The folks who lament the decadence of the contemporary West most (who also happen to be some of the biggest whiners about 2k) seem to think that a return to God’s law in the United States would fix our social and political woes. Aside from the problem of finding unregenerate citizens who will follow God’s law, these law lovers do not grasp a fundamental point of U.S. legal and political life (and this may explain why the so-called Religious Right is so easily ridiculed).
For Americans, as well as the Brits before them, law is not simply the embodiment of God’s moral standards. Laws against stealing and perjury do, of course, reflect God’s righteousness. But legal documents like the venerated Constitution are not primarily about morality. They are primarily procedural. Such laws place limits on government. The Constitution, for instance, prescribes and limits the powers of each branch of the federal government. Such restraints are at the heart of the Anglo-American notion of liberty, namely, the idea that people need to be protected from arbitrary and despotic power. To enjoy a life free from a potentially coercive government, we as a people drew up a body of laws that were designed not to constrain the actions of individuals but to prescribe the power of the magistrate. Placing limits on the government for the sake of civil and religious liberties is at the heart of libertarianism and is a major theme in J. Gresham Machen’s thought and political activities. (Whether or not he was a member of the American Civil Liberties Union, he was sympathetic to the ACLU, a sympathy that would drive the likes of Doug Wilson and Greg Bahnsen batty).
Those who want more of God’s law in public life do not appear to understand this basic aspect of civil society in the U.S. They seem to think that if God’s moral standards are on their side, they have the power, duty, and right to make sure that the rest of Americans know that they are deserving God’s wrath. They also apparently believe they have responsibility to condemn the state if it fails to enforce God’s law, hence the double-down point about the magistrate’s duty to require observance of both tables of the law.
That argument about both tables of the law is almost entirely at odds with the American notion that law restrains government from exercising power unspecified in the Constitution. It also runs up against the legal tradition of assuming an accused citizen’s innocence until proven guilty. Just because we “know” someone broke the law doesn’t mean that district attorneys and police are free from following the laws that keep us from being a police state. In fact, the appeal to God’s law by some culture warriors has the flavor of vigilantism, that is, taking the law into their own hands. The problem for theonomists and other moral breast beaters is not simply that they don’t have power to execute God’s law. They also don’t seem to understand that the “rule of law” as we understand it in the United States actually prevents government from enforcing a whole host of laws, including God’s.
Even Presbyterian books of discipline reflect this other rule of law — not the embodiment of God’s morality but the protection from arbitrary power. The OPC’s book ensures that those accused will receive a hearing and not be found guilty of violating God’s law simply on the basis of an individual’s complaint:
3. Every charge of an offense must: (a) be in written form, (b) set forth the alleged offense, (c) set forth only one alleged offense, (d) set forth references to applicable portions of the Word of God, (e) set forth, where pertinent, references to applicable portions of the confessional standards, (f) set forth the serious character of the offense which would demonstrate the warrant for a trial.
Each specification of the facts relied upon to sustain the charge must: (a) be in written form, (b) declare as far as possible, the time, place, and circumstances of the alleged offense, (c) be accompanied with the names of any witnesses and the titles of documents, records, and recordings to be produced.
4. Offenses are either public or private. Public offenses are those which are commonly known. Private offenses are those which are known to an individual only, or, at most, to a very few individuals. Private offenses may or may not be personal, a personal private offense being one which involves injury to the person bringing the charge.
5. No charge of a personal private offense shall be admitted unless the judicatory has assured itself that the person bringing the charge has faithfully followed the course set forth in Matthew 18:15-17; nor shall a charge of a private offense which is not personal be admitted unless it appears that the plaintiff has first done his utmost privately to restore the alleged offender. However, even in the case of public offenses, it is not wrong to seek reconciliation in terms of Matthew 18:15-17 or Matthew 5:21-26 or Galatians 6:1. (chapter 3)
Maybe the Anglo-American tradition of law and constitutional liberties is wrong (though it finds expression in Presbyterian government). Maybe the West if fundamentally flawed and should follow political patterns and traditions established by the Persians and Turks. Or maybe theonoomy and the original Reformed confessions’ teachings about the magistrate lost when the Reformed and Presbyterian churches embraced the politics associated with a certain eighteenth-century republic founded in North America.