Judicial Activism and the Death Penalty, Part Four

Paul Dean


While maybe not the most glaring example, judicial activism has indeed raised its head in the recent ruling by the Supreme Court regarding the death penalty for under eighteen murderers. States rights have been trampled, procedure regarding precedents has been ignored and foreign consensus has been used in support of the ruling over against the will of the American people, the distincition between transcendent law and arbitrary public policy has been blurred, and a segment of the population has been relieved of some of its accountability. Yesterday our discussion revolved around the death penalty itself. Today, we conclude our discussion on this issue by looking at the death penalty from a biblical perspective. 


The debate over the death penalty may be framed a bit more sharply by raising three questions. The first question relates to whether or not Christians can support the death penalty in principle. Three issues must be raised here. The first issue, in light of our previous discussion, is that we cannot support the death penalty from Old Covenant civil law. America is not a theocracy and cannot operate as such. America is not in relation to God the same way ancient Israel was. In order to affirm the death penalty, it would have to be grounded in God's transcendent and unchanging law, not God's civil law given to Israel under the Old Covenant.


The second issue is that it is doubtful we can support the death penalty from the New Testament. Unless one is theonomic, one is hard pressed to interpret Rom. 13:4 as prescriptive. Paul is observing the Roman government and affirming that it does indeed have the power of the sword. He says in vv. 1-2, "Let every soul be subject to the governing authorities. For there is no authority except from God, and the authorities that exist are appointed by God. Therefore whoever resists the authority resists the ordinance of God, and those who resist will bring judgment on themselves." Here Paul simply affirms that Christians should submit to government, or the State, and that the State has authority. God is the one who invests the State with authority and ordains respective States. Those who resist State power will suffer, at the hands of the State. Throughout the Scriptures we see State power exerted upon the people of God. Moses was hidden from the State for the purpose of survival as was our Lord Jesus Himself as He was taken to Egypt. Cany anyone realistically say that the State was executing God's righteous will and law by attempting to murder the Lord Jesus Christ?


Paul goes on to affirm in v. 3 that "rulers are not a terror to good works, but to evil. Do you want to be unafraid of the authority? Do what is good, and you will have praise from the same." In light of the fact that Paul is looking at the Roman State and Nero, one of the most evil States to ever exist, it is hard to imagine that he is saying that the State exists to enforce God's law. The good works vs. the evil works that Paul mentions must be such as defined by the State. Paul is telling the Roman Christians to do what the State requires of them, as long as it does not violate God's law. The result is that they will live in peace. But, if they are bad citizens, they will suffer at the hands of the State. No one can legitimately claim that the Roman government executed God's law righteously.


Paul then defines the purpose of the Roman State for the Christian in v. 4a. "For he is God's minister to you for good." The State is a servant of God for our good. Paul defines good as sanctification in Rom. 8:28. In God's universe, all things work together for our good, including our suffering. That is Paul's argument for the whole of chapter eight. In 13:4a, Paul is simply affirming what he has taught previously. Even the legislation and actions of an evil State work together for our good that we might respond biblically and be conformed to the image of Christ.


Paul continues in 4b, "But if you do evil, be afraid; for he does not bear the sword in vain; for he is God's minister, an avenger to execute wrath on him who practices evil." A distinction exists between the fact that authority resides in the State and the fact that the State may be unrighteous. Even wives are to submit to unrighteous husbands because husbands have authority by virtue of their being husbands (1 Pet. 3:1-6). The same requirement holds true for slaves (1 Pet. 2:18-25). Paul is not saying the State is righteous. He is saying that the State has authority, therefore Christians should behave. If they do not, they will be subject to the sword; indeed depending upon the crime, the death penalty itself. God raised the Roman State up to sanctify the Roman Christians just as He has raised the American State up to sanctify American Christians.


The third issue is that one may support the death penalty in principle from Gen. 9:5-6. This text seems to apply to mankind in general as God makes this statement before the formulation of theocratic Israel. He says, "Surely for your lifeblood I will demand a reckoning; from the hand of every beast I will require it, and from the hand of man. From the hand of every man's brother I will require the life of man. Whoever sheds man's blood, By man his blood shall be shed; For in the image of God He made man." In all fairness, one could argue from the context and wording that God is simply laying down a principle. That principle is that He will execute wrath by virtue of death upon those who murder. He may do so in a number of ways, but, one can see that His ordination of government, i.e. the Sate, and the power of the sword through State power, may be a primary way. In other words, God may be affirming what He will do, not what States should do or what Christians should support. However, because God does say such, we may cautiously affirm the death penalty in principle. Cold-blooded murderers do indeed deserve death.


That statement leads to a seconed question. This question flows from the first. While Christians may affirm the death penalty in principle, does the Bible mandate the death penalty through the State in our society? By way of illustration to help us in our thinking, God says that He will take vengeance on His enemies and our enemies. Yet, He also says that we should love our enemies. What God will do and what He requires of us are two different things in this case. It may be the same in regard to what God says He will do to murderers. Therefore, simply because God will require the lives of murderers, and will no doubt use all States to accomplish His will, it does not necessarily follow that Christians should affirm a State sponsored death penalty. In light of the fact that the church exists apart and distinct from the State, one wonders how God could require members of the church, aliens and strangers in this world, to support a State sponsored death penalty. The point is that it is doubtful that God mandates a State sponsored death penalty. He may allow it, but He does not mandate it.


Lest anyone say the problem lies in whether or not a person is conservative or liberal, we must grapple with the Scriptures, for they are our sole authority for faith and practice. The one who does not wrestle with these things and simply adopts a position because he is socially conservative is the real liberal. We don't have the liberty to spout off about being liberal or conservative if we have not grounded our position in the Scriptures. Rhetoric and southern, social conservatism are poor substitutes for biblical truth.


The third question is simply this: should Christians support the death penalty in any State or any State situation? As asked earlier, how many Christians would support the death penalty in 1940 Germany? What about here, in light of so many innocents who have been put to death by the State? Do Christians want to support the death penalty in an increasingly pluralistic and anti-Christian society? How many Christians would support the death penalty even if certain Christian Reconstructionists were in power as they would execute Muslims who did not worship Christ on the Christian Sabbath?  

While Christians may cautiously affirm the death penalty in principle in a country that maintains limited government and is grounded in a Christian worldview in terms of transcendent law, the question remains, can Christians whole heartedly support the death penalty in our current context, in light of depravity, in light of the slippery slope on which our country is indeed sliding, in light of abuses of power, and in light of flawed evidentiary and judicial proceedings? Christians should actually advocate reform in terms of how the death penalty is implemented. If due process could be guaranteed and irrefutable evidence were required, then it may be that Christians could support the death penalty.


It may be that we should be content to have God's law against murder upheld and leave the question of the death penalty to the voters (certainly not foreign consensus). Yet, we have to decide which way to vote and which way to influence others who vote. When people's lives are at stake and when we say we are committed to God's truth, we cannot afford to gloss the issue over or be glib about it. We have an obligation before God and to our fellow citizens to be sound in our biblical interpretation. If we're going to argue for the execution of sixteen year old cold-blooded killers (with irrefutable evidence) as I have, we better have a good reason.