The Murder of the First Amendment: How Common Law and Statutory Law Coexist

Audio for the Show


[Music: Chad Crouch—Ballad of the Blackbirds—Field Report Vol I: Oaks Bottom]

[Sermon by Rod Bell: The Day the Supreme Court Murdered the Constitution, 6/5/1983][1] There’s been many a date that has been dates of notoriety. Important dates and dates has gone down in history in our country. I thought about 1776, July the 4th. It was a great day. . .. But I think of December 7th, 1941. What a dark day that walls for our country. . .. However, on May the 24th, 1983 the Supreme Court murdered the First Amendment.

Narrator: Rod Bell preached this sermon in reaction to the Supreme Court ruling which ruled against Bob Jones University on the matter of the segregationist policies which it promoted. He, with many other Christians, were furious at the government because it seemed that the government ignored the plain reading of the constitution in favor of something else. Why was this the case? What was going on in America during this time? And why was the reaction so passionate from Christians?

[Music Ends]

[Music: National Promenade Band –  Passing of Salome- Edison Blue Amberol: 2343

The Marriage between Christianity and Americanism

Narrator: Around the turn of the 20th century, the Protestant church in America was embroiled in a bitter civil war. The Modernists were trying to push their liberal, enlightenment doctrines on the denominations. The Fundamentalists fought back for Christianity. During this civil war, America entered the Great War—WWI—in 1917. The Fundamentalists were steadfastly against the war and so Modernists accused them of anti-Patriotism even to the point of being in conspiracy with the Germans.[2] But within a year, the tone had changed. R. A. Torrey wrote in a Fundamentalist publication, “Can a follower of Jesus engage in war and be consistent with His teachings? Why not? The Bible teaches us non-resistance to personal injuries, but nowhere that we should not defend and protect our wives and children and the oppressed.”[3]This patriotism grew up and through WWII. And then near the end in a mix of patriotic and religious fervor, the Allies launched D-Day on June 6th, 1944

[Music: SoularflairCue 2 – Dark-Tense-Dramatic-Building-Film trailer (Trailer For A Nonexistent Film 3) – CUES for film, TV, games, etc (DARK)]

[Montage: Clips taken from and

[Auto Duck: New York Military Band and the American Quartet – Patriotic songs of America – Edison Amberol: 457]

Narrator: The post-war America boomed, both in the economy and in babies. The victory had energized the nation like never before. Everyone had fought, had sacrificed, and had won. There was an intense feeling of loss. But there was also an intense patriotic energy filling the hearts of Americans. Christian’s too had suffered. Every church had empty seats in them. But that same patriotic energy filled the hearts and the minds of Christians. American flags were placed behind the pulpit. Patriotic Sundays were introduced. And the National Anthem became part of the church hymnity. And, in the minds of most Christians, to be a good Christian was to be a patriotic American. To be a good American was to be Christian.

[End Music]

Narrator: But then, something happened.

[Auto Duck: The Piggies – Rock-n-Roll Tonight – Live on WFMU’s Three Chord Monte – Jan 22, 2013]

Narrator: The Boomers had grown up and began to carve their own identity. And that country for which the Greatest Generation had sacrificed their lives—that great Christian America—was being taken away from them. The country was being destroyed both in popular culture (with the advent of the Devil’s Music of Rebellion) and the political world (with the advent of civil rights). The judicial system too seemed to be bringing down America. And the Supreme Court seemed intent on prying the white-knuckled grip of American Christianity off of American society. Christian’s saw their freedoms diminish. Pulpits thundered across the land condemning the courts, but to no avail.

[Music: Aaron Mist-Center of the Universe-New Era of Me]

[Montage: Preachers against the Courts 00:01:08.032]

  • What Is Freedom? By Harold Warner
  • The Supreme Court Decision – No Bible, No Prayer by Dr. Carl McIntire
  • Abortion by Paul E. Steele
  • What Is Freedom? By Harold Warner
  • Will Christian Schools & Churches Serve Caesar or God? By Dr. Ernest Pickering

One of the main surprises confronting American Christianity was that the judicial philosophy of the court changed. A conservative court prevailed until 1953 lead by Chief Justice Fred Vinson. But then, in 1954, Chief Justice Earl Warren began leading the court in a “liberal” direction. This “liberal” court continued to 1986 under Warren E. Burger who succeeded Earl Warren.

The Supreme Court Philosophy in the BJU v USA case

But instead of developing the history and philosophy of this time by my own research, I decided to call up my brother who hosts a podcast about legal stuff call Armchair Justice. He typically reviews current rulings by the Supreme Court with two lawyer buddies of his. I asked him if he and his buddies could talk about the Warren and Burger court and especially their philosophy. Then, we bring up that case from the last podcast, Bob Jones University verses the United States of America, and we discuss how that philosophy swayed the discussion of the court. Let’s take a listen.

[Music: Tri-Tachyon-Kleptotonic Swing-The Kleptotonic EP]

[Insert Transcript Here]

Narrator: This should legit blow your mind. Even though the USA uses a statutory system, there are significant parts that are straight up common-law. The reason is that America was founded on a English common law and then it evolved into a statutory system. So even in statutory systems, there is common-law. Question: does it work the other way? Can you find statutes in a common-law system? By the way, if you want to hear the full interview with the guys from the podcast Upon Further Review. Be sure to look them up.

[Transition Music]

Statutory Law within Common-Law

From 20st century America, we go back in time to the centuries surrounding Jesus. During this time, the Jews had intense debates and discussions over their law or Torah. Their debates were recorded in the Talmud in a conversational fashion. The debate we are interested in is about how to find the essence of the Torah. In the Talmud (Makkot 24a), Rabbi Simlai finds some passages where the Torah, he believes, is summarized. I’m going to take this Talmudic passage, alter it a little, and place it in the middle of our conversation.

[Transition Music: Pharaoh’s Daughter – By Way of Haran 00:05:05]

Rabbi Simlai taught: There were 613 mitzvot stated to Moses in the Torah, consisting of 365 prohibitions corresponding to the number of days in the solar year, and 248 positive mitzvot corresponding to the number of a person’s limbs.

Rav Hamnuna said: What is the verse that alludes to this? It is written: “Moses commanded to us the Torah, an inheritance of the congregation of Jacob” (Deuteronomy 33:4). The word Torah, in terms of its numerical value [gimatriyya], [24a][1] is 611, the number of mitzvot that were received and taught by Moses our teacher. In addition, there are two mitzvot: “I am the Lord your God” and: “You shall have no other gods” (Exodus 20:2, 3), the first two of the Ten Commandments. . . for a total of 613.

. . .

3Rabbi Simlai continued: King David came and established the 613 mitzvot upon eleven mitzvot, as it is written: “A Psalm of David. Lord, who shall sojourn in Your Tabernacle? Who shall dwell upon Your sacred mountain? He who walks wholeheartedly, and works righteousness, and speaks truth in his heart. Who has no slander upon his tongue, nor does evil to his neighbor, nor takes up reproach against his relative. In whose eyes a vile person is despised, and he honors those who fear the Lord; he takes an oath to his own detriment, and changes not. He neither gives his money with interest, nor takes a bribe against the innocent. He who performs these shall never be moved” (Psalm 15). Eleven attributes that facilitate one’s entry into the World-to-Come appear on this list.

. . .

17Rabbi Simlai’s exposition continues: Isaiah came and established the 613 mitzvot upon six, as it is written: “He who walks righteously, and speaks uprightly; he who despises the gain of oppressions, who shakes his hands from holding of bribes, who stops his ears from hearing blood, and shuts his eyes from looking upon evil” (Isaiah 33:15).

. . .

25Micah came and established the 613 mitzvot upon three, as it is written: “It has been told to you, O man, what is good, and what the Lord does require of you; only to do justly, and to love mercy, and to walk humbly with your God” (Micah 6:8).

 . . .

27Isaiah then established the 613 mitzvot upon two, as it is stated: “So says the Lord: Observe justice and perform righteous-ness” (Isaiah 56:1).

Amos came and established the 613 mitzvot upon one, as it is stated: “So says the Lord to the house of Israel: Seek Me and live” (Amos 5:4).

 Rav Naḥman bar Yitzḥak objects to this: There is no proof that the verse in Amos is establishing all the mitzvot upon one; say that Amos is saying: Seek Me throughout the entire Torah, as the verse does not specify the manner in which one should seek the Lord. Rather, say: Habakkuk came and established the 613 mitzvot upon one, as it is stated: “But the righteous person shall live by his faith” (Habakkuk 2:4).

[End of Makkot 24a]

[Shabbat 31a]

There was . . . [an] incident involving one gentile who came before Shammai and said to Shammai: Convert me on condition that you teach me the entire Torah while I am standing on one foot. Shammai pushed him away with the builder’s cubit in his hand. This was a common measuring stick and Shammai was a builder by trade. The same gentile came before Hillel. He converted him and said to him: That which is hateful to you do not do to another; that is the entire Torah, and the rest is its interpretation. Go study.

[End Shabbat 31a]

But then, a lawyer asked Rabbi Yoshua Ben Yoseph: 36 “Teacher, which commandment in the law is the greatest?” 37 He said to him, “ ‘You shall love the Lord your God with all your heart, and with all your soul, and with all your mind.’ 38 This is the greatest and first commandment. 39 And a second is like it: ‘You shall love your neighbor as yourself.’ 40 On these two commandments hang all the law and the prophets” (Mt 22:36-40).

Rabbi Yoshua Ben Yoseph, or as we know him as, Jesus son of Joseph, didn’t actually speak in the Talmud. I put him there for our conversation. There you have it. Jesus, as the Messiah, summarized the Torah in the command to love God and love man. These two commands are unalterable commands. They do not suffer the fate of other commands in the common law system. They sit on its pinnacle as inviolable statutes. These commands have no other commands which take priority over them. Thus, you see, even in the common law system of Israel, you find statutory law.

So then, when we speak of common law verses statutory law, we do not expect to find pure systems of either. Whether in the American system or the Torah, there is a mixture. And when we approach either, we must keep this in mind. When we say that a law system is statutory or common, it is to say the predominate nature of the law system is one or the other. 

[Music: Tri-Tachyon-Kleptotonic Swing-The Kleptotonic EP]

[Interview Exert]

[Music: Tri-Tachyon-Kleptotonic Swing-The Kleptotonic EP]


[Jason ShawSOLO ACOUSTIC GUITARAudionautix: Acoustic


[2] For example, see “The Folly of War,” The King’s Business, 1917.

[3] R. A. Torrey, “Light on Puzzling Passages and Problems,” The King’s Business, 1918.

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