America’s Heritage: Constitutional Liberty
by Herbert W. Titus and Gerald R. Thompson
COVENANT AND CONSTITUTIONS
“Now it shall come about when [the king] sits on the throne of his kingdom, he shall write for himself a copy of this law on a scroll in the presence of the Levitical priests. And it shall be with him, and he shall read it all the days of his life, that he may learn to fear the Lord his God, by carefully observing all the words of this law and these statutes, that his heart may not be lifted up above his countrymen and that he may not turn aside from the commandment, to the right or to the left; in order that he and his sons may continue long in his kingdom in the midst of Israel.” [Deuteronomy 17:18-20]
Then Samuel told the people the ordinances of the kingdom, and wrote them in the book and placed it before the Lord. [1 Samuel 10:25]
We have seen that a system of justice and authority must come from God, and that a government under the “rule of law” presupposes a civil ruler governed by the laws of God. Within this context, a covenant framework is necessary for the administration of law among men. We will now examine several biblical covenants in detail, and use the principles learned from God’s covenants with man to establish the pattern for covenants between men, including all forms of civil covenant, such as a constitution. The seven biblical principles of covenant are: justification of authority, reciprocity (or mutuality), community, irrevocability, limited modifiability, bindingness on future generations, and the legal framework for the administration of law.
The framers of the U.S. Constitution were well aware of the biblical pattern of covenants, and incorporated their understanding of covenants into the constitutional documents of America. Although the framers may not have expressed their understanding of biblical covenants in theological terms, there is a remarkable similarity of understanding.
There are two key truths to be learned from history. First, many of the documents of constitutional significance in America’s history, including the U.S. Constitution, have incorporated the biblical principles of covenant in their terms. The U.S. Constitution is not unique in this respect, but it is perhaps the best expression of this truth. Second, the primary features of civil covenants understood in the light of biblical principles are permanence and supremacy. Both of these features are expressed in Art. VI, Cl. 2 of the U.S. Constitution, popularly known as the “Supremacy Clause:”
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Unfortunately, it seems that some Americans, including many Christians, are either unaware of the biblical covenant heritage of America, or having been made aware of it, flatly deny it. In The Search for Christian America (Crossway Books, 1983), the authors conclude:
a careful study of the facts of history shows that early America does not deserve to be considered uniquely, distinctly, or even predominately Christian, if we mean by the word “Christian” a state of society reflecting the ideals presented in Scripture. There is no lost golden age to which American Christians may return.
It is important to understand that the U.S. Constitution is part of a rich legal heritage of civil covenants patterned after the biblical model. The first such civil covenant is the Magna Carta of 1215. Though of English origin, Magna Carta was the covenantal framework within which all the colonial charters for America were granted, governing America until independence was declared in 1776. Thus, it is an important part of the American covenant heritage.
Magna Carta was an agreement which culminated a protest of the feudal barons against the arbitrary rule of King John, intended to secure a variety of liberties for the king’s subjects. The document was drafted by Stephen Langton, the Archbishop of Canterbury, a man of renowned virtue and piety. Langton was a man who was familiar with biblical principles. Hence, portions of the text from Magna Carta will be used to illustrate the application of these biblical principles. After this discussion, a selection of colonial and state documents will be examined in light of the same principles, culminating in a review of the U.S. Constitution toward the same end.
The principle of the justification of authority is the first of three “contract principles” of covenants, that is, principles which most contracts have in common. This first principle holds that all authority to rule men must be justified. Even the authority that God has to rule man is justified in the Bible. As we have seen, God’s authority to rule man is not based upon His holiness, His righteousness, or His infinite power or knowledge. Rather, God justifies His authority to rule man solely on the basis that He is the “uncreated Creator.”
The justification of authority is exemplified in several covenants between God and men. In the creation account of the first chapters of Genesis, God fashions a man from the dust of the ground, and a woman from the rib of the man. God’s authority as the uncreated Creator is evidenced in His governance of the whole creation, the prohibition against eating from the tree of the knowledge of good and evil, and the curse imposed as a result of disobedience. God’s authority is again evidenced by His action to flood the world in the days of Noah. If God has authority over the earth and man by reason of His having created them, then He has authority to destroy His creation. Having refrained from destroying Noah, God decides to covenant with him. See Genesis 6:13,17-18.
It is from this same source of authority that God made His covenants with Abraham, Isaac and Jacob. In each case, a covenant was not entered into because the men were of any individual merit, but because God simply chose them to be the vessels of His mercy. The lesson of Romans 9:6-24 and Jeremiah 18:1-10 is that God has the same right over man as the potter has over the clay. From the same lump of clay may come one vessel for an honorable use, and another vessel for common use. In any case, the authority to determine a vessel’s use is determined by the creator of the vessel.
If God deems it necessary to justify His own rule of man, how much more so must man justify his authority to rule other men. The need for a justification of authority in covenants between men is exemplified in the case of marriage. Adam had authority to be the head of his wife because God created Eve as a help mate to Adam. See Genesis 2:18-23. However, such authority must be exercised within the framework God has given to the man as husband, the covenant of marriage. Thus, a husband’s authority to be the head of his wife is delegated by the terms of the marriage covenant; no man has headship authority over a woman not his wife.
The justification of authority is also an aspect of civil covenants. The rule of civil authorities in a nation comes from God’s grace to sinful man who has rejected God’s direct rule as illustrated by Israel. The authority to rule is inherent in no man, but must be delegated by a civil covenant, either orally or in writing. As indicated by Deuteronomy 17:14-20 and 1 Samuel 10:25, the appointment and authority of Saul to rule the people came not from himself, but from the covenant framework established by God for the people.
The justification of authority for Magna Carta is recited in its preamble as “the inspiration of God” and “to the honor of God and the exhaltation of holy church.” It is also noted in the opening phrase, “John, by the grace of God,” that the office the king held was justified by God’s revealed truth. Thus, Magna Carta denied that the king had any inherent right to rule England, and affirmed the authority of the people to establish a civil ruler within God’s covenant framework.
The principle of reciprocity, or the mutuality of agreement, is the second contract principle of biblical covenants. God has created man so that man has a choice whether to respond to God or to rebel against Him. God offers His covenant to man in such a way that man may accept or reject the proposed relationship. Man’s acceptance is usually evidenced by the performance of some requirement. For example, God commanded man not to eat of the tree of the knowledge of good and evil in order to demonstrate that His relationship with Adam required Adam to make a conscious choice. God’s offer to cut a covenant with Noah called for Noah’s building an ark according to specifications and carrying out God’s commands respecting the use of the ark. See Genesis 6:14-22.
Similarly, from the first time God spoke to Abraham until the final seal of circumcision on that covenant, God’s offer of a covenant relationship required a choice on Abraham’s part. See Genesis 12:1-4 and Genesis 17. Neither did God force the people of Israel to accept His covenant offer. Rather, He offered them a choice to accept or reject His gracious proposal. See Exodus 19:1-8; 20:1-17; 24:1-8.
The need for mutuality in covenants between men is exemplified in the case of marriage. Genesis 2:24 indicates that a man must choose to leave his parents and start a new family with his wife; implied is the wife’s consent to do likewise. The account of Isaac and Rebekah is more explicit regarding the mutuality of marriage. Genesis 24:57-58 states that Rebekah’s family consulted her about her wishes, and that when asked, “Will you go with this man?” she said, “I will go.” Indeed, the common law has long recognized that a valid marriage exists only where there are willing parties, that is, where there is mutual consent. In John 4:17-18 Jesus apparently used the absence of covenantal consent to distinguish the Samaritan woman’s five previous husbands from the man with whom she was then living.
Mutuality is also an aspect of civil covenants, such as the civil covenant of Israel. When the elders of Israel asked Samuel to appoint a king over them, God responded first with a warning, then with a reluctant agreement. But when the time came for the installation of the king, the people had to consent first. 1 Samuel 10:24 says, “And Samuel said to all the people, ‘Do you see him whom the Lord has chosen? Surely there is no one like him among all the people.’ So all the people shouted and said, ‘Long live the king.'” It is this scripture which sets the pattern used in England to confirm every monarch.
Similarly, though he had been anointed by Samuel to succeed Saul as Israel’s next king (1 Samuel 16:13), David did not actually become king until confirmed by the consent of the people. Upon the death of Saul, David was made king over Judah by the men of Judah in 2 Samuel 2:4. But, he was not made king over all Israel until 2 Samuel 5:3. “So all the elders of Israel came to the king at Hebron, and King David made a covenant with them before the Lord at Hebron; then they anointed David king over Israel.” Though God specified that Israel must choose whom He appointed as king (Deuteronomy 17:15), the king had no civil authority over the people until they had consented to his rule. Had God not based Israel’s civil covenant on mutuality, the people would have been slaves to the dictates of Samuel or his successor.
The mutuality of the Magna Carta is exemplified by the naming of the parties in the preamble. The king is named first, followed by officials of the Church of England, then civil officials (the barons and others), and finally the people themselves. There is also a repeated use of the words “we” and “us” to signify the fact that an agreement has been made. Other evidences of mutuality include paragraph 62, which pardons and renounces all “ill-will, grudges and anger” between the parties.
Indeed, Samuel Rutherford, writing in Lex Rex in 1644, stated that kings ruled not by divine right, but by the consent of the people. “We hold that the covenant is made betwixt the king and the people, betwixt mortal men; but they both bind themselves before God to each other.” The civil covenant, according to Rutherford, gives “a mutual co-active power to king and people to compel each other, though there not be one on earth higher than both to compel each of them.” Thus, mutuality is an essential ingredient of any civil covenant.
The third principle of covenantal relationships between God and man is an intimate fellowship, or community of trust. In the context of covenants between men, the principle of community recognizes the creation of a unique unity of the covenanting parties. For example, God and Adam walked and talked together and worked in close relationship as Adam exercised dominion in the garden of Eden. Genesis 6:9 states that Noah walked with God, and God related to Abraham person to person in conversation, in the exchange of promises, and in meeting all of Abraham’s needs from time to time. Similarly, the blood of the covenant signified the intimate relationship between God and His chosen nation Israel. See Exodus 24:8.
The existence of community in covenants between men is exemplified in the case of marriage. The importance of Genesis 2:24 is not only that the husband and wife become one flesh, but that their union defines the existence of a new family, a separate legal entity from all other families and institutions of human government.
Community is also an integral part of civil covenants, such as in the commonwealth of Israel. 1 Samuel 11:15 underscores the unity of the sons of Israel in that “all the people went to Gilgal, and there they made Saul king before the Lord in Gilgal.” Repeatedly in the Bible, the Israelites are referred to as a nation, or a people (in the singular sense, not plural), emphasizing their unity of community. Indeed, the word “commonwealth” refers to a civil body of the people bound together for the good of the community, or the “common weal.”
The concept of community is indicated in Magna Carta by the frequent use of the term “our kingdom”, such as in paragraph 1: “We have granted moreover to all free men of our kingdom for us and our heirs forever all the liberties written below. . ..” Thus, it was clear that the document was intended to govern a civil body, i.e., a commonwealth, uniquely known as the kingdom of England.
The fourth principle of biblical covenants is also the first principle which relates to the concept of perpetuity, rather than contract. The principle of irrevocability holds that because God is the God of covenant faithfulness, all covenants between God and men are irrevocable. God, whose word does not change, and whose nature is from everlasting to everlasting, will never fail to keep what He has promised, and He expects man to do the same. Consequently, in order for an agreement between men to be a covenant, it must be irrevocably binding. Galatians 3:15 teaches that “even though it is only a man’s covenant, yet when it has been ratified, no one sets it aside or adds conditions to it.”
Irrevocability is exemplified in the covenants between God and men. Once Adam and Eve broke the covenant in the garden, God had no choice but to enforce that covenant obligation. Accordingly, He sent Adam and Eve out from the garden to avoid the total destruction of His purpose for man in the earth, and stationed a cherubim with a flaming sword to guard entrance back to the garden. When God established His covenant with Noah, He promised that “all flesh shall never again be cut off by the water of the flood.” The rainbow was then given as the sign of a perpetual covenant between God and the whole earth. Genesis 9:16 says, “When the bow is in the cloud, then I will look upon it, to remember the everlasting covenant between God and every living creature of all flesh that is on the earth.”
Irrevocability in covenants between men means that the parties to the covenant cannot change their minds about keeping the covenant once they have entered into it – the parties are bound to the covenant for life. The parties may not even break a covenant by mutual consent, for they are promised to each other before God. The irrevocable nature of covenants between men is exemplified in the case of marriage. Romans 7:1-3 teaches that a husband and wife are bound to each other so long as they both shall live, because “the law has jurisdiction over a person as long as he lives.” God’s intention for the institution of marriage is a once in a lifetime union between one man and one woman.
Irrevocability is also an aspect of civil covenants. After Israel received its king, Samuel called the people to “renew the kingdom” (1 Samuel 11:14) because the people had yet to confess their sin in asking for a king (1 Samuel 12:17-19). However, the confession of sin did not dissolve the government the people had instituted. As Samuel said, in 1 Samuel 12:13-15,
“Behold, the Lord has set a king over you. If you will fear the Lord and serve Him, and listen to His voice and not rebel against the command of the Lord, then both you and also the king who reigns over you will follow the Lord your God. And if you will not listen to the voice of the Lord . . . then the hand of the Lord will be against you . . ..”
Although the request for a king rejected God’s direct rule over His people, and God had warned the people about the manner of the kingdom, once the nation entered into covenant with a king, the people were going to have to keep the covenant, and could not undo what they had done. Similarly, Magna Carta affirms that it was intended to be irrevocable by repeatedly requiring its terms to be observed “forever.”
The principle of limited modifiability recognizes that because of sin, God has instituted successive covenants with men to administer His law to man. From Adam to Christ, man has placed himself at the mercy of God for having breached his covenant with God and for having chosen a life in rebellion against God. Nevertheless, by God’s grace, man has been offered a new or modified covenant as a way back to a right relationship with God.
For example, limited modifiability with respect to Adam’s covenant of dominion is demonstrated by the renewal of the dominion mandate with Noah following a period of great sin, but this time with a change. Whereas man could eat only plants prior to the flood, he was permitted to also eat meat thereafter. God used His covenant with Abraham as the means to reach out to man after the great sin at the tower of Babel, and the terms of this covenant are clearly different from the terms of the Noahic covenant. Similarly, God cut a new covenant with Israel to establish the nation in the land of Canaan after Israel had forgotten God in Egypt.
The purpose of any covenant modification must not be to subvert the nature of the prior covenant. In other words, a modification cannot violate the purpose of a covenant by replacing it with a new purpose, for that would subvert the essence of the prior covenant which is binding in perpetuity. Covenant modifications are always limited in this sense. Consequently, both the new covenant and the old covenant, as modified, continue to be binding upon their respective parties. The Noahic covenant, which said nothing about subduing the earth and ruling over it, did not change the prior covenant of dominion in that respect. Neither did the Abrahamic covenant change the terms of the Noahic covenant pertaining to capital punishment or the rainbow.
The need for limited modifiability in covenants between men is exemplified in the case of marriage, that is, through divorce. Jesus taught in Matthew 19:1-12 that God instituted divorce out of a recognition of man’s hardness of heart. Yet, the purpose of allowing divorce could not be to subvert the nature of the family. By limiting the grounds for divorce to adultery (Matthew 19:9) and desertion (1 Corinthians 7:10-16), God has instructed us that divorce is allowed only to recognize a breach of the marriage covenant which has already occurred, not to permit the parties to commit a breach of the marriage. In fact, the allowance of divorce on the grounds of desertion recognizes the limited jurisdiction of man over the heart, because a person cannot force their spouse to return and affirm the marriage covenant.
Limited modifiability is also an aspect of civil covenants, such as the civil covenant of Israel. Because civil government is “instituted among men” and not “ordained by God” (see chapter 3), the commonwealth covenant is modifiable so long as the modification does not violate the covenant itself. Thus, Israel was permitted to institute a king, so long as the terms of the Mosaic covenant were otherwise upheld.
The limited modifiability of Magna Carta is demonstrated by the language in paragraph 61 that, “we will obtain nothing from any one, either by ourselves or by another by which any of these concessions and liberties shall be revoked or diminished; and if any such thing shall have been obtained, let it be invalid and void, and we will never use it by ourselves or another.”
Magna Carta further illustrates how the principle of limited modifiability can work. Paragraph 61 provided that the barons could enforce their rights against the king by forming a committee of 25 barons authorized to use armed might. However, this mechanism of enforcement was never used, and was discarded in 1297 by another document, the Confirmatio Cartarum (confirming charter). By 1297 Parliament had replaced the feudal assembly as the governing body of the people, and another means of restoring the law of the land was provided. In this way, Confirmatio Cartarum merely changed the means of enforcing Magna Carta. The purpose of lawful resistance to tyranny was preserved intact in both documents.
The last perpetuity principle of covenant is that a covenant is binding on future generations. God’s covenants with man have always been made with the individual man in a representative capacity. Thus, God’s covenants from Adam to Christ bind and benefit all future generations within the scope of that capacity. Primarily, future generations cannot change the terms of a covenant, the ratification of which precedes them. In some cases, future generations of people can be party to a covenant at birth, and considered as fully bound thereby as if they had given consent.
Bindingness on future generations is exemplified in several covenants between God and men. For example, all men today are subject to the curse placed on Adam and Eve, even though none have eaten of the tree of the knowledge of good and evil. See Romans 5:12-14,18. Similarly, all men are made in the image of God and have dominion authority as heirs of Adam. The Noahic covenant is specifically made binding on future generations (Genesis 9:9,12), as is the covenant with Abraham (Genesis 17:7-14). That the Mosaic covenant is binding on all future generations is demonstrated by the constant use of the term, “the sons of Israel,” as in Leviticus 27:34.
The existence of a bindingness on future generations in covenants between men is again exemplified in the case of marriage, in two respects. First, future generations of Adam and Eve are not permitted to alter the terms of the marriage covenant which have been fixed since creation. Modern cohabitation arrangements not in keeping with God’s pattern for the family, and polygamy, violate the family order as God intended it. Second, children are not free to change their parents. Rather, they are bound to observe the family order into which they are born, and cannot renounce it.
Bindingness on future generations is also an aspect of civil covenants, such as the civil covenant of Israel. Even though the civil covenant is “instituted among men,” it is entered into by man in a representative capacity which binds all future generations of the commonwealth. Certainly the proscription in Deuteronomy 17:14-20 that Israel’s kings would be under the law of the covenant was binding on all future kings. 1 Samuel 13:8-14 and 2 Chronicles 26:16-18 indicate that the law of the covenant which prohibited the king from offering sacrifices on the altar bound all future generations of kings. Similarly, the people of Israel were bound to keep the commonwealth covenant of Israel sworn by their forefathers.
Magna Carta was intended to embody the principle of bindingness on future generations, as is shown by numerous references to “us and our heirs.” For example, a portion of paragraph 63 states that, “Wherefore we will and firmly command . . . that the men in our kingdom shall have and hold all the aforesaid liberties . . . for themselves and their heirs, from us and our heirs, in all things and places, forever. . ..” Thus, the Magna Carta was not intended to cease governing the kingdom after all of its original signers had died.
The principle of the legal framework for the administration of law is that God has chosen the covenant as His framework within which to administer His law. Man is necessarily constrained to using a covenant as the framework for administering the law. The legal framework for the administration of law is exemplified in several covenants between God and men. The law of dominion and obedience leading to eternal life was administered by God according to an implied covenant with Adam and Eve. The law of dominion and of capital punishment is administered pursuant to the covenant with Noah. Similarly, God’s promises to Abraham are administered within a covenant framework.
The need for a legal framework for the administration of law in covenants between men is exemplified in the case of marriage. The law of love and submission is administered under the authority of God that the family might be governed according to God’s perfect will, that is, the marriage covenant as He defines it.
Not surprisingly, the legal framework for the administration of law is also an aspect of civil covenants. The authority of Caesar is defined by God and administered under the law of the commonwealth covenant. The great contribution of Magna Carta was that it announced the rule of law in England, thus conforming to the covenant principle of a framework for the administration of law. This conclusion is confirmed by the Confirmatio Cartarum, which declared that any judgment in the land contrary to Magna Carta “shall be undone, and holden for nought.”
The colonists in America affirmed the covenantal nature of Magna Carta, and its applicability to them. In the Resolutions of the Stamp Act Congress of 1765, there are several references made to the “British constitution” which the colonists claimed governed their dispute with King George III. Similarly, the Declaration and Resolves of the First Continental Congress of 1774 accused Parliament of exercising unconstitutional powers against the colonies, referring to Magna Carta and its applicability to them by reason of the colonists’ ancestry.
The covenantal framework carried over into the colonial charters granted under Magna Carta, such as the Fundamental Orders of Connecticut of 1639 and the Frame of Government of Pennsylvania of 1682. The Mayflower Compact of 1620 is a prime example. The document begins with the words, “In the name of God, Amen,” using that as the justification of authority for what follows. Mutuality is indicated by the phrase, “We, whose names are underwritten . . . solemnly and mutually . . . covenant and combine ourselves together . . ..” Community is shown by the words, “combine ourselves together into a civil Body Politick.”
Irrevocability and bindingness on future generations are implied by the words, “And by virtue hereof do enact . . . such just and equal Laws . . . from time to time . . . as shall be thought most meet and convenient for the general Good of the Colony. . ..” This statement is immediately followed by “unto which we promise all due Submission and Obedience,” evidencing the limited modifiability of the compact.
That the compact was intended to serve as the framework for the administration of law is found in the fact that “Laws, Ordinances, Acts, Constitutions, and Officers” would be enacted “from time to time” in accordance with the compact. And, the Mayflower Compact embodied these covenant principles in only one paragraph, about 15 lines long.
Though the colonial charters were often in the form of a covenant, they were not considered constitutions. The charters were grants from the king, whereas constitutions were based upon the unalienable rights of the people apart from the king. More about this will be said later. Nonetheless, many of the various state constitutions established at the close of the colonial period, around the time of the War for Independence, followed the same biblical covenantal pattern. Among these are the Constitution of Virginia of 1776, the Constitution of Pennsylvania of 1776, and the Massachusetts Constitution of 1780.
The Massachusetts Constitution, for example, justifies its authority on the ground that “All men are born free and equal, and have certain natural, essential and unalienable rights.” Mutuality is indicated by “We, therefore, the people . . . do agree upon, ordain, and establish, the . . . Constitution of the Commonwealth of Massachusetts.” Community is demonstrated with this language: “The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.”
Irrevocability is evidenced in that “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws.” The principle of limited modifiability is embodied in these words: “the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent.” The preamble also states that it is for the benefit of “ourselves and our posterity,” binding future generations.
The framework for the administration of law is found in this language: “It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation and a faithful execution of them; that every man may, at all times, find his security in them.”
Indeed, the American War for Independence was predicated largely on violations of Magna Carta, i.e., that there had been a breach of covenant. The colonial charters, issued pursuant to Magna Carta, guaranteed the colonists the rights of Englishmen, such as “no taxation without representation,” which the king and Parliament had disregarded. In fact, the Declaration of Independence, though breaking the political connection between England and America, affirmed the covenantal nature of Magna Carta. The Declaration applied the doctrine of lesser magistrates, discussed later, to restore the rule of law in America and enable the civil covenants of the nation to be observed, as they ought to have been.
Not surprisingly, when the time came for consideration of a United States Constitution, it was drafted in the form of a civil covenant patterned after the biblical model. Additionally, many of the covenant principles found expressed in the text of the U.S. Constitution are analogous to a foundational principle of American constitutional law.
The authority of the Constitution is founded on “We the people. . ..” Although the Constitutional Convention of 1787 was authorized by the states only to modify the Articles of Confederation, the convention conceived an instrument which rested on an authority apart from the state legislatures. The Constitution could have formed “a more perfect Union” only upon ratification by the source of the various states’ authority – the people.
The analogous principle of constitutional law is the doctrine of enumerated powers. The true basis of authority for instituting governments among men is the people, consequently, the authority of civil government is always delegated, never inherent, being constrained by the enumeration of its powers. What has not been delegated by the people is retained by them, as expressly acknowledged in the Ninth and Tenth Amendments to the Constitution.
Mutuality in the Constitution is expressed in the Preamble: “We the people . . . do ordain and establish this Constitution for the United States of America.” Mutuality is also indicated in Article VII by the need for ratification by the the people in each state which is to be bound by the Constitution. The analogous principle of constitutional law is government by “the consent of the governed,” as expressed in the Declaration of Independence.
Community is indicated by the phrase “a more perfect Union,” and the reference to the Union in Article IV. “The people” also connotes community, for it was not the states which ratified the Constitution, but a single people. The constitutional analog to this covenant principle is simply the concept of a federal union – many states, but one nation.
Irrevocability and bindingness on future generations is indicated in the Preamble: “and secure the blessings of liberty to ourselves and our posterity.” Similarly, Article VI, Clause 2 binds all persons in the United States to the terms of the Constitution forever; it is this clause which acknowledges the nature of all constitutions to be “the supreme law of the land.”
The principle of limited modifiability is captured in Article V, which governs amendments to the Constitution. Finally, the Supremacy Clause, together with Article VI, Clause 3, which binds all civil officers in the United States to “support this Constitution,” establishes the Constitution as the framework for the administration of law in the nation, ensuring a government of laws, not of men.
Sad to say, the covenantal heritage of the U.S. Constitution has been largely forgotten. From an evolutionary view, the intent of the framers of the Constitution is unascertainable and irrelevant, so it becomes an eighteenth century legal strait jacket from which modern man seeks escape. Consequently, the perspective championed by Justice Brennan and others that law and the meaning of the Constitution evolve over time is a flimsy security for liberty. But from the perspective of a biblical framework, the covenantal nature of the Constitution is its chief security, by which we obtain the blessings of liberty. Unless we return to honoring the covenants of our ancestors, how can we claim the benefits of a written constitution which they left to their posterity?
* Copyright © 1987, 2006 Herbert W. Titus and Gerald R. Thompson. Used with permission.