Some recent comments by Ben Carson and a blog I wrote with associated comments from various people, have caused me to write this post as a general response as well as an elaborated examination of the underlying philosophical/theological foundations and the purpose of the United States Constitution—in short, the “theory” of our fundamental law.  That will hopefully enable the diligent reader who is committed to truth to compare and contrast this theory and its expression with Islamic Sharia Law as understood through interpretations of the Quran.

First, I would suggest that the most important foundational principle underlying the Constitution is its unwritten but clear assumption of the imperfect nature of man.  The document itself is not explicitly Christian, so the assumption is never expressed in terms of Christian theology—a fallen nature, the noetic effects of sin or the like.  Our Founders no doubt (and there is a good deal of evidence to support this) understood the Christian doctrine of the Fall and its effects, but not all of them embraced it in such orthodox terms.  Nevertheless, most of them did accept a more “secularized” version of that doctrine.  As a result, men like James Madison could write,

“It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” (Federalist 51, 1788)

Here is a clear recognition of the imperfection of humans and the implications this has for the design of a government.  It is obvious that the Founders believed that human beings were “fallen.”  In their Enlightenment-oriented language they would put this condition in terms of the imperfections of man’s mind, will, and the problem of the passions (a term attributable possibly to the Scottish Enlightenment moral philosophers).

The Constitution is not a Christian document in any explicit sense and it does contain principles that would best be classified as Enlightenment ideas.  But it also implicitly contains vestigial Christian ideas, some of which are foundational (for example, as above, human nature).  In other words, our Constitution is in nearly every way, at least consistent with Christian principles.  Even the notion of rights can be said to have originated in Christian thought (see Francis Oakley, John Witte, and others).  The idea of a limited government might be traceable to the Hebrew polity (as Daniel Elazar has forcefully argued), and even if it is not directly derived, it is consistent with that institutional structure in general.

Second, the Constitution in the intention of the Framers was and is a basic or fundamental social contract for the political life of the new nation.  It would determine the constraints or limitations on the various aspects of governmental action.  Certainly Congress, the president and the judiciary had power to make enforceable decisions, but their decisions are circumscribed by the Constitution.  This fact has immensely important implications for any discussion of alternative legal theories and the laws emanating from them.

Another critical element in our examination is the substance of the Constitution itself, its content.  This may not seem evident at first glance.  But the meaning of the words and phrases has an immense bearing on how the document can be used or abused to advance power.  Its meaning is not to be found in the subjective opinions or ideologies of any person, but in the objective meaning in the document itself, as the writer understood it at the time.  Of course the rub is how to properly interpret the Constitution.  If meaning is objective, outside the knower, then certain tools assumptions come into play.  First, we find the meaning in the intent of those who wrote and ratified it.  Right away, objections arise:  How can one aggregate the separate ideas of many Framers, let alone ratifying legislatures, to determine one single meaning?  No reasonable person would think this an easy task.  Nevertheless, it is not impossible it would seem to come to a relative consensus as to what it meant to those individuals, arguably giving the Framers at the Convention the place of pride.  We do have at our disposal the records of the Convention debates, as well as other writings of the Framers, including the Federalist.  We also have many aids in helping us determine how words and phrases were normally used in that era.  When we have utilized all these tools and found a reasonably acceptable meaning, what emerges substantively?

Very broadly, what we have is a structure that embodies the three central ideas of separation of powers, checks and balances and federalism.  These ideas were known before, but in different forms and not all in combination.  Nor had they been tried in real life except sporadically and on small scales.  Separation of powers was combined for the first time with the idea of checks and balances, so that the executive, the legislative and the judicial branches now could exercise a “veto” or partial veto over each other and therefore limit potential abuses of power and preserve the ideal of a limited government.  The two together created a genuine horizontal effective division of power.  Federalism in turn created a vertical division of powers between the states and the Federal government.  It operated primarily through the structure of Article I of the Constitution, which allocated enumerated powers to the Congress, leaving (implicitly) the remaining powers (except for a few others scattered throughout) to the states.  Once again, a supremely powerful national government was at least theoretically limited.  But in addition, recognizing that not all problems are the “same sized” and that public goods also come in different scales, federalism makes it possible to better address those problems with local knowledge.  These two elements also take us back to the initial recognition by the Founders of man’s imperfection.  Their solutions were institutional, not attempting to create a utopian vision of changed citizens—God alone could do that, but minimizing the possibilities for sinful men to abuse power.

Finally I come again to an issue that has become contentious.  Should a person advocating Sharia Law and radical Islamic ideology be president?  Or member of Congress?  Or a Federal judge?  Never  mind that there are no legal obstacles to that happening.  I am asking whether it would be good.  My answer remains, no.  If such a person insisted on his/her ideology over the current social compact and fundamental law, wished to change it, and would make proactive attempts to do so, they should, rather than hold office, continue their advocacy in the realm of persuasion, not power.  Let them try to convince the American people to amend the Constitution, or abolish it, or change cultural values so that judges and legislators and the executive simply ignore its provisions.  But under no circumstances should a person come into office with the express (or intended) purpose to undermine it or demolish it by the exercise of his/her individual power.

Yes it is possible that there could be radical Christians who might also advocate such a course, but I have yet to see them, except for the very few who “bomb things” or shoot people.  The Christian religion has historically been much more peaceful than Islam, and some claims that Christianity has been the greater abuser of peace and toleration are bogus.  Christianity has had its moments, to be sure.  But apart from a responsive war of the Crusades (the Muslims took Palestine first and violently) and the religious wars of the 16^th century, I challenge anyone to find an offensive war initiated by Christians as Christians (not just because the ruler said he was “Christian”).  Such violence is antithetical to the Christian religion.  Moreover, show me the beginning and development of ideas and practices such as rule of law, subjective rights, limited government, etc.  outside the areas of the world that possessed a well-developed Christian tradition.  The Muslim world has never had these kinds of structures, nor has it advocated them, except among a very few liberal, Westernized Muslims (see Antony Black, The History of Islamic Political Thought.  Edinburgh University Press, 2011).

By the same token I would not want a Fascist or a communist as president, for pretty obvious reasons, and particularly if they were advocates for their positions—even then I would be suspicious.  Now those who want such individuals as president have the right to vote for such candidates, a delicious irony, as if they actually gained power, would they want to allow the rest of us the continued rights to vote (or dissent)?  The oath of office—only for the president—is very explicit:  It is to uphold and support the Constitution.  Until “we the people” change it voluntarily, it is our social contract—and as I said, our fundamental law of the political community in America.  There is no higher legal document at present.