The Briefing, Albert Mohler

Monday, November 22, 2021

It’s Monday, November 22nd, 2021.

I’m Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part I

The Kyle Rittenhouse Trial: The Rule of Law and the Demands of Justice

Rarely has a trial drawn as much attention, including attention to live proceedings as was the trial of Kyle Rittenhouse that ended in his not guilty verdict on Friday of all five criminal charges. It was five, not six, even though just a matter of days before the case went to the jury, it was six, not five. But the big lesson here is not about the math, the big lesson here is about the rule of law. And even as we’re thinking about this, Christians need to understand there are huge issues that are invoked, massive worldview significance in the rule of law. Over and over again, we have cause to mention the fact that the rule of law is an extremely rare achievement in terms of Western civilization. And globally, as the rule of law spreads and as it appears here and there, we need to recognize it is a massive cultural achievement.

In the Western tradition, the rule of law goes back to the early notions of citizenship, even such as were invoked by say the Apostle Paul during his trial before the Roman tribunals. But we also need to note, it has roots in ancient civilization, the classic civilization, most importantly of Ancient Greece and Ancient Rome, and then the development under the influence of Christianity, of the understanding of human rights and human dignity.

You then jump from the continent to the English-speaking world, where we saw the development of the tradition of English common law. And over time, that law began to define the rights of individuals as citizens, not just the right of the Monarch, not just the right of the state, not just the right of the rulers or the powerful or the rich, but the rights of all citizens. And that includes the rights we now know as enshrined within our constitutional tradition, a right, for example, to a due process of law, a right to be presumed innocent until the state proves one guilty. A right to legal representation, a right to a verdict handed down in the most important of cases by a jury of our peers. All of this just doesn’t come from a vacuum. It comes from a very important and absolutely crucial worldview foundation. And as we see, that worldview came under the influence of Christianity, of the Christian notions of human dignity and human rights, of the biblical understanding of God’s gift of justice and his demand of righteousness.

All of this is a part of the Western legal tradition channeled through the English-speaking world, jumping from the English tradition of common law into American constitutional law. Our own system of ordered liberty and a government, as our founder said, of laws and not of men. Meaning that our legal system would recognize that all are accountable to the law and all should be equally accountable to the law.

But there are other massive worldview issues here. For example, our justice system is very expensive. It costs a lot of money to have a system of courts and a system of law. It costs a lot of money to have the entire system of investigators and prosecutors and defense attorneys and judges, the entire process of the judicial system and a peer jury system. All of that is just very, very expensive, but justice is expensive. It doesn’t come easily and it doesn’t come quickly. You could come up with quicker systems of justice. You could come up with more economically efficient systems of justice, but they would not be as just as systems of justice.

Another aspect of our system of justice is understanding that you cannot be brought up on charges of being disliked or charges of having done something society in some general or specific sense thinks is wrong. You can only be brought up on specific charges that have to do with specifically written and statutes, laws, and regulations. And that means that when you are looking at the justice system, you can also not go back and make something illegal that wasn’t illegal at the time. Those are referred to as ex post facto laws, explicitly forbidden by our constitutional system. Otherwise, you’d have people charged with crimes rather routinely that didn’t exist as crimes when the acts were committed. This particular trial has to do with the fact that this young man, Kyle Rittenhouse, shot three people, killing two and wounding another in an outbreak of violence that took place on the streets of Kenosha, Wisconsin.

But just to make the story as summarized as possible, Kyle Rittenhouse claimed that he was acting in self-defense. A 17-year-old at the time, he had gone to Wisconsin from his native Illinois in order, he said, to help defend property in the midst of protests there. Protests had to do with charges of police brutality, and that was police brutality against African Americans. But the reality is that by the time these events unfolded in August 2020, it was not at all clear. And this became very, very evident in the jury’s deliberations and in the court proceedings, it was very clear that the situation was anything but clear on the ground there in Kenosha. Nonetheless, Kyle Rittenhouse made very clear after he was charged with serious crimes in Wisconsin, that he would plead self-defense.

Now, immediately, legal observers looking at the situation understood that the state, that is the state of Wisconsin would actually have a very difficult time providing enough evidence to convict a defendant in those terms, in that context. The context of all that was going on on the streets of Kenosha, Wisconsin, during that period in August 2020. Furthermore, there was a lot of evidence that was almost immediately apparent indicating that there would be at least some ground on which the young man Kyle Rittenhouse would be able to make his claim of having acted in self-defense. But nonetheless, this went to an extensive trial process. There were six different criminal charges alleged against him. One count, a first-degree reckless homicide, two counts of first-degree recklessly endangering safety. Another count of first-degree intentional homicide, another count of attempted first-degree intentional homicide, and then a weapons violation. But just as the trial was wrapping up before it went to the jury, the judge actually excluded the weapons charge. There’s a big lesson there.

Why did the judge exclude the weapons charge? The answer is quite simple. A look at the words in the actual statute created an exemption that had to do with the length of the firearm and the age of the person carrying the firearm. On neither of those counts did the law actually apply to Kyle Rittenhouse, even though the state had charged him with a crime. The bottom line is this. Our rule of law comes down to words. The words are formed into phrases and sentences. And if the reality doesn’t fit the crime as defined in the statute, then the statute does not apply. But in our system of justice, the prosecution makes its case and then the defense has the opportunity to make its case. And there are to be sure in our system, more protections given to the defendant than there are powers given to the state.

The state has awesome power to prosecute, but if there were not adequate protections for a criminal defendant, the state would win every single time. That is effectively what takes place in totalitarian dictatorships. The state has awesome power. It has the power to create law. It has the power to hire police. It has the power to enforce laws. It has the power to coerce a judicial system, unless there are adequate protections that would prevent the state from doing so. That is called our constitutional system of rights and responsibilities.

The judge in this case made some rulings that at least some people in our national divide felt were more injurious to the prosecution than to the defense, but there are several things to recognize. For one thing, the charge that the judge threw out was one in which he was undoubtedly correct. The circumstances did not fit the statute. The statute therefore did not apply. Furthermore, the prosecutors in this case made fundamental errors. One of them was a direct violation of the Constitution of the United States. The prosecution made the case as it was presenting its evidence that the silence of the defendant was an indication of guilt. That is an absolute unquestionable violation of our constitutional system of government and the judge vehemently called it down.

Even before the case went to the jury, Georgetown Law School professor, Jonathan Turley, writing in USA Today issued his verdict that the case against Kyle Rittenhouse had crumbled. That is the prosecution’s case. Why? Well, because of both unforced errors and the basic facts of the case and Wisconsin’s self-defense law. As Turley wrote, “Even without the unforced errors by the prosecution, this is always a difficult case. Wisconsin,” he writes, “has a strong self-defense standard. After a defendant claims to have acted to repel a threat, the burden is on the prosecution to rebut that claim beyond a reasonable doubt.” That is what the prosecution failed to do, and it failed to do so spectacularly when it came to two witnesses who were present at the time. One of them is the man who was shot, but survived, and another was a news reporter.

Both of them basically gave testimony under oath, even as the prosecution was hoping for a very different point. They indicated that the young man had not fired his gun until there had been an action against him directly towards his person, that in the eyes of the jury evidently meant he had a responsible judgment that he was in a position of danger. Thus, the self-defense argument was accepted. There was no evidence to convict him beyond a reasonable doubt.

Now there are all kinds of things for us to consider here. For one thing, we see the limitations of human justice. There will be people who are very upset about this verdict because they want the verdict to be about gun control, the want the verdict to be about those protests. They want the verdict to be about a young man coming from one state to another state, and then invoking self-defense arguments. They want it to be about this, or they want it to be about that. But the reality is our system of law comes down to a statute that the prosecution says was violated, and eventually a system of justice has to adjudicate.

The editors of The wall Street Journal also got it right when they wrote over the weekend, “The facts presented at trial made it very hard to prove beyond a reasonable doubt that Mr. Rittenhouse did not act in self-defense when he shot three men, killing two, who attacked him amid an anarchic scene in downtown Kenosha last summer when he was 17.” Again, it’s what the state, the prosecution failed to do that is at stake here. Does that mean that our system of justice failed? No. When you’re looking at a system of justice, you understand that eventually we either trust the jury system or we do not. Eventually, respect for a jury’s decision does not always mean agreement with the decision. Citizens are not called necessarily to agree with the jury, but they also to recognize they’ve not been charged officially with the responsibility of receiving the evidence, hearing the evidence, seeing the evidence, weighing the evidence, and receiving instructions from the judge as to exactly what the law does and does not say.

And therefore, even as President Biden indicated that he was not pleased with the verdict, he went on to say that there must be respect for the jury system. In that sense, he sort of gave with one hand and took away with the other, but at least when he spoke of respect for the jury system, he got to the right place. And that’s eventually where Americans must arrive. Otherwise, we undermine our own system of justice. There’s a lot more going on here.

For one thing, on the left, there has been an enormous shift when it comes to the rights of criminal defendants or at least some criminal defendants. It had been say during the middle decades of the 20th century, that a great deal of the energy in our country towards defining and protecting defendant rights was coming from what would be considered the political left or the more liberal side. And yet in more recent decades, it has been conservatives, including conservative judges and conservative justices of the US Supreme Court who have been the stalwart defenders of defendant rights. It is tempting at various times in our history for either the right or the left to decide that we want more efficient justice and we demand outcome-based justice. That is to say, we demand a system of justice that will give us the verdict that we demand. And you see that right now, very powerfully in recent years on the left. And the left is in so many ways, abandoning its historic commitment to defendant rights, or at least the rights of some defendants, because it is demanding in political terms, a certain judgment even before the jury has been seated.

One and final thought on this issue. The reality is that when there is a controversial trial, particularly a criminal trial, there are those who believe that justice has been satisfied and those who believe that justice has not been satisfied, sometimes grossly not been satisfied. But here’s where Christians have to understand that is important as indeed virtually priceless as our system of justice is. The reality is that at its very best, its rightful judgments can only be so right. The ultimate judgment and ultimately righteous judgment can come only from God himself. And make no mistake, for everyone, for all of us, that judgment will come.

Part II

Issue to Watch This Week: Senate to Debate After House of Representatives Pass Biden Spending Bill

Next I want to acknowledge that other big news as the nation went into the weekend included the fact that the House of Representatives has passed a version of president Biden’s massive social spending bill. But even as that was the reality and it came after an eight-hour speech by the House Republican leader, Kevin McCarthy of California. Even as the House did narrowly approve this measure without a single Republican vote, it is an enormously complex piece of legislation that amounts to $2.2 trillion of spending and there is a lot for us to look at here. Trust me on that.

But we’re going to do that next week on The Briefing, not this week, precisely because this is Thanksgiving week and it is very unlikely that this bill and the legislative process in the Senate will receive much attention during these days. So we will reserve our time looking at these issues until you’re likely to see the Senate come into session and actually start debating, or for that matter, even reading the House bill. But trust me, it is not only massive when it comes to spending, it is massive when it comes to worldview dimensions.

Part III

Religious Liberty For All Or Religious Liberty for None: Does One Nation Under God Necessitate One Religion?

But next, also as America went into the weekend, controversy over a statement made by former national security advisor in the Trump administration, Lt. General Michael Flynn, who evidently spoke to evangelical Christians, a group who were meeting in San Antonio and was reported to have said, “If we’re going to have one nation under God, which we must, we have to have one religion, one nation under God, and one religion under God.” The statement was also reported as coming down to this, “But if we can have one nation under God, we should have one church under God, right?”

Well, is he right or is he wrong? The answer is both, but in this context, the answer is more wrong than right, because what was implied in Flynn’s statement was the idea that some kind of state coercion should be brought about to make certain that there’s only one religion or one church under which the unity of the nation is established. That is, let’s just point out, antithetical to the American project. It’s antithetical to our constitutional system of government.

Even though the Constitution does not mention a wall of separation between church and state, the Constitution clearly says that the federal government may not establish religion. It can’t establish a right religion. It can’t establish a list of wrong religions. It cannot establish a right church. It cannot come up with a list of wrong churches. It cannot favor one church over another. That is established constitutional law and that comes right from the text to the Constitution in the First Amendment to the Bill of Rights itself. We’re talking about the fundamental constitutional order of the United States. And we’re talking about something that was included in the Constitution, even as it was ratified by the states, therefore becoming the Supreme law of the land.

In this context, speaking at an event that evidently included a preponderance of charismatic Christians and those who were there, it was an event that was described at least by some, as being a political event that was being held in a church. And even though General Flynn clearly believed that he was whipping up the crowd with making such a statement, the reality is that the statement was far more wrong than it is right. But even as there were so many in the country who immediately dismissed everything about what he was saying, we need to recognize that clumsily as he said it, there’s something there we do need to think about.

Is it true that if we’re going to have one nation under God, it has to be under one religion? Well, that’s not true if you’re talking about denominations; Methodist, Presbyterian, Episcopalian, Congregational. No, it’s also not true if by that you mean Catholic versus Protestant, et cetera. It’s not true even when you look at the religious liberty that is guaranteed to all Americans, and that means all Americans, regardless of their religious faith, or as unbelievers or often want to say these days, of no faith. President Obama himself actually mentioning it just that way during the time he was in the White House. The point is that religious liberty means religious liberty or it doesn’t. It means religious liberty for everyone, everywhere in this country or it doesn’t. And so unquestionably, General Flynn’s statement was reckless. It was said without any respect for, or even citation of the US Constitution. It seemed to be uttered in a way to whip up the crowd, not to actually make a serious intellectual point. And for that, the statement was roundly condemned and legitimately so.

But we also recognize something else that the left in particular does not want to recognize. And that is the fact that our society didn’t come from nowhere. It came from somewhere. The very constitutional system of government came from somewhere, not from nowhere. It did not come just from any worldview or from any civilizational tradition. It came from the Western civilizational tradition. It came from the English-speaking constitutional tradition, and it came from a civilization and a tradition that was enormously, pervasively, unquestionably shaped by Christianity. And shaped by Christianity as in, by no other religious system.

Furthermore, as you think about our constitutional order, it was overwhelmingly Protestant in its character. That doesn’t mean the religious liberty is extended only to Protestants. Not at all. But it does mean that it was a Protestant society based upon those English-speaking traditions, shaped by historic Christianity, hammered out by centuries of trial and error. It was indeed that tradition, that civilization, that society under the influence of Protestant Christianity that produced this constitutional system.

Therefore, there is a very awkward historical question, just how long can this constitutional order survive if there is no general Christian, even generally Protestant consensus on these issues? That’s one issue. The issue of the continuation of the civilizational order. Even the civilizational order right down to the rule of all with which we began the conversation today. That’s a very legitimate question. And even though there are many who don’t want that question raised, it’s an extremely legitimate question. And it’s a question increasingly being asked by persons who are very concerned about the future of our society. And by the way, that includes no small number of Roman Catholic citizens and Jewish citizens, as well as Protestant citizens, evangelicals.

But that last word reminds me of where we have to end on this issue. For Christians, especially for Baptists, for evangelical Christians, for gospel people, there’s an even more pressing issue here that is shared by evangelicals. And that comes down to the fact that we believe in the necessity of conversion, which is to say we not only do not believe that government has any lawful authority to declare persons within a religion. We also don’t believe as Christians, that anyone can become a Christian that way. Period.

The number one objection to the statement may by General Flynn is the fact that we believe persons become Christians only by their personal confession of the fact that Jesus Christ is Lord, their experience of the new birth, their repentance of sin, their public profession of faith in Christ. We believe that all of that is necessary in order for one to become a Christian. And we believe that anyone who believes in Christ and repent of sin will indeed be a Christian, regardless of any verdict issued by any state at any time. That’s a verdict that is declared in heaven. It not up for any kind of political or judicial affirmation or denial.

Do I wish that every citizen of the United States were a believing Christian? Well, as a Christian, I have to say, of course I do. And that’s not true just about the United States. Christians understand that about the entire world, but we also recognize where we stand and that is in obedience or disobedience to a missionary mandate, often referred to rightly by Christians as the Great Commission. And there, we understand that we have to win believers to Christ one by one, individual by individual, not public declaration or state action by public declaration or state action. No state can make any decision that will change the destiny of a single soul. The biggest problem implied by the statement is not constitutional, it’s theological and it’s biblical. It’s gospel. And that has to be our first and last concern.

Thanks for listening to The Briefing.

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I’ll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

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