America’s Heritage: Constitutional Liberty
by Herbert W. Titus and Gerald R. Thompson
RESTORING THE RULE OF LAW
Thy testimonies are wonderful; therefore my soul observes them. The unfolding of Thy words gives light; it gives understanding to the simple. . . . Redeem me from the oppression of man, that I may keep Thy precepts. Make Thy face shine upon Thy servant, and teach me Thy statutes. My eyes shed streams of water, because they do not keep Thy law. [Psalm 119:129,130,134-136]
Just as the role of the church is to teach men how to establish righteous government, so the role of the civil ruler is to implement righteous government. Civil government is a minister of God for good. Romans 13:4. But, the threshold question is to determine what the civil ruler is authorized to do, not to find out what the civil ruler merely wants to do. As we have discussed, civil authority is limited, being delegated by God through the people, for certain specified purposes. These purposes include the punishment of wrongful acts, and commending what is right (but not the doing of good). Optimally, civil rulers will act in accordance with law to do what is right, and not do what is merely popular.
In this chapter, we will examine what action can be taken against a civil government which becomes destructive of these lawful purposes. For this, we must return to a consideration of the Declaration of Independence, the preeminent document for throwing off a tyrannical civil ruler in American legal history. The Declaration provides the legal basis for this action, namely, the law of nature, and the purpose for which it must be employed, that is, restoration of the “rule of law.” After all, the civil ruler, and those who would seek to overthrow one, are all equally governed by the principle that lawlessness must be countermanded by lawful action, not more lawlessness. Accordingly, the doctrines of lower magistrates and of civil disobedience must be considered in this light.
There are four foundational laws of civil rule anchored in the Declaration of Independence through “the laws of nature and of nature’s God”, all of which are biblical. First, the rights of man are God-given and unalienable. Second, the purpose of government is to secure those rights. Third, the power of civil government is given by the consent of the governed, each of whom is equally entitled to rule. And finally, the right to govern is forfeited by a tyrannical ruler to lower magistrates in order to restore the rule of law.
The Declaration asserts that “all men are created equal, that they are endowed by their Creator with certain unalienable rights.” In Jefferson’s original draft, the statement was made that man’s “inherent and unalienable” rights were “derived” from the fact that “all men are created equal and independent.” Congress changed the language, not for mere stylistic or literary reasons, but for a substantive purpose. Rights which were “derived” and “inherent” indicated a reliance on man’s reason, rather than the gift of God, as the basis for the rights. By replacing “derived” with “endowed by their Creator,” the Declaration rested upon the laws of nature, not natural law.
The statement that the rights of man are God-given, certain and unalienable is a most remarkable claim, but it is confirmed by the Bible. What God has given and defined for the benefit of all mankind cannot even by the Great Giver Himself be taken or given away. In other words, the God of the Bible is the giver of the three unalienable rights of “life, liberty, and the pursuit of happiness” listed in the Declaration.
Genesis 2:7 tells us that He is the giver of life. “The Lord God formed the man from the dust of the ground and breathed into his nostrils the breath of life, and the man became a living being.” 2 Corinthians 3:17 tells us that He is the giver of liberty. “Now the Lord is the Spirit, and where the Spirit of the Lord is, there is liberty.” Ecclesiastes 3:13 tells us that He is the giver of the pursuit of happiness. “That every man who eats and drinks sees good in all his labor – it is the gift of God.” In fact, God is the giver of all good things, as we are told in James 1:17. “Every good thing bestowed and every perfect gift is from above, coming down from the Father of lights.”
What God has given to man has been made certain by His word. That is the promise of the Bible. Numbers 23:19 says that “God is not a man, that He should lie, nor a son of man that he should repent. Has He said, and will He not do it? Or has He spoken, and will He not make it good? And again in Matthew 24:35, “Heaven and earth will pass away, but My words will never pass away.” God has also promised that what He has given to man he will not take away. 2 Chronicles 19:7 says, “Now then let the fear of the Lord be upon you; be very careful what you do, for the Lord our God will have no part in unrighteousness, or partiality, or the taking of a bribe.” Therefore, what God Himself has given, and which His word says He cannot take away, no man can deny or take from another man.
While God guarantees the rights He granted to man, He has also ordained that man may choose to establish civil governments to secure those rights. This is the source of the second great anchor of the Declaration of Independence, “that to secure these rights, governments are instituted among men.” Remember from the discussion in an earlier chapter that the Declaration does not make the same claim about governments as it does about unalienable rights. God endowed man with rights, but governments are instituted among men, and this principle is based upon an examination of the example of ancient Israel. The civil kingdom of Israel was not a gift of God, but had been instituted among men who had rejected the direct sovereign rule of God.
The Declaration’s parallel with the Old Testament also reflects the limits God placed upon Israel’s king. While the elders asked for a king who would take away the people’s “life, liberty and pursuit of happiness” (See 1 Samuel 8:11-17), God gave them a king who was bound by law to secure those rights. That had been promised to Israel in Deuteronomy 17:14-20. This is affirmed in Romans 13, which tells us that “there is no [civil] power but of God. The powers that be are ordained of God.”
Samuel Rutherford applied these principles in an analysis of the authority of the king of England in 1644. He not only concluded that the purpose of government was to secure man’s God-given rights, but he laid the groundwork for the third great principle of the Declaration of Independence, that governments derive “their just powers from the consent of the governed.” He concluded that there was no “divine right of kings”, because the power of civil government is derived from the authority of the people, each of whom is equally entitled to rule. In Lex Rex, he wrote in support of those who sought to limit the power of the English king by holding him accountable to the people.
John Locke made the same claim in his Second Treatise:
To understand political power right, and derive it from its original, we must consider what state all men are naturally in, and that is a state of perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave or depending upon the will of any other man.
A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another.
The Declaration summarized these views with the resounding phrase, “all men are created equal.” God had not created any special class or family of men who were entitled to rule over other men. The claim of the English kings to divine right was rejected because it did not conform to God’s will, that is, to the law of nature. Rutherford contended that the source of the king’s authority was a covenant between him and the people under the law of God. Likewise, Locke concluded that civil rulers of all nations derived their authority from a compact or covenant.
Men, being, as has been said, by nature all free, equal and independent, no one can be put out of this estate and subjected to the political power of another without his own consent. The only way whereby anyone divests himself of his natural liberty and puts on the bonds of civil society is by agreeing with other men to join and unite into a community for their comfortable, safe and peaceable living one amongst another, in a secure enjoyment of their properties and a greater security against any that are not of it.
But having once consented to be ruled, was there any limit on the authority of the ruler? Rutherford wrote that “the people give the crown to David covenant-wise, and upon condition that he should perform such and such duties to them; and this is clear by all covenants in the Word of God, even the covenant between God and man is so mutual; ‘I will be your God and you shall be My people.'” The Declaration summarized these views by limiting governments to the exercise of “just” powers, and by recognizing the right and duty of the people to throw off a tyrannical ruler. Locke agreed:
A man, as has been proved cannot subject himself to the arbitrary power of another; and having in a state of nature no arbitrary power over the life, liberty or possession of another, but only so much as the law of nature gave him for the preservation of himself and the rest of mankind, this is all he does or can give up to the commonwealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power that has no other end but preservation, and therefore can never have a right to destroy, enslave or designedly to impoverish the subjects.
This leads to an examination of the fourth major principle of the Declaration of Independence. The Declaration states that “whenever any form of government becomes destructive of these ends,” that is, to secure the people’s unalienable rights, “it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” This affirms the biblical principle that the right to govern is forfeited by a tyrannical ruler to lower magistrates in order to restore the rule of law.
This was not a novel claim. Rutherford wrote:
The covenant is so mutual, that if the people break the covenant, God is loosed from His part of the covenant, Zechariah 11:10-12. The covenant gives to the believer a sort of action of law . . . to plead with God, in respect of his fidelity to stand to that covenant that bindeth him by reason of his fidelity. . . . And far more a covenant giveth ground to a civil action and claim to a people and the free estates against a king, seduced by wicked counsel to make war against the land, whereas he did swear by the Most High God that he should be a father and a protector of the Church of God.
The French Huguenot document entitled Vindiciae Contra Tyrannos (Vindication Against Tyrants) had affirmed the right of public resistance to tyrannical rule a century earlier. English historian Sir Earnest Barker summarized the principles of the Vindiciae as follows:
The right of public resistance runs through the whole argument. . . . By resistance kings must be kept within the divine law of the word of God; and by it they must be kept within the law of the land – a law not of their own making, even if they have concurred in its making, a law according to which they have sworn at their coronation to rule, a law of which they are only the servants.
These ideas supporting resistance to lawless authority were stated even earlier by John Calvin, in his Institutes of the Christian Religion. “We are subject to men who rule over us, but subject only in the Lord. If they command anything against Him, let us not pay the least heed to it.” The same message was carried forward in the writings of John Locke:
Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people who are thereupon absolved from any further obedience, and are left to the common refuge which God has provided for all men against force and violence. Whensoever, therefore, the legislative shall transgress this fundamental rule of society, and either by ambition, fear, folly or corruption, endeavor to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties and estates of the people, by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty and, by the establishment of a new legislative, such as they shall think fit, provide for their own safety and security, which is the end for which they are in society.
Although Locke did not cite biblical passages in his writings, Sir Barker believed Locke was greatly influenced by the Vindiciae. “The similarity of the principles of Locke to those of the author of the Vindiciae is obvious. . . . It is true that he [Locke] does not expressly refer to the book. He was shrewd man, and in his shrewd way he preferred to cite conservative writers in order to justify liberal opinions.” The authors of the Declaration followed Locke’s example, omitting the biblical text that tended to divide people. But, they retained the essence of the biblical claim in language that unified all Christians, and satisfied even the deists and the unbelievers. The ideas, however, were unmistakably Christian.
The biblical principle that the right to govern is forfeited by a tyrannical ruler to lower magistrates in order to restore the rule of law is the Christian revolutionary philosophy of John Calvin, the French Huguenots, and Samuel Rutherford. As Sir Earnest Barker pointed out in his analysis of the Vindiciae, “private persons cannot resist the public authority. They have no commission from God. . .. (The lawful public authorities) have not only the right, but the duty, to oppose and resist the intemperance of kings, according to the obligation of their office.”
The doctrine of lower magistrates, in summary, holds that the unlawful exercise of civil power may be restrained only by a civil officer who interposes himself between the offending civil officer and the people, for the purpose of restoring the lawful use of civil power. The right of interposition is not available to the people in their capacity as individual citizens, but only to the lawful representatives of the people. There is no personal right to shoot the policeman.
All acts of civil disobedience are governed by the doctrine of lower magistrates. In other words, civil disobedience must itself be lawful, and not be an act of lawlessness to oppose lawlessness. Thus, the intentional failure to obey any legislative enactment or civil policy enforced by duly constituted civil authorities is lawful only when the “law” is not law at all. In every case, the purpose of civil disobedience must be to restore the lawful use of law, not to establish “private law,” for that is not true law, either.
There is a presumptive duty to obey whatever civil laws are promulgated. We are all exhorted to submit to civil authority in 1 Peter 2 and Romans 13. Jesus said, in the context of oppressive Roman taxation, that we are to render to civil rulers what is theirs, and render to God what is His in Luke 20:25. 1 Peter 2:15 also commends us to do good and thereby “silence the ignorance of foolish men.” Consequently, we are to obey our civil rulers whenever their exercise of power is rightful, no matter how much we disagree with such exercise. Disobedience is never justified because a policy or order is contrary to personal notions of fairness or convenience. If civil action is wrongful, it is wrongful regardless of its convenience.
Samuel Rutherford wrote in Lex Rex that the three biblical steps of civil disobedience were petition, flight, and armed resistance. Petition is the seeking of a remedy for wrongful civil action from the civil ruler itself, according to established procedures. Our constitutional heritage mirrors the steps of civil disobedience outlined by Rutherford. The right of petition is secured by the First Amendment, which provides that “Congress shall make no law respecting . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
There are a variety of ways petition can be made. A person can lobby his elective representatives to legislate reform. He can lobby at the “grassroots” level, to stimulate the electorate to elect new civil officials or vote a certain way on referendum issues. He can try to persuade the executive branch to amend its practice for enforcing the laws. And, he can sue at law to seek the impartial judgment of a court. After all, law suits are merely another form of civil interposition, where a judge or jury is the “lower magistrate.” This is the example of Samuel, in 1 Samuel 15, who interposed himself as judge between Saul and the people to restore full obedience to the laws of war for the nation of Israel.
Indeed, the example of Samuel illustrates one of the great virtues of American constitutions compared to the British constitution. That is, a written constitution, such as the Sinai covenant of Israel or the U.S. Constitution, is a fixed standard by which a petition for redress of grievances may be judged. In essence, a written constitution permits the people to interpose the civil covenant between themselves and their civil rulers in a judicial contest.
Of course, the civil ruler may not always wish to correct its own errors. This may be for political reasons, such as an unwillingness to anger party leaders, or it may be for a legal reason, such as the lack of jurisdiction to interpose. Sometimes, the civil officer asked to interpose is an active participant in the wrong sought to be corrected. If petition fails, flight, or escaping from law enforcement, is a limited option.
The U.S. Constitution guarantees that the people have a limited right of flight, as well as the right to petition. Article IV, Section 2 provides that “The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.” One of the classic privileges and immunities of state citizenship is the right to travel. Moreover, the first sentence of the Fourteenth Amendment guarantees to all United States citizens the right to establish state citizenship simply by residing in a state of one’s choice. For example, a person persecuted in Nebraska may flee to Oklahoma or to another state to escape that persecution when all efforts to petition for redress have failed.
The final step of disobedience, armed resistance to law enforcement, may be accomplished only by a civil officer who interposes himself between the offending civil officer and the people, for the purpose of restoring the lawful use of civil power. Normally, this right of interposition is available not to individuals, but only to the lawful representatives of the people. Yet, there are some limited purposes for which the people are their own rulers, such as certain cases of defense, or citizen arrest, in which “the right of the people to keep and bear arms, shall not be infringed.”
Of course, one may pursue all the lawful remedies available according to the doctrines of lower magistrates and civil disobedience and still have his unalienable rights infringed. What then? Be ready to suffer for one’s convictions, and count the cost. Endure hardship and penalty, but don’t despair. Have faith that God will judge the righteousness of both you and your opponent. Even if God does not grant justice in one’s lifetime, one’s efforts may secure justice for his children. As America’s forefathers stated in the 1775 Declaration of the Causes and Necessity of Taking up Arms,
With an humble confidence in the mercies of the supreme and impartial Judge and Ruler of the Universe, we most devoutly implore his divine goodness to protect us happily through this great conflict, to dispose our adversaries to reconciliation on reasonable terms, and thereby to relieve the empire from the calamities of civil war.
In fact, the interposition of lower magistrates was the method used in America’s War of Independence. The American Colonies resorted to force only after England had denied their petitions, and flight was deemed inappropriate. The authors of the Declaration were representatives of the people who had met several times beginning on October 14, 1774 when they issued the famous Declaration and Resolves of the First Continental Congress. So important was this fact that the First Congress included a detailed statement of their authority to act on behalf of the people.
The good people of the several colonies . . . have severally elected , constituted, and appointed deputies to meet, and sit in general congress . . . in order to obtain such establishment, as that their religion, laws and liberties, may not be subverted.
It was important that Congress establish itself as the lawful representatives of the people in order to exercise the authority and duty of lower magistrates, as servants of the people under God, to insist that the English Parliament and king obeyed the law as required by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts. As stated before, this was the Christian philosophy of revolution, not the Enlightenment humanist philosophy that sparked the anarchical french Revolution a few years later. As the Declaration of Independence makes clear, the whole purpose of the War was to restore the lawful use of law, not to simply escape an unpopular civil ruler.
The American patriots acted consistently with this Christian principle from their opening statement calling for no taxation without representation, to their closing argument that all political connection between the American states and the state of Great Britain be totally dissolved. As Christian statesmen, they recognized that God’s law governed their own revolutionary actions, and they desired that God’s law legitimate these actions.
It is not surprising that the first order of business following the Declaration was the writing of constitutions to bind the newly formed state governments. After all, if America’s civil leaders claimed that the king of England and the Parliament could not violate the law of covenant, then they must subject themselves to that same law. Consequently, each of the thirteen states, either by adopting the charter given to them by the king, or by enacting new constitutional documents, such as the Commonwealth of Virginia did in June, 1776, put into writing the law to govern themselves, lest they likewise become tyrants and infringe the rights of the people.
Many of these constitutional documents expressly provided that the people had an unalienable right to abolish the current form of civil government at any time, as an additional safeguard against tyrannical rulers. Some documents also warned that the people would be unable to escape tyranny if fundamental principles were ever neglected. For example, the Constitution of Virginia provided:
Sec. 3. That . . . when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.
Sec. 15. That no free government, or the blessings of liberty, can be preserved to any people, but . . . by frequent recurrence to fundamental principles.
This tradition of just rule has been carried on by a handful of statesmen since then. During the 19th century, it was not unusual for Congressmen to ask whether Congress had any constitutional authority to enact proposed legislation. For example, Congressman Rogers from New Jersey, in 1867, questioned the authority of Congress to establish the federal Education Bureau, predecessor to today’s Department of Education. But today, rarely does anyone ask whether Congress has authority under the Constitution to enact any particular legislation. In fact, it is rare for a proposed bill to even include a statement of constitutional authority for its enactment. Gone are the days when true statesmen, rather than mere politicians, occupied many seats in the Congress.
Several U.S. Presidents have carried on the tradition of true statesmanship, but again, recent examples are rare. Recall that Abraham Lincoln interposed himself between the people and the Supreme Court’s Dred Scott decision, which denied black men the common law liberties white men enjoyed. Lincoln disregarded that decision as a political rule binding upon him, and instead sought to restore the rule of law by issuing the Emancipation Proclamation effective as of January 1, 1863. He declared that, “all persons held as slaves with in any state . . . in rebellion against the United States, shall be then, thenceforward, and forever free.”
In fact, the executive veto of proposed legislation is a common exercise of interposition. Rightly used, the veto power is an excellent check upon the unlawful exercise of legislative power. Another common form of interposition occurs in any criminal jury trial. The jury, composed of peers of the defendant, are for the limited judicial purpose of finding facts and/or the applicable rule of law, interposed between the people and their rulers, namely, the legislature, the prosecutor, or even the judge. The right and duty of the jury is to see that justice is done, in spite of the predilections of the magistrate.
Even judges may be regarded as civil officers interposed between the people and the executive and/or legislative branches for specific disputes. For example, federal Judge Brevard Hand wrote an opinion in Jaffree v. Bd. of School Comm’r of Mobile County (The Alabama School Prayer Case) which affirmed voluntary prayer in public schools, in spite of constitutional attack based on many judicial precedents. Judge Hand rejected the legacy of the Supreme Court that the religion clauses of the U.S. Constitution apply to the states. He held that “the historical record shows without equivocation . . . that the fourteenth amendment did not incorporate the establishment clause of the first amendment against the states.”
Of all the possible forms of exercising lower magistrate authority in modern America, perhaps the most important one to reclaim is the interposition of the several state governments between the people of their respective states and the federal government. There are several examples of such interposition in our history, but few have sought to restore the correct rule of law. For example, some southern states claimed to exercise civil interposition authority prior to the Civil War, under the banner of “states rights.” They claimed the national government interfered with their right to maintain the institution of slavery. Several southern states reacted similarly in the 1950’s to prevent the enforcement of federal court orders to desegregate public places.
In these cases interposition authority was claimed as a means of enforcing state laws contrary to the law of nature. That is, the states interposed themselves for the purpose of perpetuating racial discrimination contrary to God’s law of equality. Nonetheless, there is a proper authority of the states to exercise authority as lower magistrates in relation to the federal government. According to John Quincy Adams, delivering a eulogy on the life of James Madison, Madison concurred in the doctrine that the states have a right of interposition in the case of palpable infractions of the Constitution by the federal government, citing the example of the Alien and Sedition Acts of 1798.
This view is based, at least in part, on the fact that state authority is not derived from the U.S. Constitution, but from the individual state constitutions. Historically, the existence of states and state constitutions preceded the adoption of the U.S. Constitution and the formation of a federal government. Clearly, the authority of the first thirteen states is not derived from the U.S. Constitution.
Though not all states were created prior to the federal government, they nevertheless enjoy the same relationship to the national government as the original thirteen states. In our federal system, it is the people of the states who delegated powers to the national government, which is the basis for the law of enumerated powers. The reverse is not true: nowhere in the Constitution is power delegated to the states. The Tenth Amendment, which reserve powers to the states not delegated to the United States, necessarily requires that the states have authority independent from the national authority.
Further, Article IV, Section 3 makes clear that the Union admits states, it does not create them. “New States may be admitted by the Congress into this Union.” The Northwest Ordinance of 1787, relating to the future establishment of five midwestern states, said that new states were to be admitted on “an equal footing with the original States, in all respects whatever; and shall be at liberty to form a permanent constitution and state government.” Thus, the Ordinance presumed that it is not Congress which forms state governments, but the people of each state who adopt their own constitution and form their own government. Consequently, every state of the Union, whenever admitted, derives its authority not from the U.S. Constitution, nor from the national government, but from its own citizens and constitution.
This conclusion is reinforced by the existence of provisions in the U.S. Constitution which place limits upon state authority in the absence of any provisions delegating authority to the states. Express limitations on state authority can be found in Article I, Section 10, which denies states the power to make treaties, coin money, pass ex post facto laws, impair contracts, or grant titles of nobility, among other things. Further express limits on state authority are contained in Article IV, Sections 1 and 2, which provide that the relationship between states is not to be governed by international law, as though they were separate nations. The independent sovereignty of each state was thereby limited.
There are also some implied limitations on state power based on fundamental principles of the Union built into the structure of the Constitution. These principles were expounded by Chief Justice Marshall in McCulloch v. Maryland. The first principle is embodied in the Supremacy Clause, Article VI, Clause 2, which provides that the laws of the United States “shall be the supreme law of the land . . . any Thing in the Constitution or laws of any State to the contrary notwithstanding.” According to Marshall, this means that not only does the U.S. Constitution have the capacity to limit state authority, it in fact limits impliedly repugnant state laws, that is, state laws which are repugnant in principle to the U.S. Constitution.
Marshall also believed that the nature of the Union places limits on state authority. In the context of taxation, for example, the law of no taxation without representation requires that a single state cannot tax an agency or instrumentality of the national government because the people of that state do not represent the whole people of the United States. In this sense, the principle of federalism implicit in the Constitution limits state taxing power, even though state taxing power is derived from, and is generally constrained by, the state constitution. According to Marshall, the implied limits on state power are as absolute as the express limits on state power.
Of course, the U.S. Constitution does not impliedly limit every exercise of state power. As Marshall made clear in McCulloch, “we are relieved, as we ought to be, from clashing sovereignty.” There are well-defined areas of jurisdiction, or “objects,” where state power is absolute, where the Constitution reserves rights and powers to the states, and where the federal government must not invade. The point is that the structure and provisions of the U.S. Constitution all affirm that state authority is not derived from it, but from the various state constitutions adopted by the people of the states.
Therefore, even today, state authority is derived independently from the national government. Hence, there is ample room for state officials, whether executive, legislative or judicial, to interpose themselves between the national government and the people of their state. It is time for state legislatures to refuse federal funds, the acceptance of which allows Congress to dictate state policies in matters over which Congress has no constitutional authority. Examples included state highway speed limits fixed by Congress as a condition of receiving federal highway funds, and unemployment compensation programs subject to federal oversight.