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America’s Heritage: Constitutional Liberty

by Herbert W. Titus and Gerald R. Thompson


A FEDERAL REPUBLIC

A Federal Republic Is Best
The Federal Union Was Anticipated
The U.S. Constitution Presupposes a Federal Union
The Relationship of National and State Authority
The Importance of an Object, or Purpose, Analysis
The Legacy of Federalism Has Been Lost and Perverted

“Furthermore, you shall select out of all the people able men who fear God, men of truth, those who hate dishonest gain; and you shall place these over them, as leaders of thousands, of hundreds, of fifties and of tens. And let them judge the people at all times; and let it be that every major dispute they will bring to you, but every minor dispute they themselves will judge. So it will be easier for you, and they will bear the burden with you.”  [Exodus 18:21-22]

“With you, moreover, there shall be a man of each tribe, each one head of his father’s household. . . . These are they who were called of the congregation, the leaders of their fathers’ tribes; they were the heads of divisions of Israel.”  [Numbers 1:5,16]

A FEDERAL REPUBLIC IS BEST

Although the authority to institute a government among men reflects the legal equality of the people and is their great unity, the people are governed best by a diversity, not unity, of civil powers. Since the civil ruler has the authority to wield armed might, a unity of civil powers in one body tends to corrupt it toward tyranny. God has also created man to be self-governing, that is, to diffuse authority among men, to maximize the extent of man’s volitional allegiance to Him in the performance of his duties. Yet, there is no prescribed form that civil government must take to conform to God’s law. Rather, the form of government is a matter of liberty, which man may exercise as he sees fit to accomplish God’s purpose.

Yet, some forms of government are better able to conform to God’s desire for civil government than others. Among God’s desires for civil government is the capability of having national unity in some matters, but local self-rule in all other matters. This preserves the national identity of a people in harmony with the institutions of family, ecclesiastical and self-government. The principle of civil government which satisfies this desire is vertical unity and diversity in the nature of the union. The form which best employs this principle is a federal republic.

Indeed, a significant parallel exists between the form of government in ancient Israel and that of the United States, since both nations may be regarded as a federal republic. By “federal” it is meant that civil power is allocated between a national body and local bodies pursuant to a covenant, usually written. By “republic” it is meant that civil power is exercised by representatives of the people subject to the “rule of law.”

The existence of a federal republic in Israel did not originate with the installation of Saul as king. Rather, it began shortly after the nation left Egypt and was first able to exercise self-government. Exodus 18:21-22 states the counsel of Jethro, Moses’ father-in-law, to select from the people “men who fear God, men of truth, those who hate dishonest gain; and you shall place these over them, as leaders of thousands, of hundreds, of fifties and of tens.” These leaders were to “judge the people at all times,” not as an exercise of judicial power, but as a delegation of general executive power. Exodus 18:24-26 recounts that Moses took the counsel of Jethro, and appointed the local civil leaders of the people.

Although Moses was judge over all Israel, Israel’s government was not centralized, but decentralized, incorporating the principle of vertical unity and diversity. In other words, the people were one nation, but their government was in large part based upon local self-rule. In addition to a national judge, the people had local rulers. This is evident from the political subdivision of Israel based along tribal, or family, lines. All of the descendants of Jacob are considered the sons of Israel, but Jacob had twelve sons, each of whom became the head of a tribe within the nation.

Exodus 18:22,26 also indicates the nature of the rule used to distinguish national matters requiring unity from local matters allowing for diversity. Every “major” matter was national, while every “minor” matter was local. Beyond this general statement of the rule, the people had liberty to determine which matters were major or minor. However, it may be observed that there is one matter which may be considered fixed by the law of nature as being “major,” namely, national defense. Certainly Israel, in conquering Canaan under Joshua’s leadership, waged war as a national unit. Even though the promised land was divided by tribe, all the tribes fought together in battle, regardless of which tribe was to eventually occupy any specific parcel of land.

This early form of federal structure preexisted the first census God directed Israel to take in Numbers 1:2-16, numbering all the men of the nation, tribe by tribe. As indicated in verse 16, the leaders of the tribes were “heads of divisions in Israel,” that is, they were civil rulers. These men were not recognized as leaders merely for the purpose of the census. They had been selected according to the procedure established in Exodus 18. Thus, when it came time to take the census, Israel already had a civil government based on local self-rule established.

The vertical unity and diversity in the form of Israel’s government continued even after Saul. For example, 2 Samuel 5:1-3 reports that when “all the tribes of Israel” came to confirm David as the successor to Saul, it was the elders (i.e., civil leaders of the people) who made a covenant with David and anointed him as king. Similarly, when Joash was about to replace the unlawful rule of Athaliah in 2 Chronicles 23:1, Jehoiada the priest entered into a covenant to restore the true king with the “captains of hundreds” in Israel, that is, the local civil leaders. Thus, the institution of the kingdom did not disrupt the federal structure of Israel.

This is what is meant by vertical unity and diversity. The nation of Israel was one people, identified by a single common ancestor, partakers of a single covenant with God at Sinai, under a common national ruler: this was their great unity. At the same time, Israel was twelve tribes, each of which had a separate lineage, inheritance, office among the people (i.e., the Levites), and civil leaders: this was their great diversity. The nation was at the same time united and diverse.

Each tribe of Israel also had an internal unity and diversity. That is, the tribes were subdivided into clans and families, each with its recognized head. This tribal subdivision was reflected whenever Israel gathered in representative assembly, for the nation gathered according to tribes and households. See 1 Kings 8:1, 1 Chronicles 28:1, and Nehemiah 8:13. God often used the tribal subdivisions to reveal His will among the people, such as the choice of Saul as king (1 Samuel 10:20-21) and the judgment of Achan (Joshua 7:14-18). A parallel in the United States is the subdivision of each state into cities and counties or other political units, all of which are usually represented in the state legislature.

The tribal division of the people of Israel was also reflected in a geographic division of Israel’s land. Joshua 14:1-5 states how the land was allocated tribe by tribe among the sons of Israel, except the Levites, who received no portion of the land. The tribal land allotments were further subdivided by clans and families according to Numbers 33:54. The inheritance of land parcels along tribal lines was protected both from permanent sale of the land (see Leviticus 25 regarding the year of jubilee) and from intermarriage among the tribes (see Numbers 36).

A parallel in the United States is that each state has its own geographic territory, as do cities and counties. There is no protection against the permanent sale of land or intermarriage between persons in different states in the United States because land is not apportioned according to ancestry, and thus does not parallel Israel in this respect. Yet, the U.S. Constitution does protect the integrity of each state’s territory with respect to other states. Art. IV, Sec. 3 of the Constitution provides that no state shall be formed within the jurisdiction of another state, or by the combination of parts of two or more states, without the consent of each state legislature concerned, as well as Congress.

THE FEDERAL UNION WAS ANTICIPATED

However, the federal structure of Israel is not unique, even in scripture. One such parallel is the triune God, that is, one God in three persons, who have a unity in the divine nature, but diversity in personality and ministry. To know that the Father, Son and Holy Spirit are each God, and yet know that there is only one true God, is one of the most basic, yet profound, doctrines of the Bible. Indeed, an understanding of the nature of God solves the problem of “the one and the many” which has puzzled many men. The problem of how to govern men as a unit for some purposes, and yet recognize their diversity for other purposes, is not solved by emphasizing either unity or diversity to the exclusion of the other. Rather, unity and diversity exist together, in the same body.

In fact, this understanding of the Godhead led to the rise of “federal theology” in America during the colonial period. It should not be surprising that the concept of federal theology was applied in a civil context in America, where church and civil governments were based on a similar covenant framework. In the civil context, federal theology gave rise to the concept of a diffusion of power among men. It was recognized that there were certain purposes for which national government was desired, and other purposes for which local government was desired. Thus, the United States was created as a nation with a federal system, in which there is one nation, but fifty states. In America, there is both unity and diversity in polity and government.

But the federal Constitution is not alone in announcing the concept of a federal republic in America, because American federalism preceded the adoption of the Constitution. The Declaration of Independence exemplifies this principle well. The unity of the nation was affirmed in the singular use of the word “people” in the phrases, “it becomes necessary for one people to dissolve the political bands . . .” and “by the authority of the good people of these colonies . . ..” Yet, diversity was acknowledged in the plural use of the word “States” in the phrases, “FREE and INDEPENDENT STATES” and “THE UNANIMOUS DECLARATION OF THE THIRTEEN UNITED STATES OF AMERICA.”

Since the Declaration anticipated a federal union, it did not declare the colonies to be “free and independent states” from each other. Rather, independence of the whole was declared from Great Britain. As John Quincy Adams remarked, on the fiftieth anniversary of the implementation of the Constitution,

It is not immaterial to remark, that the Signers of the Declaration . . . declare, not each of the separate Colonies, but the United Colonies, free and independent States. The whole people declared the Colonies in their united condition, of RIGHT, free and independent States. . . . The independence of each separate State had never been declared of right. It never existed in fact.

In addition to the Declaration, many state constitutions affirmed the legitimacy of the nation and the federal form of its government. For example, the Constitution of Virginia of 1776, Sections 2 and 3, affirmed the principle that civil government originates with the people with this language: “all power is vested in, and consequently derived from, the people,” and “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community.”

Implicit in these statements is a recognition of the right of the people of the nation to form their own national government, distinct from and in addition to the right of the people of the states to form their own local governments. Similar language may be found in the Constitution of Pennsylvania of 1776, the Delaware Declaration of Rights of 1776, and the Constitution of New Hampshire of 1784.

Some state constitutions even expressly anticipated the formation of a national government. For example, Article IV of the Constitution of Massachusetts of 1780 states,

The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state; and do, and forever shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may not hereafter be, by them expressly delegated to the United States of America, in Congress assembled.

Virtually identical language is employed in Article VII of the Constitution of New Hampshire of 1784. In each case, the state constitutions acknowledged the vertical unity and diversity of civil power, and that national covenanting authority must come from the people, not the states.

THE U.S. CONSTITUTION PRESUPPOSES A FEDERAL UNION

It is also presumed that the states would not, and did not, become political subdivisions of the national government upon its formation. There is not the least indication in any state or national document that the states would ever be merged into a single nation-state. The states are not creatures of the nation, rather, the states and the nation were created at distinct times by distinct grants of authority pursuant to distinct civil covenants. Any attempt to eradicate these distinctions is the enemy of the American federal republic.

The most obvious acknowledgement of federalism in the U.S. Constitution is contained in the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” This language refers to the states and the nation as distinct entities, each with distinct powers, and declares that the nation has vertical unity and diversity. By this Amendment the separate legal and political identity of the States is preserved against national encroachment, i.e., the elimination of vertical diversity.

Additionally, the import of most of Article IV of the Constitution is to protect the federal republican structure of the United States. Section 1 gives “full faith and credit” to the public records of each state in every other state, assuring the ability of each state to govern matters within its jurisdiction throughout the nation. Section 2 contains a similar provision respecting the “privileges and immunities” of the several states. Another provision in that section assures that each state’s criminal laws are respected nationwide, by compelling the extradiction of criminals from one state to another.

Section 3, as well as protecting the integrity of state borders, expressly denies that the Constitution prejudices any claims of any particular state over the property or territories of the United States. Finally, in Section 4, “the United States shall guarantee to every State in this Union a Republican Form of Government.” This provision not only guarantees that each state must be a republic, but once again attests to the inviolable integrity of the states in the structure of the federal system.

Federalism is evident in many other portions of the Constitution, a few of which are as follows. The Congress has a unity of legislative power granted in the Constitution, but has a diversity of Houses. The House of Representatives is composed of members elected by the people in the various states (Art. I, Sec. 2, Cl. 1), whereas the Senate was originally composed of members chosen by the various state legislatures, not the people of the states (Art. I, Sec. 3, Cl. 1). Thus, both the people as a whole, and the people in their state forms, were represented in the Congress.

The people vote for the President in popular election, but he is not elected until the electoral college, composed of electors appointed by the States, vote their ballots. And, Article VI binds all state officials, whether executive, legislative or judicial, to uphold the Constitution. In each case, the separate legal and political status of the States is presumed, and is preserved intact, notwithstanding that for some purposes, the people act as a national unit.

THE RELATIONSHIP OF NATIONAL AND STATE AUTHORITY

The fundamental principles of federalism are well illustrated in the case of McCulloch v. Maryland, in an opinion written by Chief Justice John Marshall. McCulloch considered whether the State of Maryland could tax a bank chartered by Congress. Of primary importance to the case was the question of the relationship between the state and national governments under the Constitution.

Marshall began his analysis by assuming that the law of God is the framework for the Constitution, thus, the framework for national authority. This understanding of law recognizes God as the true law-giver, whose will does not change with time (His dominion is from everlasting to everlasting), place (He owns the whole earth) or person (God is no respecter of persons). Since the Constitution is based upon a biblical understanding of law, the rules governing national authority cannot be ones of degree, but must be fixed, uniform and universal. That is, the rules will not vary from time to time, person to person, or place to place.

We are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power. The attempt to use it [by a state] on the means employed by the government of the Union . . . is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give.

For the same reason, the relationship between national and state governments under the Constitution must be a matter of law, not of degree. Therefore, whether a state may tax the U.S. Bank does not depend on the size of the tax. A tax of even one dollar is unconstitutional because no state has authority to tax the operations of the national government regardless of the circumstances.

However, before stating the rule of law governing the relationship between national and state governments, Marshall affirms the covenantal nature of the Constitution. The argument made by Maryland was that the Constitution did not emanate from the people, but was an agreement between independent sovereign states. Hence, Maryland viewed the Constitution as a treaty between nations, not a national covenant.

Marshall disagreed, finding that the Constitution embodied covenantal principles, such as mutuality, community, and the justification of authority. In each case, the evidence for the existence of a covenant was tied to the people, for it was the people who “were at perfect liberty to accept or reject” the Constitution; it was the people who formed a national community; and it was the people from which “the Constitution derives its whole authority.”

Thus, the Constitution was “a mere proposal” when it came from the Convention of 1787, requiring the ratification of the people in state conventions. The Constitution “required not the affirmance, and could not be negatived, by the State governments.” Marshall further found that the law of nature of constitutions prescribes that only the people have authority to constitute a government.

To the formation of a league, such as was the confederation, the State sovereignties were certainly competent. But when, “in order to form a more perfect Union,” it was deemed necessary to change this alliance into an effective government . . . acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all.

It was necessary to demonstrate the covenantal nature of the Constitution to conclude that the “Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties.” Thus, before he could begin to examine the nature of federalism, Marshall needed to examine the nature of the covenant which created the federal system. It is in this context that Marshall examines the vertical unity and diversity of the Constitution, i.e., that national and state governments co-exist in a federal system, exercising civil power concurrently.

In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.

THE IMPORTANCE OF AN OBJECT, OR PURPOSE, ANALYSIS

Marshall begins his analysis of the division of powers between national and state governments by determining the nature of powers exercised by each. The rule by which powers are distinguished is based upon the objects, ends or purposes entrusted to each government. In this there is an indispensable link with the covenantal nature of the Constitution. The nature of a constitution, or civil covenant, is that “only its great outlines should be marked, [and] its important objects designated.” It is also the nature of a constitution that it is “intended to endure for ages to come,” consisting of “immutable rules,” embodying the covenantal principles of perpetuity.

A constitution can achieve this goal of perpetuity only if it adheres to expressing objects, ends or purposes, rather than the means, of exercising civil power, because means change, but ends remain the same. Hence, the only way to interpret the Constitution consistent with its covenantal nature is to examine the purposes, or objects, of the powers allocated to the national and state governments.

Since the allocation of federal powers is based upon their purposes, objects or ends, rather than means, the allocation of powers becomes a question of law, because the purpose of a power remains constant, even though the means of implementing it may vary. In other words, the rules of law never change, but the applications of those rules may change.

Thus, the law of federalism remains fixed, uniform and universal, although the legislative policies of state and national governments may (and do) constantly change. It is only in this way that the people are guaranteed a government of laws, and not of men. If the relationship between the state and national governments changes with each new legislative term, it becomes a matter of politics, not law, and gives no security to the integrity of either government, nor to the people.

A key test of determining whether a power is vested in the national or state governments is whether is purpose is “great” or “small.” That is, great matters are matters of national authority, and small matters are matters of state authority. Marshall considered the great matters which bound the Union together to consist primarily of concerns for national defense and foreign affairs, and economic unity in the family of nations. There is an obvious correlation between Marshall’s analysis and the language of Exodus 18:22 relating to “great matters” and “small matters.”

Marshall applied the preceding legal analysis based on ends in the McCulloch case as follows:

It is admitted that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. . . . All subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend are, upon the soundest principles, exempt from taxation.

Thus, by focusing on the objects, or purposes, of state and national power, the objects entrusted to each are separate and distinguishable as a matter of law.

To determine which objects are entrusted to the national government, Marshall relies solely upon the text of the Constitution for defining the law of federalism. Although the law of federalism antedates the Constitution, the Constitution applies the law of federalism in America in a way which is supreme compared to all applications. Hence, a sound exposition of the constitutional text is required. This procedure is consistent with the example of 1 Samuel 10:25, when Samuel wrote the manner of the kingdom of Israel in a book. By preserving the terms of national authority in writing, recourse may be had to those terms to maintain certainty and consistency in the application of the law.

THE LEGACY OF FEDERALISM HAS BEEN LOST AND PERVERTED

Unfortunately, this legacy of federalism has been largely lost or abandoned in America. As early as 1851, just 16 years after Chief Justice Marshall died, the Supreme Court exchanged an analysis of national and state powers based on fixed objects and immutable law, for one based on changing subjects and current politics. In the case of Cooley v. Board of Wardens, the Court decided that it would no longer examine the purpose of federal legislation to determine whether it fell within the scope of the purposes entrusted to Congress under its constitutional power to regulate interstate commerce. Instead, the Court recognized the power of Congress to regulate any subject of interstate commerce which Congress deemed to require uniformity among the states.

It was a subtle, but significant, shift in legal analysis. From that time forward, the Court has largely ignored inquiring into the purposes for which the Constitution grants most of Congress’ powers. Consequently, Congress has been free to pass legislation unrestrained by purpose limitations, resulting in the erosion of the integrity of the states. In fact, Congress is now able to pass legislation unencumbered by the fixed principles of law: everything has been reduced to mere politics. Once the notion of fixed purposes is thrown out, there is no way to determine the immutable principles of law. If legislation can be justified solely on the basis of the changing needs of the day, as determined by Congress, a consideration of the limits of delegated authority becomes irrelevant.

The logical outcome of the Cooley rule is that Congress has the same “police power” over the nation as the states do. If Congress finds that the incidence of divorce, automobile accidents or drug abuse nationwide “demands” a uniform solution, it can enact laws regulating any of these areas as fully as the states could. In fact, every area of modern life, no matter how local or how “minor,” can be regulated by Congress in a uniform manner, so long as similar conditions prevail in most states. The distinctions between state and national governments are then blurred, so that the unity and diversity of the federal system has been exchanged for mere uniformity. In the end, the states are no longer regarded as separate civil governments, but as mere political subdivisions of the United States.

The shift away from law to politics has been most evident since the “New Deal” legislation of the 1930’s. During that period of economic depression, the Supreme Court lost the last vestiges of an object analysis of the Constitution under extreme political pressure to validate legislation due to the great needs of the nation. By 1937, the Court was validating a variety of new national programs which were virtually indistinguishable from programs it struck down as prohibited to Congress as late as 1935: unemployment compensation, welfare assistance, pension benefits and social security, among others. The irony of the case opinions is that the Court purported to return to the Marshall legacy of federalism, in order to justify its “about face.” Nothing could have been further from the truth.

We need to hearken back to the true legacy of a federal system in America. It was never intended by the framers, nor provided for in the Constitution, that Congress should exercise power over both the major and the minor matters of the nation. It is not the current political climate which determines the great objects, and therefore the fixed rules of law, embodied in the Constitution’s grant of powers. The United States is a government of limited powers, and unless those limitations are recognized and enforced, the national government will be unrestrained. It would pay us well to heed the words of The Federalist, #78:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is executed, is void. . . . To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

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NOTE

*   Copyright © 1987, 2006 Herbert W. Titus and Gerald R. Thompson. Used with permission.