Monday, November 29, 2021

Part I

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Looking Forward: National Divide Coming to Decisive Moment as Supreme Court Set to Hear Oral Arguments over Abortion Case on Wednesday

This is one of those days in which we have to look backward and forward, backward to a trial in Brunswick, Georgia, forward to what will take place on Wednesday at the Supreme Court of the United States where that court will hear oral arguments in the greatest challenge to the Roe v. Wade decision to come in a generation.

The case is coming from Mississippi. It is known as the Dobbs case, and both sides and America’s increasingly divisive abortion controversy agree that this is the case. That becomes very interesting when you see the report that came from the Associated Press, Mark Sherman, gets right to the point when he says the Supreme Court is ready to take up a case which is all or nothing in the abortion fight.

Now, what makes that so interesting is that there is a point of agreement here. That point of agreement is about the importance of this case, and both sides understand that the basic logic of abortion is what is directly at stake. The basic logic of abortion, the claim that it is a constitutional right even though, of course, it’s not mentioned in the constitution, we are looking at this great national divide coming to a very decisive moment.

And those who are the supporters of abortion rights know that this is the most vulnerable moment in the abortion fight since Roe v. Wade in 1973. Those who contend for the sanctity of human life and hold to the pro-life position are in absolute agreement. This is the point of Roe v. Wade’s greatest vulnerability in a generation, indeed going all the way back to the case itself in 1973. We are looking at a case that is now almost 50 years old. We are looking at a case that has had some of the most deadly consequences imaginable. We’re talking about tens of millions of human beings extinguished in the womb simply because of the Roe v. Wade decision.

Now in the days ahead, we’re going to be taking a look at the issues exactly as they will be presented to the Supreme Court. We’re going to be looking at the issues squarely on Wednesday’s edition of The Briefing. And then on Thursday, we will take a close look at the actual oral arguments as they were presented to the court. This is going to be a very big week in American constitutional law. It’s going to be a very big week as we understand the fight for the sanctity of human life. It’s going to be a very big week when it comes to matters of the constitution, human rights, human dignity, the sanctity of life and the future of this country.

Part II

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Looking Backward: Three Men Found Guilty of Murder of Ahmaud Arbery — What Was At Stake in This Case for the U.S. Justice System?

But all that is set to take place in the middle of the week and there will be plenty for us to talk about. In the meantime, we need to go backwards. We need to go backwards to what took place when the verdict was brought down in the trial of three men who were charged with the killing of a black man, Ahmaud Arbery, who was killed back in February 2020. The question was, was this or was it not murder?

Now the background to this, of course, is not just about the facts in the case. The background to this is about the question of American confidence in our system of justice and in the jury system. And it comes just a matter of days after another very crucial verdict, in this case, the trial of Kyle Rittenhouse in Kenosha, Wisconsin, and he was found not guilty on all counts because of a successful defense argument having to do with his right to self-defense. The question was, would that same defense work in the cases of the three men who were accused in Brunswick, Georgia of killing Ahmaud Arbery?

It was a very different case. And as we know, the verdict turned out to be very different as well. The verdict in the Georgia case came back charge after charge guilty. Travis McMichael, he was found guilty on all the counts alleged against him including one count of malice murder and four counts of felony murder. George McMichael, his father, was found guilty again of four counts of felony murder. He was acquitted on the charge of malice murder. And then the other man charged here, William known as Roddie Bryan, Jr., he was convicted on three counts of felony murder. He was also, by the way, acquitted on the charge of malice murder. And he was additionally acquitted on a charge of felony murder on one of those charges.

The point is all three of these men, all three of these white men, charged with killing a black man as he was running through a predominantly white neighborhood in February of 2020, all three of them were found guilty of murder. Now there are huge, huge issues here. For one thing, we’re using language that we’re going to have to carefully define.

Just days ago with reference to the Rittenhouse verdict, we talked about the achievement of the rule of law. And once again, we’re looking at just a very basic fact. That fact is that we have a jury system on cases of this kind of criminality. Americans have the right to trial by a jury of their peers. But that’s not always a perfect system. It’s not a perfect system because the human beings aren’t perfect, because the system isn’t perfect, but it is the greatest achievement. As we think about the civilizational project of law and justice, I think it’s the greatest human achievement in all of human history, this trial by a jury of peers, a jury of fellow citizens.

Now, in the case of Kyle Rittenhouse, the jury found him not guilty. And I pointed out that that does not mean innocent. Innocent is a verdict beyond any kind of human trial, beyond the power of any jury. The burden on the jury in cases of criminality is not to decide whether or not the defendant is guilty or innocent, but rather whether the defendant is guilty or not guilty. Not guilty doesn’t mean innocent. That’s a very different thing. Courts don’t determine innocence. Courts determine whether or not the case was proved as to guilt or whether in the contrary, the verdict must be not guilty.

But again, to remind ourselves, the rule of law requires a specific charge as to criminal activity. There has to be the allegation that takes the form of an actual indictment handed down by prosecution. The indictment has to say, here’s the law, here’s the regulation, here’s the statute that was violated. Here is the specific cause that the court and thus, the jury will have to adjudicate.

Now in the United States, the rule of law means that we have protections against vague or ambiguous charges. There had to be specific charges according to the law, and we cannot be charged with violating laws that did not exist when a certain act was taken. This means no ex post facto laws. You can’t have a government that says, “Hey, what you did was wrong. We’re going to pass a law against it now,” and charge you with violating that law before it existed. No, that’s a huge protection in our constitutional system.

Now that means that sometimes, someone does something and a court comes to the determination that this action was taken, but there is no law that establishes its criminality and thus the political process needs to take heed of that and go ahead and pass the law in order to uphold justice. But you can’t charge someone with violating a law that did not exist when they committed the act.

The three men in Georgia tried a very similar defense to that of Kyle Rittenhouse in Kenosha, Wisconsin, self-defense. And there have been many who have argued that America’s laws on self-defense are simply too generous to defendants. But we better think very carefully about trying to make that argument because if we do constrict self-defense laws, we are actually going to make the entire population more vulnerable. Those self-defense laws, the presumption that one has the right to defend oneself in one’s home, well, that’s fundamental to our entire legal system and it goes back generations and indeed centuries in the common law tradition.

Now, the difference in these two trials is that even though the defense teams in both cases tried to make a self-defense argument, that argument prevailed in Wisconsin, it failed in Georgia. And it gets to the fact that most Americans had already figured out the basic contours of these two cases. In the case of the three men charged with killing Ahmaud Arbery in Georgia, it was clear. It was not controversial. It was not doubted that these three men had been in vehicles and that they had chased down an unarmed black man who was running through the neighborhood.

Georgia has a very generous self-defense law, but even that makes very clear, that law makes abundantly clear that if you provoke a confrontation, you cannot then claim self-defense. And the jury in Georgia came to the conclusion that those three defendants had indeed provoked the confrontation, and thus, they were responsible for it. We do understand that the ultimate determination as to guilt or non-guilt had to be made by the jury. And the jury was responsible for adjudicating the evidence, considering all the arguments. The jury was instructed by the judge. The jury had access to all the legal information.

And as we shall see, the jury had unusual access to videos. In both the Wisconsin and the Georgia cases, it turned out the video evidence and what is now called enhanced video evidence turned out to be absolutely crucial. We know that because of what we have learned about the deliberations of both juries. In both cases, the jury during deliberations asked for access to that video evidence, so they could remind themselves of exactly what they had seen.

And in the Georgia trial, the three men who were on trial for murder and other charges were in large part convicted, we now know, because of that video evidence. That video evidence made very clear that they had chased down Ahmaud Arbery. That also made very clear that Ahmaud Arbery had not provoked any confrontation, but was only trying to get away from those who were chasing him in a truck. We don’t know exactly what happened even outside that truck, but we do know this. We know that the enhanced video led that jury to the conclusion that it was the men in the vehicles, the three men charged in this case, who had provoked the confrontation and bore moral responsibility for it, including the fact that Ahmaud Arbery was dead.

Part III

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Why So Many Types of Murder in Our Justice System? And What Makes Murder Murder?

But as Christians trying to think through a biblical worldview, and even as we understand the Bible’s clear teachings on justice, well, here we come to understand that the technical word that was used for many of the charges there in Georgia was murder. Now, murder’s one of those words that Americans learn fairly early. It is bandied about in so many television dramas. It’s the substance of so much of the national narrative. It’s in the headlines. And of course, it’s in the news about verdicts, murder. But what does murder mean, and is murder one thing or can murder be many things?

Well, it turns out that murder, put simply, is the killing of a human being. But murder in our parlance, in our moral context, means an intentional killing of a human being for which there is moral responsibility. Now, this means that there is a distinction between murder and homicide. Homicide is any killing of any human being. That is simply the meaning of the word, homicide. But murder, at least in our legal context and as we use it even in our common cultural conversation, requires intentionality and it requires moral responsibility. It points to the one who committed the act and it points to the basic human dignity of the victim.

Now, where is that grounded according to the biblical worldview? Well, it’s grounded in creation where God made every single one of us in his image, but it is revealed horrifyingly so, so early in the book of Genesis when Cain killed his brother Abel, and it is identified as murder because Cain killed him intentionally. It was intentional premeditated homicide. In that case, because it was a brother killing a brother, it was also fratricide.

But how can there be so many different forms of murder even when it comes to the criminal code? Well, it’s because there are different contexts of murder. There is what is often known in most states as first degree murder. That means premeditated murder. But there is also homicide, is a criminal charge with special or aggravating circumstances. Now, this might mean that it’s the killing of a police officer, or it’s the killing of someone with a particular kind of animus.

Regardless, there are special circumstances, a particular kind of violence. And without going into detail, murder is gruesome in any form but there are particular circumstances, a particular murders that lead to a charge of first degree homicide with aggravating or special circumstances, which may open additional criminal penalties.

But then there is also manslaughter, which does not mean that one is absolved of moral responsibility. But manslaughter generally means that there was no premeditation, and so the contextual issues are thus very, very important to adjudicating guilt. There are different degrees of murder. There are different degrees or forms of manslaughter. The circumstances of the case have a great deal to do with how the crime is defined or the alleged crime, but there’s more to it than that because when it comes right down to it, seeking an indictment on these kinds of cases means that even before a trial is held, even before a preliminary hearing is held in most jurisdictions, something like a grand jury has to be persuaded that this is indeed, at least in likelihood, the right kind of charge to be made in this kind of crime.

The prosecution on behalf of the people, and remember all these criminal cases are the people, for instance, of the state of Wisconsin versus Kyle Rittenhouse, the people of the state of Georgia versus Travis McMichael and Gregory McMichael and William Bryan, Jr. It’s in the name of the people that the court undertakes the trial and the prosecution undertakes to seek to make a criminal case against the defendant who has been charged with the crime, the defendant, or the defendants.

But again, in the case of the killing of Ahmaud Arbery, the word murder was sustained here. The criminal charge of felony murder was sustained here repeatedly. So was at least one count of what’s defined as malice murder when it came to Travis McMichael. But as you’re thinking about this, what does the word murder tell us here? It tells us that every single human being is made in God’s image. It tells us that the intentional immoral taking of another human life is a matter of the gravest moral and criminal consequences.

And it tells us something else. It tells us that murder only makes sense in a certain moral worldview. It only makes sense in a worldview in which we are not actually biological accidents, in which we are not just protoplasm or material stuff. It only makes sense if human life is inestimably important because we do not define ourselves and we have no right to kill each other. In Genesis 9, in the Noahic covenant, God makes very clear, even as God speaks about the death penalty, he speaks about the fact that it is because we are fellow image bearers and because murder, unlike any other form of killing, the killing of another human being has the moral consequence of seeking to destroy the very image of God.

But I mentioned the importance of the video evidence, just another reminder of the fact that the law also has to change with new technologies, and one of the new technologies that will play a big part in so many criminal cases. And again, consider the fact that the juries in both of these cases wanted to look again at the video evidence. What does that tell us? It tells us that in a video world, eventually, the video is likely to find you, especially in a criminal case like this.

And here’s the oddest twist in this entire aspect of the Georgia trial. At least one of the men who was found guilty of felony murder, one of them was the videographer himself. And how did the video come to the knowledge of police? It is because the video was produced eventually by one of the defendants believing that the evidence, the video evidence would clear him and his friends from the threat of criminal charges. It turned out to have exactly the opposite effect.

Now, there are sure to be a host of questions that will come along with that. Well, what might have happened if that trial had taken place and there had been no video evidence? Without the video evidence, would the trial even have taken place? What would’ve been the eventual verdict, or verdicts in this case, if there had been no video evidence? The same question could be asked in Kenosha, Wisconsin. It can be asked now in hundreds and hundreds of cases in the United States each year.

And this just points to something else, there is no human eye and there is no lens to catch every act to document every crime. We’re living increasingly in a surveillance society, but still, there’s not going to be video evidence on everything. But here’s where we need to remember what the scripture tells us. Even if it is beyond a human eye to see, even if it is beyond the reach of any kind of human devised lens or video recording device, still, there is someone who sees and it’s very important. Christians understand this, that we know that. Nothing escapes God’s knowledge and no one will escape his judgment.

Part IV

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What’s Behind Whether You Think Rising Gas Prices Is a Big Deal— That’s Right, Worldview Matters

But next, we’re going to shift to a very different issue, one that gives us insight about the divide in the United States not just between Democrats and Republicans, conservatives and liberals, or you might say this group and another group. But let’s look in the divide in the United States when it comes to the impact of rising gasoline prices. It turns out that just might be culturally, morally and politically, maybe even ideologically important.

When you say everyone pays the same thing for gas, well, no, they don’t. Different parts of the country have very different prices, partly because, for instance in the state of California, it’s not just a matter of supply and demand. It’s also a matter of very high state taxation per gallon on gasoline, far less than in some other states. So you’re paying more in California than, for instance, in the state of Texas or Alabama for the same gallon of fuel. Well then again, some Californians will say, it’s not exactly the same gallon because of the requirements to sell gasoline in California. And the person in Texas will say, exactly.

But you say, what does that have to do with a distinction in worldview in the United States or a distinction even when it comes to cultural, moral, political issues? Well, turns out it has a lot to do with it. We are looking at increasing gas prices as a part of the inflationary spiral that is now causing so much concern in the United States. We’re told that just a matter of the week before Thanksgiving, the average price for a gallon of gas, then, well over $3 was the highest it’s been in the United States since 2013. The Energy Information Administration keeps records in all this.

NBC News offered a very interesting analysis by Dante Chinni, and one of the things he points out is the fact that people across the United States not only vote differently, they drive differently, especially when it comes to the quantity or the mileage of their driving. For example, when you look at the states that have the greatest per capita vehicle miles traveled, you’re looking in the Maine at very red, which is to say very conservative, which is to say predictably Republican states. People drive a good deal more in Republican dominated states as a rule than they do in Democratic or more liberally dominated states.

And you say, well, evidently liberals drive less than conservatives. Well, maybe that has something to do with the fact that conservatives tend to live in more rural areas, whereby definition, you are driving a considerably greater distance than if you’re living in an urban environment where you might not even have a car.

Now, just thinking of that rural or urban, rural cosmopolitan, metropolitan divide, consider the fact that the state that has the greatest per capita miles traveled on an annual basis is the state of Wyoming. The average driver in Wyoming drives about 18,000, indeed over 18,000 miles a year.

Now in some coastal areas, the reality is that people drive only a fraction. That is to say, drivers drive only a fraction of what is found in Wyoming. But in the red states, well, a lot of drivings going on there, North Dakota, 13,000 miles; in the state of Tennessee, 12,000 plus; Georgia, 12,000 plus; Alabama, 14,500; Mississippi, 13,600; Arkansas, 12,100; a lot of driving going on in red America.

And not only that, the vehicles are different. In much of red America, more conservative America, those parts of the United States, those on the coast considered to be flyover country in their condescension, well, a lot of the vehicles that are being sold are pickups. In North Dakota, 41.8%; South Dakota, 33.4%; Arkansas, 28%; Alaska, by the way, 29.8%. Let’s go back to Wyoming. The percentage of total vehicle sales, new vehicle sales that is in Wyoming, 41.5%. Out of every 10 vehicles, new vehicles sold in Wyoming in the past year, over 40% of them are pickup trucks. They have bigger fuel tanks. They use fuel.

But as NBC News points out to their credit, in these parts of America, a pickup truck or a truck in general is not just a means of transportation, not just getting from point A to point B, it is basically required for life and for work. But the point made in this NBC article based upon the research and documentation they offer is that this just might have something to do with the fact that Democrats tend to be less concerned about higher fuel prices, and Republicans tend to be more concerned. Liberals turn out to be less concerned about rising gasoline prices. Some of them even think it’s good because there might be a cutback in the use of fossil fuels. Meanwhile, those who actually have to get crops to market understand that they’re going to have to drive. And in general, they’re driving trucks, not cars, and they’re driving a lot.

I drove a considerable distance in rural Kentucky, just yesterday. I was driving a truck. And as I noticed on those back roads with this conversation very much in mind, it was not just that a good number of the vehicles I passed were trucks, it turned out that the vast majority were. We’ve talked about the political consequences of the Cracker Barrel, Whole Foods divide in the United States.

Now there is also a vehicle and mileage divide, and maybe it just took rising fuel prices to bring that to our attention.