Book Review: The Legal Basis for a Moral Constitution by Jenna Ellis [Aaron Brake]

It has been over one year since the Supreme Court ruled on Obergefell v. Hodges, a decision which granted legal recognition and moral validation to same-sex “marriage” in the United States. While this decision was just one of many abuses fueled by the judicial activism of nine unelected judges, it was also a culmination of sorts in our culture’s ever-increasing slide into secular humanism over the last several decades. Many Christians marvel at how we have come to such a place in a nation originally founded on objective moral and biblical principles. More importantly, they wonder if there is still a way back. Enter Jenna Ellis and her book The Legal Basis for a Moral Constitution.

Ellis is an attorney, professor, and legal analyst who uses her expertise in these areas to make a persuasive historical and legal case that grounds the authority of our nation’s Founding Documents in Divine Law, i.e., the discoverable, objective, unchanging law of God that includes both science and morality. As she explains, proper constitutional interpretation will be based on reading the U.S. Constitution in context, interpreting and applying the text correctly, while taking into account the original intent of the Founding Fathers. This of course assumes an objective, fixed meaning to the text, a belief many secular humanists want to replace with the idea of a fluid, changing Constitutional document possessing no authority higher than man himself. In so doing, secular humanists undermine their own position by ridding themselves of any adequate grounding for objective meaning and value judgments, the very things they seemingly wish to celebrate after the Obergefell decision. With no universal authority from God, all that is left is man-made government, and what the government giveth the government can taketh away. Secular humanists cannot have their cake and eat it too. This is why our Founding Fathers appealed to Divine Law in securing our inalienable rights, not a social contract.

If that’s the case, does this mean Christians should argue for a moral constitution based solely on the “personal faith” of the Founders? As Ellis convincingly argues, that would be a mistake. What we need is an objective, legal basis and attempting to establish Constitutional intent on personal beliefs does not get to the most important interpretative question when determining meaning: What does the text say? Unfortunately, this question has taken a back seat in recent decades due to judicial activism and the misapplication of judicial review (Marbury v. Madison), whereby the Supreme Court has usurped power and effectively elevated itself beyond its originally intended authority and scope into the unchecked, final arbitrator regarding the interpretation, application, and constitutionality of laws. With doctrines like judicial review governing our country, appealing to the “personal faith” of the Founders simply will not win the debate. We need to get back to the authoritative basis and correct interpretation of the U.S. Constitution, and this begins by recognizing “that nearly all of the most prominent and influential Founders were lawyers.”[1]

Why is this important? Recognizing the Founders as lawyers is a hermeneutical key that allows us to correctly interpret the Constitution as well as recognize its legitimate source of authority. The Founding Documents of our nation (including the Declaration of Independence and U.S. Constitution) are not just significant works of history or abstract philosophical reflections with no legal authority. Ellis makes a historical and contextual case that they are controlling legal documents, with legal authority, written by lawyers using specific legal language (referred to as “terms of art”) who sought to preserve the originally intended, objective meaning of the text for future generations to correctly interpret and apply. But if this is true, it means the U.S. Supreme Court is not at liberty “to depart from the legal authority and plain meaning of the U.S Constitution, but is under its authority.”[2] By the same token, the U.S. Constitution “is not free to depart from its legal authority, and any interpretation in contradiction to its authority is necessarily invalid.”[3] This then raises the question, where does the U.S. Constitution derive its authority?

This question of Constitutional authority becomes central to the correct interpretation of Constitutional Law. Ellis argues that contrary to the claims of secular humanists, the Founders did not establish the authority of the U.S. Constitution in a social contract theory whereby man is free to create, enforce, and change morality and the law in accordance with the will and consent of the majority. This will always result in a “might makes right” philosophy enforced by an all-powerful government Sovereign. Rather the Founders rooted our Constitution in Divine Law which encompasses a universal, objective, discoverable morality that is grounded in the nature and character of God Himself. This means that the human government our Founders put in place will necessarily be limited, having no rightful authority to legislate against or contradict the Moral Law, and that any constitutional interpretation or statutory law that does so is necessarily illegitimate.

Nevertheless, don’t take Ellis’ word for it. Read what the Founders themselves wrote in the Founding Documents. Here they explicitly express their rationale and appeal to the only legitimate authority possible: God Himself. For example, the Declaration of Independence specifically refers to Divine Law as its foundational, legitimate authority in announcing the independent political sovereignty of the United States. The Founders appeal to that “which the Laws of Nature and of Nature’s God entitle them” and state unequivocally, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights.”[4] No mention of a “social contract” here. The purpose of government then is to secure these unalienable Rights that God has given each person. Ellis further unpacks the idea that the Founding Documents form a purposeful hierarchy, establishing the historical and legal context for correct interpretation as we employ proper hermeneutics. Divine Law is the authority which the Declaration appeals to in order to legitimize U.S. secession and which the other Founding Documents ultimately rest on. The Federalist Papers offer the rationale for the U.S. Constitution, the Constitution acting as the supreme law of the land. Common objections voiced by secular humanists such as “separation of church and state” and “you can’t legislate morality” are anticipated and answered by Ellis, all of which fail to recognize the Founders’ original intent and the fact that law and morality are inextricably intertwined.

In chapters nine and ten Ellis provides an excellent tour of history documenting our cultural shift away from Divine Law and toward Social Contract Theory. She examines case decisions over the last 70 years which have been instrumental in the Supreme Court’s usurpation of power through judicial activism, the abuse of judicial review, proof-texting, and eisegesis. The Court has even created new facets ex nihilo such as the “penumbra” (Griswold v. Conneticut) which literally allows unaccountable judges to read between the lines of our Constitution anything they so desire, and then insert their own value judgments. But Ellis does not simply wax eloquent on the history, legality, and current constitutional and cultural crisis. She also gives us a way forward out of the mess: a Convention of States. And guess what? It’s Constitutional and was put in place by our Founders for such a time as this.

Article V of the Constitution allows a Convention of States to be called if two-thirds of the states submit an application to convene.[5] The idea “is to convene delegates from the states for the specific purpose of proposing amendment(s) to the U.S. Constitution and quelling the constitutional crisis on many key levels.”[6] There are five steps to this process which requires 34 state legislatures to submit an application to convene. Proposed amendments include a balanced budget, limiting the use of Executive Orders to enact laws, and term limits on Congress and the Supreme Court. Ellis contends this is the most feasible and legally viable solution because only the U.S. Constitution can check the power of the Supreme Court. But we have to be involved. We need to educate: ourselves, our churches and our children. We need to pray. And we need to engage our fellow citizens, culture, and government.

As Christians we have to recognize the importance of government as a God-ordained institution and desire to see a return to objective morality and biblical principles. It is vital we understand the current debate and be able to articulate it to others. The Legal Basis for a Moral Constitution not only provides you with the historical, legal, and intellectual resources to defend your view against an ever-expanding secular government, but also a game plan to become involved in reclaiming our Constitution and culture. Christians who hold consistently to the truth of their worldview and apply its principles correctly find themselves uniquely qualified to be involved in politics precisely because the Christian worldview is True, and the truth of our worldview permeates every area we properly employ the objective, moral principles found in Nature, Scripture, and our Founding Documents. We have to be involved, for the current cultural and constitutional crisis has demonstrated it is our religious liberty itself that is at stake. As attorney David French has stated in an article earlier this year,

If the church surrenders the culture without putting up a true fight — without fully exercising its right and obligation to defend its constitutional freedoms — then it will richly deserve its legal and political fate. A spirit of timidity does not come from God, but timidity grips the church. If we don’t grow bold today, we’ll only have ourselves to blame tomorrow.[7]

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[1] Jenna Ellis, The Legal Basis for a Moral Constitution (Bloomington, IN: WestBow, 2015), 21, emphasis in original.

[2] Ibid., 29, emphasis in original.

[3] Ibid. 30.

[4] Declaration of Independence.

[5] See the Convention of States Project at www.conventionofstates.com

[6] Ellis, The Legal Basis for a Moral Constitution, 193.

[7] David French, The American Church Needs to Get Serious about Religious Liberty, Now, accessed at http://www.nationalreview.com/article/437354/american-evangelicals-religious-liberty-fight