Doctrine Of The Lesser Magistrate – With Colonel John Eidsmoe – Colonel John Eidsmoe joins us to answer a listener question. What is the doctrine of the lesser magistrate? How are our local officials responsible when the Federal Government fails in its duty? Join us for this enlightening discussion today!
Air Date: 09/20/2021
Guest: Colonel John Eidsmoe
On-air Personalities: David Barton, Rick Green, and Tim Barton
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Transcription note: As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.
Welcome to the intersection of faith and the culture. It’s WallBuilders Live. We’re glad you joined us today. We’re looking at all the hot topics of the day from a biblical, historical, and constitutional perspective. We’re doing that with David Barton. He’s America’s premier historian and our founder at WallBuilders, with Tim Barton, national speaker and pastor and president of WallBuilders, and I’m Rick Green, former Texas legislator and America’s Constitution coach.
Later in the program, John Eidsmoe will be with us been too long. So we had John on, it’s going to be good to have him back. David, Tim had a question from the audience, actually, one we get quite often, especially right now with government being out of control, and it was about the doctrine of the lesser magistrates. Now, that may be a phrase a lot of our listeners have never heard of. And then some of our listeners have really studied this topic. So we got people on both extremes, we’re going to try to fly this thing right down the middle and get as much information as we can in our short program today.
Doctrine of the lesser magistrates uses old English kind of rhetoric. And a magistrate is simply someone who’s a public official, a civic official. A lesser magistrate means someone who’s at a lower level. So if you have a president, for example, of the United States, that’s a higher magistrate, if you get someone who’s a JP or sheriff or police chief, that’s a lower magistrate and the overall structure of American government.
So the question deals with if you’ve got someone at the federal level not upholding federal law or not following the Constitution of the Bill of Rights, is it okay for someone at the lower level to go against them if they need to to do what’s right? In other words, can a lower magistrate go against the upper magistrates and say, here’s the right thing to do? And I’ll just point to a couple things going on right now as examples of what would be called the doctrine of lesser magistrates.
You’ve got president Oh, Biden’s that I’m not going to do anything at the border, I’m not going to enforce the laws there, I’m not going to follow through with the federal laws that are on the books that currently exist. I’m stopping everything. Well, Governor Abbott in Texas said, okay, we’re going to build the wall, and then the sheriff’s throughout the southern counties of Texas says, and we’re going to arrest the illegals they come across. Well, the federal government supposed to be doing that, but they’re not doing that. So the doctrine of lesser magistrates, the lesser official step up to do what the upper official should have been doing.
One more example we’ve got, we just had two counties in Nevada say, hey, we’re going to uphold the Bill of Rights, whether or not the federal government or the state government does, in these counties, we’re going to enforce them, and our sheriffs are going to protect the Bill of Rights. And so if the federal government says, hey, we’re going to control guns or we’re going to take guns away, it won’t happen in this county. And we don’t care if our governor says that, we have a Bill of Rights, we’re going to follow the higher law. So what it means is lower officials choosing to follow the higher law and do what’s right, even if it means having to go against higher officials.
And so kind of the historical background of that John Eidsmoe, who’s a law professor, head of the law school, I mean, he’s really got a good historical perspective on this question that our Founding Fathers were very familiar with. But it’s a doctrine that very few Americans know about today.
Stay with us, folks, Colonel John Eidsmoe with us when we return on WallBuilders Live.
Hey, guys, we want to let you know about a new resource we have at WallBuilders called The American Story. For so many years, people have asked us to do a history book to help tell more of the story that’s just not known or not told today.
And we would say very providentially in the midst of all of the new attacks coming out against America, whether it be from things like the 1619 project that say America is evil, and everything in America was built off slavery, which is certainly not true or things, like even the Black Lives Matter movement, the organization itself, not out the statement Black Lives Matter, but the organization that says we’re against everything that America was built on, and this is part of the Marxist ideology. There’s so many things attacking America.
Well, is America worth defending? What is the true story of America? We actually have written and told that story starting with Christopher Columbus, going roughly through Abraham Lincoln, we tell the story of America not as the story of a perfect nation of a perfect people. But the story of how God used these imperfect people and did great things through this nation. It’s a story you want to check out wallbuilders.com, The American Story.
Welcome back to WallBuilders Live. Thanks for staying with us today. It is so good to have Colonel John Eidsmoe back with It’s been too long, brother, thank you for some time today.
It’s always great to be with you, Rick.
Well, it’s always good to encourage people to dive further into these foundations and understand where their liberty comes from, understand a biblical worldview of how to correctly stand up and defend liberty. And people are asking questions that they didn’t use to ask. I mean, I don’t know if you’re getting the same thing, but it just seems like there is a heightened awareness of the fragility of freedom and a desire to do something about it. Have you noticed that as well, just more and more people are interested?
We certainly have. In fact, if there is any benefit to the Biden election, it is that we hear the foundation for moral law are busier than ever.
Yeah, it’s good. It’s very good. Well, I hope more and more people will study. In fact, before we even get started, give us a website so folks can go and learn more, because we’re just going to scratch the surface today and we want them to dive deeper.
[inaudible 05:10] the website of the foundation for moral law, and that is moral law written with two L’s, that is one word, morallaw.org.
Alright. And I tell you it’s actually encouraging to me. Some people are depressed right now, and they’re going all the nations lost. But the more we saw tyranny over the last year through governors, through the things that are happening right now, through our federal government, the more people are studying and saying, I’m going to do my part, I’m going to take Constitution classes, I’m going to start asking these questions, I’m going to start diving into these things. So that’s all a very good thing.
One of the key questions we are getting over and over again is if the federal government’s too far gone, or even in some cases if your state leaders are too far gone, what is the doctrine of the lesser magistrate, and what can you do at the county level or the state level? Is that a proper way to push back against your higher levels of government when they’re not following the Constitution?
It certainly is. And that is also one of the benefits may be of the Biden administration and his war on religious liberty and on liberty in general right now, is that it is forcing us to go to the state and local governments to seek redress in this, and that’s perhaps where we really should need to begin with. We shouldn’t have the federal government is an enemy. But when we do, yes, these are natural allies against federal tyranny.
And one thing, of course, is civil disobedience, and we do read clearly in Scripture that there are times when is we read an Act 5:29 that we bought to obey God rather than men. But what we’re talking about here is not simply individually disobeying, we’re talking about lesser magistrates, that is lower ranking government officials placing themselves between the higher magistrate who has become a tyrant, and the people whom these lower magistrates were present. We sometimes call that the doctrine of lesser magistrates. We sometimes call it the doctrine of interposition. Either way, it is a biblical doctrine, and I believe it has a definite place in American and English common law.
I’ve really enjoyed, I find myself, my own journey on this and study of this. I feel like I’m following in Luther’s footsteps as I’m reading your book, Historical and Theological Foundations of Law. Because, you know, I’ve always had a knee jerk negative reaction to that because I was concerned about the whole mob mentality. And now I find Luther had the same concerns because he was like, well, if you just let everybody do whatever they want, it’s going to turn into the mob and you can’t control that. But then when you come back to the lesser magistrate, that’s not the mob, that’s someone in leadership at a lower level, and it’s a very different ballgame than just saying everybody do whatever you want.
Yes. And you look at Luther was the peasant revolt, and so on. And Luther at one point says that I will never flatter a prince, but much less will I put up with a mob of insurrection. And it is when the mob turns from simply protest, to violence, to arson, to murder, and rape of nuns and so on, it is then that Luther says we’ve got to crack down on this. But even then, he says, you should still listen to their peaceful demands and you should make sure that your violence is directed only against the peasants who have been violent, not those who have been peaceful.
But Luther himself was at first rather hesitant to advocate outright inner position that is lower officials resisting the higher officials. But he did recognize all of his, that when the higher officials go against the law of God, that something needs to be done. And then a law that goes against that higher law of God is invalid law. In fact, on one occasion, Luther, I just think but as clearly as he possibly could when he said, any prohibition that is contrary to the command of God means nothing whatever though all the angels were to issue it, and likewise, all the higher magistrates. But Luther is concerned about time was with the holy Roman emperor, and the Pope, who were in league together and seeking to impose Roman law whereas Luther’s allies the principles of Saxony, and other parts of northern Germany favor the old Germanic common law that’s Luther had been trained in.
And Luther at first was rather reluctant to say that we should openly resist them. But finally, about 1539, his position had solidified and he says our princes therefore decided that in such case His Imperial Majesty is not Emperor but warrior, servant, and robber of the Pope. As the ladder in such a war is the real leader and emperor, that is the attitude of her state. And he says the emperor is not an autocrat, it is not within his authority to depose the electrical princes, and change the form and glory of the empire, and it is not to be permitted to should he attempt it.
And he says that His Majesty does not know that the cause is so evil. It is nonetheless sufficient for us that we know it and are certain of it. As you know, Luther is also looking to an example here. Luther’s big emphasis, of course, was Sola scriptura, the Scripture alone. And Luther, for the doctrine of interposition, would go back to the scripture itself.
And we think, for example, after the death of Solomon, and Solomon had become somewhat of a tyrant, earlier, he had been a limited monarch as David had done before him, but he gradually expanded with compulsory workforces, and with standing armies and heavy taxation and so on. And so when he dies, his son Rehoboam becomes king, and the 10 northern tribes led by Jeroboam of the tribe of Ephraim come before him to interpose. And they say, if you will give us lower taxes, if you will lighten the burden your father has placed upon us, we will serve you forever.
And after considering it, Rehoboam simply says, my little finger is thicker than my father’s loins; where he has chastise you with whips, I will chastise you with scorpions, 300% tax increase, effective retroactively. And the 10 northern tribes say, what have we to do to the house of David, to your tenth oh, Israel, and the 10 northern tribes to secede. And when Rehoboam tries to bring his standing army up against them, Shemaiah, a prophet of God tells him to stop, that he is not to go up against the north, because what they have done is of God. And for once in their life, Rehoboam listened and left them alone. But there is a clear example of interposition in the Bible.
Wow. Wow. That is fabulous. I have never thought of that story in that way. I love that. I love that. Okay. I got a strongly encourage people to get your three volume set on Historical and Theological Foundations of Law. I mean, this covers everything from ancient legal systems, Hebrew legal systems, classical legal systems, the common law, and then of course, comes forward to our constitutional systems. And speaking of coming forward, okay, so there’s biblical examples, there’s Luther’s arguments. Talk to me about the Founders’ view on this and why they designed our system of federalism the way that they did so that you could do your best to prevent an out of control federal government, and then what they thought of as the solution if you did have an out of control federal government.
Yeah. So let’s look at a couple quick examples. First one is the Magna Carta, where one of the English constitutional heroes, the Archbishop of Canterbury, Stephen Langdon, gathered the barons and bishops to interpose against king John. They drafted the Magna Carta, and essentially told king John, you either sign this document recognize in the ancient god given rights of English, or you’re going to be looking for a job because we’re going to remove you from office. That’s one example.
Another example around the same time is Thomas Aquinas. When he talks about tyrannized, sounds like a species of dinosaur, but it means telling a tyrant, he says that when a ruler becomes a tyrant, he is no longer fit to rule, and anyone may legally slay him. But he said, sometimes that’s not the best course to take. And first, because you may fail, and he’ll become more tyrannical than ever, or you may succeed and the people who take over from him maybe afraid somebody is going to do the same to them, so they’ll become the same kind of tyrants. And so he said, it is better if you have procedures in place to make sure that a tyrant doesn’t get to the throne, and if he does get to the throne, to make sure there are ways of removing him legally.
And our Founding Fathers, I think, saw that very clearly in mind. And so first of all, the draft of the Declaration of Independence, which is the best example of interposition, or doctrine of lesser magistrates in American history, in this instance, they were not simply trying to overthrow king George, they were simply well in effect seceding. They were interposing against him: this is not an actual rebellion what it is, is the lawfully constituted leadership of each of these 13 colonies, both in their respective colonies and also together as the Continental Congress resisting against the power of king George III.
And they draft the Declaration of Independence to show a law of nature and nature’s God, how this entitles them to do this, how it is the right of people to rebel against government and overthrow that God when that government becomes destructive of the basic ends of securing the rights of the people. And so, since king George has refused to listen to their pleas, they say these colonies are and of right ought to be free and independent states.
And so they draft a constitution then that is designed to make sure that no one individual and no one group of individuals gets too much power because, as Lord Acton would say a century later, “power tends to corrupt, absolute power corrupts absolutely”. Most of us know that quote, but we don’t know the next sentence. The next sentence says, “And great men are almost always bad men”. In other words, it’s because of the sinful nature of man that we need government. But it’s also because of the sinful nature of man that we need to keep government under control. Madison makes that very clear in federalist number 51.
But anyway, so they draft a Constitution accordingly. And sometimes I like to describe what the Constitution is, it is the Founding Fathers’ fivefold formula for freedom. And let’s look at that formula.
First, limited delegated powers. The idea is that government has only the power that we the people have delegated to it. And all others are, according to the 10th Amendment reserved to the states or to the people.
Second is a division of powers. Vertically, we divide powers between the federal, state, and local levels; horizontally, we divide it between the legislative, executive, and judicial branches so that no one level, no one branch has too much power.
Third, a checks and balances where each of these levels, each of these branches checks and balances the power of the others, maybe only to retain their own power. But, for example, Congress passes laws, the President can veto those laws; Congress can override the veto by a two-thirds vote of both Houses. The court can strike laws down as unconstitutional. But the members of the court are nominated by the executive branch, the President and confirmed by the legislative branch. The executive, the court depends upon the President and the executive to enforce its orders, it depends upon the legislative branch, the Congress to fund its operations. And so there’s checks even on the court.
And finally, over the fourth: reserved individual rights that there are some rights that even a majority can take away. We’re not a pure democracy, rather we are a constitutional republic in which the majority generally runs things, but in which the minority has certain rights, like free speech, free exercise of religion, the right to keep and bear arms, that even the majority cannot take away.
And finally, out of the five-fold formula, responsibility through religion. Now the framers didn’t want to state church, and I don’t think we do either, especially right now considering who’s heading the federal government.
But at the same time, we recognize that religion plays a role not just in the saving of souls for eternity, but also for the purpose of building the kind of responsible citizen that makes responsible self-government possible. Washington said in his farewell address, that of all the dispositions and habits that lead to political prosperity, religion, and morality are indispensable supports. And then, our second President, John Adams put it this way, when he said that “Our Constitution was designed only for a moral and religious evil, it is wholly inadequate for any other.”
So you put those five principles together, there are limited delegated powers, and separation of powers, checks and balances, reserved individual rights and responsibility through religion, and that’s the Founders formula to try to make sure that we will not have to exercise interposition, at least not very often in this country that we’ll be able to work through lawful means to keep government in check.
When it does happen, for example, when elections become unstable, or when people start abusing the rights of the unborn or the right to keep and bear arms or when government regulations become overly severe, at this point, the states can step in and exercise interposition. And several states already have bills that I wish they’re considering doing. So likewise, several governors and all of this, I think, is clearly within the American tradition, our constitutional tradition and the tradition to the scripture itself.
Yeah, it’s actually healthy to see that the states and even local governments, I mean, I’m seeing counties pass a lot of things that are standing up for the Constitution, standing up for this Second Amendment standing up for freedom, frankly, to move freely and breathe freely, I mean, those are even things that we’re having to take a stand on. So it seems healthy to me that we have that type of even in some ways tension between those levels of government to say, we’re not going to just be lockstep that’s to have this kind of Marxist idea that everybody’s going to be the exact same. Even having that individuality in the states is a good thing.
So this seems healthy to me, even though things are on some levels very bad in our country. The interest in these principles, and the willingness to stand on these principles, I just love seeing that right now. And I hope that our listeners see that as a hopeful thing as well. Sounds like you do as well?
I certainly do. And I’m very pleased to see the way many of the states are standing up to federal restrictions in so many of these areas. But there’s another aspect that I think in a broader sense could be called interposition. And that is when it is practiced by the church. And there are times when the church, you know, God has established these two entities, church and state, each of these are kingdoms established by God, each of which has its own place in God’s economy.
But once in a while, the church needs to stand up and check the state. And we think about the restrictions that have been placed on churches meeting during this past year they find this in such contrast to 1849 when Zachary Taylor in the middle of a plague in this country issued a current fasting proclamation and encourage, I should say, that people of all denominations gather in their respective churches and pray that God will deliver.
See, there’s a difference in those days. They believed God was real. They believed His wrath was real. They believe His mercy was real. And so those in government, as much as anyone else in a time of crisis like that wanted the churches open, and wanted the people praying that God would deliver his people.
But you think sometimes where the governors have prohibited the churches from meeting in this past year, there have been a few instances where the courts have stepped in on behalf of these churches, and that’s great. But several times the churches have simply had to stand up themselves.
There was a church in Mississippi, King James Bible Baptist Church of Greenwood, Mississippi, that on the Wednesday before a Good Friday, the members of this church were having a church service in the parking lot of their car, they were issued $500 citations for meeting illegally. The only social distancing that was violate is when they had to roll down their window and accept the citation. And the pastor of this church simply said to the mayor, you better print up some more tickets, because we’re going to have services again on Good Friday and again on Sunday morning.
I love it.
Anyway, they finally back down and likewise, we see a number of instances like that. But then we see the Lutheran Church, Missouri Senate in Minnesota issuing a letter to the governor saying we’ve tried to work with you, we’ve tried to seek an accommodation, and you refuse to work with us. And this is a year ago and how effective May 26 or wherever the date was, we are going to start meeting again, whether you like it or not. And just a few days before that deadline that they said we’re going to start meeting, the governor back down and said he’d been thinking about that all the time. And of course, we see John MacArthur and his church and their firm stand out there in California, which finally has caused Governor Newsom to back down.
So sometimes the church itself has to exercise interposition. And again, when you look at the Magna Carta, the time moving force behind the Magna Carta was the leading church official of England, the Archbishop of Canterbury, Steven Langdon.
It’s so good to hear these things and to know that the church can stand and should stand and even to hear those examples of the church standing and having victory and seeing the civil magistrates back down and actually follow the law. So, so much more there. I really want to encourage people to dive deeper, get “Historical and Theological Foundations of Law”. Be sure and visit morallaw.org. We’ll have links to both of those today at wallbuilderslive.com. Colonel John Eidsmoe, got to get you back soon, brother. Thank you so much for your time today.
I would love that. And by the way, as far as the three volume sets, you’re selling there in WallBuilders and I am so glad you are.
Well, thank you sir, appreciate it very much, appreciate your your incredible work, and look forward to having you back on the show soon.
I love it.
Alright, we’re back with David and Tim now. And guys, to dive further into this, because obviously a lot to cover there, be sure and check out the three volume set at wallbuilders.com. We’ll have a link today at the radio website wallbuilderslive.com. David, and Tim, not a lot of time left yet, but what do you think about this doctrine of the lesser magistrate.
It is a doctrine that has biblical precedent to it. It simply is upholding the higher law. You uphold the law of God, even if other people won’t, even if those above you who should do it, and in this case is also upholding the Constitution. But I like what John said too. It’s also the sometimes the church being a check on the state. There’s times when the church needs to stand up and be the moral conscience and uphold the moral law, even if the state won’t do so. So it really is being committed to upholding what’s right and doing what’s right at all levels, even if the levels above you don’t do it.
Yeah. This is one of those things that we certainly see in scripture where people upheld a moral clarity issue, where Daniel was going to keep praying even if the king told them no. Why? Because it was, arguably, the doctrine of lesser magistrates where this is a moral law superior to the person that was there saying something else. And so you recognize there’s a hierarchy even in the laws. Again, there’s different applications of the doctrine of lesser magistrates.
But certainly, when it comes to a moral position that’s biblically upheld, this should be a morally clear issue that as Christians we’re going to stand with the moral principle from Scripture, and that’s what we’re going to follow regardless of who says what. And certainly, if you’re an elected official, and you see somebody in a position saying something different, that’s where you can stand up and say, well, I don’t know what they said, but here’s what the right thing is, you uphold the right moral principle, regardless of where you fall in the food chain, because it’s the morally right thing to do.
That’s all the time we have for today. Folks, hope you enjoyed learning here on WallBuilders Live. I learned every time we have a program, you know, we should never stop studying our foundational principles, we should always be willing to dive in and just be students of freedom. So thanks for listening today and being one of those students of freedom with us. Hope that you will share the program with your friends and family so they can do the same. Check it out at wallbuilderslive.com. Thanks for listening to WallBuilders Live.