Response to Hays & Colvin

By Timothy D. Terrell
July 29, 2002

In responding to two readers who took pains to explain in detail their objections to my " RU-486 " article, I must acknowledge that their arguments are intelligent and well-stated. This is the sort of discussion in which Christians need to be engaging, and the conduct of the debate should exemplify subjection to the Word of God, logical rigor, knowledge of the facts, and humility. I may be in error here, but though the two responses are thought-provoking, I am not yet persuaded. As Douglas Wilson once noted, "I always think I'm right, but I don't think I'm always right."

Mr. Colvin begins his response by observing "that the government already bans the sale, importation, and possession (not merely the use!) of various recreational narcotics. It regulates the possession (not merely the use!) of weapons and toxins." I am not sure what part this plays in Colvin's response, but I would guess from the general quality of his response that he is not committing the fallacy of drawing an "ought" from an "is." Perhaps Colvin thinks that I would object to the idea of legalizing all drugs and decriminalizing all gun possession. I do not so object.

Mr. Hays contends that my gun ownership analogy is flawed because gun ownership is protected in the Constitution by explicit mention, while RU-486 is not. This sort of argument is the reason some men thought the Bill of Rights would be a bad idea, and why the 10th Amendment is an important part of it. It matters not that the right to keep and bear arms is mentioned explicitly, while the right to purchase drugs of all kinds is not. The 10th Amendment clearly says that "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." By my reading, then, a state may constitutionally prohibit the sale or possession of RU-486, but the federal government may not.

Hays also argues that Scripture does provide warrant for preventative measures, and cites the command to holy war, and the legality of killing a nighttime intruder on the assumption that the intruder presented a serious threat to the family. Holy war was constrained by the boundaries of the Promised Land, and is no longer applicable today (Westminster Confession of Faith XIX, 3). The Israelites were not required to attack neighboring nations as a preventative measure, though these presented a threat as well. I will grant that the nighttime intruder law allows prevention. But it is not prevention by the State. These boundaries between spheres of authority are important, as I tried to point out with the example of Saul offering the sacrifice in Samuel's place.

Colvin brings up the example of Nehemiah banishing the merchants who were loitering about the walls of Jerusalem with the apparent intention of selling goods on the Sabbath. The problem with this sort of argument, of which Mr. Colvin is doubtless well aware, is that revelation of historical incidents does not necessarily imply divine approval of the actions taken. We are told of the deeds of many wise and righteous men, without divine approval or disapproval being clearly stated in the text. This is a weak foundation upon which to base his argument that the state does have the authority to enact preventative regulation.

I think the real question is, to what lengths are we willing to stretch the OT law? I am no hermeneutician, and acknowledge my lack of training in biblical interpretation. Yet it seems to me that making prevention of crime the object of civil intervention, rather than execution of vengeance as God's minister, extends the jurisdiction of the state beyond its biblical limits. If Hays or Colvin provided an indisputable counterexample, which granted the state authority to prevent a certain crime by certain means, would that justify any state preventative action? If not, what is the principle that limits the state's powers in that direction? In general, are preventative measures that are not authorized by Scripture legitimate? By Hays's logic, it would be permissible for the State to post a policeman permanently in each house (well, maybe just a camera) to prevent domestic violence or other crimes. I am reluctant to allow the state powers to stop a potential crime without a limiting principle. What is that principle? (Whether or not this constitutes a regulative principle of the state, and the arguments for or against such a principle, are related issues but are probably too complex to cover in this already lengthy response.)

Hays objects to my comparison of the law against RU-486 with various laws that would grant the government additional powers in the war against terrorism. He accuses me of extending the 6th Amendment to an unintended use-the protection of belligerent foreign nationals. It was in fact the 4th Amendment. My fault. But in principle, these are similar issues. In the details, this is indeed a separate debate, so I did not take the time to clarify my remarks on the war on terrorism. I acknowledge that the 4th Amendment was intended to protect the rights of citizens, not foreign nationals. Yet my concern is for the rights of American citizens. I want to defend the colonials against the redcoats and the abuses of their own government. In order to catch those belligerent foreign nationals, some in our government would prefer to monitor and search all of us.

My quotation of Rushdoony, who had said that regulation was an attempt to gain salvation from the state, also drew some fire. "The issue is not about sin and salvation," Mr. Hays said. "Not all sins are crimes. But, in Scripture, murder is both." Is possession of a murderous weapon criminal, Scripturally speaking? I have not argued against murder as a crime. I have argued against a way of preventing murder that does not seem to be condoned by Scripture. Providing RU-486 to a pregnant woman, with the understanding that she intends to use it for murderous purposes, is a sin, in my view. I would even argue that, if murder is actually committed, it makes that one a criminal accessory to murder, in principle. Perhaps enforcement of this part of the criminal law would be sufficient to end the use of RU-486 in the United States. But we should be careful to use the appropriate part of the law to fight the crime. The RICO Act may be effective against drug smuggling, but even if one approves of drug prohibition, it is a terrible law with which to accomplish that goal. It grants immense, and easily abused powers to the civil government. The means do matter. (I don't think RU-486 is going to prove as much of a threat as it is cracked up to be in any case, because of the serious side effects I mentioned in passing in my article.)

We shouldn't ban the abortion pill because we do not want to set a precedent that is contrary to Scripture-that is, setting the civil government up in the role of a preventer of evil. I was trying to show some of the benefits of abiding by these restrictions on civil government even when they do not seem expedient to those who want to see murder ended. What if the purchaser of RU-486 wants to use it for research? Does the state then have to set down guidelines for what is approved and unapproved research? Suppose the purchaser has an oddball belief that RU-486 will cure headaches. We might all agree that it is scientifically unwarranted. But do we want the state in the position of determining what is scientifically justified?

I picked on RU-486 because it is an extreme example-a substance for which it seems there is no justifiable use. It would seem that if I could make my case for RU-486, I could make it for anything. Then Hays mentions the hypothetical neighbor brewing some horrible virus. This thought, I will freely admit, makes me uneasy. It is a "slippery-slope" response to some of my own "slippery-slope" arguments. Yet, again, I am reluctant to allow the state powers to stop a potential disaster without a limiting principle. If my principles, as they were briefly and incompletely expressed in my article, are unsatisfactory, I invite my brothers to provide an alternative framework for evaluating legislation. My view of man's nature leads me to avoid any framework that holds that "our rulers are bright enough" (as Colvin says) to make countless ad hoc judgment calls on a myriad of such dangers. Could it be that the quarantine laws of Leviticus have some continuing principle that might be brought to bear here? Perhaps further discussion might bring some clarity to this problem.

Finally, Hays argues that it is inappropriate for me to write that "there are other institutions in society besides the civil government that can serve as a disciplinary influence on us." I was not using the term discipline in the narrow sense of church discipline, as should have been apparent from the context. All institutions restrain our behavior in some way, through rewards or punishments. It is that restraining process that I refer to as discipline.

This has been, for me, an interesting discussion. Thanks to Mr. Hays and Mr. Colvin for sharing their thoughts with me. My thanks to Chalcedon for allocating space on their web site for these responses.

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Topics: Culture , Economics, Government, Medicine / Healthcare, Statism

Timothy D. Terrell

Timothy Terrell is associate professor of economics at Wofford College in Spartanburg, South Carolina. He is assistant editor of the Quarterly Journal of Austrian Economics and is an Associated Scholar with the Mises Institute.

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