The Laws of Nature and of Nature’s God:
The True Foundation of American Law
by Kerry L. Morgan
THE CORNERSTONE OF INALIENABLE RIGHTS
- A Finite Articulation of the Laws of Creation
Rights in the Constitution’s Text
Rights in the Amendments
What does the Declaration say about the laws of nature and of nature’s God? By its own terms the Declaration of Independence reflects only a finite articulation of that law. The Declaration outlines and explains only a few of the most important principles that are embodied in the law of God. The Declaration was not meant to define and enumerate every legal idea God has ever expressed. The Declaration simply provides us with the essential legal principles. The document enumerated the essential ingredients of the law of nature: equality, unalienable rights and government by consent.
These ingredients or principles were subsequently incorporated into both the federal and to a lesser extent, state constitutions. The framers of the federal Constitution deliberately left to the states the business of fleshing out the particulars of the law of nature and of nature’s God in their respective state constitutions. It is deplorable that this task has remained largely unaccomplished. This condition is owing in no insignificant measure to the rise of federal judicial preemption of state legislative power,30 and the decline of serious reflection about the origins of law among lawyers, law school professors, seminarians and the clergy. Despite these conditions, the fact remains that the Declaration’s articulation of universal legal principles are nevertheless true for all time, all peoples, states and nations.
The framers understood that the principles of the Declaration not only empowered them to define the purpose of civil government, but also to create or establish one or more civil governments. They understood that the civil governments they would establish had a definite purpose – the equal security of God-given rights. It seems fairly clear, therefore, that they accepted the idea that God gave rights to people and that people could know these rights with some degree of sophistication. The framers would not have gone to the trouble of creating a new government dedicated to securing the unalienable rights of the people, if they really believed that it was impossible for the people to know what those rights were or if the people could not understand where those rights came from.
In determining the extent the framers mirrored the laws of Creation in both the Declaration and then subsequently in the Constitution, we may expectantly look to the actual text of those documents. An examination of the Declaration and federal Constitution’s text reveals that in its most basic sense the Constitution was designed to carry into effect the principles of the Declaration (which in turn were a finite expression of the Creation law of God).
The Declaration articulated five derivative principles of the laws of nature and of nature’s God. They are, first, that people are all created by God, and that by virtue of this circumstance are therefore entitled to be treated equally before the law. Second, all people are endowed by God with certain unalienable rights. Third, the people are also endowed with the right to govern themselves according to their written consent. Fourth, the people retain the right to alter or abolish an unlawful form of government as an exercise of self-government. Fifth, the people are free to organize the civil government’s powers in such a way as to secure their happiness.
The first principle articulated in the Declaration of Independence declares that “all men are created equal . . .”31 The Bible indicates that men and women are created in God’s image, that they are equally human before God.32 The rule of equality is tied to the creation of man in God’s image. Thomas Jefferson realized the political and legal implications of this in the context of slavery. He declared that “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them . . . .”33
The principle of equality was subsequently reflected in the Constitution. Article I, Section 9, Clauses 4, 5 and 6 reflect the principle of equality with respect to taxation. These clauses stress proportionality and permit no preferences in regulating commerce. Article IV, Section 2, Clause 1 asserts “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The equal application of the law to all citizens can only be rightly understood and practiced in light of the principle of equality. The prohibitions against titles of nobility found in Article I, Section 9 and Article I, Section 10 also stem from the equality principle.34 These constitutional provisions were instrumental in eradicating both emoluments and hereditary succession of power.
The principle of equality is perhaps most importantly articulated in Article I, Section 2 which provides for popular election of representatives to the House of Representatives. The Fourteenth Amendment subsequently expanded that provision to require that representatives “be apportioned among the several States according to their respective numbers . . . .” This change, accompanied by the Fifteenth [voting without regard to race], Seventeenth [direct election of Senators], Nineteenth [voting without regard to gender], Twenty-Fourth [no poll tax] and Twenty-Sixth [18 year old vote] Amendments, provides all adult citizens (excepting those in the District of Columbia) with the equal opportunity to participate in selecting Representatives and Senators.
The Fourteenth Amendment also embodies the equality principle and provides that no “State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” With respect to equality between the states in the Senate, Article Five asserts that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Second, the Declaration of Independence states that all men are “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness . . .” The Declaration recognizes that unalienable rights are defined a priori by God. In this sense, the law governing the exercise of unalienable rights is from eternity. Lex est ab æterno.35 Neither the Declaration or the Constitution could enumerate all the rights which were to be protected. They could, however, point to the source of rights – our Creator – for reference by future generations. Each succeeding generation could then look to God the Creator and the particular rights he has granted which that generation considered were most suitable to assuring its own safety and happiness.
The legal definition of “unalienable,” and “rights” are worth reviewing. By definition, unalienable means incapable of transfer. In other words an unalienable right cannot be given away. More importantly, however, that which is unalienable cannot be taken away, especially by the civil government, except by forfeiture.36 The idea of rights as unalienable, indefeasible, indubitable or inherent was part and parcel of the framers’ worldview. Though these different words may not have precisely the same meaning, they carry the same essence – that people have certain rights from their Creator which civil government is not authorized to deny or disparage.37
The idea of unalienability is easier to grasp than the idea of rights. This condition is owing to the deterioration of the definition of rights. The definition of rights has been alloyed through impure construction. Unalienability on the other hand, has simply been ignored and thus has not suffered definitional corrosion of its meaning. To the modern jurist, a right is considered as such simply because it is asserted as a right. For instance, Black’s Law Dictionary declares that a right is “a power, privilege, faculty, or demand, inherent in one person and incident upon another.”38
It is noted that “the primal rights pertaining to men are enjoyed by human beings purely as such, being grounded in personality, and existing antecedently to their recognition by positive law.” The source of rights identified here is the “primal” aspect of man qua man. This approach reflects a humanistic jurisprudence and is an absolute non sequitur from the laws of nature and of nature’s God. The humanistic approach is the antithesis of the Declaration’s observation that people are “endowed” with unalienable rights by their Creator.
Compare the humanist view with Noah Webster’s 1828 dictionary definition. Webster did not declare that rights are primal or grounded in personality. He declared that a right is:
conformity to the will of God, or to his law, the perfect standard of truth and justice. In the literal sense, right is a straight line of conduct, and wrong a crooked one. Right therefore is rectitude or straightness, and perfect rectitude is found only in an infinite being and his will.
Webster defines a right as conformity to the law of God – to rectitude. Humanist jurisprudence founded upon evolution and mere positivism, however, discards the need for rectitude. It envision a system of justice aminated by a jurisprudence in which rights may be wrongs.39 This vision of justice, however, is thoroughly contrary to the established rule that jus ex injuria non oritur.40
Unalienable rights animate both the text and the amendments to the national Constitution.41 Examples of enumerated unalienable rights are found in the text of Article I, Sections 9 and 10 and include prohibitions against Bills of Attainder and ex post facto laws. Such prohibitions are designed to secure the right to due process and freedom from the legislature exercising non-legislative power. Likewise the prohibition of laws impairing contractual obligations secures the right to contract. In order to ensure the unalienable right of government by the consent of the people, the United States is barred from granting titles of nobility in Clause 8. Certain officeholders are also strictly regulated in receiving such titles or their advantages from any foreign power by that same Clause. Treasury appropriation can only be made pursuant to the consent of the people’s representatives by laws according to Clause 7.
Congressional control of migration subsequent to 1808 found in Article I, Clause 1 secures the right of the people to self-defense, property and security of their borders. The import of that clause was also designed to eventually secure equality, the unalienable right of life, and due process against the countervailing interests of the slave trade. The habeas corpus provision of Clause 2 is also tied to these rights and due process requirements. And lastly, the rights incidental to equality are reflected in Clauses 4, 5 and 6 as they relate to proportionality of direct taxes, equal advantages of tax free exports, and the prohibition of preferences among ports from one state over those of another. Many of these rights and principles are also reflected in Article I, Section 10.
An example of an enumerated unalienable right found in the First Amendment prohibits Congress, inter alia, from making any law prohibiting the free exercise of religion. This provision has its roots in Thomas Jefferson’s “Virginia Bill for Establishing Religious Freedom,”42 as well as the Declaration’s unalienable right of liberty. One of the controlling premises of this statute, like that of the First Amendment, is that “Almighty God hath created the mind free.”43 Jefferson asserted that freedom of the mind was “of the natural rights of mankind,” and therefore beyond the scope of civil jurisdiction. Other freedoms, such as speech, press, assembly and petition, are also found in the First Amendment. These freedoms are also based in part on the fact that “Almighty God created the mind free.”
In addition, the Second Amendment prohibits Congress from infringing upon the right “to keep and bear arms” which is immediately derived from the unalienable right to life and that of self-government. The Fifth and Fourteenth Amendments assure that neither the Congress nor the States have power to deprive a person of “life, liberty or property, without due process of law.” Not all constitutional provisions, however, deal with unalienable rights, such as the twenty dollar prerequisite to jury trials in the Seventh Amendment.
* Copyright © 1990, 2006 Kerry L. Morgan. Used with permission. Excerpted from The Laws of Nature and of Nature’s God: The True Foundation of American Law.
30. See generally, Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: The Free Press) 1990. Federal courts have not been given any general jurisdiction to construe the “Laws of Nature and of Nature’s God.” Federal courts only have jurisdiction to construe those unalienable rights that are constitutionally enumerated (including offenses against the law of nations) and are properly before the court in an Article III case or controversy, or come within the court’s jurisdiction as a result of being enumerated in a treaty, or a federal or state Constitution or statute. The power to discover and declare any other rights that are derived from the “Laws of Nature and of Nature’s God” is reserved to the state legislatures or the people under the Ninth and Tenth Amendments.
Commentators understand that the people retain rights not enumerated in the Constitution’s Bill of Rights, but many are uncertain about turning to the laws of nature and of nature’s God in order to define the substance of those rights. See generally, Raoul Berger, “The Ninth Amendment,” 66 Cornell Law Review 1 (1981); Russell L. Caplan, “The History and Meaning of The Ninth Amendment,” 69 Virginia Law Review 223 (1983) and R. Barnett, ed., The Rights Retained By The People (George Mason University Press, 1989). See also, Note, “On Reading and Using the Tenth Amendment,” 93 Yale Law Journal 723 (1984).
31. Declaration of Independence, supra note 26.
32. Genesis 1:26-27 notes that God created man in his own image, in the image of God he created him; male and female he created them.
33. Thomas Jefferson, in a letter to Roger C. Weightman dated June 24, 1826, quoted in Jefferson, supra note 28, at 1517.
34. “[A]nother great advantage, sir, in the Constitution before us, is, its excluding all titles of nobility . . . which hath been a main engine of tyranny in foreign countries. But the American revolution was built upon the principle that all men are born with an equal right to liberty and property. . . .” Isaac Backus, quoted in Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution. (New York: Burt Franklin, 1888), 2:150.
35. Law is from everlasting. This is a strong expression to denote the remote antiquity of the law.
36. Noah Webster’s 1828 Dictionary defines unalienable as that which “cannot be legally or justly alienated or transferred to another.” The concept of unalienability (assuming due process), however, does not preclude civil government from alienating human life in punishment for murder, from alienating a man’s liberty through imprisonment upon conviction of crimes, or alienating a man’s property through levy and execution for payment of legal judgements. The concept of unalienable rights does, however, preclude civil government from balancing rights against governmental interests, whether such interests are compelling, rational or otherwise.
37. Virginia 1776 Constitution declared that “all men are by nature free and independent, and have certain inherent rights . . . .” Perry, Sources, supra note 26, at 311. Pennsylvania’s 1776 Constitution stated that “all men are born equally free and independent, and have certain natural, inherent and inalienable rights . . . .” Id. at 329. Delaware and North Carolina’s 1776 Declaration of Rights proclaimed that “all men have a natural and unalienable right to worship Almighty God . . . .” Id. at 338 and 356.
38. Black’s Law Dictionary (5th ed. 1979).
39. The right of “privacy,” for instance, permits abortion, an act which was historically regarded as subject to criminal sanction. The right of “privacy” is invoked to excuse common law crimes such as adultery, fornication, and prostitution. Conduct such as sodomy and bestiality, which are crimes “against nature,” have also been advocated as rights.
40. A right does (or can) not rise out of a wrong.
41. When James Madison introduced the proposed amendments on June 8, 1789, he moved to insert them between the third and fourth paragraphs of Article I, Section 9. That Article and Section placed express limitations on the power of Congress. Madison proposed to amend Article I, Section 10 by defining certain liberties protected from state action, as that Section in the original deals with state limitations. It is important to note that Madison understood the Constitution to already enumerate certain unalienable rights and privileges prior to the amendments. Some of these were protected against congressional action, some from state action. Perry, Sources, supra note 26, at 422-23.
42. An Act for Religious Freedom, adopted by the Virginia Assembly on January 16, 1786, recited in Code of Virginia, Sec. 57-1 (1950).