The Articles of Confederation were “improved” into a Constitution, a more centralized approach to law, as advocated by the Federalists. But that Constitution, it was promised, would be supplemented with the Bill of Rights. The various Articles of the Constitution (1789) created our well-known checks and balances, but there are features of the Constitution that instutionalized slavery, and now we turn again to David Opderbeck, Law and Theology.

But the 1789 Constitution also encoded America’s national original sin: black slavery. Many of the founding fathers, including Thomas Jefferson (who drafted the Declaration of Independence), James Madison (who drafted the Bill of Rights), and George Washington owned black slaves. Jefferson, Madison, Washington, and others sometimes expressed sentiments against slavery but nevertheless they continued to own slaves.

The three-fifths clause in Article I, section 2, clause 3 was a compromise on how slaves were counted. It gave Southern states disproportionate representation in relation to their potential tax obligations.The three-fifths clause also implied that slaves were not fully persons.Defending this clause against critics who thought it would give Southernstates too much power, James Madison said in The Federalist Papers, no.states too much power, James Madison said in The federalist Papers, no. 54, that “the federal Constitution … decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character.”

Article I.9.1 prohibited banning transatlantic slave trade; IV.2.3 required states to return runaway slaves. Christians were in a theological crisis (Mark Noll made clear) on how to live as Christians with their fingers on Bible. Some said Yes, some said no. Abolitionists, it needs to be said, were seen as the radicals. Opderbeck: “Proslavery apologists argued that both the Old Testament and the New Testament sanctioned slavery and that the abolitionists therefore were distorting the plain sense of Scripture.” Part of this was the recognition by some that equal humanity does not require equal stations in life: “Thornwell [pro-slavery] argued that there is a distinction between basic human rights of all persons and the rights and duties of persons within specific relationships.” But Thornwell also believed slavery was a social sickness, one from which one must learn, but liberation would lead to economic chaos. Further, he did not see slavery or African slaves as cursed or genetically inferior, but as humans in the image of God. Still, he defended slavery for social order. On Thornwell, who is a focus for David Opderbeck, he offers this reminder: “a cautionary tale about how’ social, political, theological, and biblical views can converge into a systern that justifies oppression.”

Federal vs. state law permitted some states (southern) to justify slavery (e.g., the Missouri Compromise, Dred Scott case in which blacks were “not created equal”), all of which (and much more) came to a head in the Civil War. Sadly I quote this from Opdebeck’s fine brief on this history: “Only after the North won the Civil War, and even then only over the opposition of President Andrew Johnson (successor to the assassinated Abraham Lincoln), did The Thirteenth Amendment finally outlaw slavery in the United States.” Worse yet is this:

Yet it was not at all obvious to many Christians at the time that the abolitionists were right. Southern Christian intellectuals praised Justice Taney’s opinion for upholding the rule of law and the principle of state sovereignty against federal incursion. They aligned squarely on the other side of the legal fight. It is very likely that if you or I [whites] were alive at that time, our views would have aligned with whether we were Southerners or Northerners, not with what we might think as we look back on the issue now 150 years later. Indeed, the question was not even obvious to Charlotte Charless. She helped Dred Scott with his lawsuit, but when the Civil War began, she sympathized with the Confederacy.

Opderbeck casts his eye on the quietistic Christians who opted out of political agitation and reminds us all that withdrawal can hardly have been good or right. The 13-15th amendments were about outlawing slavery. The southern states wiggled into their former patterns and beliefs and laws, leading eventually to the “separate but equal” clause in Plessy v. Ferguson.

This racist separate-but-equal clause was brought down through activism against it, and Opderbeck points us to ML King Jr. especially.

Much of the legal strategy was led by the NAACP Legal Defense and Education Fund, which was founded and directed by Thurgood Marshall, who later would serve as a justice on the Supreme Court. The marches and sit-ins often were held in defiance of statutes, ordinances, or court orders restricting when and how protests could be held. These actions are important for our discussion of “consent” because they relate to the tension between Acts 5 and Romans 13 highlighted in chapter 1.

Brown v. Board of Education (1954) ruled against Plessy v. Ferguson and made “separate but equal” legally wrong but it’s legal implementation was delayed. Decades of battles followed. I am old enough to remember a restaurant that had a door for blacks, and Opderbeck speaks of these as private spaces that appealed to “state action” doctrine.

Birmingham 1963 and ML King Jr’s “Letter.” His appeal was to logic, to non violent action, and to pressure on the authorities leading to change in law and practice. He quotes this: “I have almost reached the regrettable conclusion,” King said, “that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler the Ku Klux Klanner, but the white moderate, who is more devoted to ‘order’ than to justice?”

Disobedience to unjust laws was King’s strategy and action. Opderbeck summarizes what we can learn:

First, the struggle for liberation can only be understood through the experience of the oppressed.
Second, law is the difference between the violent and nonviolent struggle for liberation.
Third, the rule of law is not absolute because only just laws are legitimately enforceable.
Finally, the church cannot sit on the sidelines of legal change if it truly loves the oppressed.

So the Civil Rights Act of 1964 that banned racial discrimination in public places. Many appealed here to “big government.” Bob Jones Universitiy had a law at the time prohibiting dating between whites and blacks, and this energized the evangelical coalition that became the Moral Majority. The IRS prohibited donations to such institutions to be exempt from income, and Bob Jones University fought this to the Supreme Court. The Court ruled 8-1 against BJU. Only in 2000 did it change its policies.

My point here is that even though today conservatives and liberals alike agree, or at least say they agree, with the goals of the Civil Rights Act of 1964 and of related federal civil rights legislation, deep doctrinal and ideological divisions remain about the legitimacy of theCongress’s ability to reach into areas of state and local governance in order to impose national values. The history of slavery and the civil rights movement in America shows that positive law was, and remains, an important tool in the struggle for liberation against the American original sin of racism. It also shows that objections to Supreme Court precedents and federal legislation regarding civil rights on the basis of religious liberty and limited government are deeply connected to racism, including racism in the church.