On Health Insurance, Non-Profit Hospitals, Cabbages, and Kings

The Walrus and the Carpenter (Public Domain)

Update 2/12/15:  Coincidentally, Memorial-Hermann’s billing department called to offer me a 50% discount off the total hospital bill for self-pay.  This is probably not a result of seeing this article, which was only published one day previous.  I am gratified to have received this fair offer, however belated.  ~Author

Allow me to relate, for the public record, my experience, from a financial standpoint, as a person with no health insurance receiving emergency medical care in the Texas Medical Center, Houston. On July 21, 2014, I entered the emergency room in the small town of Liberty, Texas, experiencing what was determined to be hypotension (low blood pressure) and bradycardia (low pulse rate). For several days, I had been unable to walk at a normal pace or otherwise exert myself without getting dizzy and beginning to black out. I was transported by county ambulance to the Memorial-Hermann Heart and Vascular Institute in the Medical Center. I spent, to my recollection, 3 days in the ICU, under observation, and afterwards was transferred to an identical room, but one not classified as Intensive Care. My treatment culminated in the placement of a heart pacemaker. I was finally released from the hospital on the evening of July 26.

On July 22 of my stay, I was visited in ICU by a Financial Counselor employed by the hospital, who helped me to fill out a Financial Assistance Screening Form. He further instructed me to send in my previous year’s IRS Tax Return as proof of financial need. I mailed this proof the weekend of August 2, but shortly thereafter received a letter from the Financial Counselor, dated August 6, denying financial assistance on the basis of failing to provide proof of income. This was obviously sent before receipt of my letter containing proof, and a scant 11 days after my release from the hospital.

As I began to receive bills from the various medical providers involved in my care, my research revealed that medical providers routinely allow for a discount of 40 to 50 percent to insurance companies. Moreover a self-pay patient is well within his or her rights to request an equivalent discount for cash payment up-front. I therefore began to request a self-pay discount from all providers, the results of which are shown in the table below. For the most part, the providers were not surprised at the request, and readily offered a substantial discount off the billed price in return for prompt payment.

The major exceptions to this accommodation were those submitting the two largest bills, UT Physicians and Memorial-Hermann Hospital. After months of wrangling and sending certified letters, including an offer to pay 60% of the bill promptly, UT Physicians finally sent a bill, dated January 24, 2015, reflecting a 34% discount.

Provider	Billed	Paid	Discount	Balance
UT Physicians	4,420.00	2,909.00	34%	0.00
Texas Heart Rhythm	1,260.00	1,008.00	20%	0.00
Texas Heart Rhythm (follow-up)	250.00	250.00	0%	0.00
Liberty County EMS (A/R Concepts, Inc.)	2,880.00	1,000.00	65%	0.00
Liberty-Dayton Reg. Med. (emergency room)	1,840.46	1,104.28	40%	0.00
Houston Cardiovascular Associates (follow-up)	505.50	404.40	20%	0.00
Physicians Billing Service	1,013.00	709.10	30%	0.00
Memorial Pathology Consultants	1,102.00	551.00	50%	0.00
Milwaukee Radiologists	66.00	66.00	0%	0.00
Memorial-Hermann Hospital	76,660.84	4,000	0%	72,660.84

 

Memorial-Hermann Hospital, on the other hand, has consistently demanded payment in full within a short payment period, an utter impossibility under my present circumstances. Their billing department has discouraged partial payment (though they took the $4,000 paid to date), failed to offer any kind of payment plan, and refused to negotiate any kind of a discount. Their billing officials, those authorized to discuss and negotiate arrangement, remain bastioned and anonymous behind an opaque automated phone system.

It would appear that M-H has every intention of holding out for payment of the full, unmitigated amount they have assessed, and proceding toward a collections lawsuit. Attorney Robert Painter of Houston recounts the case of Ignacio Alaniz, a low-income worker injured in a car crash and life-flighted to Memorial-Hermann. Painter remarked, “We believe that Memorial Hermann’s billing practices regarding the uninsured are unconscionable and violate the Deceptive Trade Practices Act. Why should a hospital try to collect from someone without insurance double or more what an insured patient would pay for the exact same care?”

See http://www.painterfirm.com/a/138/Memorial-Hermann-sues-uninsured-patient-for-double-the-fees-it-would-charge-someone-with-insurance

Dianna Wray, in a Houston Press article, also reported on this case:

http://www.houstonpress.com/2013-07-25/news/memorial-hermann/full/

Attorney J. Thomas Black notes that hundreds of patients are sued by tax-exempt Memorial-Hermann every year. “They are the only hospital that I can recall that actively sues for unpaid hospital bills,” he wrote. According to Black, filing for personal bankruptcy might be the only recourse for low-income patients unable to pay up-front.

See http://www.jthomasblack.com/library/served-with-a-lawsuit-by-memorial-hermann-hospital–quite-a-few-people-are–getting-stuck–per-a.cfm

The hospital’s own billing documents state:

Memorial Hermann Health System recognizes there may be times when patients will have difficulty paying for the services provided. The Hospital provides a discount to qualified patients with limited income who have no insurance or who have used all of their health insurance benefits. Payment from all possible sources must be exhausted before a patient can qualify for financial assistance. We can help you apply for free or low-cost insurance, if you qualify.

To find out if you qualify for partial or fully discounted medically-necessary hospital services, you must apply for financial assistance and provide supporting documentation.

To date, however, M-H has offered none of these allowances, apparently based on the Financial Counselor’s initial denial of assistance.

According to reporter Wray,

Memorial Hermann is a nonprofit, but the hospital system’s annual revenue in fiscal year 2010, according to the most recent annual report filed with the U.S. Department of Health and Human Services, was more than $2.9 billion. Expenses came in at under $2.7 billion, leaving more than $228 million in revenue on the table, according to the report. Even after subtracting the $582 million Memorial Hermann donated in care — the bulk of it made up of unreimbursed medical expenses from Medicaid patients — the nonprofit still recorded a profit of more than $200 million and an endowment of more than $3.8 million. Memorial Hermann President and CEO Daniel Wolterman was paid a salary of close to $2.2 million that year.

Further in Wray’s article, legal aid attorney Tariq Gladney described M-H lawyers being “like cowboys in an Old West shootout, unwilling to back down and acknowledge that they wouldn’t be collecting the debts. Memorial Hermann dropped the cases in every instance, but Gladney is still mystified as to why the hospital’s lawyers pursued these suits in the first place.”

“I have yet to see another hospital do this,” Gladney is quoted. “It doesn’t make much financial sense. Most of my clients are judgment-proof.”

Paul Kiel of ProPublica writes that the same thing is happening in Alabama:

See http://www.propublica.org/article/in-alabama-a-public-hospital-serves-the-poor-with-lawsuits

http://www.propublica.org/article/how-nonprofit-hospitals-are-seizing-patients-wages

Kiel concludes that these aggressive actions by tax-exempt hospitals are the result of weaknesses and loopholes in state laws, yet there is some promise of future relief when pending laws come into effect:

http://www.propublica.org/article/old-debts-fresh-pain-weak-laws-offer-debtors-little-protection

http://www.propublica.org/article/for-nonprofit-hospitals-who-sue-patients-new-rules

Senator Charles Grassley, who has helped investigate the tax-exempt status of non-profit hospitals in the past, was shocked that hospitals were still aggressively pursuing patients who could not afford to pay. In particular he cites Mosaic Life Care, which in various cases “failed to identify patients who would qualify for financial assistance and who have since been subject to abusive billing and collection practices,” as Kiel quotes him. “The practices appear to be extremely punitive and unfair to both low income patients and taxpayers who subsidize charitable hospitals’ tax breaks.”

See http://www.propublica.org/article/senator-to-hospitals-stop-suing-poor-patients

In my case, I am perfectly willing to pay, as I am able, reasonable remuneration for services rendered.  I consider my self-pay status to warrant the offering of a substantial discount, commensurate with that offered to insurance payers; and as a matter of necessity, moreover, require the extension of a reasonable payment plan.  Keep in mind that as an emergency patient, I had no opportunity to shop around for healthcare, and was helpless except to accept M-H’s aid and recommendations.  Further, as a low-income ordained minister, I remain unable to afford conventional health insurance.  The present state of affairs could hardly be solved short of filing for personal bankruptcy, in which case M-H would receive nothing more than the growing ill-will of the public.

© 2015 Paul A. Hughes

‘Christian’ Tattoos: Does Jesus Approve?

Fair Use of an Image Displayed on a Public Street for Reporting Purposes Claimed

Condensed and adapted from God’s Laws:  Sin, Law, Grace, and Obligation in Pauline Theology by Paul A. Hughes (2014), available in paperback from Amazon and other online retailers, and in eBook format from Apple iBooks and other eBook publishers.

Don’t make up your mind till you have
considered these Biblical principles . . .
and oh, prayed about it—seriously!

Finding the line between God’s eternal moral law and prevailing culture is one of the stickiest problems with which people of faith must deal.  Much pressure is naturally exerted upon contemplating God’s law by the sheer weight of historic as well as contemporary culture.

When evangelizing, Paul preached from synagogue to synagogue.  Wherever there was a synagogue, there was also a Judaic subculture.  His views on the rights and comportment of women, while informed by the principles of original Creation and Scripture, also appear to reflect the influence of strongly traditional societies.  The prohibitions against women speaking in church (as in the synagogue, 1 Cor. 14:34 f., 1 Tim. 2:11 f.), praying with their hair uncovered (1 Cor. 11:5, 13), and adorning themselves ostentatiously (1 Tim. 2:9 f.) appear to be calculated to uphold the highest standards of respectability and even gender roles, and humility as becomes a saint, within the local society as well as the synagogue.  Add to this Paul’s opinion, appealing to Natural Law as well as culture, that men should wear their hair short and women long (1 Cor. 11:14 f.).  The Apostle favored neither Libertinism nor license, which in the name of grace flouted not only Biblical morality but the customs and mores of societies in which he ministered (see Rom. 6:1 f., 1 Cor. 8:9, Gal. 5:13).  Rather, he upheld what he deemed to be conservative, ratifying moral ideals and traditions among the Gentiles as well as the Jews.  Theologically, Paul regarded the original order of Creation to be supportive of natural and traditional gender roles, e.g., “Adam was first formed, then Eve” (1 Tim. 2:13).

Matters of Conscience

Paul writes on questions of ritual observances and matters of conscience, “Let every man be fully persuaded in his own mind” (Rom. 14:5) and “Happy is he that condemneth not himself in that thing which he alloweth” (14:22).  If Christians’ bodies are “the temple of the Holy Ghost which is in you, which ye have of God, and ye are not your own,” and “ye are bought with a price” (1 Cor. 6:19 f., also 7:23), it stands to reason that while we are free moral agents before God, we are not free to unilaterally overstep God’s Moral/Natural Law at will.

This principle applies to a multitude of cultural moral questions, in a world that is increasingly godless, profane, and sexualized.  Questions of speech, entertainment, attire, and relationships are all in play.  A case in point is the phenomenon of the so-called “Christian tattoo,” or at least Christians with tattoos.  At the moment, tattoos are, especially among young people, increasingly popular.  A tattoo parlor in a small town near Houston, Texas, advertises, “Yahweh-Approved Tattoos.”  But does Yahweh approve?  Proponents say that the prohibition against tattoos in the Old Testament is invalid because we are no longer under Moses’ Law but under grace.  There they have a point.  They go on to say that the prohibition in Leviticus 19:27 was not about tattoos—rather due to the association of tattoos with some now-forgotten Pagan ritual practice.  Perhaps, but they would do well to wonder further what that Pagan practice might have been, why Hebrews were not to associate themselves with it, and why the commandment focused on tattoos and not other behaviors.  The reasons might still apply today, for all they know.  One might well consider that sincere believers should, in the absence of knowledge, prefer to err on the conservative side.  Paul’s views regarding the body as the temple of the Holy Spirit, meant for God’s glory, and no longer “owned” by the believer, spring immediately to mind.

Proponents argue that “old” tattoos from their former reprobate lives become a curiosity to acquaintances, affording opportunities to witness by demonstrating the lifestyle from which they have been redeemed.  Fair enough, if so used and effective toward that purpose.  The metaphor that the “marks of sin” are hard to remove is not lost.  Associated with this idea of “evangelistic tattoos” is that of the aforementioned “Christian tattoos,” by which advocates, often citing out-of-context New-Testament support (e.g., Jn. 6:27; 2 Cor. 1:22, 3:2; Gal. 6:17; Rev. 19:16), profess to be setting God’s mark upon themselves, sporting their personal testimony, and even making their bodies into “a living billboard for the Lord” (my term).  Meanwhile, they categorically deny any connotation relative to the Mark of the Beast.

Many pertinent principles may be applied from Paul’s several discussions of meat offered to idols (see Chapter 2).  Tattoos, if associated in any observer’s mind with evil, could be equated with participating in evil; and while “all things,” according to Paul, are “lawful,” in such case would hardly “edify” (1 Cor. 10:20 ff.).  A believer who judges a brother on the sheer basis of a tattoo is wrong, and vice versa (Rom. 14:3 ff., 10 ff.).  Yet to Paul the onus of responsibility falls on the one who takes license, in this case to display a tattoo that offends a brother (Rom. 14:15, 20); or worse, tempts a brother to violate his own conscience by getting a tattoo himself (Rom. 14:20, 23; 1 Cor. 8:7 ff.).  It would be more pleasing to God, as well as to men, in Paul’s mind, for a believer to forgo the “liberty” of obtaining a “lawful” tattoo, in order to “make peace” and edify (Rom. 14:18 ff.).  This is the Law of Christ in action.  “For, brethren, ye have been called unto liberty; only use not liberty for an occasion to the flesh, but by love serve one another.  For all the law is fulfilled in one word, even in this; Thou shalt love thy neighbour as thyself” (Gal. 5:13 f.).

Know What the Lord’s Will Is

It is thus incumbent upon the believer, first, to learn sound doctrine, being thoroughly trained and informed in the elements of the Faith. Jesus’ mission both prior and subsequent to his atoning sacrifice was to deliver his Gospel to the Apostles so that they could in turn convey it to others to follow.  Aquila and Priscilla deemed it important to correct deficiencies in Apollos’ doctrine.  “I would not have you ignorant, brethren,” Paul so often began his instruction.  According to Paul, Christian leaders are gifted by the Holy Spirit to teach sound doctrine, so that believers might “come in the unity of the faith, and of the knowledge of the Son of God, unto a perfect [mature] man, unto the measure of the stature of the fulness of Christ: That we henceforth be no more children, tossed to and fro, and carried about with every wind of doctrine, by the sleight of men, and cunning craftiness, whereby they lie in wait to deceive; But speaking the truth in love, may grow up into him in all things, which is the head, even Christ” (Eph. 4:12 ff.).  It is not just “unity of faith,” but unity which is only possible in the context of the Faith, that is, sound doctrine.  Truly, we find to this day, as in Paul’s, that where there is unsound doctrine, there is no unity, but division!

Paul further urged believers to “be ye not unwise, but understanding what the will of the Lord is” (Eph. 5:17).  The good steward of Christ’s grace needs to know the Lord’s will for him or herself, by a thorough understanding of the Word of God and also by personal revelation.  Though “we walk by faith,” seemingly blind much of the time, God’s Word provides principles by which to live, beyond specific commands and prohibitions; and moreover, the Spirit-filled believer, if to such one may lay claim, is equipped and ready to hear the voice of the Spirit whenever He chooses to speak.  Dare we make life decisions on our own, without thoroughly consulting the Lord?  Paul entreated, “Be careful [worried] for nothing; but in every thing by prayer and supplication with thanksgiving let your requests be made known unto God” (Php. 4:6).  The Apostle James warned those who made their own plans without consulting the Lord, when they ought to be saying, “If the Lord wills” (Jas. 4:15).  The Apostle John reminded the church, “if we ask any thing according to his will, he heareth us: And if we know that he hear us, whatsoever we ask, we know that we have the petitions that we desired of him” (1 Jn. 5:14 f.).

Do we not know what to pray?  Most who purport to be Christians pray that their own will be done and neglect to ask God his.  “Ye are not your own, for ye are bought with a price” (1 Cor. 6:19 f.).  Paul said that “the Spirit also helpeth our infirmities: for we know not what we should pray for as we ought: but the Spirit itself maketh intercession for us with groanings which cannot be uttered.  And he that searcheth the hearts knoweth what is the mind of the Spirit . . .” (Rom. 8:26 f.).  So second, we need to pray in the Spirit.  “Not my will, but thine be done.”

How long are we to pray, and how hard, before making a decision?  Paul conceived that believers ought to “pray without ceasing” (Rom. 1:9; 1 Th. 2:13, 5:17; 2 Tim. 1:3), just as he “spoke in tongues more than you all” (1 Cor. 14:18, paraphrased).  Even Paul did not claim to receive a definitive answer to his prayers in every case.  He still had to “walk by faith, not by sight,” too.  Yet in matters of conscience, he enjoined his fellow believer to “be fully persuaded in his own mind” (Rom. 14:5) in order to be “happy” that he “condemneth not himself in that thing which he alloweth” (v. 22).  Only once the life choice in question has passed the final test of the Law of Christ can the believer truly consider himself to have been “fully persuaded” and stand not only uncondemned but “happy” in it.

The Law of Faith and Law of Christ

Paul rejected the works of the Law, yet concluded that God’s law is still not so simple as “Moses out, grace in.”  He was not a Libertarian.  Those freed from bondage to the “Letter of the Law” are not so free as to “continue in sin, that grace may abound” (Rom. 6:1).  Paul took pains to stake out the moral middle ground between Legalism and Libertinism, in which God’s interests are served.  Christians may not live altogether without law, for God’s laws are built into Creation, and lawlessness is utter rebellion.  Sound doctrine, derived from the Gospel, dictates that Christians reject both the extremes of dogmatic Legalism and libertarian self-actualization in order to live by a higher law, the Law of Faith.

The Law of Faith says that we are saved by faith alone, by God’s grace, not because we have the ability to earn salvation, or to pay the price (other than by our own eternal damnation).  Since we are saved by faith, moreover, we should then act in accordance to what we have believed:  to wit, that Christ’s blood frees us from bondage to sin and the consequences of the Law of Sin and Death.  We who have received forgiveness of sin should forsake those sins for which we have been forgiven, rather than pile up more and expect the Lord to cover them like the proverbial “blank check.”  Such a mindset is akin to throwing excrement on Christ and his Cross.  Jesus declined to condemn the woman caught in adultery, yet commanded, “Go, and sin no more” (Jn. 8:11, see also 5:14).

The Law of Faith further presupposes the Law of Christ.  The Law of Christ says that since Christ loved us enough to die in our place, we are therefore obligated to return love to him by acting in love toward all others for whom Christ also died.  We have been redeemed from sin, bought and paid for, hence are Christ’s servants, not free to do as we please without our Master’s permission.  We are thereafter acting as Christ’s emissaries in Christ’s interests and, since all who believe have entered “into Christ,” also for the interests of the entire Body of Christ, in which we share.  The Apostle James is fully in agreement with Paul and with Christ when he writes, “Show me thy faith without thy works, and I will show thee my faith by my works” (2:18).  Those redeemed are to go on to do good works toward others, to serve Christ by edifying his Body, and to share the Gospel wherever possible, in word and in deed.

Consequently, the believer does not ultimately live under the laws of Men, even the letter of Moses’ Law, but according to the Law of Faith.  The Law of Faith upholds Gods’ Moral/Natural Law (which embodies all that is morally right and according to God’s purpose in Creation), and is expressed to the World through the Law of Christ.

In America today, it appears that a dogmatic interpretation and application of absolute laws is unacceptable to modern, relativistic sensibilities.  It is indeed a mistake to attempt to translate law directly to modern society in terms of the “do’s and don’ts” and “thou shalt nots” of Moses’ Law, however those ordinances are framed.  Simple, unassuming people may find comfort in “pat” answers to eternal questions, and in turn be highly offended when their orderly little world is questioned.  Others have found profound truth in Scripture, and the power of God through the Holy Spirit, no longer finding cause to question.  Questioning claims of truth seems to be the hallmark of the younger generations, however, as “everything that can be shaken is being shaken.”  Youthful exuberance and willfulness chafe at restrictions.

But God’s eternal laws cannot be shaken without dire consequence.  God’s laws coalesce toward God’s Plan for Creation, ultimately to be fulfilled in and by Christ.  God’s laws and goodness are displayed for all to see in the things that He has made, so that all Men “are without excuse.”  Christ is “the stone which the builders rejected, the same is become the head of the corner: this is the Lord’s doing, and it is marvellous in our eyes. . . . And whosoever shall fall on this stone shall be broken: but on whomsoever it shall fall, it will grind him to powder” (Ps. 118:22, Mt. 21:42, 44).

What Does God Require?

So how does the Christian fulfill God’s laws without simply becoming legalistic?  God’s laws are rightfully expressed through the combination of the Law of Faith and the Law of Christ, as described above.  There remain, first and foremost, moral absolutes—adultery and murder are always sins against God’s eternal moral law.  The repentant believer acquiesces to such clear-cut, eternal laws, in humility before God, or else he does not believe the revelation of the Gospel, nor the evidence displayed in the created order:  in short, he remains an infidel and a rebel.  Second, there is the sovereign will of Christ as is conveyed through God’s Word and the revelation of the Holy Spirit.  The servant listens for his Master’s voice, heeds, and obeys.  Spirit-filled believers seek the will of the Lord through the Holy Spirit, and are able to hear the Master’s voice when He speaks, thus highlighting the indispensable nature of Pentecostal Spirit Baptism.

A third classification of obedience to and discernment of God’s law, at which point the Law of Christ comes especially into play, is that which involves “matters of conscience”:  those things which are neither clear-cut and subject to eternal principles, nor a revelation of the Lord’s specific and particular will for a time, a place, and a person or persons—but in the absence of a set of Ordinances such as Moses’, a matter apparently left to the discretion of the individual believer.  Paul describes, himself, various instances in which even he, an apostle, having been granted various endowments of revelation, yet renders his own judgment (“to the rest speak I, not the Lord”) based on his best understanding of the will and purpose of the Lord.  In this realm of activity we as believers exercise the prerogative afforded by God, who would have all Men to freely choose to serve him or not, to decide for ourselves, according to knowledge of his Word and of his nature, what is good and appropriate to do.  Paul in essence walks us through the process, outlining the problem, describing the opposing interests, and presenting alternative solutions, in his several passages on eating meat sacrificed to idols.  Yet too many Christians, even leaders and teachers, become heedlessly obtuse when Paul’s own clear-cut example is brought up; they demand a law, chapter and verse, clearly stated, to which we are bound, in the absence of which they assert personal sovereignty and claim license to please themselves.

In this utter willfulness they overlook and defy the very Law of Christ by which they are called to conduct themselves in just such contingencies in the absence of clear-cut law.  The Law of Christ, Paul points out, compels the servant of God to sacrifice self-interest, and even his or her much-vaunted “rights,” in favor of sparing the sensibilities of a brother and keeping the peace.  Any other choice is carnal and defamatory to the Cross by which he or she purports to be saved.

© 2014 Paul A. Hughes

 

Græco-Roman Elements in New Testament Palestine

Roman Official in Uniform

It was a wondrous time, a wondrous and terrible time — a time of new empires, of new peoples, and of new languages; a time of new religion and old religion; a time of conquest, of reeducation, and of organization.  Such were the days preceding — pointing for it — the birth and death of Christ.  It was an unprecedented time, a time when a universal rule and the universal time paved the way for the evangelism of the known world — and, in time, the metamorphosis of an ungodly empire into a Christian empire.  The time, some say, when God himself engineered world situations according to his purposes.

It is said that no Scripture can be correctly interpreted apart from its context.  Unfortunately, many would-be interpreters of the Bible today have failed to give sufficient attention to its historical, as well as its literary, context.  When reading the New Testament, and the Gospels and the Acts in particular, one whiffs the wind of Græco-Roman influence in Palestine during the life of Christ and early evangelical outreach.  There is much that is misunderstood about this influence.  It is fitting and necessary, then, that we give attention to some basic elements of the Greek and Roman influence in the Palestine that Jesus Christ in the apostles knew.

“Roman” and “Greek”

There is a certain ambiguity of terminology when discussing things “Roman” and “Greek.”  On the one hand, it must be considered that Rome, after all, was both a city and an empire.  A resident of that empire, although freed from slavery, was not necessarily a Roman citizen (until the late Empire).  Conversely, a Roman citizen was not necessarily of Roman extraction.  Again, a “Roman soldier” was not necessarily either a Roman citizen or of Roman blood.  These details of Roman citizenship and the extraction of the soldiery shall be discussed in a later section.

On the other hand, when one considers things “Greek,” one must know the following:  the word “Greek” comes from the Latin word Graecus.¹  However, the Greeks called themselves, in their own tongue, Hellenes.  Originally, this terminology, in either language, applied to certain tribes who from ancient times occupied the area we now know as Greece.  But with the conquests of Alexander, a change took place:  Greek culture was spread far and wide, becoming particularly entrenched in Asia minor, Syria, and North Africa, and “Greek” became applicable to any people who had embraced Greek culture.  They had become “hellenized.”²  The Greeks, by their advanced and attractive culture, and the Romans, by their organizational abilities and almost irresistible imperialism, had together virtually taken over the known world by the time of Christ.  Just how much, and in what ways, their influence affected first century Palestinian culture and thought — and, therefore, the Biblical documents — is still much under debate.  We must, in many cases, wait for the enlightenment of further research and discoveries.

Language

Latin, of course, was the official language of Rome.  In the early Empire, it was generally expected of every citizen, whether born in Rome itself were born in the farthest province, or granted citizenship as an adult, to learn to speak Latin.  The emperor Claudius is recorded to have once retracted the citizenship of a certain provincial who was found to have neglected to learn the state language.³

However, during this same period, and continuing until about the third century, the major language in the eastern half of the Empire was Greek.  The major reasons for this are discussed in an expert source:

And the Greeks were a very aggressive people, and early learned seafaring from the Phoenicians, and vied with the latter in the extent of maritime activities.  As a result Greek colonies were planted on nearly all the shores of the Mediterranean.  One of the strongest of these colonies was on the eastern coast of Italy, not far from the center of the Latin world.

The mingling of representatives from all the Greek tribes in Alexander’s army matured the development of a common Greek, and the wide introduction of Greek culture under his direction distributed the common tongue throughout the Macedonian empire.  When Rome conquered this Hellenized territory, she in turn was Hellenized, and thereby the civilized world adopted Koine Greek.⁴

This describes, in simplified terms, the complex situation by which Greek became the lingua franca of the Eastern Empire.  In the third century B.C., the Jews of Alexandria in Egypt thought it necessary to translate the Hebrew Scriptures into Greek, and thus the Septuagint.  The official seal of Caesar Augustus himself was inscribed in Greek.⁵  Then, when the apostles and the first century Christian historians wrote what we know as the New Testament, it was distributed in Greek.

An argument rages concerning the idiom expressed in the Greek of the New Testament:  do the thoughts expressed in Greek describe Hebrew/Aramaic thought with its origins in the traditions of antiquity, or are the thoughts corrupted and paganized by Græco-Roman idiom?  The fact is, there is sound evidence of both.  Some ideas have been traced rather conclusively to Semitic thought, others to Western.  As one might imagine, the correct interpretation of many New Testament passages depends greatly upon this question.  Many such passages remain clouded.  It bears upon us to continue our research for the discovery of the truth of Scripture.

Culture

Along with the proliferation of the Greek tongue in much of the Empire, the Romans also adopted many aspects of Greek culture.  Greek artistry reigned supreme.  The Romans accepted the Greek pantheon of gods, and gave them Latin names.  Roman leaders became enamored with Greek philosophy:  the great politician and philosopher or Cicero (106-43 B.C.) spent some time translating the writings of Plato into Latin.

Perhaps of even more consequence was the Greek influence upon the Roman educational system.  In ancient times, the people of Rome were very family-oriented.  Small children were traditionally taught at their mother’s knee, and older children were taught by their father.  In this family setting, each new generation learned from the former the high moral values of ancient Rome.

However, with their infatuation with Greek ways, prosperous Romans began to follow the fashionable Greek practice.  They employed a Greek slave or freedman in the capacity of pedagogue, a type of tutor.  The pedagogue served to take the children off their parent’s hands, escorting them to a Greek school, where they read the Greek classics, and were taught Greek grammar, rhetoric, and dialectic by a Greek teacher.  The children of Rome began to be more under the influence of these Greeks than of their own parents — and the Greeks were not known for their moral fiber.⁶

Because of the cultural and lingual blending heretofore described, the cultural effect of the Greeks and the Romans can in many ways be seen as one.

Certainly, it must be said that such Græco-Roman influences were not received in Palestine, and in Judea especially, with the open arms they had met with elsewhere.  After the death of Alexander (323 B.C.), his empire had been divided among his generals.  From these rulers came the Seleucid kings of Syria, and the Ptolemies in Egypt.  Beginning in the third century B.C., when Philopater ruled in Egypt and Antiochus III in Syria, the two powers began to vie for that land which lay in-between.  Repeatedly, the armies of both kingdoms invaded Palestine.

In the second century B.C., Antiochus IV, called Epiphanes, decided to force the hellenization of Judea, to the point of depriving them of their religion.  Antiochus authorized the building of a gymnasium in the heart of Jerusalem, where young Jewish men were encouraged in practices contrary to the Law.⁷  He took over the Temple, dedicated it to Zeus, and polluted it with ceremonial prostitutes and unlawful practices.  He placed a ban up on the right of circumcision, upon penalty of death.⁸  A rebellion of the Jews began with Mattathias and his sons, who came to be called the Maccabees.

Stubbornly, the Jews seem to have maintained their religion and traditional way of life throughout the New Testament period, to a great extent — but there were still avenues by which Græco-Roman influences crept in:  there were those of the Jewish aristocracy (the germ of the sect of the Sadducees) who were in its favor.⁹  For instance, the idea of building the gymnasium in Jerusalem actually originated with Jason, the high priest.¹⁰  Later, when Herod the Great was king, he catered to the Romans by building the Roman-style city of Caesarea, as well as a temple to Augustus Caesar in Samaria.  Herod renamed the fortress adjacent to the Temple Antonia, after Mark Antony.¹¹

In 63 B.C., Pompey the Great, soon to become a member of the Roman Triumvirate, besieged and captured Jerusalem, leveling its wall.  Judea was forced to pay tribute, and fell under Roman domination.¹²  Later, Judea (A.D. 6) and Galilee (A.D. 44) became actual Roman provinces, with Roman governors and military personnel.  Then, with the destruction of Jerusalem in A.D. 70, Israel as a nation ceased to exist.  The Jews became a people without a country.

The extent of Greek and Roman influence is evident in the history of many New Testament cities.  Tyre and Sidon, originally Phoenician, were hellenized after the Alexandrian conquests.  (The Stoic philosopher Apollonius was from Tyre.)¹³  Due to Seleucid rule, much of the territory of Palestine was arranged in “toparchies,” based upon the Greek city state, in which isolated cities control their surrounding territories.  Bethsaida, Caesarea Philippi, and Jamnia (in Judea) were known to have been toparchical capitals.¹⁴  Philip the Tetrarch rebuilt Panias as a Greek city, renaming its Caesarea Philippi (after Caesar Augustus).  Likewise, Herod Antipas built Tiberius on the Sea of Galilee, naming it after Tiberius Caesar.¹⁵  The cities of the Decapolis (“ten cities”) which included Damascus, Gadara, Gerasa, and Philadelphia, were populated by Greek colonists about 200 B.C.¹⁶

As an aside, it should be noted that Egypt, to which Joseph and Mary fled with the infant Jesus, had been largely hellenized as well.  A large Greek-speaking Jewish population resided there.  Egypt was incorporated into the Empire in 30 B.C., after the defeat of Antony and Cleopatra.¹⁷

The Roman Army

The Roman army in Judea consisted, Sherwin-White insists, not of Roman legionnaires (of actual Roman extraction), but of provincial auxiliary troops.¹⁸  It stands to reason that there were not enough men in the city of Rome itself to keep the world in check.  It was Roman practice to recruit provincials from its ranks and secure provinces.  Still, it is unlikely that they would have used native Jewish soldiery in such a headstrong nation in such a recent acquisition as Judea.  The common troops in Judea, therefore, were probably neither Roman nor Jewish.

The argument against Jewish soldiery is supported by the fact that the province of Judea was governed by a procurator rather than a proconsul.  A proconsul was used only in secure provinces, which did not require a standing army, and were administered by the Roman Senate.  Proconsuls which are mentioned in the New Testament are Sergius Paulus, governor of Cyprus (Acts 13:7), and Junius Gallio, governor of Achaia (Acts 18:12).

A procurator, on the other hand, had military powers, and was placed over troublesome provinces.  Procurators mentioned are, in addition to Pontius Pilatus, Antonius Felix (Acts 23:24 ff.) and Porcius Festus (Acts 24:27 ff.).  The procurators of the Middle East were all subject to the imperial legate (Latin propraetor) of Syria.

Galilee, as mentioned before, did not become a Roman province until A.D. 44, with the death of Herod Agrippa I.  Therefore, Sherwin-White maintains, the centurion in Capernaum (Matthew 8: 5-13, Luke 7:1-10), obviously not a Jew, was not a Roman soldier — although Roman terminology is used.  Likewise, the executioner (Latin speculator, also rendered “bodyguard”) of Herod Antipas, who decapitated John the Baptist (Mark 6:21, 27), was not Roman.  Perhaps these men were Galilean Gentiles, or — more likely — foreign mercenaries.²⁰

The offices of the Roman army were, in order of ascending rank:  centurion, tribune (tribunus militum), and prefect (or legate, if the troops were Roman legionnaires).²¹  Up to the reign of Claudius (A.D. 41-54), provincial centurions were commonly non-Roman, and it was possible for one to be promoted to higher rank.²²  One commentator suggests that Claudius Lysias, the Tribune who rescued Paul in the Temple (Acts 21:31, 22:24, 23:10) was such a promoted provincial, who had been “enfranchised” (made a citizen by decree) by Claudius.  It was standard practice for an enfranchised citizen to precede his own single name with the name of the emperor who had granted his citizenship.  The same commentator further maintains that the “great sum” with which Lysias had purchased his citizenship was not a paid price, but rather of bribe made to the administrators in charge of the nomination process.²³  Antonius Felix, procurator of Judea (A.D. 52-59), is known to have been a freedman (ex-slave, or son of a freedman), and may have been promoted in similar fashion.²⁴  However, subsequent to Claudius, it developed that the officers of the provincial auxiliaries were no longer promoted from the ranks, but were commissioned from the Roman legions.  From Tribune up, officers were of Equestrian status, ranking as knights.  Late in the Empire, officers were appointed from the aristocracy.²⁵

Roman Citizenship

“I appeal unto Caesar,” cried Paul.  The great Apostle was calling into action his rights under law as a citizen of Rome.  A total of three instances are recorded in the Acts in which Paul invoked his rights:  having been mistreated and jailed at Philippi (perfectly legal treatment in the case of a non-Roman), Paul and Silas announced their citizenship, lest they be unceremoniously banished as common malefactors, and their ministry discredited (16:37).  Again, Paul asserted his rights as he was about to be beaten by the Romans in Jerusalem (22:25).  Finally, he appealed for trial before Caesar in Rome (25:11, 26:32, 28:19).

In order to understand the ramifications of Roman citizenship, one must first comprehend the evolving nature of the Empire itself.  As the Empire grew in territory, as it incorporated other peoples, cultures, and civilizations, as its ideologies changed and its morals declined, so did its laws change.

At the beginning, of course, only men of the city of Rome itself held the rights of Romans.  As Rome grew into an empire, the Roman army began to recruit provincials to fill its ranks in foreign lands.  In time, these auxiliary forces outnumbered the Roman legions.²⁶  Citizenship began to be granted as a reward for services rendered, especially to army officers.  At its height, citizenship ensured certain privileges, such as freedom from municipal taxes in the provinces, immunity to certain punishments and indignities, and appeal to Caesar in capital cases.  But as the Empire wanes, so did the value of Roman status.  In the third century A.D., the Constitutio Antoniniana declared all residents of the Empire, with the exception of slaves, to be Romans.²⁷  This shows the effective obsolescence of special citizenship status by this time.

Of course, even after the Constitutio Antoniniana, a privileged class still remained.  While in the early Empire the social castes of free men consisted of cives romani (Roman citizens) and peregrini (non-citizen provincials) — with the ruling class of royalty, officials, and equestrians ranking yet higher — in the late Empire that classes consisted of honestiores or curiales (aristocrats) and humiliores (“the masses”).  Above the honestiores ranked the influential potentes.²⁸

Paul held citizenship of both Rome and Tarsus.  During the Roman Republic (before the Caesars), it was impossible to hold such a dual citizenship.²⁹  Some scholars have doubted whether the Acts record is accurate on this point.  However, Pliny mentions one Claudius Aristion, who held dual citizenship in A.D. 106, proving the existence of such a status during roughly the same period.³⁰

A striking difference between the citizen and the provincial can then be seen when it comes to capital jurisdiction.  Before Judea became a province of Rome, the Sanhedrin held the power to administer the death penalty.  The Romans preempted this right, except for, perhaps, the execution of profaners of the Temple.³¹  Otherwise, only the procurator held capital powers:  therefore, the Jews brought Jesus to Pilate for judgment.  Pilate sent Jesus to Herod Antipas, who was visiting in Jerusalem, since Jesus was a Galilean.  This may have been a mere act of courtesy, or a matter of legality:  since Herod ruled Galilee, he had the right to judge Jesus, if he so chose.  It is also quite possible that Pilate merely would have preferred to avoid the matter.³²

But if the Sanhedrin held no capital powers, how then could they execute Stephen shortly thereafter?  For one thing, this incident might have taken place after Pilate was recalled to Rome, and no replacement had arrived.  Also, the Jewish leaders showed a propensity for doing whatever they felt they could get away with.  Stephen’s murder could easily be termed a “lynching.”³³  In fact, in killing Stephen without a trial, the Sanhedrin violated their own statutes.

Jesus and Stephen, of course, were provincials, not Roman citizens.  Paul, on the other hand, could not be sentenced for a capital offense, even by the procurator.  He had the right to be tried before Caesar himself, and not even Caesar’s highest officer could handle the matter for him.  Hence, Paul was escorted under guard — not in chains — to Rome.  Because of this and other peculiar circumstances, Paul was able to continue his ministry for at least two years in Rome itself, the heart and soul of the Empire.

Coinage

The use of Greek currency in Palestine probably coincided with the infiltration of Greek language and culture after Alexander the Great, reaching its height during the Seleucid domination.  Judea and Galilee, after all, were sandwiched between the Greek cities of Alexandria in Egypt and Syrian Antioch, the largest in the world except for Rome.  Greek settlements dotted Galilee, Syria, and the Decapolis.  From Antioch, caravans branched out into the surrounding area.

Roman money was introduced later, when Pompey the Great conquered Jerusalem in 63 B.C.³⁴  The Jews continued to produce their own currency, but Greek and Roman coinage were quite common from that time on.

Herod the Great (37-4 B.C.) was the first Jewish ruler to use Greek, rather than Hebrew, inscriptions on coins.  Herod Philip (4 B.C.-A.D. 34), king of Iturea and Trachonitus during the life of Christ, was the first to use pagan symbols on coinage, while his brothers evidently feared the Jews’ displeasure.  Later Herodian coins became unabashedly pagan.³⁵

The Roman procurator’s also tried not to offend the Jews with pagan symbols, including facial representations, until the governorship of Pontius Pilate.  Roman coins in Palestine were minted locally, but nevertheless bore the name of Caesar and not the procurator.³⁶  A number of Græco-Roman coins are mentioned in the Gospel:  the denarius was the “tribute money” mentioned in Matthew 22:19.³⁷  No doubt it was hated by the Jews, not only for the tax it represented, but for the image of Caesar stamped on one side.  To the Jews this was a “graven image.”

The drachma of Luke 15:8 was of Greek origin, as was the didrachma of Matthew 17:24-27.  The tetradrachma (stater), which originated in Antioch (the former capital of the Seleucid kings), was equal to the Israeli shekel.  It is mentioned in Matthew 17:27.  The tax money was one didrachma — the tetradrachma was equal to two, enough for both Peter and Jesus.  Other coins were the lepton (the “mite” in Mark 12:42), the quadrans (the “farthing” in Mark 12:42), and the assarion of Matthew 10:29.³⁸

Other Influences

Many other effects of the Græco-Roman culture and language are evident in first century Palestine, too many to list here.  Actually, it is quite possible that the use of the Greek tongue, in particular, was more widespread than previously thought.

In Nazareth, where Jesus Christ grew up, a stone was found which bears an edict of Caesar (probably Claudius), warning of capital punishment for grave robbing.³⁹  The very fact that it is written in Greek presupposes that Nazarenes could read it.  An inscription on a gate of the Temple warned, in Greek, that no Gentiles were to enter the inner courts, upon pain of death.⁴⁰  And, of course, the superscription on the cross of Jesus label him as “King of the Jews” in Greek and Latin, as well as Hebrew (Luke 23:38).

Conclusion

Now, perhaps, the “would-be interpreter of the Bible” mentioned earlier has had his mind intrigued, his heart inspired, and some of the blanks filled in by the information presented here.  This information is, technically speaking, “extra-Biblical” — yet the value of knowing a variety of facts and figures which surround the New Testament record can scarcely be estimated.  Ignorance of the concrete facts behind the Gospel is the worst enemy of true interpretation.  There has been much misinformation disseminated by those who have misunderstood the historical context of important passages.  If the earnest student of the Bible can but picture in his mind the exact situation in which words were spoken and acts committed, it will profit him much toward the cause of Christ, as well as his own personal life.

NOTES

1. P. G. W. Glare, ed. Oxford Latin Dictionary (Oxford: Clarendon Press, 1982), p. 770.
2. Theological Dictionary of the New Testament, Gerhard Kittel, ed., translated and edited by Geoffrey W. Bromiley (Grand Rapids: Eerdmans, 1964), p. 504-16.
3. Cassius Dio Historiae 60.17.4., cited in A. N. Sherwin-White, Roman Society and Roman Law in the New Testament (Grand Rapids: Baker Book House, 1963).
4. H. E. Dana and Julius R. Mantey, A Manual Grammar of the Greek New Testament (New York: Macmillan, 1927; rpt. ed., Macmillan, 1955), pp. 7, 8.
5. Dana and Mantey, p. 8.
6. Kenneth O. Gangel and Warren S. Benson, Christian Education: Its History and Philosophy (Chicago: Moody Press, 1983), pp. 51-60.
7. II Maccabees 4:7-17.
8. II Maccabees 6:1-11.
9. William Menzies, Understanding the Times of Christ (Springfield, Mo.: Gospel Publishing House, 1969), pp. 14-15.
10. II Maccabees 4:7-9.
11. Merrill C. Tenney, New Testament Times (Grand Rapids: Wm. B. Eerdmans, 1965), pp. 59, 61.
12. Tenney, pp. 51-52.
13. H. Wayne House, Chronological and Background Charts of the New Testament (Grand Rapids: Zondervan, 1981), p. 59.
14. A. N. Sherwin-White, Roman Society and Roman Law in the New Testament (Grand Rapids: Baker Book House, 1963), pp. 127-31.
15. Menzies, pp. 23-24.
16. House, p. 59.
17. House, p. 49.
18. Sherwin-White, p. 160.
19.  “Procurator,” “Proconsul,” in New Bible Dictionary, ed. J. D. Douglas (Grand Rapids: Eerdmans, 1962), p. 1036.
20. Sherwin-White, pp. 123-24.  Cf. Oxford Latin, p. 1802.
21. Sherwin-White, p. 124.  Cf. House, p. 56.
22. Sherwin-White, p. 155.
23. Sherwin-White, pp. 153-62.
24. NBD, p. 1036.
25. Sherwin-White, pp. 154-55.
26. Sherwin-White, p. 160.
27. Sherwin-White, pp. 10, 69, 180.
28. Sherwin-White, pp. 69-70, 108, 139, 173-74.
29. Sherwin-White, pp. 181-82.
30. Pliny Epistulae 6.31.3., cited in Sherwin-White, p. 182.
31. Menzies, pp. 58-59.  Sherwin-White, pp. 38, 41-42.
32. Sherwin-White, p. 31.
33. Sherwin-White, pp. 38-43.
34. J. A. Thompson, The Bible and Archaeology (Grand Rapids: Eerdmans, 1962), p. 306.
35. Thompson, p. 309.
36. Thompson, p. 310.
37. Stephen L. Caiger, Archaeology and the New Testament (London: Cassell and Co., 1939), pp. 146-47.
38. Caiger, pp. 147-48.
39. Tenney, pp. 221-22.
40. See Tenney, p. 73.

© 2011 Paul A. Hughes.   Originally submitted to Dr. Raymond Levang, in partial fulfillment of the requirements in BNT 532, “Background of the New Testament,”  The Assemblies of God Theological Seminary, April 18, 1985.

The Most Dangerous Branch

Blind Justice

A Thumbnail History of Supreme Court Revisionism

by Paul A. Hughes

Throughout the country, public officials solemnly swear to protect and defend the Constitution of the United States.  The Constitution defines our government and protects the rights of citizens and sovereign states.

The Framers expended much less ink on the Supreme Court than any other branch of government.  The Court was expected to be, in Alexander Hamilton’s words, “the least dangerous branch.”  From the beginning, however, judges and legal philosophers have sought to reshape government in ways that they could not achieve by democratic means as prescribed by the Constitution:  legislation and amendment.  Those who gain the power of the Bench too often succumb to the temptation of oligarchy, rule by an elite by judicial fiat—making the Supreme Court, in the end, truly “the most dangerous branch.”

The following short history is hardly comprehensive, but lists pivotal Court cases and trends that have effectively changed the meaning and intent of constitutional provisions.  These items reveal the desire of revisionists to deny the letter of the Constitution, while showing preference for special interests; a disdain for precedents and the democratic process, as well as the people; tortured interpretations of provisions in order to insure desired outcomes and create new law; the erosion of state and individual rights while trumpeting new, special rights; lofty language envisioning a “living” Constitution that ignores the actual Constitution; and an expansion of raw judicial power.

This history should be sufficient to convince the reader how crucial it is to elect a president and senators who will nominate and approve justices that truly believe the law means what it says, not what it can be made to say.

Calder v. Bull (1798)

In a minority opinion, Justice Samuel Chase objected to a legislative act on the grounds that it violated the spirit, though no specific provision, of the Constitution.

Marbury v. Madison (1803)

In its decision, the Court originated the principle, and assumed the power, of judicial review of legislation, not explicit in the Constitution.  Consequently, the Court opened the door to undermining the democratic process by overruling the will of the people, as expressed by their representatives.  Judge Robert Bork called Chief Justice John Marshall’s opinion “a curious blend, an essay resting the power to invalidate statutes of Congress on the original understanding of the Constitution and yet reaching the question of that power without justification.”[i]

Fletcher v. Peck (1810)

This case stems from the infamous Yazoo Land Fraud of 1794.  Marshall in his opinion proposed that there are natural limits to legislative power, in this case regarding the seizure of property, referring to “the nature of society and of government” for justification.  Justice William Johnson supported Marshall, stating flatly that “my opinion on this point is not founded on the provision in the constitution of the United States . . . ,” but rather, “the reason and nature of things” which, he hyperbolized, “will impose laws even on the deity.”

Gibbons v. Ogden (1824)

Marshall, in his opinion, suggested that the bare fact that power to regulate commerce was vested in Congress by the Constitution was sufficient to strike down steamboat regulation in New York.  Since Congress had not indeed acted in the case, this approach would effectively insert the judicial branch in the process at will, bypassing Congress.  This insertion principle has been adopted and applied to various cases to this day.

Dred Scott v. Sandford (1857)

Chief Justice Roger Taney, backed by a pro-slavery majority, actively sought to read a right to own slaves into the Constitution.  He cited the Due Process clause of the Fifth Amendment, which states, “No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”  Ignoring the plain meaning of the text, which simply mandates a fair process before seizure, Taney created the principle of “substantive due process,” asserting a slaveholder’s inherent right to his property.  Law professor John Hart Ely called substantive due process “a contradiction in terms.”[ii] The principle was later applied to Lochner v. New York, Roe v. Wade, and other decisions.

Hepburn v. Griswold (1870)

In finding against an act of Congress to issue paper money, Chief Justice Salmon P. Chase found, following Marshall, that the act was not “consistent with the spirit of the Constitution.”  He held that paper currency, being of no inherent value, violated the restriction that “no State shall pass any law impairing the obligation of contracts” (Article I, Section 10).  He deflected criticism that the provision applied only to the states, suggesting that the Framers “intended that the spirit of this prohibition should pervade the entire body of legislation . . . .”  Chase also regarded that the spirit of the Due Process and Just Compensation clauses of the Fifth Amendment had been violated.

Loan Association v. Topeka (1874)

The Court struck down a Kansas law that allowed cities to issue public bonds to encourage private business.  In the lone dissent, Justice Nathan Clifford wrote, “Courts cannot nullify an act of the State legislature on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the constitution . . . .  Such power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism.”

Davidson v. New Orleans (1877)

Justice Samuel Miller, who had lead the activist majority in Loan Association, applied the principle of substantive due process originated in Dred Scott, asserting that a fair hearing alone was insufficient to deprive a citizen of property.

Allgeyer v. Louisiana (1897)

In order to strike down a state insurance compliance law, the Court expanded “liberty” in the Due Process clause beyond “liberty of person” to “the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.”  This language left the determination of what would be deemed “lawful” entirely open to future interpretation by the Court itself, in denial of the democratic legislative process of the states.

Lochner v. New York (1905)

Justice Rufus Peckham, who had written the unanimous opinion in Allgeyer v. Louisiana, also wrote the majority opinion in Lochner.  The Court struck down a statute that limited working hours for bakers, asserting an inherent right to buy and sell labor.  In his opinion, Peckham expressed consternation at the people being “at the mercy of legislative majorities.”  Most notable is Peckham’s claim of judicial police power, by which courts may strike down legislation even in the absence of specific constitutional provision.

The New Deal (1933- )

Once President Franklin Roosevelt succeeded in packing the Court with cooperative justices, the judicial branch largely ignored Tenth Amendment provisions limiting federal power.  Businesses could no longer count on due process of law, as the federal government vastly expanded regulatory activity without restraint.

United States v. Carolene Products Co. (1938)

The Court upheld legislation prohibiting interstate shipment of a certain milk product.  The crucial item in the opinion, written by Chief Justice Harlan Stone, are the words “discrete and insular minorities.”  Those words, which appear in a footnote, stem from Stone’s musings on the Fourteenth Amendment relative to Due Process, and presumably refer to certain undefined minorities not otherwise enumerated in the Constitution.  The footnote effectively opened the door to a new era of minority and special interest politics.

Skinner v. Oklahoma (1942)

Buck v. Bell (1927) had previously upheld the forced sterilization of the mentally retarded in Virginia.  Oklahoma now passed a law whereby certain classes of repeat criminals could likewise be sterilized.  Justice William O. Douglas objected that the statute made some crimes punishable by sterilization while other crimes of similar gravity were not.  Moreover, he conceived procreation to be “one of the basic civil rights of man” that was “fundamental to the very existence and survival of the race,” opposing the law on the basis of the Equal Protection clause of the Fourteenth Amendment   Robert Bork later observed that the decision created the principle of “substantive equal protection” by being “really a substantive due process case masquerading as a decision under the equal protection clause.”[iii]

The Warren Court (1953-1969)

Columbia Professor Milton Handler wrote that the Court led by Chief Justice Earl Warren was conspicuous for its “disrespect for precedent, even those of recent vintage, the needless obscurity of opinions, the discouraging lack of candor, the disdain for the fact finding of the lower courts, the tortured reading of statutes, and the seeming absence of neutrality and objectivity.”[iv]

Brown v. Board of Education of Topeka (1954)

Brown combined multiple cases that were, as Justice Warren wrote, “premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.”  Together, they challenged the Plessy v. Ferguson precedent (1896), which had established the “separate but equal” principle.  Rather than rely on the Equal Protection clause of the Fourteenth Amendment, which had never historically been understood to prohibit segregation (and consequently thought weak), Warren’s opinion was based on evidence of unequal educational opportunity for black students and a “sense of inferiority” inherent to segregation.  In retrospect, some legal experts regret that the Court did not perceive in the text of the Constitution sufficient grounds for doing the right thing, resorting instead to a decision based purely on moral conceptions.  Others, however, consider Brown the archetype of a “living” Constitution and “progressive” judicial system freed from slavish dependence on obsolete language and ideas.

Bolling v. Sharpe (1954)

A school segregation case parallel to Brown, Bolling originated in Washington, D.C.  While Brown, not truly decided on Fourteenth Amendment grounds, was presumed to have satisfied its Equal Protection provision, that amendment applied only to the states, not to the federal District of Columbia.  The Warren Court, therefore, drew upon the Due Process clause of the Fifth Amendment, which is federal, gave it substantive status, and declared it equivalent to the Equal Protection clause of the Fourteenth Amendment.  This scheme served to invent the concept of an Equal Protection component of the Due Process clause, and apply Equal Protection guarantees to all federal legislation.[v]

Griswold v. Connecticut (1965)

The State of Connecticut had on its books an 1879 statute outlawing the use of contraceptives, but no record exists that it had ever been enforced.  Estelle Griswold, Executive Director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, a professor at Yale School of Medicine, opened a birth control clinic in New Haven in order to initiate a test case, with the support of the American Civil Liberties Union.  The case initially resulted in a fine of $100 each.  In his majority opinion, Justice Douglas asked indignantly, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?  The very idea is repulsive to the notions of privacy surrounding the marriage relationship,” as if such action and the institution of marriage had actually been threatened.  Douglas cited “a right of privacy older than the Bill of Rights—older than our political parties, older than our school system,” describing marriage as “a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.”  Lacking specific “right of privacy” and “zone of privacy” provisions in the Constitution, Douglas asserted that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance,” echoing resorts to “the spirit of the Constitution” in the past.

In his dissent, Justice Potter Stewart noted that “the Court refers to no less than six Amendments to the Constitution:  the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth.  But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law.”  He concludes, “With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.”  Justice Hugo Black, in a separate dissent, concurred:  “The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals.  But there is not.”  Robert Bork has described the “right of privacy” device as “a loose canon in the law.”[vi]

Katzenbach v. Morgan (1966)

According to Article I, Section 2 of the Constitution, states are reserved the right to set voter qualifications.  Following the passage of the Voting Rights Act (1965), a literacy test for voting in New York was challenged.  The Court was in the position of having to choose between support for the Act and a provision of the Constitution.  The majority opinion, written by Justice William J. Brennan, Jr., vested in Congress the power to overrule a clear constitutional provision by citing the general Enforcement Power granted Congress in Section 5 of the Fourteenth Amendment.

United Steelworkers of America , AFL-CIO-CLC v. Weber (1979)

In direct contradiction to Griggs v. Duke Power Co. (1973), the Court found that the Civil Rights Act of 1964 allowed racial preferences.  In Chief Justice Warren Burger’s dissent, he found the majority decision “contrary to the explicit language of the [Civil Rights Act] and arrived at by means wholly incompatible with long-established principles of separation of powers.  Under the guise of statutory ‘construction,’ the Court effectively rewrites Title VII to achieve what it regards as a desirable result.  It ‘amends’ the statute to do precisely what both its sponsors and its opponents agreed the statute was not intended to do.”  Justice William Rehnquist labeled the decision Orwellian, writing that “the Court rejects ‘a literal construction of § 703(a)’ in favor of newly discovered ‘legislative history,’ which leads it to a conclusion directly contrary to that compelled by the ‘uncontradicted legislative history’ unearthed in McDonald and our other prior decisions.

Eisenstadt v. Baird (1972)

Striking down a Massachusetts law that forbade sale of contraceptives to unmarried persons, the Court extended the “right of privacy” beyond the bounds described in Griswold to sexual relationships outside of marriage.  Moreover, put together, they suggest a constitutional right to sexual gratification.

Roe v. Wade (1973)

In 1970, Linda Coffee, a women’s rights advocate, and Sarah Weddington, soon to be elected a Texas state representative, sued in behalf of “Jane Roe” (Norma McCorvey) for the right to obtain a legal abortion.  Reaching far back into ancient history, and leaning heavily on the “right to privacy” created in Griswold, Justice Harry Blackmun’s majority opinion encompassed 51 pages.  In his lone dissent, Justice Rehnquist faulted the majority for violating its own rule of thumb never to “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied” by a sweeping removal of almost all restrictions imposed on abortion by the states.  He expressed doubt that any “right of privacy” is involved in the case.  Even the liberties guaranteed by the Constitution, he wrote, are “not guaranteed absolutely against deprivation, only against deprivation without due process of law.”  Rehnquist worried out loud that in its handling of the Due Process clause of the Fourteenth Amendment, the Court “will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.”

Judge Bork is more blunt.  He writes that “in the entire opinion there is not one line of explanation, not one sentence that qualifies as legal argument.  Nor has the Court in the sixteen years since ever provided the explanation lacking in 1973.”[vii]

Bowers v. Hardwick (1986)

A police officer discovered Hardwick engaging in homosexual sodomy in his home, punishable by law in Georgia.  The District Attorney decided not to prosecute, but Hardwick filed suit on the grounds that the law was unconstitutional and “placed him in imminent danger of arrest.”  The Eleventh Circuit Court of Appeals found that “homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.”  If upheld, the case would effectively create a “right to homosexuality.”  The Court disagreed with the Eleventh Circuit that “prior cases,” including Skinner, Griswold, and Eisenstadt, “have construed the Constitution to confer a right of privacy that extends to homosexual sodomy.”  On the contrary, the Court asserted that “none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case,” and deprecated the attempt to expand the Due Process clauses of the Bill of Rights to include all kinds of consensual behavior.  A dissent by Justice Blackmun is conspicuous for resorting to the concept of a “right to be left alone,” described as “the most comprehensive of rights” by Justice Louis Brandeis in Olmstead v. United States (1928).  The Bowers decision was later overruled by Lawrence v. Texas (2003).

Texas v. Johnson (1989)

Gregory Johnson burned an American flag in downtown Dallas while a group chanted, “America, the red, white, and blue, we spit on you.”  No one was arrested for protesting, but Johnson was charged with Desecration of a Venerated Object under state law.  Five justices held that Johnson’s act was political speech protected by the First Amendment.  Justice Rehnquist’s dissent recalled at length the history of the flag, and cited a litany of federal and state laws prohibiting contemptuous treatment.  “I cannot agree,” he wrote, “that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.  He quotes Chief Justice Warren’s dissent to Street v. New York (1969):  “I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace.”  In a separate dissent, Justice John Paul Stevens considered that “it cannot be true that the flag . . . is not itself worthy of protection from unnecessary desecration.

The Infiltration of Foreign Law

On the premise that the Constitution is insufficient to adapt to a complex and changing world, the liberal wing of the Supreme Court has begun to look to foreign and international legal philosophy for guidance and support.  In a dissent to the death penalty case Knight v. Florida (1999), Justice Stephen Breyer wrote, after consulting the laws of many countries, “A growing number of courts outside the United States—courts that accept or assume the lawfulness of the death penalty—have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel.”  He granted that “Obviously this foreign authority does not bind us.  After all, we are interpreting a ‘Constitution for the United States of America.’”  Breyer continued, however, that “this Court has long considered as relevant and informative the way in which foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances.  In so doing, the Court has found particularly instructive opinions of former Commonwealth nations insofar as those opinions reflect a legal tradition that also underlies our own Eighth Amendment.”  He summarized that “Willingness to consider foreign judicial views in comparable cases is not surprising in a Nation that from its birth has given a ‘decent respect to the opinions of mankind’” (which point is itself unsubstantiated).

In a speech to The American Society of International Law, Justice Ruth Bader Ginsburg said, “The notion that it is improper to look beyond the borders of the United States in grappling with hard questions . . . is in line with the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification.  I am not a partisan of that view.  U.S. jurists honor the Framers’ intent ‘to create a more perfect Union,’ I believe, if they read the Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings.”[viii] (One should note that in the preamble to the Constitution, it is properly “We the people” who act “to create a more perfect Union,” through their elected representatives and the prescribed amendment process.)  Ginsburg applied the 1994 United Nations International Convention on the Elimination of All Forms of Racial Discrimination to her concurrence to the affirmative-action lawsuit Grutter v. Bollinger (2003).

Lawrence v. Texas (2003) was a homosexual conduct case resembling Bowers v. Hardwick.  In his majority opinion, Justice Anthony Kennedy, a swing voter who occupies the seat on the Court originally intended for Robert Bork, made reference to “other authorities pointing in an opposite direction” to those guiding Bowers.  Those of foreign provenance were the 1957 Wolfenden Report advising repeal of homosexual conduct laws in England, codified in 1967; and Dudgeon v. United Kingdom (1981), based on the European Convention on Human Rights.

In Roper v. Simmons (2008), a juvenile death penalty case, Kennedy cited Article 37 of the United Nations Convention on the Rights of the Child, other international conventions, and British law.  He noted “that only seven countries other than the United States have executed juvenile offenders since 1990:  Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China,” and concluded, “It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty . . . .”

Justice Antonin Scalia, in his dissent, provided a comprehensive, point-by-point repudiation of Kennedy’s opinion, especially the infusion of foreign law.  He began by proposing that “the basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand.”  To illustrate his point, he enumerated elements of U.S. law, such as trial by jury and search and seizure protection, that he did not think his opponents would be willing to surrender; and relaxed separation of church and state, and greater restrictions on abortion, that they would never be willing to adopt.  “The Court,” he challenged, “should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions.  To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”

“To the contrary,” he wrote, “they are cited to set aside the centuries-old American practice—a practice still engaged in by a large majority of the relevant States—of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.  What these foreign sources ‘affirm,’ rather than repudiate, is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America.”

© 2008 Paul A. Hughes

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[i] Robert H. Bork, The Tempting of America:  The Political Seduction of the Law (NY: The Free Press, 1990), p. 22.

[ii] John Hart Ely, Democracy and Distrust:  A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980), p. 18.

[iii] Bork, 64.

[iv] Milton Handler, The Supreme Court and the Antitrust Laws:  A Critic’s Viewpoint, Georgia Law Review 339 (Spring 1967).

[v] See Bork, 84,182.

[vi] Bork, 97.

[vii] Bork, 112.

[viii] Ruth Bader Ginsburg, “A Decent Respect to the Opinions of [Human]kind:  The Value of a Comparative Perspective in Constitutional Adjudication,” speech to The American Society of International Law, Washington, D.C., April 1, 2005.