Monday, March 7, 2011

Theologians Need a Good Education in the Law

It seems to me that our modern day PCA theologians could use a good healthy dose of legal education in the law of contracts.  They should understand that for a contract to be binding, both sides to the contract must give what the law calls "consideration" in order for a contract to be binding, and for a contract to be fulfilled.  "Consideration" is something of legal value, whether an act taken or a promise given in response to the consideration given by the other party.  Consideration can include the forgoing of a legal right.  Consideration has nothing to do with merit, but it is a condition necessary for the fulfillment of a contract, and nothing more.

I am not saying that the covenant God made with Adam was a contract.  However, I do believe that many of our concepts of contract are acquired from God's character in extending covenants.  If theologians were to understand the distinction between consideration, also recognized in the Westminster Standards as conditions, they might not get so agitated over the Federal Vision discussion.

OK, I will take off my rose colored glasses now.

Friday, March 4, 2011

Drill Already!

A lot of folks can't understand how we came to have an oil shortage here in our country.
Well, there's a very simple answer.
Nobody bothered to check the oil.
We just didn't know we were getting low.
The reason for that is purely geographical.
Our OIL is located in:
Coastal Florida
Coastal Louisiana
North Dakota

Our dipsticks are located in DC

Time to return the regulation of land back to the states as intended by the framers of the U.S. Constitution.
Adopted from an email received this morning.

Thursday, March 3, 2011

The Initiative Petition

Much has been written in the Missouri Record in the recent past regarding the initiative petition process, and rightly so. This is an important issue. With the initiative petition process, Missourians have enacted into law certain requirements regarding utility rates, renewable energy, cloning, and puppy mills.

On Tuesday, February 22, the Missouri House Elections Committee heard testimony on HJR No. 16, a resolution that would propose to amend provisions of the Missouri Constitution relating to initiative petitions. Currently, in order for an initiative petition to be successful in proposing a change to the constitution of the state of Missouri, the proponents of the initiative must obtain signatures from eight percent of the legal voters in each of two-thirds of the congressional districts in the state. To propose a law, proponents must obtain the signatures of five percent of the legal voters in each of two-thirds of the congressional districts in the state. HJR No. 16 would require the same percentages of voter signatures, but from all congressional districts in the state.

The main objection to the proposal was that the change would increase the total number of signatures necessary to secure the initiative on the ballot and, therefore, make it more difficult to achieve a ballot proposal. This would give moneyed interests greater influence in the political process and diminish efforts by the typical citizen to affect change. While it may be a worthy goal to require proponents to obtain signatures from all congressional districts, the percentage of signatures should be reduced. The resolution was voted out of committee on March 1, and it is reported that the committee adopted an amendment reducing the percentage of signatures required in each Congressional district.

Clearly, this change would make it harder to secure an initiative petition on the ballot. Is this a bad thing? The answer to that question is not quite so clear. Audrey Spaulding has written in the Missouri Record that, “One of the greatest strengths of American government is that there are a number of checks and balances at the federal, state, and local levels that limit the ability of any one branch of government to abuse its power. The initiative petition process is one of those checks on power, and restricting it further will serve only to erode Missourians’ ability to limit legislators by initiating good — but politically difficult — policy change.” I agree with this statement in principle, but not in detail. I agree one the greatest strengths of the American government is the checks and balances designed into the U.S. Constitution. However, the initiative petition is nowhere addressed in the U.S. Constitution. The U.S. Constitution may be amended only by the actions of the states, sometimes at the prompting of the Congress. The initiative petition is a right of the people under the Missouri Constitution. Spaulding is right that the initiative process is a check on the abuse of power by the Missouri Legislature.

There is much confusion when it comes to issues surrounding the initiative petition process. The reason this issue is so confusing is that there is confusion regarding the source of governmental authority in our culture and even in our heritage. One theory propounds that the source of political power is the people. The very first section of the Constitution of Missouri supports this view when it declares that all political power is vested in and derived from the people and that all government of right originates in the people. This is clearly the popular “democratic” view of our nation, that we are a democracy. While the declarations of the Constitution of Missouri are of great weight in this discussion, the political philosophy expressed therein is not entirely supported in history or fact.

Generally, the original thirteen colonies received their governmental authority through royal charters issued by the sovereigns of Europe, whether kings or legislatures. No doubt this approach to granting governmental authority was consistent with the idea of the “divine right of kings” which held sway at the time. While the divine right of kings was greatly abused by the kings of Europe, its core principle was founded upon Scripture, particularly Romans 13, which held sway for most of the two thousand years of Western Civilization. Sir William Blackstone, the great English jurist of the early 1700s, recorded that English common law was subject to the law of God, specifically Scripture. Finally, the writings of the founding fathers almost universally express a fear of democracy. The will of a majority could impose tyranny on a minority just as devastatingly as any king. For that reason, they wrote into the U.S. Constitution a guarantee to every state in the Union for a Republican form of government.

The checks and balances Spaulding points out are inherent in a republican form of government and not in democracies. We see this in the legislative process. In the legislature in Missouri, a bill is submitted to a committee, and the committee holds a hearing. It hears the concerns expressed by opponents. Committee members are given an opportunity to amend the bill. If the bill makes it through the committee, the bill is debated on the floor of the House or Senate. Members have opportunities to amend the bill again. If the bill is passed in one chamber, it has to go to the other chamber and the entire process starts again. This process engenders compromise for the liberty of all. It also permits a consideration of issues unanticipated by those who initiate the law.

The democratic initiative petition process is not geared for the give and take of compromise. It is controlled by the initiative proponents. What is placed on the ballot can be as one sided as the proponents think they can get past the voters. The democratic process of the initiative does not lend itself to guarding the liberties of the minority. Neither is it geared toward a complete analysis of all issues. We have seen certain problems that have arisen from confusing language arising in the renewable energy standard and the puppy mill law, both passed by initiative.

So where does that leave the initiative petition? I agree that there is a place for the initiative petition in a free republic. Even though it is not entirely clear that all political power does actually come from the people, the Constitution of Missouri does vest the power there. The people should be allowed to express their radical displeassure with the state of the law. But isn’t that what elections are all about?

At this point, it is appropriate to make a radical distinction between amending the Constitution and passing a law. By way of analogy, I have argued in other places that amending the U.S. Constitution by use of a Constitutional Convention is a nuclear option when compared to simply utilizing the adequate tools already in the U.S. Constitution to reassert the rights of the states. Similarly, it should be difficult to amend the Constitution of the state of Missouri. The Constitution is the covenant agreement expressing the foundation upon which law is made. Covenants of this nature are the foundation upon which individuals enter into society. Covenants of this nature should not be lightly changed. It should be exceedingly hard to amend the Constitution of the state of Missouri.

With a law, on the other hand, the argument that the state legislature may not have the political incentive to change an unjust law has force. This is the unfortunate reality of living in a world ruled by sinful men and women. The goal, consistent with the principles of republican government, should be to permit the people to initiate the process and so direct a law to achieve the goal of liberty on a certain matter and still subject that process to the refining process of the legislature. Can such a mechanism be devised? Suitable suggestions might include an analogy to the Joint Committee on Administrative Rules. The Missouri Legislature has created a joint committee of both Representatives and Senators to which all administrative rules are submitted. The Joint Committee on Administrative Rules may propose to the Missouri Legislature that certain proposed rules not be permitted to go into effect. The Legislature may by resolution, signed by the Governor, so declare. Could a similar mechanism be designed to submit an initiative to a Joint Committee on Initiative Petitions, the purpose of which is to actually enact a law proposed by initiative petition but refined by the Legislature? I admit I do not have the answer.

With these principles in mind, I would prefer to rest on the side of a more consistent republican point of view and maintain that initiative petitions should be difficult to obtain. Many claim that making it more difficult to obtain a ballot measure through the initiative process will provide an advantage to moneyed interests. There is a bit of irony to this argument in that it is actually the initiative petition process by its very nature permits money to have a greater impact on a democratized government. Making it easier to obtain law through the democracy of the initiative petition will permit money to have an even greater influence on a democratized government. This is the advantage of money. It is an unfortunate circumstance of life. The appropriate response is to look to the Missouri Legislature to fulfill its God ordained responsibility of securing the liberty of the people. It is reviewing renewable energy standard and the new puppy mill law this year, which is a good sign.