The Importance of Lesser Magistrates
Government is dangerous. We know this in principle because it is human government. The people whom God sets over us are generally no better than us, and frequently worse. In fact, at times, it looks like an extremely clever jailbreak. But though dangerous, government is also necessary. When we see the police pull back from their difficult work of securing public safety, the proof of this need is dramatic, swift, and tragic. We are left asking, then, as James Madison asked in Federalist Papers No. 51, how to “enable the government to control the governed; and in the next place, oblige it to control itself.” In the past eighteen months of the Covid pandemic crisis, there has been a great deal of attention on how to control the governed—keep them inside, keep them separated, keep them masked, get them vaccinated—but relatively little on restraining the inevitable abuse or ill-advised use of that control.
In addition to constitutional restraints, which appear to have their limitations, the Protestant Reformers of the sixteenth century would counsel a further bulwark against tyranny. State governors and local officials—what they called “lesser magistrates”—are obliged by God to an extra-constitutional responsibility for standing in defense of their people against liberty crushing initiatives from the federal level. This role is gaining increasing attention as the federal government legislates and regulates in a way that is, at best, indifferent to the concerns of historic, orthodox Christianity, but now evermore hostile to it, as though it were a malicious cult.
When my church met for worship on Sunday, March 8, 2020, the elders debated whether it was wise to serve communion and shake hands with communicants. While there was rising concern over the spreading virus from China, we did not want to appear alarmist. By the next Sunday, many churches in the area were suspending that day’s worship. We debated doing likewise and did. In the next few days, it seemed insane to have done anything else, and we did not regather indoors until September. From mid-March, deaths in New York State rose weekly from 41 to 201 to 1,246. By the end of the month, hospitals in New York City were overwhelmed. Refrigerated trailer trucks were brought in as makeshift morgues. We were told that deaths could climb as high as 2.5 million Americans.
In response to this crisis, something on the order of an enemy invasion, we agreed to the unprecedented measure of withdrawing into our separate homes and shutting down society, the economy, everything. To save the hospital system, President Trump, backed by his Covid response team, announced on Monday, March 16, “15 Days to Stop the Spread.” This was extended to 30 days. Some were eager to do whatever it took. Others accepted it warily. The president called us to united national purpose: “If everyone makes this change or these critical changes and sacrifices now, we will rally together as one nation and we will defeat the virus and we’re going to have a big celebration all together.” But this was an appeal for voluntary self-restraint. Subsequently, however, state legislatures gave their governors emergency powers, and these lockdowns became mandatory except for essential services like supermarkets, pharmacies, and liquor stores.
Meanwhile in Florida, after three months of shuttering indoors, summer sun-and-fun time came and the playful people said it’s time to get on with things, and the governor agreed. They pursued a different response to the virus. While New Yorkers hunkered down in their apartments, the Sunshine State tried to live as normally as possible while protecting as best they could their sizable elderly, Covid-vulnerable population. They distinguished between those susceptible to contracting the virus and then likely to die from it and people with a better than 99.5% chance of recovering and going on. The result was that while the Right Thinking People were excoriating the “Neanderthals” in states like Texas and Florida where liberty was prioritized, Covid death rates were no higher there than in California where people lived under oppressive restrictions.
By the summer of 2021, Covid cases were sharply lower, and life was returning to relative normalcy – restaurants open, no masks required in retail stores. Thanks to the technologically powerful American pharmaceutical industry (driven by a strong profit motive) and President Trump’s Operation Warp Speed to press fast forward with vaccine development, a Covid vaccine became available to the general public in March. Understandably, the current president wants to get as many people vaccinated as possible, especially as cases begin to rise on account of the delta variant.
But not as many are jumping at the free vaccine as he had hoped. Some are skeptical about the science. They are holding back to see how it goes with other people. After more than a year into the pandemic, they have not contracted it, so there seems to be no rush. The delta variant changes the math on that, but they are cautious nonetheless. Others just don’t trust the government. If the governing class is pushing this hard, there must be an oppressive agenda!
Paternalistic government does not like missing its goals on account of an uncooperative population. So, in a White House press conference, President Biden noted that one third of all new Covid cases was concentrated in two low-vaccination states, Florida and Texas, and appealed to their governors to “get out of the way” of efforts to bring people into compliance.
Look, we need leadership from everyone. If some governors aren’t willing to do the right thing to beat this pandemic, then they should allow businesses and universities who want to do the right thing to be able to do it. I say to these governors please help. But if you are not going to help, at least get out of the way of the people who are trying to do the right thing. Use your power to save lives.
By “the right thing,” he means requiring all state employees and those who work for state contractors to be vaccinated or remain masked and separated, allowing businesses to mandate it for their employees, allowing colleges and universities to require it of their students, and allowing school districts to require masks “for young children who cannot get vaccinated.”
But America is a free country, and people can disagree over what “the right thing” is. For example, it is disputable whether on balance it is good for children to be masked six hours a day in school, not seeing their teacher’s smile, and viewing everyone around them as a perilous threat. It is also far from obvious that people who are naturally immune from having had and recovered from Covid should now be vaccinated. It is also a matter of reasonable debate—now that 191 million people are at least partly vaccinated, perhaps 40 million have acquired natural immunity, 72 million are under 18, and many others lived closely with people through their Covid and did not get it—whether it is now most suitable for a free people to be left with the responsibility to manage their own risks as we do with drivers, smokers, and unhealthy eaters.
So, given current public health conditions, the governors of these two states believed they were acting in defense of people’s education and livelihood by forbidding school districts from requiring children to mask in the classroom and barring local governments and state agencies from demanding vaccinations. Regardless of how one may assess their wisdom, as civil magistrates invested by God with the majesty of public office and the terrible power of the sword, they stood in defense of their people’s liberties. State governors growled in defiance at the great federal behemoth.
Power withstood by legitimate power is power chastened. Our American political experiment is premised on a Biblical view of political power: necessary but dangerous. We entrust it, only then to distrust it because it is held by people who are tempted as we are. The sword we trust to defend us can easily be used against us. Our constitution therefore limits the federal government in no small way by restricting it to the exercise of specifically enumerated powers. It can act only within the spheres established for it in the constitution, like defense and interstate commerce. All other powers of government, such as “police powers” concerning health, safety, and morals, remain with the state governments. In addition to separating the power of government between the national and state levels, our republican system further restrains federal power by dependence on popular elections, the separation of powers, and a system of checks and balances, all to secure the people in their liberty without preventing the government from acting with energy and dispatch in situations of great public need. This is wise.
Two centuries beforehand, reflecting on classical examples, John Calvin commended the wisdom of such an internal constraint by popularly elected “magistrates of the people” (magistratus populares).
[I]f the correction of unbridled despotism is the Lord’s to avenge, let us not at once think that it is entrusted to us, to whom no command has been given except to obey and suffer. I am speaking all the while of private individuals. For if there are now any magistrates of the people, appointed to restrain the willfulness of kings (as in ancient times the ephors were set against the Spartan kings, or the tribunes of the people against the Roman consuls, or the demarchs against the senate of the Athenians; and perhaps, as things now are, such power as the three estates exercise in every realm when they hold their chief assemblies), I am so far from forbidding them to withstand, in accordance with their duty, the fierce licentiousness of kings, that, if they wink at kings who violently fall upon and assault the lowly common folk…they dishonestly betray the freedom of the people of which they know that they have been appointed protectors by God’s ordinance. (Institutes of the Christian Religion, 1559; XX.31 – emphasis added)
Governments are accountable to God in their duty to guard the “freedom of the people,” so to this end Calvin suggests a constitutional office that acts as an internal check against the abuse of power.
About this time, however, in 1550, the Lutheran pastors of Magdeburg in Germany appealed to their local lord for protection against Holy Roman Emperor Charles V, as he was, equally with the emperor, God’s sword-bearing agent for the defense of their liberty in all things godly. Thus, they introduced the idea of the right and obligation of lesser magistrates (magistratus inferiores) to protect the people who are equally under their jurisdiction as they are under that of the higher level of government.
[D]efense against a superior magistrate who persecutes the true religion by arms is granted to an inferior magistrate when they deny that this religion of ours is the true one, and deem that their war is therefore just. … pious magistrates are not only able, but even have an obligation to resist them as far as they are able, to defend the true doctrine, worship of God, life, modesty, and the property of their subjects, & to preserve them against such great tyranny.
Following the St Bartholomew’s Day Massacre in 1572, in which thousands of French Protestants were murdered by agents of the French monarchy, Theodore Beza in Geneva introduced into the Reformed tradition the idea of the obligation of lesser magistrates to resist tyranny.
…if he who has received the royal dignity either by being elected thereto or by hereditary right openly departs from those conditions under which he was expressly recognized and approved as king, who would be inclined to doubt that the subordinate magistrates of the kingdom and further the very provinces also and the cities whose administration has been entrusted to them are automatically free from their oath, insofar as they have right to set themselves against the undisguised oppression of that kingdom whose defense and protection they undertook by oath each in accordance with his own office.” (On the Rights of Magistrates, 1574)
He clarifies and narrows the operation of this principle, writing: “we are discussing open and manifest tyranny and tyrants of that type who cannot admit or endure any admonishments whatever.” In other words, the invocation of this principle for minor infractions would be a dangerous disturbance of the public peace and thus not at all for the common good. Thus, the Declaration of Independence cites “a long train of abuses and usurpations, pursuing invariably the same Object,” viz. “an absolute Tyranny over these States.” This defiant political separation was not a popular rebellion but an act of King George III’s lesser magistrates, “the representatives of the United States of America, in General Congress.”
Florida Governor Ron DeSantis in his current sparring with Washington, responded to President Biden’s rebuke and appeal in the language of this lesser magistrate doctrine.
If you’re coming after the rights of parents in Florida? I’m standing in your way. If you’re trying to deny kids a proper in-person education, I’m gonna stand in your way and stand up for the kids in Florida. If you’re trying to restrict people and impose mandates and ruin their jobs and livelihood, if you are trying to lock people down, I am standing in your way.
The language is more Reformational than the reality. In this case, President Biden was not saying, “Get out of the way and let the federal government act as it pleases to deny people their suitable sphere of personal self-government.” He was saying to get out of the way and let school districts, universities—public and private—and businesses do the work of vaccine-and-mask mandates. But Gov. DeSantis is not putting too fine a point on it, and his stance is a welcome reminder that every governing authority is given by God for our good and will give account to him for its faithfulness in protecting us—individually and as families, communities, associations, and churches—in (paraphrasing the pastors of Magdeburg) our lives and the conditions suitable for prosperity, morality, and piety.
More directly embodying this principle, county sheriffs have been standing up against state and federal laws that infringe on the right of local residents to arm themselves for self-defense. In Maryland, the Wicomico County Sheriff stated that, “As long as I’m the sheriff in this county, I will not allow the federal government to come in here and strip my citizens of their right to bear arms. I can tell you this, if they attempt to do that, it would be an all-out civil war, no question about it.” It’s a conservative community. A county sheriff in West Virginia, in violation of that state’s freedom of information law, refused to release a list of concealed carry weapon permit holders, judging it a violation of privacy and a threat to public safety.
As to the Christian’s deepest concern, given that we are well past the fear of 2.5 million dead and the collapse of our hospital system, state and local officials, including law enforcement officers, should be equally alert to stand in defense of the freedom of God’s people to exercise conscientious worship and live out their faith as they believe God requires. Less an example than an illustration of this recently touched many of us. The Fulton County Sheriff in New York State refused to enforce Gov. Andrew Cuomo’s executive order limiting the number of people who could gather in their homes for Thanksgiving dinner. The sheriff’s concern was not only practical, but also the order’s constitutionality and the ancient principle in English Common Law that a man’s home is his castle. It is a short step from respecting innumerable and hallowed gatherings at Thanksgiving to respecting with the same vigilance our sacred, community-wide gatherings at church. The U.S. Supreme Court decision upholding the right of churches in California to gather for worship, South Bay United Pentecostal Church v. Newsom, may also seem to be an example of the lesser magistrate principle, but it is not, because the judiciary is a co-equal magistrate, appointed to “say what the law says,” that is, give decisive voice to the highest authority in the land.
We live in times when approved, massive, political protests are prioritized over God’s worship by his people. In some cases, it is a crime to dissent morally and practically from the acceptance of homosexual marriage. Biblical judgments regarding sexual deviance, and thus of how best to help people in those conditions, are considered “hate.” The federal Department of Education mandates that biological boys who identify as girls must be free to disrobe with the girls in their locker rooms. Everyone, from kindergarteners to soldiers, is being required to adopt the neo-Marxist moral universe of critical race theory. Who is our protector in this? “From where does our help come? My help comes from the Lord, who made heaven and earth” (Ps. 121).
But the Lord also provides government as a minister of his wrath against evil (Rom 13:1–7). It is an added blessing when he provides multiple layers of government for various spheres of work—national, state or provincial, county and municipal—and thus, when the more distant official disregards or grossly mistakes the public good, the lower and more local one can respond with, “You shall not!”
*Image Credit: Unsplash