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America 2.0 – The History and Theology of Civil Resistance

Though the cause of evil prosper, yet the truth alone is strong;
Though her portion be the scaffold, and upon the throne be wrong;
Yet that scaffold sways the future, and behind the dim unknown,
Standeth God within the shadow, keeping watch above His own.

– James Russell Lowell, “The Present Crisis”

When the “fireside poet” James Russell penned these words in the 19th century, the “present crisis” was the institution of slavery. If 21st century Christians are truly concerned about the present crisis confronting America, we must set about to restore our nation with the same evangelical zeal that inspired Patrick Henry and Samuel Adams. As in the founding of America, Christians must be the ones who light the fire and raise the standard. Others who are “more wise in their own generation than the sons of light” (Luke 16:18) may be drawn to this cause and see our standard as holy and just. We cannot win the battle to preserve American liberty by attempting to make the truth more palatable to a postmodernist mindset. We can only win by raising the standard and calling others to reach for it. And we must do this with a sense of urgency.

Our first President, George Washington, at a critical moment during the Constitutional Convention in 1787 warned his fellow delegates: “If, to please the people we offer what we ourselves disapprove, how can we afterward defend our work? Let us raise a standard to which the wise and honest can repair. The event is in the hand of God.”

When a competent doctor diagnoses a potentially fatal disease in a patient and prescribes a painful remedy, the patient may be initially reluctant to act out of fear to face the serious condition he is in. But at some point, hopefully before it is too late, the patient may realize that a drastic situation calls for drastic measures. Only then can he begin to have some hope of recovery. If the doctor fails to warn the patient and offer a treatment for the disease, then a premature death is likely. Like our founding fathers, we must understand that the future of American liberty is at stake. We must not hesitate to warn of the growing cancer and offer a plan for its removal.

Left: Reverend John Witherspoon, pastor and mentor to many of the founding fathers

No matter the religious denomination of the first several presidents and drafters of the Declaration and Constitution, a vibrant, robust Gospel-oriented Christianity won the day. John Hancock, Samuel Adams, the “Sons of Liberty” – and various Reformed sages such as John Witherspoon, a pastor and mentor to many of the founders – understood a Christian theology of resistance in the most crucial hours of the American War for Independence.

As we shall see, this theology of resistance was articulated by the magisterial Reformers – Martin Luther, John Calvin, John Knox – and later put into practice during the English Civil War by Oliver Cromwell and his alliance between the English Parliamentarian forces and the Scottish Covenanters. This is the bold thinking that we must recover in our day.

Resistance theology is sometimes stated as the “interposition of the lower magistrate” against tyranny. The idea here is that although God invests authority with the civil magistrate (Romans 13:1-6) who is an appointed or elected ruler or judge, the Christian population has the obligation to resist and defend against tyranny when that civil ruler violates the Law of God. Christians must always resist a law that requires us to violate the commandments of God, but in order to resist a civil government with the force of arms, the cooperation of a lower magistrate must be available.

Lutheran ideas about resistance were included with The Magdeburg Confession: 13th of April 1550 AD, which argues that the “subordinate powers” in a state, faced with the situation where the “supreme power” is working to destroy “true religion” – that is, Roman Catholic powers working to destroy Lutheran churches – may go further than non-cooperation with the supreme power and assist the faithful to resist with the force of arms.

John Calvin reiterated this idea in his Institutes of the Christian Religion, but it was more fully developed by Calvin’s student, John Knox, in his work, The First Blast of the Trumpet Against the Monstrous Regiment of Women, which had in mind the Roman Catholic monarchs, Mary Tudor, Mary of Guise, and Mary Queen of Scots. Yet Knox was more consistently covenantal in his thinking than Calvin. He recognized that civil government is based on a covenant between the magistrate (or the representative or king) and the populace. His view was that when the magistrate defects from the covenant, it is the duty of the people to overthrow him. Knox outlined the concept that church officers could act as a type of shadow government that could then elect and replace wicked civil rulers once they were overthrown.

This was method of interposition finally realized in the 1640s when English people were bent upon the establishment of a more democratic parliamentarian system of civil government and the elimination of the “Divine Right of Kings.” King Charles I, the tyrant who had long persecuted the English Puritans, finally clashed with Parliament over a long ordeal with new and revolutionary ideas. The Puritans, or “Roundheads” as they were called, led a civil war against the King and his Cavaliers. When Charles I was beheaded, the understanding was that he had broken covenant with the people. The view of Cromwell and the Puritans was that when the magistrate breaks covenant, then he might legitimately be deposed.

The Puritan understanding of the covenantal nature of government was the foundation for American colonial government. This was true of Massachusetts and Connecticut and to a lesser extent in the Southern colonies. When the Mayflower Compact was written, the Pilgrims had a covenantal idea of the nature of civil government. This was a foundation for later colonies established throughout the 1600s. These covenants were influenced by what Knox had done in Scotland and what the Puritans had done in England.

Interposition and Nullification

When we speak of interposition and nullification in the context of our Constitution, we are recognizing that the birth of the United States of America owed itself to the concept of the interposition of lower magistrates against King George and the nullification of British Laws that violated common law, the colonial constitutions, and most importantly, God’s eternal law.

Though interposition and nullification are similar and are sometimes the terms are used interchangeably, there are some differences. Interposition is undertaken by states acting jointly, while nullification is an act of an individual state. Interposition involves a declaration that a federal law is unconstitutional, but after the interposition that law would still be enforced in the state. Nullification is a declaration that a federal law is unconstitutional accompanied by a declaration that the law is void and may not be enforced in the state. (McGraw, Joseph. “To Secure These Rights”: Virginia Republicans on the Strategies of Political Opposition, 1788-1800).

In order to oppose the Affordable Health Care Act (ObamaCare) and other unjust laws, Christians ought to look to develop a more consistent doctrine of nullification that can put into practice by various states to oppose encroaching federal tyranny.

Perhaps you saw news stories after the re-election of Barack Obama that portrayed a growing “secessionist” movement in America. Of course, the media portrays this as the response of sore losers, or worse, as the knee-jerk reaction of wackos who would undermine the United States Constitution. British news pundit and Oxford historian Timothy Stanley described the movement in a column for CNN.

Nothing says “sore loser” like threatening to leave the country after an election defeat. And that’s what hundreds of thousands of Americans have done by petitioning for their states’ secession on the White House website. It’s reminiscent of the great British tradition of right-wing celebrities threatening to leave the UK if the Labour Party wins power. Alas, they never do.

From the demography and geography of the vast majority of signers, it’s tempting to conclude that this is just a Republican cry of rage against four more years of President Barack Obama. But it’s more significant than that. Strip away the right-wing fantasies about whether or not secession is really possible (it isn’t), and you have a movement that testifies to the extraordinary divisions within American politics. The far right feels angry and dispossessed. Rather than getting even, it’s threatening to run away.

If it weren’t for the sheer number of signatures, the media wouldn’t be paying attention. Gov. Bobby Jindal of Louisiana describes the secession movement as “silly” and Gov. Rick Perry of Texas has dismissed it, too…. The call for secession will be mocked and dismissed. But while it is built on a legal fallacy, it does articulate honestly the feelings of a growing number of conservatives who feel emasculated in 21st century America. It’s now the duty of the Republican Party to try to integrate them back into mainstream, legitimate politics (Stanley, Timothy. Is secession bid more than a cry of rage? CNN Opinion. 11/19/2012.).

Is this British observer accurate? Do the American people have the right to alter or abolish our nation’s form of government? Do “we the people” have a right to secede from the union of states whenever we fear encroaching tyranny? Or are the people required under God’s law to submit to the powers that be and work for gradual reform under the rule of law to change their own national government and its leaders? Must we always do so, no matter how feared or despised that government and its leaders have become?

Up until the founding of America, the question was a moot point. Nations had long used military might to alter or abolish governments. Theologians such as John Calvin and John Know argued for a theology of resistance or “interposition of the lower magistrate” that justified the separation of Protestant nations from the “Holy Roman Empire” of the Middle Ages.

It was not until 1776, that a nation successfully established the right of the people in the sight of God to create a new nation where none had existed from lands that had seceded from the rule of a tyrant.

According to the Declaration of Independence, the right to establish a new nation rested in the right of the people to “life, liberty and the pursuit of happiness.”

The Preamble to the U.S. Constitution elaborates:

“We, the People of the United States” have the right and a duty to:

  1. Form a more perfect union
  2. Establish justice
  3. Insure domestic tranquility
  4. Provide for the common defense
  5. Promote the general welfare
  6. Secure the blessings of Liberty to ourselves and our posterity

That liberty is a “blessing” echoes the Declaration’s assertion that these rights are derived from God. These rights are enumerated in the various state charters and constitutions, but the United States Constitution forms a federal union in order to better protect the rights that already existed at the state level. This was certainly needed at the time. America was again threatened by Britain and our most important ports were conquered during the War of 1812. Were it not for the United States alliance with France during this time period, the tranquility, defense and welfare of the separate states would have been in continual jeopardy.

Any thinking person should then inquire about what would happen if the federal government itself became a threat to justice within our own shores. The framers of the U.S. Constitution included an important yet seldom quoted provision in Article IV, Section 4 to guarantee that the blessings of liberty would indeed be secured.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Many considered self-inflicted harm or “domestic violence” the more likely threat to America than a foreign invasion. It is also the sole reason why the Second Amendment guarantees the right of local militias to keep and bear arms. The founders feared that that America might be overcome by a tyrannical government internally before the people would succumb to the invasion of a foreign power.

The founders also realized that a nation that was subject to numerous insurrections, civil wars and revolutions against its own government could not survive for very long. Such was the fate of the flawed democracy of ancient Greece and the Roman Republic. Wisely, our founders put within Article IV; section 4 of the Constitution a pathway to nullification in order to protect the states.

Then the Tenth Amendment more clearly defined that those powers not granted to the United States were reserved to the various states or to the people, although it added nothing to the Constitution as originally ratified.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Practically speaking, this means that in order to resist laws that are matters not enumerated by the U.S. Constitution, the states don’t need to secede from the union, nor do we need to change the federal government, or even stack the Supreme Court bench with “constructionist” justices. What we need instead is for the states to understand that the original intent of the founders was that the states could follow the doctrine nullification.

For instance, any of the states could ignore the federal government’s imposition of socialized health care as unconstitutional. The Supreme Court’s ruling ought to be nullified because the Constitution does not imply or state anywhere that the federal government can force someone to buy heath care – or even as Justice John Roberts argued – to impose a health care as a “tax.” That is a decision that rests with the states.

Not only does Supreme Court not have the authority to rule on matters that are not described in the Constitution, but the Congress and the President themselves have no real way of forcing the states to comply if the will of the people and their state legislators is firmly resolved.

Now some might object that the federal government could force Alabama Governor George Wallace to keep a campus open to black students in 1963. However, two points ought to be considered here. First, Alabama was on the wrong side of this issue since the University of Alabama was funded with tax money that came from blacks as well as whites. We ought to concede that Wallace was on the right side of principle in defending “states rights,” but on the wrong side of the desegregation issue. Second, we have to consider that the federal government was able from a practical standpoint to desegregate the schools with the show of military force.

However, the display of military coercion is not practical in most conceivable examples. To demonstrate this, let’s use Florida as an example of a state that has already passed a law nullifying federally mandated health care. How would the federal government overcome the state’s right to decide the health care policies of employers? Would Obama send federal troops and force every employer to deduct health care premiums from their employees’ paychecks?

We could also use the same strategy to nullify abortion on demand. Our goal should not be to overturn Roe v. Wade. Our strategy ought to be to get several states to ignore it by to enforcing laws that recognize the unborn as Persons that are already state laws. How would the federal government be able to respond apply? Would federal marshals be sent to keep the doors open at all abortion mills in states the size of Florida or Texas?

The Doctrine of Nullification

There’s not much attention paid to the Constitution in Washington. There’s not much attention paid to it by our executive branch of government. And we don’t get much protection from our courts. So one thing that might finally happen from this if the people finally feel so frustrated that they can’t get the results out of Washington — They’re going to start thinking about options. They might start thinking about nullification and a few things like that.

– U.S. Representative Ron Paul

According to the Tenth Amendment Center :

What is the doctrine of nullification?

For anyone unfamiliar with the concept of state nullification, it was the idea expressed by then sitting vice president Thomas Jefferson when he authored what came to be known as the Kentucky Resolutions of 1798. The resolutions made the case that the federal government is a creature of the states, and that states have the authority to judge the constitutionality of the federal government’s laws and decrees. He also argued that states should refuse to enforce laws that they deem to be unconstitutional.

James Madison wrote a similar resolution for Virginia that same year, in which he asserted that whenever the federal government exceeds its constitutional limits and begins to oppress the citizens of a state, that state’s legislature is “duty bound” to interpose its power and prevent the federal government from victimizing its people. Very similar to Jefferson’s concept of nullification, Madison’s doctrine of interposition differed in some small but important ways.

These two documents together came to be known as The Virginia and Kentucky Resolutions (or Resolves), of 1798. Both were written in response to the dreaded Alien and Sedition Acts, and the phrase, “Principles of ’98” became shorthand for nullification and / or interposition. Over time, “The Principles of ’98” would be invoked by many other states, many times for a variety of issues.

But in order to best-understand what Nullification is, you should first understand some things nullification is not.

Nullification is not secession or insurrection, but neither is it unconditional or unlimited submission. Nullification is not something that requires any decision, statement or action from any branch of the federal government. Nullification is not the result of obtaining a favorable court ruling. Nullification is not the petitioning of the federal government to start doing or to stop doing anything. Nullification doesn’t depend on any federal law being repealed. Nullification does not require permission from any person or institution outside of one’s own state.

So just what is nullification and how does it happen?

Nullification is any act or set of acts, which has as its end result, a particular federal law being rendered null and void, or just plain unenforceable in your area.

Nullification often begins with members of your state legislature declaring a federal act unconstitutional and then committing to resist its implementation. It usually involves a bill, passed by both houses and signed by your governor. In some cases, it might be approved by the voters of your state directly, in a referendum. It may change your state’s statutory law, or it might even amend your state constitution. In this case, it is quite simply a refusal on the part of your state government to cooperate with, or enforce a particular federal law it deems unconstitutional.

The same process can happen on a local level too. Your county board of commissioners or city council might take up a measure that rejects or resists a federal law. Once it gets passed, all local agencies might be required to refuse compliance with any federal agents trying to enforce the federal act in question.

In either case, Nullification carries with it the force of state or local law. It cannot be legally repealed by Congress without amending the U.S. Constitution. It cannot be lawfully abolished by an executive order. It cannot be overruled by the Supreme Court if the people in the state reject the Court’s opinion. It is the people of a state or local community asserting their rights, acting as a political society in its highest sovereign capacity. It is the moderate, middle way that wisely avoids harsh remedies like secession on the one hand, and slavish, unlimited submission on the other. It is the constitutional remedy for unconstitutional federal laws.

With the exception of a constitutional amendment, the federal government cannot oppose (except perhaps rhetorically), these actions to nullify an unconstitutional federal law without resorting to extra-legal measures or violence. But such measures would more than likely backfire, since most Americans still believe might does not make right. There is no question as to whether or when such “official” nullification will happen. It has already happened. In fact, not only has it happened recently, it has been a success! Perhaps this is why the federal government hopes you will never hear about it (Sheriff, Derek. Nullification in One Lesson. Tenth Amendment Center).

Your comments are welcome!

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