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Ultimate Law

Higher Law vs Horizontal Law

By GaryDeMar


The Constitutionstates that it is “the supreme law of the land” (Art. 6). This can’t mean thatit is the supreme moral law of the land since there is very little ofwhat we think of moral law in it. The Constitution is the supreme law of theland only in terms of what powers are actually enumerated in the documentitself. If the Constitution does not address a topic, it has no authority overit and therefore does not carry the validity of “supreme law.” The Constitutionassumes an existing body of moral law. That’s why you will not find aprohibition against murder, rape, theft, marriage. These moral issues weresettled by the populations of the various colonies (and later states) and werewritten into their law codes.[1] Paul Campos, law professor at the Universityof Colorado, is nearly correct when he writes:

Like all hotlycontested questions of constitutional law, the question of whether abortion isa constitutional right has nothing to do with the meaning of the Constitution.What decides constitutional questions are the political preferences andideological inclinations of federal judges, and nothing more.[2]

And where arethese “political preferences and ideological inclinations” found and shaped? That’s the real and only meaningfulquestion, and it’s the question that modern-day jurists do not want to answer.Attempts are made to anchor present judicial decisions in previous decisions.That only takes them back a notch. At some point, there has to be a final notch.The anchor must come to rest on something solid, unmovable, and ultimatelystable. While the proper understanding of a fixed law might change, the lawitself and its transcendent origin cannot.

Soon afterCharles Darwin, law logically had no foundation upon which it could be built. In fact, law could be nothing more than aflexible sociological construct hurriedly assembled for any moment in time tomeet immediate circumstances. It was Christopher Langdell (1826–1906),dean of Harvard Law School and founder of the “case method” of teaching law,who impacted legal education with “his belief that the basic principles anddoctrines of the law were the products of an evolving and growing process overmany years.”[3] Every secular law school, college, university,and public school in America today has a worldview that is consistent withLangdell’s evolutionary views. Why are we surprised when the Supreme Court andlesser courts rule in terms of evolving ethical assumptions? Moreover, why arewe surprised when some people act consistently with the evolution model theywere taught as scientific fact? Americans are shocked when kids kill otherkids. Given what kids are taught, we should be shocked at the shock:

When he died,[Eric] Harris [one of the Columbine killers] was wearing a white T-shirt withthe inscription “Natural Selection” on its front. . . . It’s not clear what theshirt’s inscription referred to, but there’s a video game with the same name.The game’s World Wide Web site says it encompasses a “realm where anything canhappen,” a place for the “bravest of the brave and the fiercest of the fierce.It is a place where survival of the fittest takes a very literal meaning. . . .It’s the natural way, it’s Natural Selection,” the game’s maker wrote.[4]

Eric Harris andDylan Klebold were acting with logical consistency: No God . . . no religious-based morality. . . survival of the fittest. In essence, they were only following ordersthat were logically derived from the operating assumptions of their officiallysanctioned worldview.[5]

At the NurembergTrials, “the most tellingdefense offered by the accused was that they had simply followed orders or madedecisions within the framework of their own legal system, in completeconsistency with it, and that they therefore could not rightly be condemnedbecause they deviated from the alien value system of their conquerors.”[6] Germany, and much of the West, had adoptedPositivist Law whereby “law is based exclusively on the will of the State.”[7] For a time, the Nazi atrocities dampened theappeal of Positivist Law. “If the Positivists are right, then man has no rightsand the States have no rights; there is no freedom and no basic equality of menand nations.”[8]

In order tobring sanity to the world, an “alien value system” had to be brought toNuremberg. It was a beliefin a higher law, a law above the law that even judges and those “simplyfollowing orders” must acknowledge. Without it, the Nuremberg trials neverwould have taken place. But in the long run, the “higher law” of Nuremberg was adhoc. It lasted only long enough to convict those who had participated in“war crimes.” The prosecutors were living off their moral memory that had beendiscounted scientifically. Soon after, everything went back to normal.

Today’s courtsoperate within the autonomous boundaries of their own understanding of law. In principle, their rulings are nodifferent from those of Adolf Hitler if there is no transcendent referencepoint. Former New York City mayor Ed Koch continually deferred to theSupreme Court when asked his opinion about allowing a nativity scene in apublic school setting. In essence, he was declaring, “The Supreme Court saidit, therefore, I must go along with it.” Former Chief Justice Roy Moore iscorrect when he argues, “There are too many people in our country who don’trecognize that the rule of law is not whatever a judge says. If that were true,judges in Hitler’s German would have been correct in ordering people to die.”[9]

Abraham Kuyper (1837–1920), journalist, pastor, theologian,educator, and Prime Minister of the Netherlands, could not be any moreup-to-date with his assessment of what happens to the meaning of law when thestate asserts its autonomous sovereignty:

Thus alltranscendent right in God, to which the oppressed lifted up his face, fallsaway. There is no otherright, but the immanent right which is written down in the law. The law isright, not because its contents are in harmony with the eternal principles ofright, but because it is law. If on the morrow it fixes the veryopposite, this also must be right. And the fruit of this deadening theory is,as a matter of course, that the consciousness of right is blunted, that allfixedness of right departs from our minds, . . . That which exists is goodbecause it exists; and it is no longer the will of God, of Him Who created usand knows us, but it becomes the ever-changing will of the State, which, havingno one above itself, actually becomes God, and has to decide how ourlife and our existence shall be.[10]

Once God’s lawis rejected, Pandora’s immoral box opens wide. What if the United Nations determines that certain laws in the UnitedStates are contrary to “international law”? To show where we are headed, threemembers of the United States Supreme Court have already declared that they areusing “international law” as a basis for their court decisions. This wasespecially true with the pro-sodomy Lawrence v. Texas (2003) decision.Consider Ruth Bader Ginsburg’s judicial philosophy:

Justice Ruth BaderGinsburg is acknowledging the growing effect of international law on SupremeCourt decisions, particularly in the areas of the death penalty, raceadmissions and gay sex: “Our island or lone ranger mentality is beginning tochange,” Ginsburg said during a speech to the American Constitution Society, aliberal lawyers group holding its first convention. Justices “are becoming moreopen to comparative and international law perspectives,” said Ginsburg, who hassupported a more global view of judicial decision making. Ginsburg cited aninternational treaty in her vote . . . to uphold the use of race in collegeadmissions.

What makes today’suse of international law attractive to so many judges? Referencing international law gives theappearance of judicial legitimacy. It’s a poor judge’s version of “higher law”which in reality is nothing more than “horizontal law.” One nation appealing tothe judicial decisions of another nation is little different from Hugh Hefnerasking Larry Flynt what he thinks about pornography. There might be a debateabout the differences between soft and hard core pornography, but in the end,they both are going to agree on its proliferation. The law has become flexibleand open to a multitude of interpretations from judges who act as gods: The lawbegins and stops here because we say so:

People who thusview law find incomprehensible the psalmist’s complaint about “wicked rulers .. . who frame mischief by statute” (Ps. 94:20). For if there are wicked statutes, it must mean thatthere is a law above the statutes by which their wickedness is identified andjudged. There is a transcendent principle, a higher law, that relativizes allstatutes and all sovereigns. And this is a law which says above all that thestate is not God.[11]

It’s not thatstatists don’t believe in a god. They just don’t believe in a god who is overthem, one they can’t define and control.


  1. For example, see Edwin Powers, Crime and Punishment in Early Massachusetts, 1620–1692: A Documentary History (Boston: Beacon Press, 1966); George L. Haskins, Law and Authority in Early Massachusetts: A Study in History and Design (New York: Macmillan, 1960); H.B. Clark, Biblical Law, 2nd ed. (Portland, OR: Binfords & Mort, 1944). []
  2. Paul Campos, “Constitution real only as a document,” The Atlanta Journal-Constitution (November 13, 2003), A13. []
  3. John W. Whitehead, The Second American Revolution (Westchester, IL: Crossway Books, [1982] 1985), 46. []
  4. Kevin Vaughan, “Judge unseals autopsy report on Eric Harris,” Denver Rocky Mountain News (June 25, 1999). []
  5. Barbara Reynolds, “If your kids go ape in school, you’ll know why,” USA Today (August 27, 1993), 11A. []
  6. John Warwick Montgomery, The Law Above the Law (Minneapolis, MN: Bethany Fellowship, 1975), 24. []
  7. Kurt Von Schuschnigg, International Law: An Introduction to the Law of Peace (Milwaukee: The Bruce Publishing Co., 1959), 28. []
  8. Von Schuschnigg, International Law, 38. []
  9. Art Moore, “Roy Moore appeals removal from office” (December 3, 2003) []
  10. Abraham Kuyper, Lectures on Calvinism: The Stone Foundation Lectures (Grand Rapids, MI: Eerdmans, [1898] 1970), 89. []
  11. Herbert Schlossberg, Idols for Destruction: Christian Faith and Its Confrontation with American Society (Nashville, TN: Thomas Nelson, 1983), 207. []