute is unconstitutional because it leaves in the hands of a judge, an individual judge, the decision as to whether or not to apply the death penalty—the ultimate judicial sanction. The decision came in such a way that it leaves no doubt where the Supreme Court stands. When looking at the Court, remembering that there are nine justices, when you look at an 8-1 vote you are looking at a very significant majority. In this case, the only outlier was Justice Samuel Alito. Justice Sonia Sotomayor wrote the majority opinion for the justices. She was joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg and Elena Kagan. Justice Stephen Breyer concurred but wrote a separate opinion.

What’s very significant about this is not only how the Court ruled, but the issue of the Court’s ruling. In terms of how the Court ruled, this was a massive 8-1 majority, and it represents the Court making a very clear statement that the Constitution of the United States says that every single citizen deserves a trial by a jury of his or her peers. That’s a very important issue. The state of Florida has been one of three states that has left the decision about the death penalty ultimately up to the court judge. The states of Florida, Delaware, and Alabama had allowed juries to advise the judge, but left it ultimately in the judge’s hands. Writing the majority opinion, Justice Sotomayor wrote,

“The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death,” she wrote. “A jury’s mere recommendation is not enough.”

Now one of the things we need to note, in terms of the how of this decision, is that in this case the court ruled so comprehensively that eight of the nine justices agreed, and that includes justices on the far left, judicially speaking, and justices on the far right. This is a basic affirmation of the importance of the constitutional principle of trial by jury. Christians looking at this need to understand that justice is one of society’s most important imperatives. The Scripture makes that clear. Every system of government and every system of judging and justice must seek to affirm, and seek to achieve, the closest approximation of justice that is possible. Now Christians understand that in a fallen world corrupted by sin, ultimate perfect justice is outside of our reach. But that does not absolve us of our responsibility to seek justice and to make certain that, in so far as we are capable both individually and as a people, we do our very best to achieve justice. The United States constitutional system is not perfect; nor is our system of judges and juries and courts. But the reality is that it’s based in some very important Christian worldview convictions, among them the fact that even a system of justice is easily and immediately corrupted by sin and, if nothing else, by human inadequacy, which is one symptom of that sin. And thus we understand that an approximation of justice is more likely to be achieved, especially in cases of great criminal responsibility, when the accused is judged by a jury of his or her peers, not merely by a judge or even merely by a tribunal of judges.

It’s very important that Christians understand that this is a basic issue the Constitution respects. The Constitution in its Sixth Amendment assures every single citizen of the United States of the opportunity of trial by jury; and that is an essential issue. It’s essential to the American understanding of justice, but it’s also a very important issue of our Christian biblical understanding. We can understand that one individual may make a moral mistake, or in this case, a legal or judicial mistake. It is less likely that 12 will do so simultaneously. Now the American system of justice, as we’ve said, is not perfect. No human system of justice can be. There are times when juries can act either way irresponsibly. They can be driven by political fervor and moral frenzy to convict too quickly. They can also be led by other considerations to refuse to convict even in the face of overwhelming evidence. This is a phenomenon known as jury nullification. But we still have far greater confidence in the ability of 12 citizens to come to a responsible decision about guilt or innocence, and also about the kind of penalty that should be applied in a case that might involve the death penalty.

This specific case before the Court from Florida had to do with a man who was convicted of murder and then was also sentenced to the death penalty. The record of the case demonstrates that this was a horrifying murder and that the jury in this case found unanimously that the defendant was guilty of the murder as alleged. Then in the sentencing phase of the trial, the jury found 7-5 that they should recommend the death penalty. But that 7-5 is very different than 12 to 0. The Supreme Court of the United States on Tuesday ruled that it was unconstitutional for the jury then to merely advise the judge who, based upon that 7-5 ruling, went on to apply the death penalty. In terms of the larger issue of the death penalty, it’s important to note that in the 8-1 decision handed down on Tuesday, the majority included some justices that are on the record in favor of the death penalty and some that are very much opposed to the death penalty. There we need to take a closer look. This means that in terms of the actual decision handed down on Tuesday, it was about the right of every citizen to be judged by a jury of his or her peers, and this 8-1 majority found that that applied to the sentencing phase of the trial where the death penalty is involved, not only to the matter of guilt or innocence.

There’s something else we need to note here. The Bible very clearly affirms the death penalty; it is very clear in the Old Testament. It’s also clear in the New Testament, in particular in a text such as Romans chapter 13. In the Old Testament, it’s rooted in Genesis 9 in the covenant God made with Noah where God very clearly said that if a man takes another’s life—if that man’s blood is shed —then the one who does the blood shedding, the murderer, also forfeits his life. In the New Testament in Romans 13 we are told that the State, the government, which is an institution given to us by God for our good, has the responsibility to execute justice. And as Paul wrote by the inspiration of the Holy Spirit, the State that is the government does not hold the sword in vain is a clear reference to capital punishment. But even as the Christian worldview affirms the principle that capital punishment is important—especially in cases of capital murder, precisely because intentional homicide is identified in Genesis 9 as the willful intentional destruction of an image bearer of God. It is an affirmation of human rights and human dignity that the one who takes a human life, who kills an image bearer, forfeits his own right to live. But the Bible is also very clear; and here the Old Testament is very specific. The evidentiary requirements, the requirement for the burden of proof by evidence for the application of the death penalty is very, very high—as it should be, as it must be. We put all this together and we come to understand that what the Supreme Court did by this 8-1 ruling on Tuesday was truly important, not only in terms of the framework of the human system of justice, but also in terms of basic principles of importance to the Christian worldview. I was particularly struck by some of the news coverage here in Florida where one former prosecutor says that he believes the Supreme Court’s decision,

“Will ultimately mean fewer death sentences in Florida simply because now jurors will know that the life or death decision is solely theirs.”

The prosecutor said,

“Prosecutors used to be able to come in and say, ‘You’ll vote, but ultimately a judge will decide, so don’t worry about what happens once you voted.’”

“Now,” said the former prosecutor, “they can’t say that anymore.”

Well, it may well be that the Supreme Court decision will lead to fewer death penalty sentences in Florida for this reason. But if so, that’s the right reason. A jury should not be able to defer this decision to the judge; nor should the judge alone make this decision. That’s why we have the jury system, and that’s why the Supreme Court decided this case so overwhelmingly when it handed down that decision just this week.

Part II

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Constitution debate impacts America's moral life and the Church's biblical interpretation

Next, the issue of the interpretation of the Constitution of the United States is very, very important; and Christians—not only citizens in general, but Christian citizens in particular—have a stake in understanding what’s going on, what the issues really are in terms of the interpretation of our nation’s constitutional text. The reason for this, from a Christian perspective, is that it has to do with the interpretation of any text. Whenever we confront a text, the question is how is it to be read? And how is it to be understood? Even the founders of this nation, the framers of the Constitution itself, understood that the Constitution would have to be interpreted. But it’s also very clear they intended the Constitution as a written document to stand on its own, and for those who were interpreting it to do their very best to understand what the framers meant by the words and then what the words mean themselves in terms of the text arranged as words and letters and grammar and syntax. That approach to the understanding of a text is basically a formal approach in constitutional circles. It’s called “originalism,” meaning that the responsibility of an interpreter of the text, a judge in particular, is to understand what the Constitution clearly states and what it was intended to state in terms of the intention of its authors. But there is a basic battle going on in the modern world over the interpretation of text, and there are those who are now arguing quite vociferously—and they have been now for the better part of a century—arguing that judges cannot be bound to the letter of the law, so to speak, not to the actual text in words and grammar and syntax, nor to the original intentions of those who framed the text, who were the authors of the text. Rather, persons who hold to this school of interpretation would argue it is the responsibility of judges to serve society by finding a way to interpret the text to get to where the judges believe the social policy or the legal question should be resolved. That is the great battle in terms of the Supreme Court of United States that goes back to the early decades of the 20th century. When, for example, President Woodrow Wilson in the early decades of the 20th century argued quite openly before and during the time he was in the White House that what the Constitution represents, or represented then in the early 20th century, was an obstacle to the kind of progressivist vision he wanted to undertake.

As a matter of fact, this whole school of interpretation is often called a Progressivist School of the Constitution, or an argument that suggests that the Constitution is to be understood and interpreted as an evolving document, a document by which judges are not bound in terms of words or grammar or syntax, not bound in terms of the original intention of the authors, but a text that is to offer an arc of history, of historical interpretation—an arc of interpretation that judges may take where they want. And that’s exactly what liberal judges have done and what critical legal theorists and other progressive law professors have argued for years that judges ought to do. Now, we need to recognize that those are two absolutely contradictory understandings of how to interpret a text. And what we need to note as Christians is that these two schools are hardly limited to the Constitution of the United States. As a matter of fact, even long before the Constitution became the center of this argument, the Bible was. Liberal interpreters of the Bible, liberal biblical scholars as they called themselves, argued that the Bible is an historical text and that we are not as Christians to be bound by the words of the text itself, but rather we are to find meaning within the text and we are to interpret the text in light of modern needs and changing moral assumptions.

Furthermore, those who are arguing from this trajectory suggested that the Bible is really just an historical record of what ancient religious people thought, and thus those early biblical critics decided to reject most of the supernatural elements of the Scripture. Out went the virgin birth of Christ, the miracles of Jesus, the biblical account of Creation—and the list goes on and on. What Christians need to recognize, therefore, is that when we look at debates over the role of the Supreme Court of United States, or the role of judges in general—when we look at the question of the interpretation the Constitution, more is at stake here than the Constitution. One of the things that Christians must keep in mind is that people begin to follow the habits of thought leaders in terms of how to interpret a text.

Now let’s put this in the context of the local church. If the pastor clearly teaches that the Bible is the written word of God, if the pastor clearly teaches what the Scripture reveals about itself—that every single word of Scripture is divinely inspired, inspired by the Holy Spirit—then the congregation will begin to understand that the authority for the message is not at all the preacher; it’s not the church; it is rather God’s authority Himself as God has revealed Himself in a written revelation we know as the Holy Bible.

But we also need to recognize that the opposite habit can be taught; and the opposite habit is based in an absolutely diametrically opposed understanding of Scripture. If the preacher gets up and suggests that the Bible is merely a launching place for discussion; if the pastor casts suspicion upon the truthfulness of the text in any respect; if the pastor or preacher begins to speak of the text as a mere historical record or as a text that is religiously inspired but not totally true, not totally trustworthy, then the congregation will pick up on those habits as well. And they will pick up on those convictions. The same thing is happening in our country as we consider the interpretation of the Constitution—two rival schools of interpreting the Constitution, just as there are two rival approaches to interpreting the Bible—are very much on the line and they are very often on display.

They also have a great deal to do with the 2016 American presidential election. This was made very, very clear in a recent opinion piece published in the Boston Globe by one of the major candidates for that office, former Secretary of State Hillary Clinton. It’s one the most revealing statements about the role of the Supreme Court in a very long time. And Hillary Clinton writes, as she says in this article not only as a presidential candidate, but as a lawyer, and as she says,

“…a former law professor.”

Now this is going to tell us a great deal. Hillary Clinton writes in this Boston Globe piece that the Supreme Court’s decisions,

“…have a profound impact on American families.”

She goes on to stipulate why. She also says that the Supreme Court and its future are on the line in the 2016 election. As she writes about the justices,

“Agree or disagree with them — and most of us have done both over the years — there’s no question that who sits on the court matters a great deal.”

Now virtually no informed person is going to disagree with her on that count; but then she goes on to write about why time and urgency are now central issues. She writes,

“On Election Day, three of the current justices will be over 80 years old, which is past the court’s average retirement age. The next president could easily appoint more than one justice. That makes this a make-or-break moment.”

Now, Hillary Clinton is running for the Democratic nomination for the White House. She hopes to be that nominee. She hopes to sit in the White House. She writes about the kind of judges that she would appoint, the kind of justices she would appoint to the Supreme Court. She says,

“I’ll appoint justices who will protect the constitutional principles of liberty and equality for all, regardless of race, gender, sexual orientation or political viewpoint; make sure the scales of justice aren’t tipped away from individuals toward corporations and special interests; and protect citizens’ right to vote, rather than billionaires’ right to buy elections.”

That’s the kind of language I would expect from former Secretary of State Hillary Clinton, but we need to note something. At this point at least she hasn’t even addressed how judges should understand their role to interpret the Constitution. The Constitution is mentioned in her article only in that adjective “constitutional.” She then goes on to say that Republicans running for the Republican nomination have a different view than she has.

“They see this election as an opportunity to pack the courts with jurists who will turn back the clock.”

She goes on to give specific examples of marriage equality, as she calls it, and the Affordable Care Act, saying that if such conservative justices are added to the Court, those issues are very much in danger. From this point she lists many other issues before the Court, not only now, but in recent decades—most importantly, abortion. And she says,

“In a single term, conservative justices could undermine virtually every pillar of the progressive movement.”

Now that’s an astounding statement, because it’s astoundingly candid. Hillary Clinton here is writing for the Boston Globe, a liberal paper in a liberal city with an overwhelmingly liberal readership. The word “progressive” is a very good word when it comes to those readers. Mrs. Clinton uses it to great effect and with great intentionality. She is warning the readers of the Boston Globe that if a conservative president is elected who will appoint conservative justices to the Supreme Court, she says every pillar of what she calls the progressive movement can be undone. This would include Roe v. Wade, that is the abortion decision of 1973. This would include what took place just this past June, she warns, in the Obergefell decision when the Court legalized same-sex marriage in all 50 states. She says,

“I remember the day last June when the Supreme Court declared marriage equality the law of the land. Same-sex couples, some of whom had been together for decades, stood on the court steps cheering and weeping and thanking God that this day had finally come.”

Mrs. Clinton goes on to say,

“It was as clear a reminder as any of what the court can do: stand for equality, or against it; make America a fairer place, or roll back the progress we’ve worked so hard to achieve. It depends on what the Court decides. It depends on who is deciding.”

Now, once again, what’s most remarkable about this article is not the ideas within it, but the absolute candor with which they are addressed to the readers of the Boston Globe. One interesting thing to note is that Hillary Clinton never actually writes in this article as if judges are in any way bound in any sense at all by the words of the Constitution. The Constitution is just a backdrop. This is what’s called outcome-based law. What’s important, according to these liberal legal theorists, is that the Court continue to push liberal social and moral positions as the Court has done in so many ways, especially since the midpoint of the 20th century. It’s an astoundingly candid argument and one that deserves our close attention, not only because of the importance of the Supreme Court of United States—on that issue we would agree with Mrs. Clinton—but on the issue of how a text is to be interpreted, remembering that this is not just about the Constitution of the United States. The larger issues here, and the one that Christians understand to be even more important and more fundamental, is how one interprets the Scripture. What is very, very instructive to us is understanding that the debates to take place in this country over how the Constitution is to be interpreted are actually, in large part, a mirror image of the more important argument about how the Scripture is to be understood and what authority the words of Scripture really have.

As citizens we should be really, really attentive, understanding that in this sense, we agree profoundly with Hillary Clinton—that who sits on the Court, the highest Court in the land, the U.S. Supreme Court, is a really, really important issue because the interpretation of the Constitution is very much on the line. But we also need to understand as Christians far more importantly, who stands in the pulpit is really important, because who teaches and preaches the Word and the convictions of that preacher are far more important—not only in the lives of Christians, but in terms of the life of the world—than any ruling made by any court, including the Supreme Court of the United States.