In the months preceding the November Presidential election, a
number of important Evangelical figures deplored the Evangelical “servitude” to
the Republican Party. More to the point,
they asserted that any Evangelical who supported a candidate with a past of disgraceful
morality (meaning Donald Trump) was betraying his/her Christian witness. This is odd in itself in that many of the
same noteworthy figures were critical of what they called the Evangelical misguided
propensity to seek a “righteous candidate” over a more politically adept
candidate who would best represent their interests. (One might assume they had the Evangelical
support for Mike Huckabee over a Rick Perry or a Mitt Romney in the early 2012
Republican primaries in mind.) But as
the Trump juggernaut pressed ever closer to November they fixed their
crosshairs on the unacceptability of such a reprobate to lead the nation. “What does it say about our Christian witness
to vote for Trump?”
This prompted feverish articles in both religious and
secular publications which predicted a historic split among Evangelicals in
which a significant number would abandon their decade’s old support for a Republican
candidate and vote Democrat. Come November
and no such phenomenon transpired. 81%
of all Evangelicals voted for Trump.
Since the morning after the election, many of these same important Evangelical
figures have written grave articles pondering over the decrepit state the
Evangelical movement has fallen into.
Missing in all this handwringing is the fact that Trump wasn’t
running in a vacuum. The Democrats had
one Hillary Clinton vying for the highest office in the land. Clinton herself had a questionable moral
past. It is reliably documented that she
has a foul-mouth and abusive toward her own staff—sometimes violent against her
own husband Bill. She also has a history
of lying and was under investigation by the FBI for using her influence as
Secretary of State in exchange for large sums of cash. What voting for Clinton says about one’s
Christian witness was never brought up.
Which brings us to the present. President Trump has nominated Tenth Circuit
Court of Appeals Judge Neil Gorsuch to the
Supreme Court replacing the deceased Justice Antonin Scalia. Judge Gorsuch is what is known as a textualist
and an originalist in the interpretation of the Constitution—an approach
which specifically rejects the methodology which sees the Constitution as a “living
document”.
Regarding the Constitution as a “living document” frees the
Court to apply more “modern attitudes” in interpreting the Constitution as
cases are brought before the Court.
Abortion is a good illustration.
There is no way any of the Founders would have used the Constitution to
justify abortion. If the early Americans
thought it did, the Constitution would never have been ratified by the
states. Abortion was simply beyond the moral
pale. Forward to today. “Living Document” proponents propose that
modern morality finds abortion acceptable—thus the Constitution must reflect
our times rather than the “dead hand of the past”. Actual legal justification may be somewhat tortured
but the result is the ultimate justification.
An originalist would apply the Constitution in terms of how
the Founders and ratifiers intended and understood the text to mean. Critics assert that determining what the
Founders really meant is largely obscure and, besides, what is important is not
what the Founders intended but how we in modern times understand it. But, in fact, there is plenty in the
historical record which tells us about what the Founders thought as well as
their discussions leading up to the final draft and adoption of the
Constitution. In addition, using the “living
document” justification inevitably leads to legislating from the bench—turning the
Court made up of nine unelected lawyers into a kind of “super legislature”
beyond accountability to the American public.
Such a development is totally unacceptable to originalists. They hold that the Court’s job is to apply
the Constitution as it is and not how we what it to be. This may often produce results a Justice himself
may not like. As Gorsuch himself has written:
Judges should instead strive (if
humanly and so imperfectly) to apply the law as it is, focusing backward, not
forward, and looking to text, structure, and history to decide what a
reasonable reader at the time of the events in question would have understood
the law to be — not to decide cases based on their own moral convictions or the
policy consequences they believe might serve society best. As Justice Scalia
put it, “if you’re going to be a good and faithful judge, you have to resign
yourself to the fact that you’re not always going to like the conclusions you
reach. If you like them all the time, you’re probably doing something wrong.”
To put a not too fine point on it,
originalists assert that if the law or Constitution is to be changed the proper
Constitutional means is through the democratic, legislative process—not the
courts. Any attempt to usurp the role of
the legislature is absolutely illegitimate.
[It should be noted that
originalists fully expect that two different originalists of good will can
review the Constitution and the legal arguments set before them and come to
different conclusions.]
It should come as no surprise that Conservatives prefer the
originalist approach while Liberals favor a living document. Conservatives have long objected to what in
their view was a Supreme Court violating the separation of powers by making law—a
function properly belonging to the legislative branch alone. Liberals in principle see nothing wrong with
the Supreme Count acting as a “super legislature”. They often express surprise when
Conservatives say they would not use the Court to set their policy preferences
into permanent Constitutional law. As
far as Liberals are concerned, as long as the right results are achieved, the
use of the Court to make law is beyond reproach.
With the nomination of Gorsuch, Trump has fulfilled a
campaign promise Evangelicals have repeatedly said was a salient factor in
their support for Trump. They, as
everyone else, know that the future balance of the Court will set in motion one
of two very different visions of a forthcoming America. One will protect religious pluralism and
freedoms. One will undermine religious
freedom in an overriding pursuit of contemporary notions of justice—a pursuit which
will broke no opposition. One will
provide a chance that abortion could someday be curtailed if not totally
abolished through the democratic process.
The other will foreclose any possibility of reform to protect the
unborn. And abortion is just one concern
to Evangelicals.
The truth is the entire electorate, not just the
Evangelicals, were presented with two unsavory choices for President. Historically, Christians in other times and
other place have had to make hard choices.
Yes, and often time they did have to choose between two or more
evils. Neither Clinton nor Trump were
Hitlers or Stalins. But neither were
they righteous individuals either.
Whether one was a Catholic, Lutheran, Baptist, Buddhist, Muslim, or a
secularist, what was left to you was to use one’s prudential judgment to choose
which candidate one hoped would lead us to a better America.
With the nomination of Neil Gorsuch, Evangelicals may
believe they had made the right choice in voting for Trump after all. Whether they will think so in the future all
depends on the rest of Trump’s presidency…especially (but not only) with his
next nomination to the Supreme Court.
