Why the Special Session Is Not Likely to be Special
Apr 26, 2023 by David Fowler
Last week’s commentary—highly applicable to the anticipated special session on access to guns—generated a helpful comment from dear friend: “I’ve read this latest piece and am sharing it on Facebook. But I hope you will now tell me the solution. I understood the biblical role of government was to protect our negative rights (don’t kill me or steal my stuff or my husband etc). So what now (besides the transforming gospel) is the solution? Would we not outlaw transgender surgeries on minors? Or on anyone?” Here is my answer. It explains why I don’t anticipate anything truly special coming out of the special session.
The referenced commentary made two points. First, no number of enacted laws will make us good or restore the lost good that has resulted in a current problem. Second, “a few more pragmatically grounded laws strictly for the sake of prohibiting what a majority may, in the moment, think is bad will make us good is to not use law ‘lawfully’ (1 Timothy 1:8).”
I know my friend and I share the same biblical perspective on law and the role of government, so the question was a sure sign I could have explained myself better, particularly on the second point. That is my first objective today. The second is to tie that into the upcoming special session.
Is the Gospel Enough?
The answer depends on how one defines the gospel. The gospel, which is the centrality of the Son of God in the person of Jesus to the cosmos without diminution or subordination of the Father and the Holy Spirit as equally God, is the only solution to the mess we have made of things since Enlightenment thinking took hold of us all.
But where I think too many Christians go wrong is forgetting that the gospel changes everything, including our conception of law and its proper function. So, a gospel that does not pertain to law and civil government is at best an emasculated gospel and, at worse, no gospel at all.
But how does that work when it comes to civil law? That’s my next subject.
Negative Rights? What Does That Mean?
The phrase “negative rights” sounds, well, negative. But I think that is because we have disconnected rights from duties. We want unlimited rights without corresponding duties.
If civil law were still administered in accordance with a Biblical cosmology (one aspect of a Biblical worldview) — and it most decidedly is not — then our civil leaders would know that “[b]efore any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe.” (James Madison, "Memorial and Remonstrance", June 20, 1785).
Upon application of reason and long experience, judged “upon comparison” to “the revealed or divine law . . . found only in the Holy Scriptures,” those who came before us concluded that one of the rights belonging to persons and not derived by human intervention (i.e., by judicial rulings and legislative enactments) was the “right to personal security.” (William Blackstone, Commentaries on the Laws of England, Introduction, Sec. 2; Book 1, Chapter 1, respectively).
The right to “personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.” (Blackstone, Commentaries, Book 1, Chapter 1). Without this right, a person would be hindered in carrying out the duties he or she owes to God.
However, this right is not just as against the government but as against one’s fellow citizens. Thus, this right corresponds to a “negative” duty on the part of others, i.e., a duty not to harm another person in the “enjoyment of his life, his limbs, his body, his health, and his reputation.”
Civil government, therefore, has a duty imposed on it by God, to secure to persons that right by prohibiting its violation. This right is a form of law enjoined on all of us, and it is called the common law.
A Practical Application of the Foregoing
The Family Action Council of Tennessee urged the governor and the legislature to assert this right—what we might call an inalienable right endowed by our Creator—in the law prohibiting medical treatments that harm the body and limbs of minors who are led to believe these means will bring harmony between their mind and their bodies.
As should be evident from what has been said, this right is grounded in an understanding of reality that is not dependent on human law. It is grounded in the common law about which William Blackstone was writing. It is grounded in the common law that the United States Supreme Court has repeatedly said frames and defines the words and phrases in the U.S. Constitution.
It is real law because it does not come strictly from human reason, but from reason grounded in the nature of things as confirmed by “comparison” to what God has said about what He created.
Transgenderism, however, rests on the assumption there is no given nature to anything. Refuting that assumption is why using the common law was so important.
The amendatory language asserting this conception of law and rights read as follows:
This state has a legitimate, substantial, and compelling interest in securing a minor's fundamental right at common law to be protected from physical harms to their body, including, but not limited to, interference with or disruption of the proper functioning of their healthy organs according to their biological purpose.
Response of the Governor, Legislature, and Others to Real Law
In short, this conception of law and rights was disregarded by the governor’s office, repeatedly rejected by the House and Senate sponsors of the bill, impugned by Republican lawyers in the House, and rejected by a majority of House members who had a chance to vote on it, 51-41.
However, their rejection of common law is not surprising. They join a long list of Christian policy or legal organizations in the country that will not consider even learning about the common law, let alone consider using it to restore real law or real rights.
My Experience with Common Law
I cannot fault them for turning a deaf hear to the few who, like me, speak about the importance of common law because my law school taught me the same godless conception of law (not just godless common law) that prevails among them. (I am not calling them godless, but a purely positivistic conception of law is godless.)
I doubt I would have gone beyond what I was taught had not God so provoked me by the godless conception of law that came to full flower in the U.S. Supreme Court’s decision on same-sex “marriage,” Obergefell v. Hodges. I knew marriage did not come from a state statute or a Supreme Court ruling, and that is what prompted me to reconsider the common law as a basis for rights that do not come from any human institution.
What This Rejection Means
Sadly, that Supreme Court decision seems to bother very few Christians I know, including ministers. Everything else seems more important than the fact that our state’s (and nation’s) understanding of the cosmos is upside down (man is supreme) and inside out (subjectively driven with no objective referent).
Yet, that is the problem from which all the other problems Christians seem to care about flow—drag shows, transgender procedures, gun violence, LGBTQ pride events, books in libraries, and the like. No one seems to want to address that underlying problem.
What this failure to consider common laws suggests to me is the vast majority of Christian ministers and Christians in law and public policy have been so seduced by the godless humanism that produced a positivistic conception of law, as I once was, that they cannot even think of any other kind of law. Common law doesn’t “fit” anywhere in a godless view of the cosmos and its positivist conception of law.
What This Means for the Future
It seems to me that Christians, by and large, are willing to accept this godless jurisprudential framework. They are not looking for any different framework or asking if a better one has already been conceived that could be used.
I take the latter as a tacit acknowledgment that a godless conception of law is agreeable to them. They must believe this conception of law will somehow produce “the good” that led to the bad they seek to prohibit or they would be looking for a different solution. But as I wrote last week, law never makes us good or creates the good; it cannot do that.
Moreover, by continuing to reject the conception of law that is common law we will continue to get only pragmatically grounded laws addressed to whatever societal symptom is now bothering us, even though the problem’s origin is rooted in the exclusion of God from our thinking, including our jurisprudence.
Consequently, I have come to believe that until Christians are willing to repent of their godless view of law and start working for the adoption of laws that reflect what they say they believe, society will need an ever-increasing number of pragmatically grounded civil laws to maintain order.
I believe that this decades-long failure to repent explains why we now need a special session to address gun violence. But unless our upside down, inside out cosmological problem begins to be addressed, there won’t be anything special about the upcoming session.