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It is striking that an ancient book should be written specifically for a future people with portents of what they should expect in their time. In all the thousand years of Nephite history with the incalculable events that could have been recorded, we have a book that is customized just for us. The events and conditions described should ring in our souls with an eerie familiarity—and they do.
In that way it reads not just as a history, but as a warning. The book’s description of government is a cautionary tale.
Among many other things, the Book of Mormon gives us a chilling sense of just how far things in government can slide from their original intent. The founding of a nation may take a form based on righteous ideals, but incrementally things change, until the institutions no longer resemble themselves.
That’s the case in the Book of Mormon and in the United States of America, today.
Mosiah’s Checks and Balances
When none of King Mosiah’s sons were willing to become king, he “newly arranged” the affairs of the people “appointing wise men to be judges” (See Mosiah 29).
Mosiah was worried about the power of one man to “create laws after the manner of his own wickedness” because “an unrighteous king doth pervert the ways of all righteousness.” In creating the judgeships, he averted this dangerous concentration of power and its capacity for abuse with a check and balance system. He knew of King Noah and the havoc that came from concentrated power.
Here is how Mosiah laid it out. “Now if ye have judges, and they do not judge you according to the law, which has been given, ye can cause that they may be judged of a higher judge.” Yes, an appeals process is in place.
However, it goes even farther, “If your higher judges do not judge righteous judgments, ye shall cause that a small number of your lower judges should be gathered together, and they shall judge your higher judges, according to the voice of the people.” There’s the check and balance. In his system, nobody can make wicked laws and run away with all the power.
It is as if Mosiah has read John Dahlberg Acton’s famous quote, “Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.” Mosiah was guarding against tyranny, the centralization of power that ultimately robs people of their freedom.
The Concentration of Power Leaves a Nation Vulnerable
Should the system of judges have remained in the way Mosiah set them up—and the people had kept their covenants—things would have turned out very different for the Nephite nation with freedom maintained, but instead we read later that those who wanted Amalickiah to be their king were the lower judges of the land “and they were seeking for power” (Alma 46:4). It’s farewell and adieu to those restraints that King Mosiah had crafted into the system.
Soon, the power-hungry kingmen, who were of high birth and are apparently associated with the lower judges, wanted “a few particular points of the law altered”. (See Alma 51).
Their goal was that same old enticement, the repetitive way of the wicked. They wanted to overthrow the free government, completely alter the law and “establish a king over the land.” In sharp contrast, the freemen, who opposed them, had “sworn or covenanted to maintain their rights and the privileges of their religion by a free government” (Alma 51:6).
This is the age-old battle. On the one hand there is a thirst for power and a concentration of authority in the hands of the few or, on the other, there are widespread rights and privileges for all. Those who are seeking for power and authority gain support by convincing others with flattering words of a pleasing ideology or a chance for personal aggrandizement. Religion must be minimized or changed because it hampers their power grab.
Unfortunately the system of the judges just falls apart before the coming of Christ, with widespread cronyism, lower judges secretly condemning people for their religious speech, but excusing others who have committed crimes, and ultimately brings mass divisions among the people who basically become a law unto themselves because they have been so marginalized in their own society. (See 3 Nephi 6).
What are the Parallels?
So what are the parallels to our day? The United States Constitution was purposely designed to preserve liberty and prevent tyranny. The power is in the people, not the government or a powerful, wealthy elite who know what is good for the rest of us and impose how we should live into ever corner of our lives. Check and balances are built in. Mosiah could have sat on the Constitution drafting committee.
In the Book of Mormon, over time, the government drifted from its founding, perhaps even more than people realized perhaps because everything continued to be called as it once was. Judges were judges, right? Some things about the government looked the same as they always had, while, in fact, critical things were transformed. The balance of power radically shifted. In some cases groups of people—and often the majority—fought to save their government and its freedoms. In other cases, the rising generation did not know better and allowed the original concept of judge and good government to change. They had no memory or understanding of who they were.
The same, unfortunately is true in America today. We honor the Constitution. We call things as they have always been called—the Supreme Court is the Supreme Court. We can name the branches of government that check and balance each other. But do they still? Are we, in fact, losing our freedom because we have failed to understand who we were or recognize how much things have changed? And what happens when the citizens fail to notice or feel helpless to stop the erosion of the initial foundation?
Why are we Losing Our Freedoms?
According to Robert P. George, an American legal scholar, political philosopher and McCormick Professor of Jurisprudence at Princeton University, our misunderstanding of the Supreme Court has “led to a serious erosion of our freedom.”
He said when he asks his students what the role of the Supreme Court is, they answer: To protect the individual and minorities against the tyranny of the majority, the Founders added the Bill of Rights and gave the power to enforce those rights to the Supreme Court. He said that the editorial boards of The New York Times, The Washington Post, and several members of Congress would probably agree with that assessment, but that was not the Founder’s vision.
George said that both the Bill of Rights and the inclusion of judicial review were hotly contested issues when the Constitution was debated in 1789. The fear of Alexander Hamilton and the Federalists was that including the Bill of Rights would impact the limited nature of the national government itself, allowing it to reach into every corner of the people’s lives. So they agreed to include the Bill of Rights only on condition that a ninth and tenth amendment were added that would limit the reach of the national government.
The Ninth Amendment says, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
The Tenth Amendment states: The Powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the People.”
George said, “These amendments reinforce the idea that government couldn’t just assume powers not granted to it by the Constitution, but unfortunately these amendments have not stymied the expansion of the national authority.” More and more areas of American life—especially during the second half of the twentieth century are controlled by the government and the same time frame has seen a similar concentration of power in the Supreme Court. (To see George’s discussion of this, see the video below.)
Looking to the Judges as the Final Word
Today the Supreme Court is the arbitrator of almost every social and political dispute. Ironically, we the people have come to look at the judges of the Supreme Court as the final word on all things social and political. With their lifetime appointments, the power is vested in them. We the people have little say in hiring them, and no opportunity to fire them while they busily change our lives.
In too many cases, they don’t just interpret the law, but overreach to create it. Time and again the justices overstep the bounds of their office, expanding their authority and the authority of the Federal government. Examples abound. The Supreme Court imposed abortion on the nation in Roe v. Wade and same-sex marriage in Obergefell v. Hodges. , finding things in the Constitution that would surely surprise the Founders and expanding the government reach in ways that might horrify them.
Unfortunately, neither does the Court stop other branches of government from overreaching. With Obamacare, the Supreme Court forced people to buy a product on pain of a financial penalty. As George said, “The Constitution does not empower the national government to impose a mandate upon the people to purchase products.”
This expansion of government and the Supreme Court and this drift from the Constitution has two unfortunate consequences. Social and political changes sweep the nation without a check or balance. But worse, citizens learn that their voices don’t count for much and they become marginalized from the system. They don’t participate because they suspect that their voices are nearly meaningless.
George said, “Freedom can be taken away, but it also can be taken away out of sheer ignorance.” If we misunderstand what the Supreme Court was meant to be and accept it instead as an unelected, unchecked policy maker we lose considerable freedom. Ideologies, social constructs and worldviews are thrust upon us. Others, whose job only ends at death, tell us what’s good for us with all the force of the federal government.
Clinton and the Third Debate
That’s why the third presidential debate was so eye-opening. Both candidates were asked about their judicial philosophy and the Supreme Court and both “touted issue groups as symbols of their judicial philosophy.” “Trump talked of the National Rifle Association as proof of his support for the Second Amendment” and “Clinton, by contrast, endorsed Roe v. Wade and its primary beneficiary, Planned Parenthood.”
Yet, Clinton took it much further. She spoke of her judicial philosophy not in terms of what kind of justice is good for the court, but instead what she intends for the Court to accomplish to meet her social goals.
She said, “I have very clear views about what I want to see to kind of change the balance on the Supreme Court.” She described that change and balance:
“For me, that means that we need a Supreme Court that will stand up on behalf of women’s rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United.
She continued in this vein in a way that surprised even The Washington Post.
“Ms. Clinton’s emphasis on appointing judges who will rule in specific ways on particular issues echoed her earlier statement that, “I do have a litmus test, I have a bunch of litmus tests, because the next president could get as many as three appointments.”
“Perhaps Ms. Clinton is simply stating the obvious: She would prefer to appoint judges who would rule the way she would like them to rule on specific, hot-button issues. But her candor is not costless, and the attitude it represents should not be accepted as normal. As a potential president, Ms. Clinton should have more respect for the independence and dignity of the judiciary as a co-equal but non-political branch of government.
“Selecting judges is not just policymaking through other means — or, at least, it should not be. Every step closer to accepting ideological litmus tests developed in the heat of political campaigns as the basis for judicial selections — every step toward putting court rulings to a vote — erodes the foundations of the judicial branch. What are those foundations? That judges will come to every case with fairness, that they will be modest in their application of the law, that they are not legislators, that the facts of particular cases, not pre-announced ideological commitments, will guide them.”
Many listened to those comments and others like them and did not feel alarm. They did not sense or understand the continuing shift this represents toward giving the Supreme Court and the judges an ever-expanding role in creating social agenda. They may not have noticed that Clinton hardly referenced the Constitution, though she was specifically asked a question about it.
But Americans have to have ears to hear whether it is a presidential candidate or a media commentator when ideas erode our Constitution or our freedom. As Latter-day Saints, we of all people should pay attention.
Robert George said, “If we Americans, we the people, want to get some of that freedom back, we need to read some of Americans founding documents. All of the freedom we have ever wanted is there.”
Watch Robert P. George’s video “Why We’re Losing our Liberty” here.