America’s Heritage: Constitutional Liberty
by Herbert W. Titus and Gerald R. Thompson
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Then God said, “Let Us make man in Our image, according to Our likeness; and let them rule over the fish of the sea and over the birds of the sky and over the cattle and over all the earth, and over every creeping thing that creeps on the earth.” And God created man in His own image, in the image of God He created him; male and female He created them. And God blessed them; and God said to them, “Be fruitful and multiply, and fill the earth, and subdue it; and rule over the fish of the sea and over the birds of the sky, and over every living thing that moves on the earth.” [Genesis 1:26-28]
THE AUTHORITY STRUCTURE OF THE FAMILY
In God’s created order, the family is the primary governmental unit of human society. Unfortunately, in modern law and culture, in America and elsewhere, this concept of the family has been lost. The family has been in decline in recent times because it has been stripped of its authority to take dominion over the earth. Modern man has divorced the concept of dominion from the institution to which it was delivered, hence, the family has been left with no reason to exist. But God intended for the family to exercise dominion over the earth in two fundamental respects, namely, children and property. The authority over both of these, at root, is uniquely and originally vested in the family. It is impossible to reclaim dominion over the earth apart from the family institution.
Although dominion authority was given to man and to no other of God’s creatures, man’s dominion authority is limited. First, God did not give man dominion authority over his fellow man. Second, God gave man dominion authority over the earth, but not over the heavens, including the earth’s atmosphere. Third, God gave man dominion authority in his capacity as husband and wife, that is, to the family unit, not the church, the state, or any other institution. All of these limitations are significant with respect to the fundamental principles of dominion, but the last one is the most important.
God’s requirement that the dominion mandate be fulfilled through the institution of the family has not been superseded by grants of authority to the church, civil rulers, or the nations. The Noahic covenant, which included the authority of civil rulers to inflict capital punishment, was explicitly made with Noah’s family. Genesis 9:8-9. Genesis 10:32 indicates that the different languages, nations and lands of the world are determined by family lines. Thus, the creation of nations and their respective civil governments did not supersede the family institution, but rather proceeded from it. The nation of Israel exemplifies this pattern, since the people and their government were identified by their ancestry.
Most modern discussions of the family, including family worldview statements based on Christian beliefs, address little more than the relationships between family members (i.e., husband-wife, parent-child), and the regulation of marriage and divorce. Although husband-wife and parent-child relationships are important matters to consider from God’s viewpoint, this is not the primary importance of the family in society. Rarely is the family institution acknowledged to be the primary vehicle for conducting man’s activities on the earth. It is the purpose of this chapter to reclaim this important aspect of the dominion mandate.
The first part of the dominion mandate is to “be fruitful and multiply, and fill the earth.” That is, the first job of the family is to bear and raise children. Indeed, a husband and wife, in the exercise of family government authority, have the exclusive right, duty and authority to bear and raise children. It is confirmed throughout the Bible, that men do not have the authority individually, as the church, or as civil rulers, to propagate the race. To the family alone, defined as a lifetime monogamous union between one man and one woman, has the authority to conceive, bear and raise children been given. For this reason, the dominion mandate is inextricably linked to the family institution.
This authority is by nature an unalienable right, which cannot be controlled, regulated, or denied. The action of individuals to contractually secure birthing services by utilizing artificial insemination and “surrogate mothers” outside of the legal family unit infringes this right. The attempt by homosexual partners to adopt children infringes this right. The practice of some nations to prescribe abortion or infanticide as a means of population control infringes this right. The idea that all children are the wards of the civil government for their nurturing to adulthood infringes this right. When the family is no longer regarded as the exclusive vehicle for bearing and raising children, the destruction of the family as God intended it to be is inevitable.
Of necessity, parents, in the exercise of family government authority, have the original right and duty to care for and discipline their children and minor legal dependents. No law shall control, regulate or abolish this right and duty, as it is by nature an unalienable right. Physical discipline, or the use of “the rod,” is within the law of love governing the family. Discipline is a means of salvation, for it is designed to lead a child into godliness. Proverbs 13:24 says that “He who spares his rod hates his son, but he who loves him disciplines him diligently.” Proverbs 23:13-14 says “Do not hold back discipline from the child, although you beat him with the rod, he will not die. You shall beat him with the rod, and deliver his soul from Sheol.”
THE NATURAL DUTY TO EDUCATE CHILDREN
Part of the recognized parental duty to care for and discipline children is to educate them. Parents, in the exercise of family government authority, have the original right and duty to educate their children and other minor legal dependents. Parents may educate their children by securing non-civil government instructional agents of their choice to assist them in educating their children and dependents. This includes the right to “home-school” children. Pursuant to the laws of nature and of nature’s God, no law may control, regulate or abolish these rights and duties, including any law determining when, where, by whom or in what manner children are to be educated. Zachary Montgomery, an Assistant U.S. Attorney General, wrote in 1889 that
The law of nature and nature’s God, which ordains that it is both the right and duty of parents to educate their children “in such manner as they believe will be most for their future happiness” is utterly disregarded and set at naught by the State, which ordains that it is neither the right nor the duty of parents, but of the State, to say when, where, by whom, and in what manner our children shall be educated.
This view is confirmed by an examination of the Bible. Deuteronomy 4:9-10 contains a command to the Israelites to “teach [the law] to your children and to their children after them.” Deuteronomy 6:6-9 contains the admonition that “these words, which I am commanding you today, shall be on your heart; and you shall teach them diligently to your sons and shall talk of them when you sit in your house and when you walk by the way and when you lie down and when you rise up.” Proverbs 13:1 reminds us that “A wise son accepts his father’s discipline.”
The apostles believed both that Christ had delegated authority to the church to teach, and that parents had authority to teach their children. The apostles encouraged and exhorted parents to obey God’s command, saying, “Fathers . . . bring [your children] up in the discipline and instruction of the Lord.” Ephesians 6:4. Indeed, it is impossible to separate the duty of parents to educate children from the duty to discipline children, for the former is but a part of the latter.
In 1923, the U.S. Supreme Court recognized in Meyer v. Nebraska, that the liberty guaranteed to the people under the Constitution includes the rights “to acquire useful knowledge, to marry, establish a home and bring up children.” But even in that case, the Court admitted that states have the power to “compel attendance at some school and to make reasonable regulations for all schools.” And today, under statutory authorization from Congress, the United States government regularly funds the Corporation for Public Broadcasting and National Endowments for the Arts, Sciences and the Humanities, all of which are engaged in substantial educational activities, and directly subsidizes public education in the several states. How did things get this way?
At common law, parents were recognized as having the authority to educate their children. Sir William Blackstone stated that it was the “duty of parents to their children . . . (to give) them an education suitable to their station in life.” While Blackstone regretted that English law did little to reinforce this “natural” duty, he believed the government’s role in education was to be confined to punishing the failing parent and rewarding the successful parent, but not as the provider in place of the parent.
Nevertheless, Blackstone acknowledged that the state could punish parents whose children were sent to “any popish college” or were instructed in “the popish religion.” He approved this exercise of civil authority because he approved of the government established church in England and of Parliament’s authority over speech in the realm. In the early history of the United States, the same assumption prevailed. Churches were established and financed in almost every colony. Not surprisingly, the beginnings of public education in America were established on a “religious base.” A prime example is the Massachusetts “Old Deluder Satan Act” of 1647, which provided for the appointment of a local school teacher to be paid from tax revenues.
To a large extent, state-financed and controlled public schools during the 18th and 19th centuries integrated the church and the state in a joint enterprise to exercise authority over the minds of children. Clergy often served as public school teachers, with prayer, Bible reading, and Christian values explicitly taught. No one thought this to be unconstitutional because all knew the public school system was a natural consequence of the commitment to supporting religion by the exercise of civil authority. In fact, the campaign for public education in Massachusetts and elsewhere after the Civil War was an explicitly religious crusade, although at this time the object was to replace sectarian protestantism with humanism.
It was not until 1947, in Everson v. Bd. of Education, that the U.S. Supreme Court applied the First Amendment to state public school systems. From this point onward, the Court assumed that public education did not violate the religion clauses of the First Amendment. Although the Court has often acknowledged that public education grew out of church-sponsored and tax-supported schools, the several Justices have simply assumed that state-supported education is “secular,” not “religious.” This has mirrored the view of Thomas Jefferson, who proposed a bill for tax-supported public schools in the same year he proposed his bill for establishing religious liberty, under the theory that public schools were “secular,” and not “religious.”
But, the true constitutional question does not turn on Jefferson’s or any modern Justice’s dualistic worldview. Rather, it ought to be resolved by a proper understanding of what the framers meant by the word “religion.” The framers chose this word not to separate subject matters into the categories of “secular” and “religious,” but to settle a longstanding political conflict over jurisdiction between the civil government, the church, God and the family.
The truth is that one cannot be neutral about God in education. Either the fear of the Lord is openly acknowledged as the beginning of knowledge, or it is not. If God cannot be mentioned as the source of knowledge – and He cannot under current Court findings – then the Christian philosophy of truth is excluded daily from every public school classroom in the nation. That state of affairs is certainly not “neutral.” The opinions of man, his beliefs and thoughts, were affairs the framers believed belong to God, not man. Because education is designed to shape those opinions, it is outside the jurisdiction of civil governments.
The first United States Congress recognized this truth when it enacted the Northwest Ordinance in 1787. Article III of that law provided that “schools and the means of education shall forever be encouraged.” Even before the Bill of Rights, Congress knew that religion and education were inseparable and that government could encourage, but not establish, an educational system. We have departed from these principles in America’s public education system. The Supreme Court should return to the historic purpose of the religion clauses of the First Amendment and find public schools as unconstitutional establishments of religion and interferences with the free exercise of religion by American families.
THE FREEDOMS OF SPEECH AND PRESS
But, the question of the constitutionality of public education is not limited to the religious guarantees. Rather, taxing, supporting and operating public schools also transgress the First Amendment’s free speech and press clauses. While there has been controversy over the historic purposes of these clauses, there is near unanimity that such purposes relate to certain oppressive practices permitted under English common law.
First, the free speech and press clauses prohibit Congress from enacting and enforcing the common law of “constructive treason,” namely, a law the purpose of which is to prohibit a person from “compassing and imagining the death of the government.” Second, these clauses prohibit Congress from enacting the common law of seditious libel, that is, a law which protects the government’s reputation. Third, Congress is prohibited from enacting a licensing scheme to suppress some opinions and to favor others solely because of the government’s agreement or disagreement with their content.
Moreover, the free speech and press clauses were designed to prohibit Congress from limiting access to the means of transmitting ideas (i.e., newspapers and other media) by taxation. That is, neither speech nor the press can be taxed. And finally, the drafters of the Constitution carefully avoided permitting government subsidization of speech and press by provided for the granting of copyrights and patents to private authors and inventors for their respective writings and discoveries. This provision was intended to exclude any possibility that Congress could subsidize the sciences and the useful arts.
The Court should also return to the historic understanding of the free speech and press guarantees of the First Amendment and recognize public schools as an unconstitutional intrusion upon the rights of the people to exercise exclusive editorial control over the propagation of ideas across the nation. It is remarkable that the federal funding of public education, public broadcasting, and endowments for the arts, sciences and humanities all rests upon a policy that contradicts our legal heritage.
This policy contradicts each of the two fundamental free speech principles by requiring the teaching of fidelity to the life and reputation of the government in civics, history and government courses. In effect, the government has assured that no one will compass and imagine its death, nor malign its reputation. This policy also utilizes each of the three forbidden techniques of controlling speech and press (i.e., licensing, taxing and subsidization), by certifying teachers and paying them out of the public treasury.
The family should actively reassert its jurisdiction to educate children, by engaging in home-schooling wherever possible, by utilizing private tutors and teachers who are responsive to the direction of the parents, and by working politically and legally to disestablish public schools at the local level. Only in this way will the rightful dominion of the family over children be reclaimed.
PROPERTY RIGHTS AND THE FAMILY
The second part of the dominion mandate relates to property. In America, the liberty of property is legally rooted in the Declaration of Independence, not only as part of the general laws of nature and of nature’s God, but also as part of the specific unalienable right of “the pursuit of happiness,” which was also understood to encompass the liberty of contract. In the U.S. Constitution, the concept of property is mentioned in both the Fifth and Fourteenth Amendments, in the context that no person shall be deprived of “life, liberty, or property, without due process of law.” What is this concept of property?
The origin of the concept of property is found in the words, “subdue [the earth] and rule over . . . every living thing that moves on the earth.” Thus, dominion includes possessing, using, controlling and disposing of things on the earth. In other words, property is the subject of man’s domination. It is the context of the grant of dominion authority to the family that gives substance to the fundamental principles of property, giving, inheritance and stewardship.
In legal terms, man, in the exercise of family government authority, has original jurisdiction over all property, independent of societal consent or civil laws. The words of the dominion mandate make clear that dominion was given to man only in the exercise of family authority. By coupling His command to have children with the grant of dominion, God specified the institution through which dominion was to be exercised. Thereafter, the Bible records that the family was to carry out, and in most instances, did carry out the dominion mandate.
Man’s dominion over the earth has not vested any individual with the right to own any specific property, however. What man received was the authority to own property, not a conveyance of title. Nor does the Bible teach that God gave all the earth and its contents to all mankind in common. No title to any property was conveyed until God put Adam into the Garden of Eden. See Genesis 2:15. And, God took the title to Eden away from Adam and Eve as a result of their disobedience of His laws. The title to Eden was not determined on the basis of labor, dominion authority or other right. Rather, the account of Adam and Eve reveals that all property is the gift of God.
This pattern of property conveyance and title is confirmed throughout the Bible. For example, Abram responded to God’s call to move from Haran to Canaan, and God promised to give the land to his descendants. Abram became very rich because the Egyptian Pharaoh gave him many possessions in payment for Sarah, his supposed sister. Isaac and Jacob similarly prospered, not because of their labor or merit, but because God intervened in the affairs of men to give them great riches. And, when it came time for Israel to leave Egypt for the promised land, God moved upon the Egyptians to give the Israelites much property and wealth. The consistent witness of God’s word is that no man earns any title to any property, real or personal, rather, it is a gift of God.
Because property is the gift of God to man in his familial capacity, the nature of civil authority over property is necessarily limited to punishing wrongdoing, such as theft. Examples of laws which are generally intended to serve this purpose are laws of descent and standards of proper weights and measures. Other laws which the civil ruler may enforce are laws against trespass (an intrusion upon lawful property use), and nuisance (using one’s property to interfere with another’s use of property). In each case, civil laws are designed to facilitate family dominion, not usurp it. If this protective authority is exceeded, as is the case in many zoning ordinances, the family’s authority is usurped.
All men, in the exercise of family government authority, either in their individual capacity or as heads of households, have original jurisdiction over the dominion of all property. Civil government has no right of eminent domain which precedes or preempts family dominion over property. Therefore, the authority to own, use and control property, including its disposition, is a stewardship duty owed exclusively to God under the law of dominion. The authority has not been delegated to any civil ruler to superintend the family’s exercise of dominion.
Consequently, the imposition of a tax on the mere ownership of property unavoidably impairs the family’s duty to God for the care of its property, for every property tax presumes that the civil jurisdiction over property takes priority over the family’s jurisdiction. In fact, a property tax is nothing less than a claim of perpetual rent. This is particularly true whenever specific property is subject to forfeiture when the tax levied on it remains unpaid. When property forfeiture for unpaid taxes vests title in the civil ruler, it is equivalent to an assertion that the only ultimate and true property owner is the civil ruler. Accordingly, such property taxation is actually anti-private property.
Property taxes at the state level are also generally levied for an impermissible purpose – the funding of public education – which also violates the dominion authority of the family. Constitutionally, private property is among the unalienable rights endowed by the Creator, and is among the rights reserved to the people under the Ninth Amendment. The principle is that a civil government cannot tax that which exists prior to, and apart from, civil society. Property taxation is simply the claim that private property is the creature of civil government put into practice.
USURPATIONS OF FAMILY PROPERTY RIGHTS
Man’s duties with respect to property include the duty to give. Man is to emulate God’s pattern respecting property. That is, as man has received property from God by way of gift, so men have the liberty to transfer property among themselves by way of gift. Jesus said, in Matthew 10:8, “Freely you received, freely give.” Giving property is an inseparable part of exercising dominion, which no man has authority to restrict. The disposition of property by gift is both an unalienable right towards men, and a duty towards God.
The primary duty a man owes to God with respect to giving property is to care for his family. 1 Timothy 5:8 says, “But if any one does not provide for his own, and especially for those of his household, he has denied the faith, and is worse than an unbeliever.” Our common law heritage has recognized this duty by requiring a husband to support his wife and a father to meet the needs of his children. But the duty to provide for one’s family is not limited to lifetime efforts. Parents also have a duty to leave an inheritance for their children. Paul wrote in 2 Corinthians 12:14, in the context of a spiritual metaphor that “children are not responsible to save up for their parents, but parents for their children.”
However, the duty of the parent cannot be claimed as a right by others. Rather, it is the parent who has the right to leave an inheritance to whomever the parent chooses. The decision to disinherit or leave an inheritance belongs to the owner of the property, not civil society. See Proverbs 19:14. Civil governments are constituted to secure the family’s authority, not usurp it. Therefore, the owner has sole authority to include in his will provisions for charity and the church. Because God has graced him with the blessings of material things, he ought to give to the needy not only in his lifetime, but upon his death. This is to be done voluntarily as it is a duty enforceable solely by God.
Accordingly, under the laws of nature, no transfer of property by gift, whether during the donor’s lifetime, or by reason of his death pursuant to devise or bequest, under intestacy laws, or otherwise, may be taxed. There is a legitimate civil authority to protect an estate from theft, but this is not equivalent to a general estate tax, which is confiscatory. As Chancellor James Kent said in 1827, “The right to transmit property by descent, to one’s own offspring is dictated by the voice of nature.” Thus, the transfer of estates is exclusively within the jurisdiction of family government.
Hence, an estate tax impairs the natural duty of parents to pass property to their children as an incident of dominion authority. It presupposes that the authority to pass an estate is a privilege created by civil law, not a right recognized by civil law. This analysis also holds true for state inheritance taxes. It makes no difference whether the tax is imposed on the whole estate about to be transferred or the share received by an heir. The character of the transaction remains the same. The preceding analysis also applies to gift taxation. Like the transfer of estates, the making of a gift is an incident of dominion authority which is part of the exclusive domain of the family, not civil rulers.
CONSTITUTIONAL SECURITY FOR THE FAMILY
It may well be asked how the U.S. Constitution preserves the rights, duties and authority of families. Some commentators have suggested either that the Constitution fails to protect the family, or that a constitutional amendment is needed to buttress protection for the family. But, these suggestions fail to consider that the Constitution was never intended to vest the United States with authority over the family. Rather, family matters were rights reserved by the people under the Ninth Amendment, and the regulation of family breakdown were powers reserved by the states under the Tenth Amendment. This was the intended method of securing “the Blessings of Liberty to ourselves and our Posterity.”
The family, and provisions for its protection, are not expressly referred to in the Constitution because no reference is needed. The law of enumerated powers insures that the United States has jurisdiction over only certain enumerated objects, and no other. Since jurisdiction over family matters is not expressly granted, there is no need to expressly take it away. And, the adoption of a “family amendment” may, at this time, create a presumption that family rights did not exist prior to the amendment. Thus, to amend the Constitution to protect the family could likely harm the family instead of protecting it.
For example, many people have suggested amending the Constitution for the purpose of prohibiting abortion. One suggested amendment would define human life as beginning at conception for the purpose of any law. Another would prohibit abortion except to save the life of the mother. But the laudable ends to be achieved do not justify the means employed. Both proposed amendments assume that Roe v. Wade is law, therefore, that the U.S. Supreme Court has jurisdiction over abortion matters. Both also assume that Congress may pass legislation either in conformity with, or to enforce, an abortion amendment. Thus, both proposals vest the United States with authority over a matter reserved to the people and the states. Instead of securing liberty, the proposals undermine liberty.
The Constitution already adequately protects the family institution by protecting the fundamental aspects of dominion to which it relates. That is, by reserving rights to the people, and powers to the states or to the people, the Constitution upholds the authority of the family to conceive, bear, raise and educate children. By requiring that no person shall be deprived of his property except upon his forfeiture as determined by due process of law, the Constitution upholds the jurisdiction of the family to own, possess, use and transfer property. A far greater threat to the continuing viability of the family institution than any lack of express constitutional provision is the conscious severance of private property and education from their divinely appointed family context.
There are a number of things people must do to restore the family institution to a place of prominence in society. First, the people must get rid of the “contraceptive mentality,” whereby casual sex and perverse behavior are permitted, so long as the visible consequences of such acts can be “contained.” This mentality is delusive because it rejects the legitimate authority of the states to punish sexual crimes and accepts a false definition of liberty for the family. Further, neither the visible nor the spiritual consequences of immorality can be “contained.” The family cannot survive where civil society fails to exercise its lawful jurisdiction to enforce the laws of nature; neither can civil society survive the destruction of the family institution.
Second, the family must regain its prominence by reassuming and discharging the responsibilities which it rightfully has. Education should not only begin at home, it must at all times be under the direction and remain accountable to the family head. Discipline of children must likewise not be left in the hands of schools and churches. The family is not subordinate to the church, therefore, it should not call upon the church to discharge familial duties. It is the job of parents to counsel their children about marriage, not pastors. It is the job of adult children to care for their elderly parents, not the church-owned retirement village. It is the job of families to provide day care, not churches or businesses.
Thirdly, families must engage in mutual support. When a family is in financial need, government assistance brings bondage, but the contribution of a neighbor brings liberty. When day care is needed, “professional” services drain family resources, but trading babysitting services with another family conserves resources. Families need to remember the words of Christ, “to the extent that you [minister] to one of these brothers of mine, even the least of them, you [minister] to Me.” See Matthew 25:31-40. And further, “Give, and it will be given to you. . . . For whatever measure you deal out to others, it will be dealt to you in return.” Luke 6:38.
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* Copyright © 1987, 2006 Herbert W. Titus and Gerald R. Thompson. Used with permission.