By J. Ligon Duncan*
November-December 1997 – While there has been much clamor over the refusal of an Alabama judge to follow a superior court’s directives to cease to open court sessions with prayer and to remove a displayed copy of the Ten Commandments, and even more furor over the Governor of Alabama’s declaration that he would surround the courthouse with State Guardsmen before he would accede to such an edict, there has been little attention to the more significant underlying issues.
On the one hand, one detects much handwringing by “law and order liberals” suddenly piously concerned that we show sacred respect for an institution (the American judicial system) that they bear much responsibility for bringing into ill repute. “This judge is undermining the rule of law,” they whine. Pardon me, but methinks the lady doth protest too much.
On the other hand, the knee-jerk reaction of outraged anti-federal government libertarians has not necessarily been more thoughtful. “We’re not going to put up with these federal courts coming in here and telling us what to do,” we hear. Surely, there is a reasoned argument with which to respond to relativistic judicial activism.
And sure enough, there is. It is found in our nation’s fundamental documents, her history, and her principles and theory of government. Indeed, the secular pluralists of today, so watchful and frightened of those who would intrude “religion” into the civic life of our nation fail to appreciate the stance of the Founding Fathers in at least two aspects.
First, the Fathers’ constitutional prohibition of “the establishment of religion” and ban of “religious tests” was not a denial of the right of government officials to appeal to transcendent moral principles or the divine origins of those moral principles. Quite the opposite. Not only did the Founding Fathers guard against the national establishment of a particular organized religion, and protect against the imposition of denominational opinion and practice on the judicial character of the land, they also expected all officeholders to acknowledge transcendent moral law and the divine lawgiver who gave it.
Even a cursory review of the Declaration of Independence makes this clear. Thus no man who denies the transcendent moral law or the divine (and hence, unalterable) origin of that law is capable of “supporting the Constitution.”
This position, enshrined in the Declaration, acknowledging “the Laws of Nature and of Nature’s God” is not a “religious claim” or position (from a constitutional point of view). Indeed, “the Laws of Nature” are, as the Founding Fathers argued, universal, self-evident, principles (underived from any religion).
The Founders of our nation taught that acknowledgment of these principles alone protects our nation from totalitarianism. Acceptance of “Nature’s God” as the divine lawgiver is thus based on universal, self-evident, first-principles and not on religious truth claims (according to the tenets of Scottish Realism, the philosophy which supplied the Fathers with the language and content of much of their political epistemology). Those who, today, wish to argue that such claims are religious tests from a constitutional perspective will find themselves at odds with the authors of the Constitution.
Second, the wholly novel idea that the Bill of Rights’ prohibition of Congress’ “establishment of religion” requires the officers of the U.S. government and the judges of its courts to be irreligious in the exercise of their duties, and compels the government itself to ban religious activity from its properties (including the forbidding of prayer and the outlawing of the display of the Ten Commandments in courtrooms) and to discourage (or prohibit) such activity in its schools, is based upon a breathtaking ignorance of our history as a nation, a total lack of appreciation of the nexus and overlap between the Laws of Nature and certain aspects of revealed religion, and (we must say) a view radically different than that of the Founding Fathers on the appropriate relation of religion to public life.
We do not hesitate to state that between these two views, the one of the Founding Fathers and the other of latter-day relativistic civil libertarians, only the former is capable of sparing us from tyranny. For no one who denies the existence or knowability of transcendent and absolute moral principles can believe in inalienable rights or unchangeable principles of human liberty.
If we can appeal to no higher authority than the Supreme Court of this land, then there is absolutely nothing from keeping that Supreme Court from abolishing all of our rights and turning our national principles on their heads.If murder is wrong only because our courts currently think that it is, then we are in trouble. If there is no longer an unchangeable core of civic moral principles on which we have societal consensus, then we are in trouble.
And we are. For when judges think that the Laws of Nature, as summarized in the Ten Commandments, no longer have a place in our public life (we’ll offend the people who only believe in nine – opined Barney Frank) then they have just consigned us to tyranny and divested us of the principles on which this nation was founded.
Our first revolution was waged in opposition to incursions on human liberty far less serious and significant
than that. 
* Ligon Duncan III, PhD, is a former John R. Richardson Professor of Systematic Theology, Reformed Theological Seminary; and senior Minister, First Presbyterian Church, Jackson, Mississippi.
