The Laws of Nature and of Nature’s God:
The True Foundation of American Law
by Kerry L. Morgan
THE LEGAL FRAMEWORK FOR A NATION
- Binding on the U.S. Constitution
Applicable to All Subsequent States
Governing All Public Officials
Once the Declaration was signed, it defined the non-negotiable principles essential to the lawful formation of any civil government.59 If a government departed from these principles, it forfeited its authority to continue governing. This was the situation in 1776, when Americans relied upon these principles to legitimate their revolution against English tyranny.60 The people maintained that their unalienable rights came to them from “our Creator” and that “in order to secure these rights, governments are instituted among men.” They no longer contended for the rights of Englishmen as they had in 1774 and 1775.61 Necessarily, the government of the United States and, of course, the government of the individual states must be guided by and conform to these principles if they are to sustain their authority to continue governing.
When approved, the Declaration announced to the world that the colonists were indeed “one people.”62 This collective legal entity was referred to as the United States of America. The Preamble of the Constitution followed suit by reaffirming that Americans were a “people.” Furthermore, the Preamble indicated the “people of the United States” (already “one” by the Declaration) sought to form “a more perfect union” – a union more perfect than that created by the Articles of Confederation. The Articles of Confederation which preceded the Constitution were inconsistent with the Declaration’s premise that the people establish the form of government. The Articles were erroneously premised upon the notion that the states alone could establish a civil government.
The Constitution also reaffirmed the binding legal force of the Declaration by its other terms. Article I, Section 2, for instance, stipulates that representatives must have been “seven years a citizen of the United States” prior to holding office. It would not have been possible for the first House of Representatives to convene in 1789 if the Declaration lost its legally binding authority after the Constitution was adopted. The framers would have looked silly had they established a government in which no one could serve for seven years. This same proposition holds true for Senators who are required by Article I, Section 3 to have been “nine years a citizen of the United States.” Americans became citizens in 1776 on the strength of the Declaration, not by virtue of the Constitution.63
Finally, Article VII of the Constitution again reaffirms the binding characteristics of the Declaration’s principle of government by consent. This Article also recognizes that the unanimous consent of those in the Constitutional convention was recorded in the year of “the independence of the United States of America the twelfth.” This reaffirms that the United States began in 1776, not 1787, and that the Constitution and the Declaration are inseparable as a matter of law and principle.64
The Declaration’s principles apply to states newly admitted into the Union as well as the original thirteen states. One precedent for this rule is evidenced by Virginia’s pre-constitutional cession of its land claims northwest of the Ohio river. Virginia stipulated that states formed within that territory would have to be “distinct republican states, and admitted members of the federal Union, having the same rights of sovereignty, freedom and independence as the other states.” The Northwest Compact subsequently crystallized the agreement between the states and national government and provided for the formation of future states out of the territory under certain conditions.65
The subsequent admission statutes for Louisiana, Mississippi, Alabama, and Tennessee refer to the Articles of the Northwest Ordinance as authoritative even though those states are clearly south of the Ohio river. The Articles declared that all such states “shall be republican, and in conformity to the principles contained in these articles,” and furthermore, shall stand on “equal footing” with the original states. As a matter of fact, all admission statutes contain the words “equal footing” or, to identical effect, “same footing.”
By affirming “equal footing with the original states” in subsequent admission statutes, the framers intended to bind new states to the principles of the Declaration. The admission statutes of several states expressly provide that their respective state Constitutions shall be both republican in form and “not repugnant to the principles of the Declaration of Independence.” These states include Nevada (1864), Nebraska (1867), Colorado (1876), Washington (1889), Montana (1889), Utah (1896), North and South Dakota (1899), Arizona, New Mexico (1912), Alaska (1958) and Hawaii (1959).66 By virtue of the “equal footing” doctrine, the legal principles of the Declaration of Independence must be observed by every state government.
It is essential that state officials (and federal officials to the extent constitutionally permitted) recognize they are bound to observe the principles of the Declaration as well as those of the Constitution. This does not present a conflict since both are part of one consistent whole. Congressional recognition of the legally binding nature of the Declaration’s principles on state governments is of special importance to those citizens who are seeking to be secure in their unalienable rights vis-a-vis state power. Such recognition carries special responsibility for the thoughtful state delegate, representative or senator.
State legislators have a weighty responsibility to draft and enact only those laws which conform to the principles contained in the Declaration. Federal representatives in Congress also have this responsibility as far as their power is Constitutionally grounded or enumerated. Such laws must reflect the fact that unalienable rights are not derived from civil government, nor subject to alienation. The Declaration makes it clear that civil governments are instituted to secure such rights. Of course, the people have the duty and right to turn out of office officials who refuse to abide by these principles, as well as alter or abolish governments which fail to systematically secure their God-give rights.
It is the challenge of each generation to rediscover our unalienable rights in every area of life as well as ensure that civil government work for the preservation of those rights, and not their alienation.67 Without the standard of the “Laws of Nature and of Nature’s God,” however, such an inquiry will more closely approximate the blind leading the blind. This is an apt depiction of our government’s present approach to defining rights: lawyers, special interest groups and government officials leading their clientele through the quagmire of relativistic legal rules which lack substantial footing in law, history, or fact. It is vital that the integrity of unalienable rights and objects of civil government be kept constantly in mind so that proper action can be taken when these standards are abused by government officials, special interests or the people themselves.
In reviving the American republic of the 1860’s, Abraham Lincoln referred to the Declaration of Independence. He affirmed that the United States was “conceived in liberty, and dedicated to the proposition that all men are created equal.”68 Like the framers, Lincoln realized that certain truths, or rules of right and wrong conduct applied to all men and nations without regard to the age in which they lived, their location on the globe, or the circumstances of history which surrounded them.
The framers acknowledged their dependence on the immutable laws of God. These laws were “binding over all the Globe, in all countries, and at all times.”69 These laws were applicable to the formation and governance of free and independent states as well as any union they might subsequently establish. With precision the framers articulated certain legal principles derived from those immutable laws. First, people are all created by God, therefore enjoying equality before the law. Second, all people are endowed by God with certain unalienable rights. Third, the people are 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.
Neither the Declaration nor the Constitution can interpret themselves, nor is the Declaration the ultimate standard for interpreting the Constitution. The laws of nature and of nature’s God are the standard. The Declaration, however, clearly articulates principles of that law and the Constitution reflects the practical interweaving of those principles in its provisions. Without the immutable laws of nature and of nature’s God as an interpretive guide, however, the Declaration of Independence and the Constitution lose their moral force.
On the occasion of the fiftieth anniversary of the inauguration of George Washington, President John Quincy Adams noted:
The Declaration of Independence and the Constitution of the United States, are parts of one consistent whole, founded upon one and the same theory of government . . . . (yet) even in our own country, there are still philosophers who deny the principles asserted in the Declaration as self-evident truths.70
Let us no longer deny those principles which formed the “theory of government.” Let them be reaffirmed so that we may freely celebrate our tricentennial, less than one hundred years hence.
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* Copyright © 1990, 2006 Kerry L. Morgan. Used with permission.
59. To employ a concept from the law of corporations, the Declaration is America’s original and only “Articles of Incorporation.” The Constitution which followed several years later constitutes its “Bylaws.”
60. Richard Henry Lee’s resolution adopted July 2, 1776 constituted the actual legal basis for independence. The Declaration which followed two days later established its legitimacy in the eyes of the international community appealing to the “Laws of Nature and of Nature’s God” as international law.
61. See, “The Declaration and Resolves of the First and Second Continental Congress” in Perry, Sources, supra note 26.
62. “The Statesmen who drew the law of citizenship in 1776 made no distinction of Nationalities, or Tribes, or ranks, or occupations, or faiths, or wealth, and knew only inhabitants bearing allegiance to the governments of the several states in Union.” George Bancroft, History of the Formation of the Constitution of the United States of America (New York: Appleton & Co. 1885) p. 443.
63. Article II, Section 1 of the Constitution places a similar requirement upon the office of President. To be eligible for the office of President a person must have been “fourteen years a resident within the United States. The Constitution emphasizes a residency requirement in addition to a native born citizenship requirement. Such a residency requirement dates to 1775 and refers to the United States not so much as a government or legal entity, but more as a geographical place. This the requirement is that the President be “fourteen years a resident within the United States.” This is contrasted with the seven and nine year “citizen of the United States” requirement. It is also of interest to note that in his Inaugural Address, President Abraham Lincoln observed that the republic was older than the Constitution. Lincoln found that the republic dated from 1774, when the first Congress met on the American Continent. Richardson, Messages, supra note 45.
64. See, Monongahela Navigation Co. v. United States, 148 U.S. 312, 324 (1893) in which the U.S. Supreme Court observed that the Bill of Rights to the Constitution was adopted to protect “those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights.” The Great Seal of the United States also affirms the inseparability of the Declaration and the Constitution.
65. The states of Michigan, Ohio, Indiana, Illinois and Wisconsin would be required to acknowledge: “the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions and governments, which forever hereafter shall be formed . . . and for their admission . . . on equal footing with the original states.” The Northwest Ordinance of 1787, quoted in Perry, Sources, supra note 26.
66. For instance, the requirement that a state Constitution shall be republican and “not repugnant to the principles of the Declaration of Independence” is found at 72 Stat. 339 (P.L. 85-508 July 7, 1958) for Alaska and at 73 Stat. 4 (P.L. 86-3, March 18, 1959) for Hawaii. See Edward Dumbald, The Declaration of Independence and What it Means Today (Norman: University of Oklahoma Press, 1950), p. 63.
67. Examination of particular rights and their impact on law and public policy is beyond the scope of this article.
68. Abraham Lincoln, “Gettysburg Address,” quoted in A. Craven, W. Johnson and F.R. Dunn, eds., A Documentary History of the American People (Boston: Ginn & Co., 1951), 409.
69. Blackstone, supra note 20, at 41.
70. Adams, Discourse, supra note 23 at 17.