America’s Heritage: Constitutional Liberty
by Herbert W. Titus and Gerald R. Thompson
A COMMON PEOPLE, A COMMON LAW
You shall not show partiality in judgment; you shall hear the small and the great alike. You shall not fear man, for the judgment is God’s. [Deuteronomy 1:17]
You shall do no injustice in judgment; you shall not be partial to the poor nor defer to the great, but you are to judge your neighbor fairly. [Leviticus 19:15]
For there is no partiality with God. [Romans 2:11]
The link between the equality of all men before law and the concept of a “common people” is one of the most important features of the republican form of government enjoyed in America. The antithesis of equality, or commonality, among the people of any nation is the recognition of an elite class of citizens, historically referred to as a “nobility.” One of the great motivations behind the American Revolution was a desire to abolish all forms of nobility which were tolerated by the English common law. Alexander Hamilton considered the two provisions of the U.S. Constitution prohibiting titles of nobility in the United States as “the cornerstone of republican government.”
In fact, many of the great legal conflicts in America have in some way been related to equality. The civil rights movement, the feminist movement, gay rights, handicapped rights, and even religious freedom under the banner of “equal access”, have all made claims regarding the nature of equality under law. Although the provision of the U.S. Constitution invoked to protect these various claims of equality has usually been the Equal Protection Clause of the Fourteenth Amendment, this will not be the focus of our discussion. Rather, we will examine the biblical principle of legal equality, and its manifestation in the constitutional prohibitions against granting any title of nobility, in order to find the true root of equality and its promise of “a common people.”
The biblical principle of equality is based upon the nature of God, who is no respecter of persons. In keeping with this pattern, men are prohibited from favoring the rich over the poor, or the poor over the rich, in the administration of the law. In a sense, this principle of law is a corollary of the requirement that law must be uniform in order to be law at all. If a law is partial to some people compared to others, it is not uniform in its application, neither can it be administered equally. The nature of legal equality, then, is equality of opportunity, not position, for it is the administration of the law which must be uniform, not its results.
Throughout the Bible, we are told that God is no respecter of persons, such as in Deuteronomy 10:17 and Acts 10:34. He does not have one standard of justice for the poor and another for the rich. As supreme Judge of the world, He treats the powerful and the powerless alike. He does not give preference to men based upon distinctions of sex, servanthood, education, or nationality. All men are equally under the law of sin and death, and all are equally entitled to salvation by the law of life in Christ Jesus. Galatians 3:28 proclaims that “There is neither Jew nor Greek, there is neither slave nor free man, there is neither male nor female; for you are all one in Christ Jesus.” The opportunity for damnation or salvation is the same for all.
Yet, God does recognize the significance of a person’s choice. For example, God treated Abel’s sacrifice differently from Cain’s based upon a choice of faith made by each. Hebrews 11:4 states that “By faith Abel offered to God a better sacrifice than Cain, through which he obtained the testimony that he was righteous.” Revelation 20:12 indicates that if a man refuses the gift of God, he will be judged according to his works, but if he accepts God’s gift, he will escape that judgment. Even among Christians, God rewards those who prove their faith by good works, but gives no reward to those who do not, as is illustrated in the parable of the talents, in Matthew 25:14-30.
Neither is legal equality to be regarded the same as political equality. Having the same right over men as the potter has over the clay, God chooses whom He wishes to become the political leader of a nation. “The Most High is ruler over the realm of mankind, and bestows it on whom He wishes, and sets over it the lowliest of men.” Daniel 4:17. As 1 Corinthians 12:11 says, the Spirit distributes His gifts among men “to each one individually just as He wills,” not distributing the same gifts to all men. The wisdom bestowed upon Solomon in 1 Kings 3:6-13 is an example. And, God chooses the nation or person He wants to speak for Him, just as He chose Jacob over Esau in Genesis 25:21-23.
Moreover, legal equality is not the same as economic equality. Nothing in James 2, prohibiting the showing of partiality to the rich, indicates that the rich man must be stripped of his riches. Neither does anything in Ephesians 6:5-9 indicate that the relationship between masters and their servants is to be disturbed. The Bible does not teach that inequality in economic position among men is evil. Equality before God does not mean equal participation in God’s creation. Rather, it means equality of opportunity for God’s justice. There is no biblical guarantee for equality of office, position or status.
Equality, then, is quintessentially a legal term. God included the legal equality of opportunity principle in the laws of Israel. Because God makes no legal distinction between the rich and poor, the great and small, or Jew and Gentile, so Israel was to apply the same standard of justice to every man. Indeed, even the king in Israel was not to be regarded as a “nobleman” entitled to special privileges. Rather, as Deuteronomy 17:14-20 indicates, the king was to be from among the countrymen of Israel, and by obedience to the law, was not to lift his heart above his countrymen. Whatever different treatment pertained to the king compared to others related solely to the performance of his office under law, not to his mere status as “royalty.”
A legal system must incorporate the principle of legal equality of opportunity if it is to be consistent with the laws of nature and nature’s God. In ecclesiastical history, this law was embodied in the canon law term, “ius commune.” This law eventually became the very foundation of English law, which became known as the “common law,” or the law which applied to everyone in common.
However, the English common law never quite covered everyone. The king and his favorite friends enjoyed special privileges and immunities conferred by his grant, often for economic or political reasons. Not until the English common law was exported to America did it later become truly applicable to all men equally.
Jesse Root, a reporter of early cases in Connecticut, noted that the American system of law and jurisprudence had been purified of the special prerogatives of the English. Beginning with the Declaration of Independence, America’s statesmen endorsed the principle that the common good could be achieved only through a faithful adherence to the legal equality of opportunity of all men:
We hold these truths to be self-evident; that all men are created equal; that they are endowed, by their Creator, with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.
Even the terms of the Declaration itself confirm that legal equality of position or status was not intended. The framers regarded unalienable rights as fundamental, not unalienable positions. It was the pursuit of happiness which was sacred, not its achievement.
State after state followed the example of the Declaration with constitutional provisions designed to eliminate the odious special privileges of the English monarchy. For example, The Virginia Constitution of June 12, 1776 abolished hereditary access to legal and political privileges. All citizens were equally entitled to exercise legislative, executive and judicial authority. The Delaware Constitution of September 11, 1776 eliminated special privileges formerly afforded to the Anglican church. The Maryland Constitution of November 3, 1776 abolished all titles of nobility, as well as prohibiting monopolies, those legally guaranteed economic privileges that denied others the equal right to economic opportunity.
These several declarations against the granting of special privileges and immunities were later summarized in Art. I, Sec. 20 of the Oregon Constitution: “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”
Several changes took place in America in response to the principle of legal equality of opportunity. One dramatic change occurred in the laws governing incorporation. Long cherished as a legal means of limiting an investor’s business liability to the extent of his investment, and to extend the life of a business beyond the lives of its founders, the English crown found it advantageous to grant the corporate franchise in exchange for political and economic favors. In America, the privilege of incorporation first became available to anyone, without regard to their political, economic, or family status.
The equality of opportunity to incorporate was seized by the church and other voluntary associations as a tool to perpetuate themselves beyond the lives of their founders and to protect the assets of their benefactors. Indeed, the corporate entity, one legal “person” composed of many members or shareholders, mirrored precisely the picture of the Church envisioned by Paul in 1 Corinthians 12. More importantly, the availability of limited liability afforded local church bodies an additional immunity under constitutional guarantees of religious freedom.
Although the early statesmen of America consistently acted to eliminate legally sanctioned favored treatment to people by reason of their social or political status, they vigorously debated whether the law could distinguish between people on account of their ability or “qualifications.” One of the most heated of these struggles was waged over the right to practice law. From this struggle emerged a consensus that criteria based upon merit did not violate the legal equality of opportunity. Because God gifted some, but not others, to do certain things, man could examine whether a specific person possessed the ability to practice law. Therefore, differences in callings were deemed not to deviate from the principle of legal equality.
Consistent with the heritage of the state constitutions, the U.S. Constitution prohibited the granting of any titles of nobility as follows:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatsoever, from any King, Prince, or foreign State. (Art. I, Sec. 9, Cl. 8.)
No State shall . . . grant any Title of Nobility. (Art. I, Sec. 10, Cl. 1.)
Truly, these are some of the lost provisions, or lost inheritances, of modern constitutional law. Few people today ever ask what it means to grant someone a title of nobility. We usually think of titles of nobility as “Sir,” “Lord,” “Baron” and other names, but the meaning of these terms has been lost. But, there is a principle embodied in the Constitution which is applicable today, and which Hamilton believed to be the cornerstone of our national republic.
Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the cornerstone of republican government; for so long as they are excluded there can never be serious danger that the government will be any other than that of the people. The Federalist, #84.
For example, the prohibition against granting special legal privileges to favored persons in America on the basis of political or family ties has continued to be the norm, yet there has been a resurgence of granting privileges to favored economic classes. Not only have the rich been given special treatment in the tax laws, but the poor have, too. Indeed, the most widespread breach of the legal equality of opportunity has been committed by the enactment of laws favoring the poor.
Similarly, eligibility standards for welfare benefits are keyed to economic status. Likewise, a progressive tax rate structure requires the rich to pay not only a higher amount, but a higher proportion of tax than the poor. Such discriminatory preferences have not been often challenged because of a widespread assumption that the poor are powerless. Yet, Deuteronomy 1:17; 10:17; 16:19 and Proverbs 28:21 warn that preferring the poor is comparable to taking a bribe. Men have not been given the authority, under the laws of nature and nature’s God, to meet their personal moral obligation to give to the poor by forcing contributions to be made to the poor by others.
Even the national monetary system has problems which arise from what are commonly called “entitlements.” One reason Congress is unable to handle the runaway federal debt is because there are so many entitlement programs which cannot be cut back. There is social security, aid for dependent children, and all kinds of subsidies which have been written into law which now prevent Congress from dealing with the debt these programs create.
Black’s Law Dictionary defines “nobility” as a division of the people created either by writ or by patent in which one division of the people enjoy certain privileges the other division does not. These divisions used to be called “Sirs,” “Lords” and “Barons,” etc., but today they are called Grey Panthers (or senior citizens), dairy farmers, tobacco farmers, banks, women who are heads of households, and a wide variety of other designations that give some people privileges which others do not have. We must realize that the provisions in the Constitution did not merely address the titles of nobility of that day.
In The Federalist No. 39, James Madison claimed that if a government grants entitlements, it is controlled by “special interests,” and ceases to be a republican government.
If we resort for a criterion to different principles so which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure for a limited time or during good behavior. It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion or a favored class of it. Otherwise a handful of tyrannical nobles exercising their oppressions by a delegation of their powers might aspire to the rank of republicans and claim for their government the honorable title of republic.
Isaac Backus praised the prohibition of granting titles of nobility in these words:
Another great advantage, sir, in the Constitution before us, is, its excluding all titles of nobility, or hereditary succession of power, 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, and that officers have no right to any power but what is fairly given them by the consent of the people. And in the Constitution now proposed to us, a power is reserved to the people constitutionally to reduce every officer again to a private station; and what a guard is this against their invasion of others’ rights, or abusing of their power! Such a door is now opened for the establishment of righteous government, and for securing equal liberty, as never was before opened to any people upon earth.
It is difficult today to see these principles in application when men like Tip O’Neill and former presidents are hardly reduced to the private station from which they came before they began their service to the country. For example, the citizens in Oklahoma, who are experiencing a downturn in oil prices and other economic problems, probably don’t know that “Lord Carl Albert,” of Bugtussel, Oklahoma, is receiving more money today under his government pension than he earned when he was Speaker of the House.
Backus also saw the prohibition of titles of nobility as a safeguard not only of American political liberties, but also of their equal right to property. Backus did not favor equalizing the property holdings in America among all citizens. Rather, he meant that Americans have an equal legal right to obtain property, free from governmentally imposed obstacles such as the granting of special economic benefits to particular individuals or groups. The nature of a title of nobility relates not only to privileges o entitlements which are political, but also economic.
Clearly, the founding fathers had more in mind in 1787 than just the assurance of the democratic form of government when they prohibited the granting of titles of nobility. Other provisions of the Constitution prohibited hereditary office holding, such as the guarantee of free elections and the democratic participation of citizens. More than equality of participation was at stake. To guarantee true republicanism, that is, both equal participation in and equal benefit from government, it was necessary to positively exclude the development of a privileged class in the United States. Accordingly, both the national and state governments were prohibited from granting any dignity or privilege to special individuals or classes of individuals.
The implications of this understanding are far-reaching. It calls into question all federal pensions. The wages of most employees of the federal government are subject to an annual review and approval process in Congress. Even the President’s compensation, which is not to be altered during any term of office, is nonetheless subject to review every four years. This safeguards employee compensation from being regarded as an entitlement or privilege. In contrast, a pension by definition is free from annual review by the Congress which provides for it.
If the intention of the prohibition against granting titles of nobility was to ensure that federal officers are returned to a private station (as Backus makes clear), it would prohibit the continued payment of those officers out of the federal purse. The Constitution provides for the compensation of Presidents, Congressmen and other officers for the duration of their terms of office in consideration of the services rendered to the nation. Pensions, though, are a grant of special economic benefit to former federal officers in addition to regular compensation for services rendered. Hence, pensions can be described as a grant of privilege exclusive to federal officers, a de facto title of nobility.
Rigorously applied, the dual concept of equal participation in, and benefit from, government could affect our modern spending policy even more dramatically. Grants of special benefit are prohibited not only to individuals but also to groups. Strictly speaking, no class or group of Americans should receive an economic or political privilege not common to all Americans. Grants of aid to certain specified farmers, manufacturers, minorities, the poor or any other group violate the principle of equal benefit from government.
This violation has led to two circumstances never intended in the Constitution. First, differing groups of Americans receive differing levels of benefit from the national government. Second, the benefit received by privileged groups varies according to the group’s degree of political organization and activism. America today is the nation of the caucus, the PAC, and the special interest group, not a nation of the people. The abandonment of the prohibition against granting titles of nobility has led to a deterioration of the principle of equal protection embodied in “all men are created equal” and the guarantee of a republican form of government.
Additionally, the whole fabric of American government presumes that civil authority resides originally in the people, and that each man has the same right to rule over the nation as any other. The state and federal governments have each been constituted by the act of the whole people of each state and the nation, not an elitist group among them. Legal equality among the people is presumed in the concept of government by consent. This American heritage can be traced to Israel’s act to install a king, in 1 Samuel 8:4-7,9,22:
Then all the elders of Israel gathered together and came to Samuel at Ramah; and they said to him . . . “Now appoint a king for us to judge us like all the nations.” . . . And the Lord said to Samuel, “Listen to the voice of the people in regard to all that they say to you.. . . Listen to their voice; however, you shall solemnly warn them . . ..” And the Lord said to Samuel, “Listen to their voice, and appoint them a king.”
Even though Israel’s request for a king was a rejection of God’s direct rule over the nation, God repeatedly instructed Samuel to comply with the request. Certainly, God could have refused it, yet He instead granted the request. It must not be inferred that God regarded Israel’s act of constituting a new government as sinful. God could not have blessed the kingdom of David, if the very existence of the kingdom was itself wrong. Rather, Israel’s king was under the law of God and bound by the divine covenant with Israel, so that the government of the king lawfully existed. Hence, God affirmed that the people have an unalienable authority to govern themselves, and the capability to establish their government according to God’s law.
Although rights are endowed by God, governments are instituted among men, that is, by their consent. Notice that God did not unilaterally set a king over Israel. He only appointed a king, whom the people needed to consent to before taking office. God imposed the law of Israel, but He did not impose its government. Therefore, Israel’s sin was limited to rejecting God’s direct rule and asking for a lawless king. No sin was occasioned by the mere establishment of a new form of civil government, for Israel already had a form of civil government, as we will see.
A government instituted among men is not repugnant to God’s law merely because it is not endowed by God. God did not render the other nations of the world, those which did not ever enjoy His direct rule over them, incapable of establishing righteous civil government. Every nation at least has the option of instituting a government among men consistent with the laws of nature and of nature’s God.
In constituting a government, the biblical pattern is for the rulers of the people to propose a form of government, and the people to ratify it. In other words, the rulers of the people have no authority to adopt a form of government on behalf of the people. Consent can only come from the governed, not the governors. In the case of Israel, Samuel, the existing judge (or, the present civil ruler) had only the power to anoint the king whom God had appointed. Samuel had no power to establish a king. This is evidenced by the repeated need for the people to consent to the king in assembly called for that purpose, such as in 1 Samuel 10:24 and 1 Samuel 11:15.
This principle is not undermined by the fact that the people would have sinned if they had rejected the Lord’s appointed king, for God specifically reserved the right to appoint Israel’s kings in Deuteronomy 17:15. Nonetheless, God never established His appointed man as king without the consent of the people. He instead allowed the people to establish their own king, an unlawful ruler, sitting under judgment until the lawful king was installed.
This is illustrated in the case of Athaliah in 2 Chronicles 22:10-12 and 2 Kings 11:1-3. Athaliah was the mother of Ahaziah, king of Judah, and when he died, she ordered all of his sons to be slain so she could rule as queen in their place. Of course, the sons of Ahaziah were the rightful rulers because God promised in 2 Samuel 7:13-16 that the kingdom of Israel would remain in the house of David, that is, with his male descendants, forever.
However, the baby Joash, son of Ahaziah, was rescued from the slaughter by an aunt, and was hid in the house of the Lord for six years. At the age of seven, Joash was installed as the lawful king of Judah, and Athaliah was killed. Yet, Joash did not ascend the throne until after being confirmed by the people. 2 Chronicles 23:11,16,20 and 2 Kings 11:12,17,19 indicate that Joash entered into a covenant with the people, and the people confirmed his rule by saying, “Long live the king!”
The experience of ancient Israel has been paralleled in America. The Declaration of Independence states, “We hold these truths to be self-evident: that all men are created equal; that they are endowed, by their Creator, with certain unalienable rights . . .. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” The Declaration confirms that although man’s rights are endowed by God, the uncreated Creator, civil government is instituted among men. Civil government is not an endowment from God, but arises by human consent.
Yet, the Declaration formed no government, merely by enunciating these principles. The act of the people to constitute a government came years later. In February, 1787 Congress recommended that the states send delegates to a convention in Philadelphia “for the sole and express purpose of revising the Articles of Confederation . . ..” Since the Articles of Confederation and its Congress were entirely the creatures of the various state legislatures, no authority was given to Convention delegates to abrogate the Confederation, nor to adopt a constitution. Yet, the convention delegates drafted a constitution rather than amend the Confederation. Was this lawful?
The Convention, by drafting a constitution, did not eliminate the Confederation, nor did it erect a new national government. Rather, the Convention merely proposed a form of government which required the people of the United States, meeting in state conventions, to ratify. Article VII of the Constitution reads: “The ratification of the conventions of nine States, shall be sufficient for the establishment of this Constitution between the States so ratifying the same.” Until the Constitution had been ratified by the people of at least nine states, it was not effective. Consequently, a new constitutional form of government was not “instituted among men” by the Convention, it was merely proposed by them.
In addition, ratification of the Constitution was by state conventions, not by state legislatures. State legislatures were the creatures of state constitutions, and could therefore exercise only the power of states, relative to state government. The state constitutional conventions were not created by any state constitution, but were representative assemblies of the people meeting in relation to national government. The civil rulers of the people, being mere agents, had no authority to abolish the structure of government created by the people themselves, nor to institute a government on behalf of the people. Only the people themselves had the authority to abolish their own created civil agents, and to establish new civil agents.
Accordingly, both a republican form of government and government by the consent of the governed necessarily depend upon the legal equality of opportunity among the people. Hereditary offices, special privileges and discriminatory preferences sanctioned by law are antithetical to legal equality. And, legal equality of opportunity regards every man as equally entitled to rule over the nation as any other; no man has any natural or inherent entitlement to rule others. Because all men are equally entitled to rule, the right to rule is granted only by the consent of the whole people. Consequently, if legal equality of opportunity is exchanged for equality of position or status, the very nature of the Union is subverted.
* Copyright © 1987, 2006 Herbert W. Titus and Gerald R. Thompson. Used with permission.