Essay

Foundations of Law: Week 4

Key Principle of Equality

• God rules without partiality. • Deuteronomy 10:17. “For the LORD your God is

God of gods and Lord of lords, the great God, mighty and awesome, who shows no partiality”

• Acts. 10:34-35. “In truth, I perceive that God is no respecter of persons.”

4 Major Principles to take from Chapter 3

• All power comes from God; He gives that authority to different governing bodies.

• Power must be expressly granted to civil gov’t, else, it does not exist. Genesis 9.

• Christian view of gov’t provides great liberty. • When considering whether a law is valid, must

also consider who has been granted jurisdiction to enforce it.

Equality

• “We hold these truths to be self-evident, that all men are created equal. . . .” Dec. of Ind.

• Our legal system is based upon the CL which is derived from LONANG. So we look to the Bible for meaning.

Equality Principle Found in the Scriptures

• The foundational principle of equality is found in the character of God.

• Deuteronomy 10:17. “For the LORD your God is God of gods and Lord of lords, the great God, mighty and awesome, who shows no partiality” (or who is no respecter of persons).

God judges without partiality • God has only one standard of justice • All are equally condemned by the law of sin and death.

– Romans 3:23. “All have sinned and fallen short of the glory of God.” – Romans 6:23. “The wages of sin is death.”

• All are equally declared innocent by the law of the Spirit of life. – Galatians 3:27-28. “But the Scripture has confined all under sin, that

the promise by faith in Jesus Christ might be given to those who believe. . . . For as many of you as were baptized in to Christ have put on Christ. There is neither Jew nor Greek, there is neither slave nor free, there is neither male nor female, for you are all one in Christ Jesus.”

– Romans 8:2. “For the law of the spirit of life in Christ Jesus has made you free from the law of sin and death.”

Civil Government Must Judge without Partiality

• Deuteronomy 1:17. “You shall not show partiality in judgment; you shall hear the small as well as the great; you shall not be afraid in any man’s presence, for the judgment is God’s.”

• Deuteronomy 16:19. “You shall not pervert justice; you shall not show partiality.”

What does it mean to show partiality?

• Considering economic status . Leviticus 19:15. “You shall do no injustice in judgment. You shall not be partial to the poor, nor honor the person of the mighty. In righteousness you shall judge your neighbor.”

• Considering political power. Leviticus 19:15, and Deuteronomy 1:17. “You shall not show partiality in judgment; you shall hear the small as well as the great; you shall not be afraid in any man’s presence, for the judgment is God’s.”

• Considering appearance. John 7:24. “Do not judge according to appearance, but judge with righteous judgment.”

• Considering family ties. Romans 8:32. “He who did not spare His own Son, but delivered Him up for us all . . .”

• These considerations seem to violate the principle of equality.

God Does Respect Choices

• Colossians 3:25. “But he who does wrong will be repaid for what he has done, and there is no partiality.”

• Romans 6:23. “The wages of sin is death but the free gift of God is eternal life in Christ Jesus our Lord.”

God does give different people different abilities

• 1 Corinthians 4:7. “For who makes you differ from another? And what do you have that you did not receive? Now if you did indeed receive it, why do you boast as if you had not received it?”

• 1 Kings 4:20-30. “And God gave Solomon wisdom and exceedingly great understanding, and largeness of heart like the sand of the seashore. Thus, Solomon’s wisdom excelled the wisdom of all the men of the East and all the wisdom of Egypt.”

• Exodus 31:1-5. Bezalel, the master artisan.

So what is equality?

• Then, equality before God does not necessarily mean equality of participation in all of God’s creation; rather, it means equality of opportunity for God’s justice.

• God’s laws do not guarantee any particular political or economic office or position.

• However, the antithesis of this Equality principle is special privileges for favored classes.

Examples in American Law?

• Declaration of Independence • State Constitutions

– No hereditary privileges – No privileges for established church – No titles of nobility or monopolies

• Federal Constitution – Art. 1, Section 9 & 10. Neither U.S. nor any states

can grant titles of nobility.

Why the prohibition on titles of nobility?

• Nobility: “a division of the people . . . By which certain people enjoy specified privileges that others do not enjoy.”

• Prevents tyranny (Madison in the federalist papers)

• Keeps gov’t accountable to the people. Our constitution “reduces every officer again to a private station.”

• Keeps us from being ruled by special interests

Are we faithful to the Equality Principle today?

• Wall street bailout? • Special rules in tax code? • Pensions for retired presidents and

congressmen?

Equality Principle Rule

• Any law that identifies a specific group for favored treatment should be presumed to violate equality principle.

• The antithesis of this principle is special privileges for favored classes.

• However, distinctions based on merit or skill are permissible. – I.e. Law license? Medical license?

• Distinctions based on choices are permissible. – I.e. Laws that criminalize speeding.

License Hypo

• See Craigmiles v. Giles (posted to BB) • Does TN’s required license for selling caskets

comport with the Equality Principle? • Does TN’s required license for funeral

directors comport with the Equality Principle?

Rule

• Any law that identifies a specific group for favored treatment should be presumed to violate equality principle.

• The antithesis of this principle is special privileges for favored classes.

• However, distinctions based on merit or skill are permissible. – I.e. Law license? Medical license?

Application of Equality Principle

1. Ask whether law selects a certain group for differential treatment?

2. If it does, the law is presumed to violate the Equality Principle.

3. But can the law be justified on some ground consistent with the character/law of God?

– I.e. Law where only justification is special privilege for favored classes violates Equality Principle.

– I.e. Law recognizing the special abilities or skills of a group of persons may be permissible. (Licensing laws?)

Dred Scott

• “The unhappy black race were separated from the whites by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.”

Dred Scott cont’d

• “On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”

Core Presuppositions behind Race- based Slavery

• 1. That there are different races. • 2. That the slave is of an inferior race, and

ultimately, is not human. • 3. That the slave’s only value is as a

commodity • 4. The slave has no rights except those given

by government

Somersett’s Case

• The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasions, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.

Commonwealth v. Aves

• Slavery was “contrary to the principles of justice, and of nature, and repugnant” to the State’s Declaration of Rights.

• Declaration of Rights states: “All men are born free and equal and have certain natural, essential, and unalienable rights, which are, the right of enjoying and defending their lives and liberties, that of acquiring, possessing and protecting property.”

LONANG on Slavery

• The seminal events in both the Old Testament and the New Testament warrant against slavery.

• Old Testament: God redeemed the Hebrew people who were slaves in Egypt. – Exodus 13:14, 20:2. “I am the Lord your God, who brought

you out of the land of Egypt, out of the house of bondage.” • New Testament: Christ’s death on the cross redeems

sinners from slavery to sin. – Galatians 5:1. “It is for freedom that Christ has set us free.

Stand firm, then, and do not let yourselves be burdened again by a yoke of slavery.”

LONANG on Slavery cont’d • Mosaic law punished slave trading with the death penalty.

– Exodus 21:16. “Anyone who kidnaps another and either sells him or still has him when he is caught must be put to death.”

• Mosaic law instructed Hebrews not to return a slave to his master. – Deut. 23:15-16. “You shall not give back to his master the slave who

has escaped from his master to you. He may dwell with you in your midst, in the place which he chooses within one of your gates, where it seems best to him; you shall not oppress him.”

• Paul includes kidnapping among the list of sins committed by the ungodly. – 1 Timothy 1:8-10. “knowing this: that the law is not made for a

righteous person, but for the lawless and insubordinate, for the ungodly and for sinners, for the unholy and profane, … for kidnappers, for liars, for perjurers,….”

LONANG Response to Dred Scott Presuppositions

• There is only 1 race. Acts 17:26. “And He has made from one blood[a] every nation of men to dwell on all the face of the earth, and has determined their preappointed times and the boundaries of their dwellings,”

• Male and female are both fully human. Genesis 5:2. “He created them male and female, and blessed them and called them Mankind in the day they were created.”

• Man is made in God’s Image and thus has inherent value. Genesis 1:26-28. “Then God said, “Let Us make man in Our image, according to Our likeness….”

• Man has no authority to rule another man. Genesis 1:27. “let them have dominion over the fish of the sea, over the birds of the air, and over the cattle, over all the earth and over every creeping thing that creeps on the earth.” Gov’t has no right to permit slavery!

Merriam-Webster’s Dictionary Comment on “Race.”

• Term once commonly used in PHYSICAL ANTHROPOLOGY to denote a division of humankind possessing traits that are transmissible by descent and sufficient to characterize it as a distinct human type (e.g., Caucasoid, Mongoloid, Negroid). Today the term has little scientific standing, as older methods of differentiation, including hair form and body measurement, have given way to the comparative analysis of DNA and gene frequencies relating to such factors as BLOOD TYPING, the excretion of AMINO ACIDS, and inherited ENZYME deficiencies. Because all human populations today are extremely similar genetically, most researchers have abandoned the concept of race . . . . “Race” is today primarily a sociological designation, identifying a class sharing some outward physical characteristics and some commonalities of culture and history.

Constitution re Humanity of Slaves • Slaves were never referred to as such in the U.S. Constitution. They are

always referred to as “persons” because the Framers hoped to eventually abolish slavery.

• Art. I, § 2. Numbers of each state for purposes of representation and taxes counted all free persons and 3/5 of “all other persons.” (South actually wanted them counted as whole persons so that they would have more political power.)

• Article I, § 9. “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

• Art IV, § 2. “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”

13th Amendment

• "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

Civil Rights Act of 1866

• Established citizenship of all persons born in U.S.

• Established that all have same right as white persons to: “to make and enforce contracts, to sue, be parties and give evidence, to inherit purchase, lease sell, hold, and convey real and personal property ,and to full and equal benefit of all laws and proceedings for the security of person and property”

14th Amendment

• It established citizenship of all persons born in U.S.

• Stated that all “persons” are entitled to equal protection of the laws

• Restored the apportionment of representation that all persons would count as a full person

Article II, Section 1.

• “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.”

Is Principle of Equality Violated by Different Treatment of non-citizens?

• Deuteronomy 17:15. “be sure to appoint over you a king the LORD your God chooses. He must be from among your fellow Israelites. Do not place a foreigner over you, one who is not an Israelite.”

Rule

• Any law that identifies a specific group for favored treatment should be presumed to violate equality principle.

• The antithesis of this principle is special privileges for favored classes.

• However, distinctions based on merit or skill are permissible. – I.e. Law license? Medical license?

Compare 14th Am. v. 15th Am.

• 14th Am. protects persons from denials of equal protection and life, liberty, property

• 15th Am. Protects citizens from denials of right to vote

Article II, Section 1.

• “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.”

Do citizenship distinctions violate Equality Principle?

• Note that there are different nations. Unlike race, God recognizes that there are different nations

• Genesis 10:32. “These were the families of the sons of Noah, according to their generations, in their nations; and from these the nations were divided on the earth after the flood.”

• Acts 17:26. “And He has made from one blood every nation of men to dwell on all the face of the earth, and has determined their preappointed times and the boundaries of their dwellings”

Do citizenship distinctions violate Equality Principle? (cont’d)

• Exodus 22:21. “You shall neither mistreat a stranger nor oppress him, for you were strangers in the land of Egypt.”

• Exodus 12:49. “One law shall be for the native- born and for the stranger who dwells among you.” See also Lev. 24:22.

• Deuteronomy 17:15. “be sure to appoint over you a king the LORD your God chooses. He must be from among your fellow Israelites. Do not place a foreigner over you, one who is not an Israelite.”

Citizenship Hypo

• Virginia passes a law that no non-citizen injured in the Commonwealth may sue a citizen for his injuries. Does this violate the principle of Equality?

Application of Equality Rule 1. Ask whether law selects a certain group for differential

treatment? 2. If it does, the law is presumed to violate the Equality

Principle. 3. But can the law be justified on some ground consistent

with the character of God? – Law where only justification is special privilege for favored

classes violate Equality Principle. – Law respecting the special abilities or skills of a group of

persons may be permissible. (Licensing laws?) – Law that makes racial distinctions violates Equality Principle. – Law that makes distinctions based on citizenship may be

permissible if limited to the basic political integrity of the nation/state. I.e. ruling, voting, defining jurisdiction.

Bradwell v. State (p.116)

• Supreme Court upholds law that prohibits married women from being lawyers.

• But did this holding comport with LONANG?

LONANG Principles re Sex

• Genesis 2:18. Woman is a helper to man. • Colossians 3:18. A wife should submit to her

husband, and a husband should love his wife. • Genesis 3:16, 21. God made men and women

with inherent physical differences. • Judges 4. Deborah was a wife and a judge. • Proverbs 31. Virtuous woman sells

merchandise and clothing and runs her own business.

Bradwell v. State, cont’d

• The Supreme Court made a mistake of jurisdiction. LONANG recognizes the different roles between husband and wife, but those apply within the family jurisdiction, and not necessarily within the civil and economic realms.

• God gave the dominion mandate of Genesis 1:26-28 to both men and women.

Hypo 1

• Do “separate but equal” bathroom facilities for men and women violate the Equality Principle?

Hypo 1

• Do “separate but equal” bathroom facilities for men and women violate the Equality Principle?

Hypo 2

• Virginia law permits state prisons to force inmates to clean highways as part of their prison sentence. Does this violate the Principle of Equality?

Rule

• Any law that identifies a specific group for favored treatment should be presumed to violate equality principle.

• The antithesis of this principle is special privileges for favored classes.

• However, distinctions based on merit or skill are permissible. – I.e. Law license? Medical license?

Application of Equality Rule 1. Ask whether law selects a certain group for differential treatment? 2. If it does, the law is presumed to violate the Equality Principle. 3. But can the law be justified on some ground consistent with the

character of God? – Law where only justification is special privilege for favored classes violate

Equality Principle. – Law respecting the special abilities or skills of a group of persons may be

permissible. (Licensing laws?) – Law that makes racial distinctions violates Equality Principle. – Law that makes distinctions based on citizenship may be permissible if

limited to the basic integrity of the nation. I.e. ruling, voting. – Law that makes sex distinctions may be permissible if based upon inherent

physical differences b/t men and women. – Laws that make distinctions based on actions are permissible. I.e. 14th

Amendment protects right to vote except “for participation in rebellion or other crime.”

Affirmative Action

• Fisher v. University of Texas – Facts: University of Texas considers race as one of

various factors in its undergraduate admissions process as part of the University’s plan to increase racial minority enrollment on campus. Student applied for admission to 2008 entering class and was rejected.

– Issue: Does U. of Texas’s policy violate the Equal Protection Clause, or is it a permissible means for achieving racial diversity on campus?

– Holding: Supreme Court held that Court of Appeals gave too much deference to the University’s plan and did not actually apply strict scrutiny.

Affirmative Action and LONANG

• There is only 1 race. God doesn’t make race distinctions

• Everyone should bear their own guilt. Can’t punish the innocent . – Deuteronomy 24:16. “Fathers shall not be put to

death for their children, nor shall children be put to death for their fathers; a person shall be put to death for his own sin.”

– Also, Ezekiel 18, Jeremiah 31:27-30. – Romans 2:6. God “will repay each person according to

what they have done.”

Affirmative Action Conclusion

• Official race discrimination has produced intolerable injustices in society that beg for a remedy.

• Remedies must comport with the LONANG. Any proposed remedy, therefore, must not punish innocent victims, for that is unjust.