Franke: The Soul of Civil Disobedience

June 2, 2020

“Thirty-one percent of likely U.S. voters say it’s likely that the United States will experience a second civil war sometime in the next five years, with 11 percent who say it’s very likely.” — Rasmussen Reports, June 27, 2018

by Mark Franke

(April 12) — First it was sanctuary cities, primarily on the West Coast, that declared their police would not comply with requests from federal immigration officials in enforcement of actions directed toward illegal aliens (undocumented immigrants to the woke crowd).

Then there appeared Second Amendment sanctuary cities, refusing to enforce state gun possession laws within their boundaries.

Principled protest against tyrannical government? Civil disobedience directed by conscience against immoral law? Philosophical libertarians echoing the Founding Fathers? Extreme libertarians or even antinomians?

Although each of these perspectives has a role, these examples are really quite different. What we have here is one governmental unit refusing to enforce, or indeed acknowledge the legitimacy of, a law duly promulgated by a higher governmental unit. But we’ve been here before.

Most have a passing knowledge of the Alien and Sedition acts passed during the John Adams administration. (Most don’t know, however, that one of the four, the Alien Enemies Act, is still on the books.) These were passed by the Federalist majority in Congress against the opposition of the Democrat-Republicans. Since the party of Jefferson and Madison controlled both the Commonwealth of Kentucky and the Commonwealth of Virginia, these founders got the state legislators to declare the acts unconstitutional and therefore incumbent on the individual states to “interpose” their veto. It was not without controversy, however. Washington and others, including many Democrat-Republicans, were appalled that such a disunion-like action had been taken. 

The Kentucky and Virginia resolutions spawned progeny that led to later crises. The Nullification Crisis of 1832 was a direct, philosophical descendant as South Carolina nullified the Tariff of Abominations within its borders and determined to prevent federal tariff collection at its ports. Only a carrot and stick approach — a compromise tariff by Congress as the carrot and a threat of federal military action by Andrew Jackson as the stick — ended the crisis . . . at least for a time. To come were the Fugitive Slave Act and the Dred Scott decision, ultimately leading to the election of Abraham Lincoln, secession and war.

The disunion so feared by George Washington occurred. The issue of higher government authority, the sovereignty of a central government over against the states and the idea of limited government all contributed to the eventual civil war. (And yes, revisionist editors at the New York Times, there was more to it than just a Dutch slaver landing in Virginia in 1619.)

So much for the historical precedent. Or is it? None of us lived back then so it is difficult if not impossible to appreciate the intensity of emotions then as compared with now. Given the words and actions bombarding us in the daily news, are we hurtling toward another civil war?

There are some who think so, some who one would usually consider well-thought and well-intentioned. Here I am not speaking of those who feel they can safely disregard any law they don’t like or promulgations from government officials whom they declare “illegitimate” by whatever mental gymnastics their fragile and facile consciences require. The concerning development is talk of civil disobedience from classical liberals who hold the Founding Fathers and their principles dear. In short, it is our side joining the disunion group now.

Perhaps the intellectual midwife of this line of conservative thought is Boston University professor Angelo Codevilla. He has written often about the threat to liberty by the American ruling class, those self-appointed arbiters of everything bent on enforcing strict conformity of thought and speech in compliance with their total reconstruction of society. Codevilla is not sanguine about the vast middle ground of America’s being able to protect itself against these cultural totalitarians. He supports the Second Amendment sanctuary cities approach and encourages more to do likewise on issues like shutting down abortion clinics, confident that no president will send in troops in response. He calls this “separation” rather than “secession.”

Unafraid to use the “secession” word is F. H. Buckley, a George Mason University legal scholar, who has written about the corruption of the political class and presidential power usurpation. Now he addresses the secession issue by pointing to the examples of disunion occurring across the globe, even in the West. He argues that these countries generally are happier in a “smaller is better” atmosphere. He does not, however, advocate a full breakup of the United States. His solution, one he names “Succession Lite,” is really a return to assertive federalism. This is no more or  no less than America’s brand of home rule. Buckley sees this as a way to keep the U.S. united as a nation while freely tolerating regional and local differences. 

(Ostensively this is the theoretical justification behind the Oregon counties that are talking openly about joining the state of Idaho to free themselves from what they see as Oregon’s overreaching progressive elites. The same can be said of just about any county in Illinois chafing under the yoke of “what Chicago wants, Chicago gets” and please pay up, thank you.)

And finally there are the radicals who see, and perhaps wish for, a full civil war. One would think these are extreme libertarians or Leninist true believers, anarchists and nihilists in an unholy alliance. Yet they are not confined to the urban slum or isolated mountain retreats as in past centuries. They are getting attention in this world of unending news cycles.

The fear of uncivil action escalating to full war is serious enough for about a third of respondents to see it likely, according to a recent Rasmussen poll. Over half think the media’s coverage of Donald Trump encourages potential violence. These reactions cross the political spectrum with some differences in which side to blame. An interesting footnote is that Rasmussen did the same polling in Barack Obama’s second year and found similar results although with smaller  percentages in the “fearful” categories. One can’t  help but think we are heading toward some sort of Armageddon if you believe the polls — or even if you just watch the pandering by cable news networks.

Forgive me for taking much too long to get to why I began writing this piece, which is: What’s a Christian to do?

Turn to Scripture, of course, where we are instructed on how we are to live in this world. (My Lutheran theology calls this the kingdom of the left hand.) Consider these admonitions:

So are Christians called to be entirely passive in face of mounting persecution? I point to two historical instances when devout men of faith struggled with this very question.

Augustine of Hippo, one the most influential of the church fathers and a personal favorite of mine, wrote at a time when so-called barbarian Germans were overrunning the western Roman empire and soon to reach his home province in north Africa. His insightful theological masterpiece, The City of God, was written as pastoral counsel to the faithful whose worldly anchor — Rome — was suddenly lost to these barbarians. It is his formulation of “the Two Kingdoms,” one of God and one of man, which still informs Christianity today. We live in both worlds and at times must keep them separate under obedience to both, all the while hoping they do not come into conflict. 

Dietrich Bonhoeffer faced these same issues progressively over time as the banal evil of the Nazi regime became more apparent and impossible to accept. He, like Paul and Peter, was martyred rather than deny or compromise his faith. His protestations began within the church as he and several others held true to their confessions by creating a synod in opposition to the Nazi takeover of the Lutheran-Reformed official church of Prussia. Their Confessing Church did not compromise with the Nazis in matters of worship and personal piety yet did not actively plot to overthrow the regime. Bonhoeffer personally did participate in the resistance movement through his affiliation with the military intelligence service (Abwehr), which was itself a hotbed of resistance, mostly as a courier between the German resistance and sympathizers in Allied countries. He was executed with other Abwehr leaders just weeks before his concentration camp was liberated by the U. S. Army. 

Bonhoeffer acted out Augustine’s abstraction of the Two Kingdoms in conflict. Bonhoeffer’s conscience found the tipping point between passive opposition and active disobedience. So why did it take him so long, one might ask. After all this was the Nazis with their death camps and all. Rather than fall into the arrogance of presentism, judging the past by today’s information and standards, it would be profitable to read the history of Weimar and Nazi Germany during the 1920s and 1930s before World War II. One can’t help but get the sense of being a frog in a pot that seems to be warming.

That was then and this is now, some say. Perhaps, but tell that to a Canadian pastor who faithfully proclaims scriptural teaching on marriage and family in violation of national law and in the face of governmental threats prohibiting such sermons. Or to Christian photographers or bakers who refuse to supply bespoke gay products for same-sex weddings. Or to uncounted others who have found persecution in the workplace because of their faith.

When the U. S. Supreme Court overturned state laws requiring marriage to be between one man and one woman, several pastor friends of mine threatened to refuse to perform marriages as agents of the state. I thought then, and still do, that was a gross over-reaction and abdication of the pastor’s call to serve his flock. In fact, no pastor to my knowledge has been forced to marry a couple against his church’s teaching or his conscience in Indiana or any other state — so far, at least.

And now comes COVID-19. While most states invoked a 10-person limit for all gatherings, several jurisdictions overtly ordered churches to cancel their worship services. Virginia Gov. Ralph Northam declared gatherings exceeding this admittedly arbitrary limit would be subject to criminal charges. He mentioned religious services specifically as being subject to prosecution and possible jail time. One should not be surprised that a state that is attempting to invalidate the Second Amendment should also toss out the First for good measure.

Not to be outdone, Kentucky Gov. Andy Beshear trumped its neighboring state (sorry, Commonwealth) and ordered officials (state and local police presumably) to troll church parking lots on Easter Sunday to record license plate numbers. Miscreants would be given mandatory 14-day quarantines by health officials. The mayor of Louisville jumped in, banning all Easter services including drive-ins at which worshippers remained in their cars. A state judge quickly issued a restraining order for Louisville, citing the mayor’s edict as “unconstitutional,” “beyond all reason” and something one might expect to read in “a dystopian novel.” 

Closer to home, the Allen County, Indiana, Commissioner of Public Health announced one Saturday that all Sunday services were to be canceled. Not so fast, declared the state Attorney General, who opined that the Allen County ban was unconstitutional because it was specific to religious gatherings. 

Most constitutionalists would agree, I assume, that statewide bans on large gatherings during public emergencies are not necessarily in violation of the First Amendment so long as they are comprehensive in inclusion. It is when the decree appears to de facto (Virginia) or de jure (Kentucky) to single out religion that it crosses the line. It is comforting that such a line exists for the 21st-century judiciary, whose constitutional role is to protect the liberty of citizens against the usurpation of government. The Declaration of Independence, anyone?

In sum, COVID-19 is a textbook case study for reconciling absolute rights with public need. Those churches which held services in opposition to state or local decrees may have been theoretically within their rights but it is difficult for most lovers of liberty to be willing to die (perhaps literally) on that hill. There are better legal test cases for this, including those cited above.

Two more personal experiences from the past come to mind.

Shortly after Barack Obama took office, he announced his intention to address all the nation’s school children by live broadcast. A teacher at my Lutheran school did not want to receive the broadcast as he disagreed with most of the Obama agenda. Our pastor counseled him that he was bound by the Fourth Commandment to allow the president his airtime, but he certainly was not obligated to incorporate his educational proposals into his curriculum. Rendering unto Caesar under the Fourth Commandment still held writ, regardless of this conscientious teacher’s personal beliefs about limited government under God.

The second example is even more personal. I volunteer for Big Brothers-Big Sisters in its Real Men Read program. I read to second graders at a nearby public school. The first book this academic year was about a black high school girl in Birmingham, Alabama, during the early civil rights movement. She decided that she would go to jail in protest of segregated public buses. She sat in the whites-only section, was arrested and went quietly to jail. The book’s goal was to make her a heroine, but I amplified this with a discourse on when and how civil disobedience is appropriate. Here are the points I made to these seven-year-olds, all of it, incidentally, arguing against the rioting this summer in our cities: 

So where is the Augustine-Bonhoeffer line between righteous civil disobedience and just plain disobedience to the law? For the Christian this is not easily determined. We have Peter’s declamation to the Sanhedrin that we should obey God rather than man, but God’s perfect will is not always properly discerned by imperfect man. Too often, those who say they refuse to obey a law are abrogating to themselves the right to know God’s will.

My own church body, the Lutheran Church Missouri Synod, has tried to maneuver this labyrinth on the immigration issue. We are committed to perform acts of mercy to the least of these His brethren (see Micah 8 and Matthew 25) while still owing obedience to the state. My synod’s response to the crisis has been to care for these unfortunates by providing for their basic needs and helping them through the immigration process to legalize their status, but never violating the law by employing them illegally or circumventing public benefit requirements. This is on our dime, not the public’s, and it is a demonstration of our compassionate faith.

So what is a devout Christian who is also a classical liberal to do? 

We have been blessed in America not having to face the gut-wrenching, life-threatening scenarios that confronted Augustine and Bonhoeffer. I fear we are lurching toward one, however, even though our discourse hasn’t reached the fever pitch of the 1850s — as yet. At least no congressman has caned another on the floor of the House of Representatives. One could have predicted, though, that our national leaders’ rhetoric would  incite such violence, if not from our elected representatives themselves then from their less controlled and controllable acolytes on the college campuses and in the urban centers.

The Anglo-Saxons had a prayer for strength during the age of Viking depravations. Now the Vikings’ ideological progeny are at our gates and it will take strength on our part to hold them off. Maybe the Angelo Codavillas and F.H. Buckleys are right and we should face up to the test now before it becomes a bloody auto de fe. 

It is the Christian in me, however, that pushes back on this analysis, believing that intelligent people of good will can find a compromise solution to a dispute. 

Putting this Pollyannaish nature aside, however, leaves me with the unwanted realization, reinforced by the pictures of urban rioting, beating and looting, that many today are not of good will and certainly not acting intelligently. 

Which takes us back to first causes — politically not theologically. The battle is between classical liberals in the Founding Fathers mold and radical progressives (who have gone well past the Wilson-Roosevelt-Johnson idea of the welfare state in favor of a revolutionary, confiscatory, command economy by force majeure.

The Constitution has no truck with them, hence their vehement attacks on it and its principles, and it is only time before they launch an assault on the Declaration of Independence. After all, wasn’t it written by white male slaveholders?

One should never end an essay this way, but I just don’t know the answer. I do know that we had better figure it out if our nation is to survive as the land of the free as the Founding Fathers constructed it. We owe it to our grandchildren to secure these blessings of liberty.  

Mark Franke, an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly associate vice chancellor at Indiana University-Purdue University Fort Wayne.


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