As a general proposition, the common law of the United States self-consciously assumes a framework of principles contained in or deduced from Scripture, including the foundational principle of rights given by a Creator-God. Rather than abandoning or denying that legacy, it is time to do the hard work of explaining and re-asserting the liberties contained in the First Amendment. While not the ultimate tool or the only tool, it is one of many at the disposal of a free people.

The points made in the recent article, “It’s Time to Abandon the First Amendment,” by Larry Ball¹, have wide-ranging implications and deserve careful evaluation.

The article references contemporary moral decline and related judicial action, and states, “It [relying on the First Amendment of the U.S. Constitution] has worked well up to this point. However, I believe it is time to abandon this strategy….”

It reasons that the (entire) U.S. Constitution is merely a social agreement and is without divine warrant. One that was effective in the past, but is no longer effective since “…. [Christians] lost the culture.” It reasons that judicial activism has made it virtually meaningless, and that true sovereignty of the American States was lost in the Civil War.

The article argues that First Amendment principles are not in the Bible, and implies therefore, a lack of authority to act on them, concluding that, “The root of freedom is found in God’s law and not in the First Amendment.  The sooner we understand this the better it will be.”

We will look at the main assertions, the assumptions underlying them, and the conclusion drawn, beginning with the first two assertions.

1. The United States Constitution is nothing more than a social compact that was contracted between representatives of the particular states. It is distinctly secular.  The entire document reflects the thinking of John Lock more than it does a system patterned after some divine paradigm….
2. The Constitution, as a secular social compact, has no divine warrant above the will of the electorate (democracy), or the will of the elite (oligarchy)….

In 1787, when the Constitutional Convention deadlocked over how states, particularly smaller population states, would be represented in a federal union, Benjamin Franklin invoked divine intervention. Addressing the Convention, he said,

“I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth- that God Governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid?”²

This call set in motion a season of prayer that continued throughout the deliberations. The deadlock was broken, the Constitution was agreed and eventually ratified by the States.

The context of the founding documents, set out a belief that rights were given by God, not by the State. E.g. the second paragraph of the Declaration of Independence, “…. all men ARE CREATED equal, that they ARE ENDOWED by their Creator with certain UNALIENABLE Rights, ….” [emphasis added].³ This was, and remains, virtually unique among national charters.

It reflects far more than a mere (“distinctly secular”) social agreement.

The implied basis is one of mankind, a special creation of God, worthy of dignity and respect by virtue of having been created in His image.

3. The Constitution worked well for Christians when they controlled the culture, but as we lost the culture, the Constitution is now being used against us….

I understand this to mean that when biblical principles influenced the culture more in the past, the system of Constitutional law worked, but it does not work now.

The author rightly points out the desperate moral condition these United States are in right now.

But one must ask the question- what is causing use of the Constitution “against us [Christians]?” Did the Constitution suddenly change? Or is it suddenly now being misrepresented? Or simply being ignored?

And if that is the case, how would removing broad civil protections of speech, and the free exercise of religion help, especially when they worked previously, as the author states?

4. …. The Constitution has become a “living” document which means it is essentially a dead document. Don’t expect the dead to come to your rescue.  Christ is our Savior because he is alive….

The author makes the point that activist Judges are ignoring the Constitution and imposing their own views. While this is not new, the author has a valid point that judicial activism is increasing and becoming more bold in its assertion.

One example of this is the U.S. Supreme Court decision, Roe v. Wade (1973). After nearly two centuries of states legislating protection of unborn children, the U.S. Supreme Court “discovered” a constitutional right to abort in the decision. The 7-2 decision reasoned that the right “emanated from the penumbras” of the Bill of Rights and was made applicable to state laws by a judicial doctrine of “selective incorporation.” From there, the majority imposed a complicated trimester scheme by which to evaluate the right, which has resulted in legal unsettledness and litigation ever since. Justice Byron White said in his dissenting opinion called the case decision, “an exercise of raw judicial power.”

But is the problem the Constitution? Or, is it a falling away from fidelity toward it? The problem of “legislating from the bench” is made more egregiousness by the oath of office taken by every U.S. Supreme Court Justice:

“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.  So help me God.”

It’s interesting to note that the oath invokes God as witness. That also does not reflect a “distinctly secular” arrangement.

An example might be that of a law against drunk driving. If the law is being violated,  and more people are now driving while drunk, does that mean the law is “dead”? Does it mean it ought be abandoned simply because more people are drunk driving? Is the choice really between abandoning driving in automobiles and walking on foot from place-to-place, because only the latter can truly save us from the consequences of drunk driving?

5. Speech has never been totally free. There have always been laws on the books prohibiting some speech as slander.  You cannot cry “fire” in a crowded movie theater…. Here is the great irony of the 21^st century — the same First Amendment that guarantees freedom of speech may be used to judicially convict biblical Christians of slander.

A hypothetical misuse of something does not render its right use without meaning or effect. Slander, as a legal action, requires proving that something asserted is false. How would abandoning the speech protections of the First Amendment benefit Christians (or anyone else) in a quest for truth?

6. It can be legitimately argued that the Constitution was founded upon states’ rights. Every state had the right to establish a particular Christian religion.  However, the principle of states’ rights was destroyed by the Civil War. As a result of that war, federal courts now assume the authority to overrule the electorate of any state that votes to prohibit homosexual marriage….

It won’t be helpful to re-litigate the civil war, but one could say that the badness of War produced some good. It preserved the Constitutional Union held and re-asserted God-given rights that were being denied to some.

7…. As a result of that war, federal courts now assume the authority to overrule the electorate of any state that votes to prohibit homosexual marriage.

It’s difficult to see the connection between that War and states being unable to proscribe homosexual marriage.

Following the Civil War, the States regulated public morals. In 1986, the Court reaffirmed the right of the States to do so and specifically to proscribe that conduct.⁴

Judicial activism, and other abuses of power, were anticipated in the Constitution. That’s why it establishes a system of checks and balances to deal with it.

8. As I search the Bible I find no first amendment. What I do find is the responsibility of the civil magistrate to enforce justice and equity as defined by God’s law (Rom. 13).  What I do find is the responsibility of God’s ministers to use the Bible to confront those in power about their lawlessness….

Romans 13:1-4 says:

¹ Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. ² Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. ³ For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: ⁴ For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.

Romans 13 was written at a time when Christians were being fiercely persecuted under the Roman Emperor, Nero. He was not known for treating Christians fairly, or for regarding the law of God in the short life he lived before his ignominious end.

This passage of Scripture is not saying that all leaders enforce “justice and equity as defined by God’s law.” It is saying that God ordains leaders, both good and bad, and uses them toward His own greater purposes, which include restraining evil.  In that way, even bad rulers are used by a Sovereign God (somehow) to work out divine purposes.

The article presents a false dilemma.  Choose God’s law on the one hand, or the First Amendment on the other. But the Amendment does not claim to represent a full body of law, let alone be a replacement for the Law of God.

The article assumes the two are mutually exclusive, even though it reasons that the First Amendment was effective in the past for Christians.

The necessity of the conclusion, that it is time to abandon the civil protections of free speech, petitioning government, and of free exercise of religion, does not flow from the premise that culture is shifting away from biblical values.

Nor does the article specify a practical alternative for ordering civil affairs.

If the article intends some sort of theocracy, it would be necessary to know specifically how it proposes that would be applied and enforced. And who would do the interpreting here on earth. Especially in light of the fact the Bible reveals all are sinners who fall short of the glory of God. (Romans 3:23).

As a general proposition, the common law of the United States self-consciously assumes a framework of principles contained in or deduced from Scripture, including the foundational principle of rights given by a Creator-God.

Rather than abandoning or denying that legacy, it is time to do the hard work of explaining and re-asserting the liberties contained in the First Amendment. While not the ultimate tool or the only tool, it is one of many at the disposal of a free people.

And a powerful one at that.

To be used, as in the words of the final paragraph of the Declaration of Independence, “with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

¹Ball, Larry. “It’s Time to Abandon the First Amendment,” The Aquila Report. Web. 27 November 2014.
²Benjamin Franklin, Constitutional Convention Address on Prayer, June 28, 1787, Philadelphia.
³“. . . in the Declaration of Independence (US 1776). ”
⁴Bowers v. Hardwick, 478 U.S. 186 (1986).

Scott Truax is a free-lance writer living in Cary, N.C. He is a member of Peace Presbyterian Church in America where he has served as a Deacon.