The Laws of Nature and of Nature’s God:
The True Foundation of American Law
by Kerry Lee Morgan
An examination of the true foundation of American law must begin with the question: “Is the law of God supreme or is it subject to the laws of peoples and nations?” Two answers to this question are possible. The first answer is that God exists and his law, including his laws pertaining to the creation of nations, governments and constitutions, are supreme, right and absolute. The second answer is that whether or not God or his law exist, the law of peoples and nations, are supreme, right and absolute at least until they are changed.
Ascertaining the requirements of any law – human or Divine – requires people to make judgments about what the rule of law is and what that law commands. It requires people to understand the sources and foundations of law.
This essay explores the sources and foundations of American law. The thesis of this essay is that the essential American legal principles of equality, rights and government by consent, are derived from the laws of God, articulated in the Declaration of Independence under the general appellation of the “Laws of Nature and of Nature’s God,” and incorporated into the various state constitutions and the federal Constitution. This essay briefly surveys the laws of nature and of nature’s God as that law was first expressed in Creation and then verbalized in the Declaration’s text and the Constitution’s clauses.
It is hoped that as a result of this examination and survey, the basic outline of God’s law of Creation as it has found expression in the American legal and constitutional context will plainly emerge. The emergence of such an outline will enable students of law generally, and of constitutional law specifically, to begin thinking in terms of the law of God with an eye toward reinvigorating the true foundations of American law and government.
As one might expect, the Bible is fairly clear on the subject of the supremacy of God and his law. It indicates that there is no God except the Lord God.1 God is the God of creation and He is the Creator of all things visible and invisible.2 God impressed his laws upon creation and he governs its operation accordingly.3 God gave his law so that people would seek after God and know what God requires of every person.4 Of course, the laws of God are right, perfect, and eternal.5 They apply over the entire globe and are written in God’s creation because God is the Creator of all the earth.6 These rules also apply to all people and are written within each man, woman and child because God is the Creator of all people.7 God also reiterated the basic elements of his rules of right and wrong in the Bible.8
The implications of this situation are straightforward. Since God created all things, he also has the right to rule them according to his laws.9 He rules the nations according to his laws.10 His laws rule the nations irrespective of whether a given nation believes in God or recognizes his laws.11 This does not mean that the nations are perfect nor does it mean that people who do not worship God cannot rule.12 Nor does it mean that God will judge lawbreakers according to our timetables of justice.
It does mean, however, that God will not let a corrupt government rule forever.13 God judges justly on the earth and punishes lawless leaders and nations.14 Nations which forget God may completely perish.15 Nations which honor God and try to follow his laws, however, can expect to receive his care and protection.16
Of course, the substance of the law of God can be misunderstood. It can be invoked to require that which it does not and prohibit that which it may not. Historically, God’s law has been twisted by priest and pagan alike.17 There is no infallible Oracle to say which declaration or interpretation of God’s law is authentic. There is, however, evidence which provides a sufficient indication of the general requirements and prohibitions of God’s law. These expressions provide reliable standards of right and wrong. The first expression of law is God’s physical creation – the universe. A second expression resides within all people, namely, conscience and reason. A third expression of God’s law is found in His written revelation, the Bible. These are concurrent expressions of God’s law which we may consider in our effort to adequately determine what the law prohibits, allows and commands.18
In contrast to God’s law, the civil laws of nations are not written on anyone’s conscience or mind. They are not written in the physical creation. Nor are they appended to the Bible. The civil laws of nations are only written in their own lawbooks. Consequently, the validity and force of such laws are based solely on national authority. There is no other supporting evidence or “witness” to testify for the validity of specific civil laws. This shortcoming, however, is not necessarily a fatal one. In order for the civil laws of any nation to be authoritative, they must at least be supported by the testimony of another source and that they are consistent with God’s delegation of authority to civil governments.
In order for the laws of a nation to be valid, they must at the very least harmonize with, and not contradict, the law of God. We know the law of God by looking to its expressions. If the laws of a nation conflict with one of the expressions of the law of God, then something is amiss. Or, perhaps we do not understand one or the other clearly.
The optimum situation would be where the laws of a nation are consistent with each of the expressions of the law of God. But, perhaps the best that can be generally hoped for is that civil laws be found to not contradict the most universal expression of the law of God in creation – the law of nature. The heavens and the earth declare that law. Thus we may deduce a rule to guide us: only when civil law does not contradict this fundamental and universal expression of the law of God can it be recognized as prima facie valid. That is to say, civil laws, so far as can be judged from first appearances, are valid if they do not violate God’s law as reflected in the law of nature. And we can know if our interpretation of the law of nature is correct if it comports with the Bible.
Consistency with creation, therefore, is the minimum test to validate the laws of nations. Historically, this was recognized in the legal maxim, lex spectat naturæ ordinem, the law regards the order of nature. A law which fails this initial test is of no binding legal effect because it remains unsupported. Every civil law requires the supporting testimony of the law of God in at least one of its expressions in order to be of binding effect. Indeed, no nation should be bound to a malum in se rule or law simply because it is written in a statute book.19
The supremacy of God’s law was generally recognized in the English common law. Sir William Blackstone, the preeminent English legal authority widely followed by the American founders, recognized the binding legal nature of the law of God as understood in its basic principles. Blackstone maintained that English law (and therefore, American law) had its roots in the laws of God.
Blackstone recognized that “law, in its most general and comprehensive sense, signifies a rule of action.” He identified the essential legal relationship that exists between God and his creation by observing, “Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being.”20 God was acknowledged as the lawgiver and therefore the one who laid down certain immutable rules of action, that is, of right and wrong conduct.
Recognizing the relevance of the creation and the Bible, Blackstone noted that “[u]pon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.”21 In other words, the law of God whether written in God’s creation (nature) or in the Bible (revelation), spoke with a unified voice. Moreover, this law is absolute: any law of man to the contrary is of no effect.
Various individuals, peoples, and governments have interpreted God’s laws differently at different times.22 The framers of the American system of government, however, were in one accord in “presuppos[ing] the existence of a God, the moral ruler of the universe, and a rule of right and wrong, of just and unjust, binding upon man, preceding all institutions of human society and government.”23 In other words, the framers recognized that God laid down rules that governed the universe and nations and that these laws could be sufficiently understood because they are communicated by a God who wants people to know them.24 They presupposed a God who is not silent.
President John Quincy Adams, writing in 1839, looked back at the founding period and recognized the true meaning of the Declaration’s reliance on the “Laws of Nature and of Nature’s God.” He observed that the American people’s “charter was the Declaration of Independence. Their rights, the natural rights of mankind. Their government, such as should be instituted by the people, under the solemn mutual pledges of perpetual union, founded on the self-evident truths proclaimed in the Declaration.”25
The Declaration of Independence is a document with its roots in the law of God. Perhaps the best place to begin understanding how the Declaration serves in this capacity is to discern how the framers understood and applied its principles to the creation and formation of civil government. If we can understand how they took the Declaration’s principles and applied them to the formation of constitutions, then we too should be able to apply those same principles to any other legal difficulties that our constitutional governments may face.
The first paragraph of the Declaration of Independence sets the stage for the American revolution and its indispensable reliance on the laws of God, the Creator.26 It declares:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with one another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitles them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
By invoking the “Laws of Nature and of Nature’s God” the 56 signers of the Declaration incorporated a legal standard of freedom into the forms of government that would follow. The theory of freedom adopted was simply that God’s law was supreme and gave freedom. The phrase “Laws of Nature and of Nature’s God” referred to the laws that God in his capacity as the Creator of the universe had established for the governance of people, nations and nature. These laws are variously described as the laws of Creation, God’s Creation laws or as the framers elected to refer to them, as the laws of nature and of nature’s God. This body of law, whatever it is called, can be ascertained by people through an examination of God’s creation, the text of the Bible, and to a certain degree, instinct or reason.
The decision to expressly rely upon God’s law of creation was not a superficial one, but ably debated for many years before and after the Declaration was drafted.27 Thomas Jefferson, for instance, reflecting on the Declaration of Independence, wrote in 1825 that its essential point was “not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject.”28 For the common sense of the subject, the framers turned to the laws of creation. They gave the principles of that law expression in the Declaration. The American Revolution was the context in which the Declaration’s principles were discerned and expressed for all the world to hear and consider anew.29
What does the Declaration say about the laws of nature and of nature’s God? By its own terms the Declaration of Independence reflects only a finite articulation of that law. The Declaration outlines and explains only a few of the most important principles that are embodied in the law of God. The Declaration was not meant to define and enumerate every legal idea God has ever expressed. The Declaration simply provides us with the essential legal principles. The document enumerated the essential ingredients of the law of nature: equality, unalienable rights and government by consent.
These ingredients or principles were subsequently incorporated into both the federal and to a lesser extent, state constitutions. The framers of the federal Constitution deliberately left to the states the business of fleshing out the particulars of the law of nature and of nature’s God in their respective state constitutions. It is deplorable that this task has remained largely unaccomplished. This condition is owing in no insignificant measure to the rise of federal judicial preemption of state legislative power,30 and the decline of serious reflection about the origins of law among lawyers, law school professors, seminarians and the clergy. Despite these conditions, the fact remains that the Declaration’s articulation of universal legal principles are nevertheless true for all time, all peoples, states and nations.
The framers understood that the principles of the Declaration not only empowered them to define the purpose of civil government, but also to create or establish one or more civil governments. They understood that the civil governments they would establish had a definite purpose – the equal security of God-given rights. It seems fairly clear, therefore, that they accepted the idea that God gave rights to people and that people could know these rights with some degree of sophistication. The framers would not have gone to the trouble of creating a new government dedicated to securing the unalienable rights of the people, if they really believed that it was impossible for the people to know what those rights were or if the people could not understand where those rights came from.
In determining the extent the framers mirrored the laws of Creation in both the Declaration and then subsequently in the Constitution, we may expectantly look to the actual text of those documents. An examination of the Declaration and federal Constitution’s text reveals that in its most basic sense the Constitution was designed to carry into effect the principles of the Declaration (which in turn were a finite expression of the Creation law of God).
The Declaration articulated five derivative principles of the laws of nature and of nature’s God. They are, first, that people are all created by God, and that by virtue of this circumstance are therefore entitled to be treated equally before the law. Second, all people are endowed by God with certain unalienable rights. Third, the people are also endowed with the right to govern themselves according to their written consent. Fourth, the people retain the right to alter or abolish an unlawful form of government as an exercise of self-government. Fifth, the people are free to organize the civil government’s powers in such a way as to secure their happiness.
The first principle articulated in the Declaration of Independence declares that “all men are created equal . . .”31 The Bible indicates that men and women are created in God’s image, that they are equally human before God.32 The rule of equality is tied to the creation of man in God’s image. Thomas Jefferson realized the political and legal implications of this in the context of slavery. He declared that “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them . . . .”33
The principle of equality was subsequently reflected in the Constitution. Article I, Section 9, Clauses 4, 5 and 6 reflect the principle of equality with respect to taxation. These clauses stress proportionality and permit no preferences in regulating commerce. Article IV, Section 2, Clause 1 asserts “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The equal application of the law to all citizens can only be rightly understood and practiced in light of the principle of equality. The prohibitions against titles of nobility found in Article I, Section 9 and Article I, Section 10 also stem from the equality principle.34 These constitutional provisions were instrumental in eradicating both emoluments and hereditary succession of power.
The principle of equality is perhaps most importantly articulated in Article I, Section 2 which provides for popular election of representatives to the House of Representatives. The Fourteenth Amendment subsequently expanded that provision to require that representatives “be apportioned among the several States according to their respective numbers . . . .” This change, accompanied by the Fifteenth [voting without regard to race], Seventeenth [direct election of Senators], Nineteenth [voting without regard to gender], Twenty-Fourth [no poll tax] and Twenty-Sixth [18 year old vote] Amendments, provides all adult citizens (excepting those in the District of Columbia) with the equal opportunity to participate in selecting Representatives and Senators.
The Fourteenth Amendment also embodies the equality principle and provides that no “State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” With respect to equality between the states in the Senate, Article Five asserts that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Second, the Declaration of Independence states that all men are “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness . . .” The Declaration recognizes that unalienable rights are defined a priori by God. In this sense, the law governing the exercise of unalienable rights is from eternity. Lex est ab æterno.35 Neither the Declaration or the Constitution could enumerate all the rights which were to be protected. They could, however, point to the source of rights – our Creator – for reference by future generations. Each succeeding generation could then look to God the Creator and the particular rights he has granted which that generation considered were most suitable to assuring its own safety and happiness.
The legal definition of “unalienable,” and “rights” are worth reviewing. By definition, unalienable means incapable of transfer. In other words an unalienable right cannot be given away. More importantly, however, that which is unalienable cannot be taken away, especially by the civil government, except by forfeiture.36 The idea of rights as unalienable, indefeasible, indubitable or inherent was part and parcel of the framers’ worldview. Though these different words may not have precisely the same meaning, they carry the same essence – that people have certain rights from their Creator which civil government is not authorized to deny or disparage.37
The idea of unalienability is easier to grasp than the idea of rights. This condition is owing to the deterioration of the definition of rights. The definition of rights has been alloyed through impure construction. Unalienability on the other hand, has simply been ignored and thus has not suffered definitional corrosion of its meaning. To the modern jurist, a right is considered as such simply because it is asserted as a right. For instance, Black’s Law Dictionary declares that a right is “a power, privilege, faculty, or demand, inherent in one person and incident upon another.”38
It is noted that “the primal rights pertaining to men are enjoyed by human beings purely as such, being grounded in personality, and existing antecedently to their recognition by positive law.” The source of rights identified here is the “primal” aspect of man qua man. This approach reflects a humanistic jurisprudence and is an absolute non sequitur from the laws of nature and of nature’s God. The humanistic approach is the antithesis of the Declaration’s observation that people are “endowed” with unalienable rights by their Creator.
Compare the humanist view with Noah Webster’s 1828 dictionary definition. Webster did not declare that rights are primal or grounded in personality. He declared that a right is:
conformity to the will of God, or to his law, the perfect standard of truth and justice. In the literal sense, right is a straight line of conduct, and wrong a crooked one. Right therefore is rectitude or straightness, and perfect rectitude is found only in an infinite being and his will.
Webster defines a right as conformity to the law of God – to rectitude. Humanist jurisprudence founded upon evolution and mere positivism, however, discards the need for rectitude. It envision a system of justice aminated by a jurisprudence in which rights may be wrongs.39 This vision of justice, however, is thoroughly contrary to the established rule that jus ex injuria non oritur.40
1. Isaiah 45:22-23. See also, Revelation 22:13.
2. Genesis 1:1, Romans 1:20, Colossians 1:16.
3. Psalm 19:1-3,7-9,11.
4. Genesis 2:16-17. See also, Acts 17:24-28a.
5. Psalms 119:128a [right], 142,151 [perfect], 160 [eternal].
6. Genesis 1:1-2:3 [Account of creation of heavens and earth]. Acts 4:24 & 14:15; [Affirmation that God made the heavens, earth, the sea and all therein]. Acts 17:24 [God made the world and dwells in heaven, not in man-made temples].
7. Romans 2:14-15.
8. Exodus 20:1-17, Matthew 22:36-40, Romans 5:20 and 13:8-10.
9. Psalm 24:1, 29:10, 90:2. See also, Psalm 2:10.
10. Psalm 2:1-4.
11. 1 Chronicles 29:11-12. Compare Exodus 5:2 with Exodus 9:27-28. See also, Exodus 12:31-32.
12. Jeremiah 27:4-8.
13. Jeremiah 25:9 and Daniel 4:30-37.
14. Psalm 58:11, 82:1-8, Ezekiel 14:12-14, Job 12:17-24.
15. Jeremiah 12:14-17.
16. Daniel 4:30-37, Deuteronomy 11:26-29.
17. Jeremiah 8:8, 14:14-15, Matthew 7:15.
18. Acts 17:24-28.
19. Malum in se means a wrong in itself. “An act is said to be malum in se when it is essentially and inherently evil, that is, immoral in its nature and injurious in its consequences, without regard to the fact of its being noticed or punished by the law of the state. Such are most or all of the offenses cognizable at common law, (without the denouncement of a statute;) as murder, larceny, etc.” An offense which is malum in se differs from one that is malum prohibitum. Malum prohibitum is a “thing which is wrong because prohibited: an act which is not inherently immoral, . . . an act involving an illegality resulting from positive law.” Thus, laws which claim to punish an act that is inherently evil must be supported by the law of nature. Acts which are merely wrong because they are prohibited do not belong to the class of things that are inherently evil.
20. William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765; reprint ed., Birmingham: The Legal Classics Library, 1983) 1:38-39. While searching for the relationship between God and the American founding, some authors have focused on the personal religious beliefs of the Founders and Framers. See, M.E. Bradford, A Worthy Company (Plymouth Rock Foundation; N.H., 1982) and John Eidsmoe, Christianity and the Constitution (Grand Rapids: Baker Book House, 1987). Others have tended to concentrate on the condition of colonial religious liberty, the presence of an established church, the decline of Puritan influence and the effects of enlightenment and deistic thinking. With respect to the latter point, see generally, C. Gregg Singer, A Theological Interpretation of American History (Philadelphia: Presbyterian and Reformed Publishing Co., 1981).
These yardsticks, however, do not measure foundational legal concepts. In other words, operating on the belief that matters such as the eternal salvation or religious predilections of the framers constitute the indispensable criteria for measuring our legal heritage, may cause us to overlook the laws of God’s creation as the expositor of the American system of law, government and rights. For a very interesting background on the Bible and law, see, D. Seaborne Davies, The Bible in English Law (The Jewish Historical Society of England: London, 1954) 3-23.
21. Blackstone, supra note 20, at 42.
22. For a discussion of Puritan adaptation of Biblical laws, see generally, Cotton Mather, Magnalia Christi Americana [The Great Works of Christ in America] (Edinburgh Carlisle, PA: Banner of Truth Trust, 1979). One of their first codified statute books, entitled “The Laws and Liberties of Massachusetts of 1648,” cited capital offenses next to their corresponding Biblical chapter and verse. The Laws and Liberties of Massachusetts of 1648 (Reprint ed., Birmingham: The Legal Classics Library, 1982) 5-6. For a discussion of Virginia’s adaptation of the same, see “For the Colony in Virginea-Britannia: Lawes Divine, Morall and Martiall, &c.” (1612) reprinted in Tracts and Other Papers Relating Principally to the Origin, Settlement, and Progress of the Colonies in North America, (Compiled by Peter Force, Washington, D.C., 1844; reprint ed., Gloucester, MA: Peter Smith, 1963) Vol. 3:10-19.
23. John Quincy Adams, The Jubilee of the Constitution, a discourse delivered at the request of the New York Historical Society, on Tuesday, April 30, 1839, reprinted in 1986 Journal of Christian Jurisprudence 1, at 6.
24. Not every law of God, however, has been made known to man or is knowable by man. This condition is inherent in the fact that God is infinite and mankind, his creation, is finite and fallen.
25. Adams, supra note 23, at 4.
26. The Declaration of Independence, July 4, 1776, quoted in Richard L. Perry, ed., Sources of Our Liberties (Chicago: American Bar Foundation, 1978), at 317. The term “Creator” appears in the second paragraph of the Declaration. The terms “Supreme Judge” and “Divine Providence” which appear in the last paragraph, refer to God in the first paragraph, i.e., the “Laws of Nature and of Nature’s God.” See, Gary T. Amos, Defending The Declaration (Brentwood, Tennessee: Wolgemuth & Hyatt, Publishers Inc., 1989), pp. 40-41 and pp. 50-59.
27. For reference to the framer’s discussion pertaining to reliance on the idea of the laws of nature, see, The Works of John Adams, Delegates in The Continental Congress of 1774 (Books for Libraries Press: Freeport, New York) 2:371-374.
28. Thomas Jefferson, in a letter to Richard Henry Lee dated May 8, 1825, quoted in Thomas Jefferson’s Writings (New York: The Library of America, 1984), 1501.
29. This understanding was not a peculiarly American concept by any means. Montesquieu, who was well known to the framers, had also acknowledged that God was the lawgiver and Creator of the universe. He wrote, “God is related to the universe as creator and preserver; the laws by which he has created all things are those by which he preserves them.” Baron de Montesquieu, The Spirit of Laws (Dublin: G & A Ewing, 1751; reprint ed., Birmingham: The Legal Classics Library, 1984), 2.
30. See generally, Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: The Free Press) 1990. Federal courts have not been given any general jurisdiction to construe the “Laws of Nature and of Nature’s God.” Federal courts only have jurisdiction to construe those unalienable rights that are constitutionally enumerated (including offenses against the law of nations) and are properly before the court in an Article III case or controversy, or come within the court’s jurisdiction as a result of being enumerated in a treaty, or a federal or state Constitution or statute. The power to discover and declare any other rights that are derived from the “Laws of Nature and of Nature’s God” is reserved to the state legislatures or the people under the Ninth and Tenth Amendments.
Commentators understand that the people retain rights not enumerated in the Constitution’s Bill of Rights, but many are uncertain about turning to the laws of nature and of nature’s God in order to define the substance of those rights. See generally, Raoul Berger, “The Ninth Amendment,” 66 Cornell Law Review 1 (1981); Russell L. Caplan, “The History and Meaning of The Ninth Amendment,” 69 Virginia Law Review 223 (1983) and R. Barnett, ed., The Rights Retained By The People (George Mason University Press, 1989). See also, Note, “On Reading and Using the Tenth Amendment,” 93 Yale Law Journal 723 (1984).
31. Declaration of Independence, supra note 26.
32. Genesis 1:26-27 notes that God created man in his own image, in the image of God he created him; male and female he created them.
33. Thomas Jefferson, in a letter to Roger C. Weightman dated June 24, 1826, quoted in Jefferson, supra note 28, at 1517.
34. “[A]nother great advantage, sir, in the Constitution before us, is, its excluding all titles of nobility . . . which hath been a main engine of tyranny in foreign countries. But the American revolution was built upon the principle that all men are born with an equal right to liberty and property. . . .” Isaac Backus, quoted in Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution. (New York: Burt Franklin, 1888), 2:150.
35. Law is from everlasting. This is a strong expression to denote the remote antiquity of the law.
36. Noah Webster’s 1828 Dictionary defines unalienable as that which “cannot be legally or justly alienated or transferred to another.” The concept of unalienability (assuming due process), however, does not preclude civil government from alienating human life in punishment for murder, from alienating a man’s liberty through imprisonment upon conviction of crimes, or alienating a man’s property through levy and execution for payment of legal judgements. The concept of unalienable rights does, however, preclude civil government from balancing rights against governmental interests, whether such interests are compelling, rational or otherwise.
37. Virginia 1776 Constitution declared that “all men are by nature free and independent, and have certain inherent rights . . . .” Perry, Sources, supra note 26, at 311. Pennsylvania’s 1776 Constitution stated that “all men are born equally free and independent, and have certain natural, inherent and inalienable rights . . . .” Id. at 329. Delaware and North Carolina’s 1776 Declaration of Rights proclaimed that “all men have a natural and unalienable right to worship Almighty God . . . .” Id. at 338 and 356.
38. Black’s Law Dictionary (5th ed. 1979).
39. The right of “privacy,” for instance, permits abortion, an act which was historically regarded as subject to criminal sanction. The right of “privacy” is invoked to excuse common law crimes such as adultery, fornication, and prostitution. Conduct such as sodomy and bestiality, which are crimes “against nature,” have also been advocated as rights.
40. A right does (or can) not rise out of a wrong.