America’s Heritage: Constitutional Liberty
by Herbert W. Titus and Gerald R. Thompson
LAW AND AMERICA’S CONSTITUTIONS
- Justice and Authority Come from God
A Government of Laws, Not of Men
A Framework for the Administration of Law
The Legal Context for the U.S. Constitution and the Nation
The Foundation of Constitutional Law
How long, O Lord, will I call for help, and Thou wilt not hear? . . . The law is ignored, and justice is never upheld. For the wicked surround the righteous; therefore, justice comes out perverted. “Look among the nations! Observe! . . . For behold, I am raising up the Chaldeans, that fierce and impetuous people who march throughout the earth to seize dwelling places which are not theirs. They are dreaded and feared. Their justice and authority originate with themselves.” [Habakkuk 1:2-7]
Then all the elders of Israel gathered together and came to Samuel at Ramah; and they said to him, “Appoint a king for us to judge us like all the nations.” . . . So Samuel spoke all the words of the Lord to the people who had asked of him a king. And he said, “This will be the procedure of the king who will reign over you.” [1 Samuel 8:4-5,10-11]
When Israel asked God for a king, He gave them a king, but not one like the kings of other nations, as Israel had requested. God had been king over Israel, and the request for a human king was a rejection of God’s direct rule of the nation. Yet, Israel was a covenant nation, a people governed by God’s law and promise. Thus, when a human king was given to them, he was not only chosen by God, he was bound to obey God’s law of the covenant with Israel. In spite of Israel’s rebellion, God acted mercifully by not fully granting their request for a king like the other nations had. Instead of giving them a king who would act above the law, he gave them a king under the law.
Israel had, in fact, asked for a lawless king and a humanistic government. 1 Samuel 8:9-18 describes the abuses of power which result from rule by a lawless king: involuntary conscription for service, a redistribution of wealth, and an eventual subjection of the people to slavery, or tyranny. God’s intention for man’s government is different. God desires man to rule lawfully, even as He has ruled man lawfully. It is essential, therefore, to know what the true nature of law is in God’s plan for the world.
This example from the history of Israel demonstrates the first principle of biblical civil government, that any system of justice and authority must come from God. This principle is further expressed in the propositions that a biblical form of civil government is a government of laws, not of men, and that a covenant framework is necessary for the administration of law.
The principle that a system of justice and authority must come from God is also revealed in the text from Habakkuk. The Chaldeans are characterized as a people whose “justice and authority originate with themselves.” When a people refuse to acknowledge God, they are left with no one in authority except themselves. The authority for all laws in this kind of humanistic order lies in the deeds of men, and as men change, so do the laws. Whoever is in power controls the laws, and the prevailing rule is “might makes right.” Consequently, apart from God’ law, man’s system of justice and authority will be lawless.
Another example of the lawless rule of man is found in the case of the Medes and Persians. In Daniel 6:8 the high officials of government petitioned King Darius to “establish the injunction and sign the document so that it may not be changed, according to the law of the Medes and Persians, which may not be revoked.” The law of the Medes and Persians was an attempt by fallible men to create infallible law. Similarly, it was the law of the Medes and Persians which was enforced by King Ahasuerus, who declared in Esther 8:8 that, “a decree which is written in the name of the king and sealed with the king’s signet ring may not be revoked.” In both cases, the “infallible law” of the king led to a curtailment of liberty, with little hope for the restoration of liberty within that legal framework.
Whenever man ignores God’s legal order in establishing a government, man becomes his own ultimate source of law. Consequently, as public opinion shifts, or as generations pass away, the source of law varies, and the foundation of government changes. There is no security in such a government, nor any lasting legacy which a people may leave for their posterity. But God, in His mercy, has not left us without specific guidance as to how to constitute a government. Embodied within the entire text of the Bible are the principles of law which govern the affairs of men. When God’s legal order is understood and followed by man, the result is a government of men, not of laws.
Helen Silving, late professor of law at the University of Puerto Rico, has examined this principle in detail. According to her analysis of the history of the “rule of law” (that is, government ruled by law, not by men), the “rule of law” as contrasted to the rule of force, is of theological origin. The specific theological origin of the “rule of law” is the Old Testament, the fundamental political document for all men. Accordingly, God’s covenant with Israel has served as the prototype for all theories of the social compact, and the framework for all governments under the “rule of law.”
Let us return to the example of Israel to see how the “rule of law” works. When Moses was with Israel before crossing the Jordan, long before the people would ask for a king, he spoke a prophetic message by God’s Spirit about the manner of the coming kingdom.
“When you enter the land which the Lord your God gives you, and you possess it and live in it, and you say, ‘I will set a king over me like all the nations who are around me,’ you shall surely set a king over you whom the Lord your God chooses. . . . [The king] shall not multiply horses for himself, nor shall he cause the people to return to Egypt to multiply horses, since the Lord has said to you, ‘You shall never again return that way.'” Deuteronomy 17:14-16.
Deuteronomy foretells the events of 1 Samuel 8, but notice that God says He will not permit the king to exercise lawless power. In other words, the king will be under the law, not above it. Thus, when the elders of Israel asked for a king, that in itself was not sin: the elders had made a correct diagnosis of the corruption of Samuel’s sons. But in their desperation to remove the lawlessness from the land, they sinned by asking for a lawless king, attempting to solve a very real problem of lawlessness with a lawless solution. This is what displeased God.
Had the people taken the words of Deuteronomy 17 to heart, they would have known what kind of king to request. 1 Samuel 10:25 says that Samuel “told all the people the ordinances of the kingdom, and wrote them in a book and placed it before the Lord.” God had intended for the king to be under the law from the start.
An examination of Saul’s life confirms that he was under the law. 1 Samuel 13:8-14 states that Saul waited for Samuel to come make offerings before the Lord prior to the army going out to war with the Philistines. However, when Samuel was delayed, Saul made the offerings himself, violating the terms of covenant which delegated no authority to the king to offer sacrifices. Upon his coming, Samuel told Saul, “You have acted foolishly; you have not kept the commandment of the Lord your God, which He commanded you, for now the Lord would have established your kingdom over Israel forever. But now your kingdom shall not endure.” Thus, Saul was judged by the law, which he was bound to obey.
The biblical principles of the “rule of law” exemplified in the history of Israel are applicable to all nations. It is the lesson of Ecclesiastes 4:1-3; 8:9 that the law of the covenant benefits both the ruler and the ruled, and that both the ruler and the ruled suffer from lawless rule. Jesus taught in Matthew 20:25-28 that the model of civil rule is not to be found in the Gentile nations. Rather, He taught the concept of being a servant leader, that is, one who is subject to the authority he has been given, not lording authority over other men. Paul confirmed this lesson in Romans 13:4, stating that the civil ruler is “a minister of God to you for good.”
The universal relevance of these biblical principles of law and government were recognized in the early history of America. The colonists settling in America came not only to obtain religious freedom, but also to propagate the gospel. Citing the “Great Commission” as authority for establishing colonies in America, her founding fathers believed that their witness for Christ could not be effective unless they established a civil order based upon the laws of God. They recognized the need to govern themselves according to God’s law while carrying out Great Commission.
Hence, the First Charter of Virginia of 1606 contemplated that the colonists would bring the inhabitants of the new land “to human Civility, and to a settled and quiet Government.” The purpose of the Mayflower Compact of 1620 was even more explicitly to “covenant and combine ourselves together into a civil Body Politick.”
It was no accident that the colonists chose the covenant framework as the vehicle for establishing civil government. The covenant was the means by which their voyages to the new world were authorized, civil governments established, churches formed, and later independence claimed. The covenant framework is the thread which ties church polity and civil polity together in the American experience. According to David Hoffman, a legal scholar writing in 1846, the Bible was recognized in America as the only authoritative account of the origin and history of man, and the pattern for the regulation of colonial life.
This brings us to the second major proposition of the biblical law framework, namely, that a covenant framework is not only convenient, but necessary for the administration of law among men. This necessity is determined by examining the way in which God rules over man.
First of all, God has an absolute right to rule over man, which is unqualified in every sense. God’s authority over man arises not out of His infinite righteousness, power or knowledge, but by virtue of His having created man. God created not only every individual person (Genesis 1:27), but He has also created every nation from among the earth (Acts 17:26). The absolute authority this vests in Him over the affairs of men is often referred to as the authority the potter has over the clay.
Who are you, O man, who answers back to God? The thing molded will not say to the molder, “Why did you make me like this,” will it? Or does not the potter have a right over the clay . . .?” Romans 9:20-21.
“Can I not, O house of Israel, deal with you as this potter does?” declares the Lord. “Behold, like the clay in the potter’s hand, so are you in My hand, O house of Israel.” Jeremiah 18:6.
As the maker of men and nations, God could have exercised any means to effect His rule over man. Nonetheless, He has instead chosen to rule man by the means of covenant. The first exercise of this means of rule is found in Genesis 2. S. G. DeGraaf says that though there is no explicit mention of a covenant in this chapter, “all the elements of a covenant are to be found here.” He further says,
When God created man, He had more than an instrument in mind: He made a creature that could respond to Him. Only if man was capable of responding would he be able to assume his position as partner in a covenant. Without a covenant, God would have only claims and man only obligations. But as soon as God gave man a promise, man also had a claim on God, namely, to hold God to that promise.
The covenant pattern implied in the case of Adam was made explicit in the case of Noah, to whom God said, “I will establish My covenant with you.” This pattern was repeated with Abraham and with Moses. In each case, a covenant was the exclusive means God used to exercise authority over man. Yet, this was a matter of grace on God’s part – He did not have to do it this way. God chose out of love to deal with man in such a way which would respect His image in us, that is, a way which recognized man’s free will to choose either for or against God’s way.
On the other hand, man has no choice but to exercise authority via a covenant framework. Man gets all of his right to rule from a covenant delegation of authority. What authority has not been lawfully delegated, man cannot lawfully exercise. Unlike God, man is not the uncreated Creator, who has unlimited authority to create, and therefore to rule. A creature made entirely subject to God’s rule, man has no inherent authority to rule over other men because no man has created himself, much less other men. Neither does man have inherent rights to rule other men by reason of the dominion mandate. Genesis 1:28 specifies that man has dominion over fish, birds, and every living thing that moves on the earth, but man is not a “thing” to which dominion applies. Rather, man is a “being” who rules over the “things”, thus, no provision is made in the dominion mandate for one man ruling over another.
These biblical principles of law and covenant are paralleled in American constitutional law. Like the biblical covenants between God and man, the constitutional documents of America did not originate within a legal vacuum. A constitution does not create law. Rather, a constitution establishes a framework for the administration of already existing law. In America, that preexisting law is recognized in the Declaration of Independence as “the laws of nature and of nature’s God.”
But what is the meaning of the phrase, “the laws of nature and of nature’s God”, acknowledged in the Declaration and affirmed in the Constitution? This phrase has been much misunderstood by modern scholars. One of the leading authorities on the Declaration, Carl Becker, claims that the phrase was an eighteenth century appeal to natural law. Natural law is the law that governs the affairs of mankind which are discoverable by man’s reason unaided by the special revelation of God. Becker claimed the framers believed there is an exact correspondence between human reason and the objective world, and that the words “laws of nature and of nature’s God” meant man’s rational explanation of the world based upon empirical evidence. But, Becker’s view is simply erroneous.
The phrase “the laws of nature and nature’s God” had a fixed meaning in eighteenth century England and America. The famed English jurist Sir William Blackstone wrote in 1765 that the law of nature was the will of God immutably impressed upon the world when it was created. By this law all things hold together. The law of nature includes all physical laws, the laws regulating both animate and inanimate objects, the plant kingdom, and laws governing human relations. The immutable laws of human nature and relations which God had prescribed were specifically distinguished from natural law. Blackstone had this to say about the natural law:
“Undoubtedly, the revealed law is, humanly speaking, of infinitely more authority than what we generally call the natural law, because one is the law of nature expressly declared so to be by God Himself. The other is only what by the assistance of human reason we imagine to be that law.”
The “law of nature’s God,” while not the exact term used by Blackstone and others, parallels what he called the revealed or divine law. God had not only established His laws in the created universe, He had spoken those very laws in the Holy Bible. Therefore, the phrase “the laws of nature and nature’s God” was a most convenient term to refer to the laws of God in the created order and in God’s word. Those who claim otherwise must show that the Declaration used the phrase in a novel way, for Jefferson, Adams and other framers consistently claimed that the Declaration contained no new ideas.
Since all of the laws of nature governing human conduct proceed directly from God’s creation of the world, all such laws share certain attributes which reflect the unchanging character of God. In fact, it is the unchanging nature of God that gives any permanence to law at all. Were it not for the God who is from everlasting to everlasting, and who is involved in the affairs of men, law could not have any permanence.
The nature of law will be examined in detail later, but may be summarized now as being fixed, uniform and universal. That is, God’s law, and man’s law patterned after it, does not change with time, treats all men the same, and does not vary from place to place. These rules of law are not situationally relative, neither are they based on a person’s ability or necessity. The law is no respecter of persons. Hence, the U. S. Constitution, though it is the supreme law of the land, is itself under law. That law is the law of nature (the will of God impressed in the creation), which is no respecter of nations. This does not place the Constitution against God’s law, but gives a framework for understanding the Constitution in light of God’s law.
The importance of these principles is underscored by a debate currently underway between the Attorney General of the United States, Edwin Meese III, and a Justice of the U.S. Supreme Court, William J. Brennan. At issue is the question of whether the U. S. Constitution is to be interpreted according to a fixed or evolving standard of law. On July 17, 1985, Attorney General Meese remarked as follows:
To allow constitutional text and the intentions of the framers to be nudged aside by the moral speculations of judges and advocates is to acquiesce in the misguided notion that a written constitution can somehow be made viable only by ignoring or supplanting it.
On October 12, 1985, Justice Brennan replied as follows:
It is arrogant to pretend that from our vantage we can gauge accurately the intent of the framers on application of principle to specific, contemporary questions. . . . We current justices read the Constitution in the only way that we can: as twentieth century Americans. We look to the history of the time of framing and to the intervening history of interpretation, but the ultimate question must be, “What do the words of the text mean in our time?”
But, Justice Brennan’s view is out of step with our nation’s heritage. After recognizing the legal context for the new nation, the Declaration further acknowledges that some truths are self-evident: “that all men are created equal [and] that they are endowed, by their Creator, with certain unalienable rights.” In the document’s final paragraph, appeal is made “to the Supreme Judge of the world . . . with a firm reliance on the protection of DIVINE PROVIDENCE”, to which the signers pledged their “sacred honour.”
Clearly, the founders of America acknowledged the truth of the Genesis account of the origin of man, and the applicability of God’s law and will in the affairs of men. One cannot understand American constitutional law apart from understanding the laws of nature and of nature’s God which set the context in which the Constitution was framed and adopted. In this sense, the Declaration of Independence is the foundation of all American constitutional law.
Prior to 1776, the American colonies were governed under the various charters received from the British crown, such as the First Charter of Virginia, the Charter of Massachusetts Bay, the Charter of Maryland, the Frame of Government of Pennsylvania, etc. In each of these charters, the colonists acknowledged allegiance to the British crown, and were considered by parties on both sides of the Atlantic to be citizens of England. They were governed by the terms of the great charter, Magna Carta of 1215, and its confirming document, the Confirmatio Cartarum of 1297. In the parlance of the day, the colonists were guaranteed all the “rights of Englishmen.”
These rights were the basis for the resistance of the colonies to increasing tyranny in the late eighteenth century. The Resolutions of the Stamp Act Congress of 1765 claimed that the colonists were “entitled to all the inherent rights and privileges of his natural born subjects within the kingdom of Great Britain.” The Declaration and Resolves of the First Continental Congress of 1774 relied upon rights granted by “the immutable laws of nature, the principles of the English constitution, and the several charters or compacts.” Thus, before 1776, America was governed by the laws of nature as administered by the covenant framework of England.
The Declaration changed the administration of law in America forever by asserting, on the basis of the laws of nature and nature’s God, the right to be governed by the covenant framework of the United States, not England. Instead of being governed by Magna Carta, the nation was declared independent, governed by the Declaration and the various state constitutions. According to John Quincy Adams, speaking on the fiftieth anniversary of the Constitution, the rights of the colonists were founded on “the natural rights of mankind. Their government, such as should be instituted by themselves, under the solemn mutual pledges of perpetual union.”
The Declaration was not a mere political document, but the legal charter of the nation. The first two paragraphs of the document, like an opening statement presented in a trial, state the law upon which the claim for independence is based. The grievances which follow are like evidence presented at trial to support the legal claim. Finally, the last three paragraphs, like a closing argument, claim that the law, when applied to the facts of the case, require the recognition of a new legal entity, the United States of America. With a constant reliance on the unity of the people of America, the Declaration in every way affirms the existence of a new nation “to assume, among the powers of the earth, the separate and equal station to which the laws of nature and nature’s God entitle them.”
The U. S. Constitution affirms that the United States was chartered by the Declaration of Independence, not by the Constitution or the Articles of Confederation. When the Constitution was drafted, the framers had no idea how long it would take the people to ratify the document, so all of its provisions relating to dates were calculated as of September, 1787. When representatives were required by Art. I, Sec. 2, Cl. 2 to have been “seven years a citizen of the United States,” it meant that it was possible for someone to have been elected a representative even if the ratification occurred in 1787. Thus, the nation would have had to exist as early as 1780.
But, Senators were required by Art. I, Sec. 3, Cl. 3 to have been United States citizens for nine years, which acknowledges the existence of a United States by 1778. Finally, The Constitution closes with the phrase, “Done in Convention . . . in the year of our Lord one thousand seven hundred and eighty-seven, and of the independence of the United States of America the twelfth.” Since eleven years and two months had passed between the signing of the Declaration of Independence and the drafting of the U.S. Constitution, the nation was in its twelfth year. Thus, the nation was chartered by the Declaration, not the Constitution.
The status of the United States as a nation was not diminished by the fact that there was not yet any national government. According to John Quincy Adams, “In the enthusiasm of their first spontaneous, unstipulated, unpremeditated union, they had flattered themselves that no general government would be required. As separate states they were all agreed that they should constitute and govern themselves.” This situation did not long exist, however, as the states entered into the Articles of Confederation and Perpetual Union in 1778, to establish a national government.
But, the Confederation failed. One of the primary reasons for failure was the inconsistency of the Confederation with the principles of the Declaration. Whereas the Declaration had proclaimed a national union of the people in colonies independent from England, but not from each other, the Confederation was a league of friendship between sovereign independent states. The alliance of states was more than unworkable: the people had failed to live out the promise of the Declaration in the formation of their government.
The Constitution was able to carry out the purposes of the Declaration in a way which the Articles of Confederation never could. In contrast to the Confederation, the Constitution was adopted by the people, not the states, “to form a more perfect Union.” In adopting the Constitution by the people, the pattern of 1 Samuel 10:17-25 was followed. When Israel was about to install its first monarch, Samuel convened the people at Mizpah, and obtained their ratification of the kingdom prior to establishing Saul as king. The nation was not a league of tribes or clans, but a union of the people called by the name, “Israel.”
Similarly, although the U.S. Constitution was ratified in state conventions, the conventions were not legislatures representing the states. Rather, the state conventions represented the people of the states, which conventions dissolved following ratification. As John Quincy Adams put it, the Constitution “was the complement to the Declaration of Independence; founded upon the same principles, carrying them out into practical execution, and forming with it, one entire system of national government.”
John Marshall, then Chief Justice of the U.S. Supreme Court, wrote in 1803 that the “government of the United States has been emphatically termed a government of laws, and not of men.” Yet, the “rule of law” which binds the rulers and the ruled alike, and which is the foundation of all American civil government, is rooted in the Bible. The laws which rule mankind are the laws of God’s creation and His word, or the “laws of nature and of nature’s God,” as recognized in the Declaration of Independence. The means of rule is the civil covenant, specifically, the various state constitutions and the U.S. Constitution, patterned after the way God rules man. Hence, the government of the United States cannot be properly understood except in the light of biblical principles of law and covenant.
* Copyright © 1987, 2006 Herbert W. Titus and Gerald R. Thompson. Used with permission.