My how time flies! We have projects at church, projects at home, and the continuing cycle of obligations like Synod Convention, which meets next week. As I wrap up preparations to fly out later today, I was musing a bit about the nature of law and the country we know as the United States of America.
For quite a while, I’ve been learning about the distinction between common law (or natural law) and the kind of law enacted by the fiat of a legislature or ruler. This distinction has come into sharper focus thanks to Richard Maybury’s books, like Whatever Happened to Penny Candy? and Whatever Happened to Justice?. I was provided with a collection of these books by members at one of my congregations, and have found them fascinatingly informative.
What I realized today is a corollary of the special uniqueness of the United States. It was founded upon the principles of individual liberty and limited government that proceed from common law as discovered over time in English history. (Not only English history, but that’s what affected the American colonies.) Every other nation was under a different kind of law, even if the particular laws were somehow voted into existence. Maybury calls the other kind “Roman” law, which is what practically everyone knows today. Common law is all but forgotten.
It was this basis in common law that produced the peculiar character of the Declaration of Independence, which was further enfleshed in the Constitution with its Bill of Rights. If someone were to ask, “What’s a Lutheran?” the best answer would be based upon the basic principles of Lutheranism, found in the 1580 Book of Concord. If someone were to ask, “What’s American?” the best answer would be based upon the basic principles of the United States of America, found in the Declaration and the Constitution. That’s common law.
Now, the corollary I mentioned comes from the peculiar identification of the American people as that which is sovereign in the United States. In other political systems, the monarch may be sovereign, or the legislature, or the judiciary, or some combination of them. In the United States, by definition, it is the people which are sovereign, so that the government (i.e. the executive, legslative, judiciary, or even the new bureaucratic arm) is not to be identified with the nation, and those who are in positions of government must always answer to the people.
The question often arises in the minds of Christians, “What if my government tries to force me to contradict my faith?” The answer is obvious when the contradiction is clear. But sometimes it is not. The corollary recognizes that the answer is different in a country constituted upon common law, in which the people are sovereign, than it would be in a country constituted upon fiat, “Roman” law.
If we consider the Constitution to be binding still, and that it still presents the principles of the Declaration, then an American Christian’s earthly obedience is not ultimately due to any part of the Federal or State government, nor even the government as a whole. Our Christian obedience is due to the people, according to the common law principles of the Constitution. Yes, we must still honor the executive, legislative, and judicial branches, but only insofar as they carry out the will of the true sovereignty in the United States, which is in the people.
But here’s the rub. The duty of an American to the people of the United States is actually weightier than the duty of the subject of a monarch. Yes, we are free people, but as the saying goes, “freedom is not free.” It’s encumbent upon every American, and owed to the sovereign power of the country (the people) to maintain the liberty in which the country was founded. Inasmuch as we have allowed encroachment to take place upon our liberty under the Constitution, we have been derelict in our duty as Americans, and have failed to perform the sacred duty that God has given to Christians toward our sovereign ruler.
Chew on that for a while. I intend to.