The True Foundation of American Law

RIGHTS IN THE CONSTITUTION’S TEXT

Unalienable rights animate both the text and the amendments to the national Constitution.⁴¹ Examples of enumerated unalienable rights are found in the text of Article I, Sections 9 and 10 and include prohibitions against Bills of Attainder and ex post facto laws. Such prohibitions are designed to secure the right to due process and freedom from the legislature exercising non-legislative power. Likewise the prohibition of laws impairing contractual obligations secures the right to contract. In order to ensure the unalienable right of government by the consent of the people, the United States is barred from granting titles of nobility in Clause 8. Certain officeholders are also strictly regulated in receiving such titles or their advantages from any foreign power by that same Clause. Treasury appropriation can only be made pursuant to the consent of the people’s representatives by laws according to Clause 7.

Congressional control of migration subsequent to 1808 found in Article I, Clause 1 secures the right of the people to self-defense, property and security of their borders. The import of that clause was also designed to eventually secure equality, the unalienable right of life, and due process against the countervailing interests of the slave trade. The habeas corpus provision of Clause 2 is also tied to these rights and due process requirements. And lastly, the rights incidental to equality are reflected in Clauses 4, 5 and 6 as they relate to proportionality of direct taxes, equal advantages of tax free exports, and the prohibition of preferences among ports from one state over those of another. Many of these rights and principles are also reflected in Article I, Section 10.

RIGHTS IN THE AMENDMENTS

An example of an enumerated unalienable right found in the First Amendment prohibits Congress, inter alia, from making any law prohibiting the free exercise of religion. This provision has its roots in Thomas Jefferson’s “Virginia Bill for Establishing Religious Freedom,”⁴² as well as the Declaration’s unalienable right of liberty. One of the controlling premises of this statute, like that of the First Amendment, is that “Almighty God hath created the mind free.”⁴³ Jefferson asserted that freedom of the mind was “of the natural rights of mankind,” and therefore beyond the scope of civil jurisdiction. Other freedoms, such as speech, press, assembly and petition, are also found in the First Amendment. These freedoms are also based in part on the fact that “Almighty God created the mind free.”

In addition, the Second Amendment prohibits Congress from infringing upon the right “to keep and bear arms” which is immediately derived from the unalienable right to life and that of self-government. The Fifth and Fourteenth Amendments assure that neither the Congress nor the States have power to deprive a person of “life, liberty or property, without due process of law.” Not all constitutional provisions, however, deal with unalienable rights, such as the twenty dollar prerequisite to jury trials in the Seventh Amendment.

GOVERNMENT BY CONSENT

The Declaration notes that “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” The Bible recognizes that civil government is “instituted among men” and its purpose thus instituted is to exercise its power under the authority of God’s laws. Its authority is defined and power is limited by that law. The authority of civil government can be summarized as the right to “punish those who do wrong and to commend those who do right.”⁴⁴ It follows that when those who do wrong are punished, then those who exercise their unalienable rights may do so without further interference. Punishing those who do wrong protects those who do right, or in other words, punishment of those lawfully convicted of crime, secures freedom.

The Declaration says that civil governments are instituted to secure our unalienable God-given rights. Civil governments protect those who do right, and the exercise of God-given rights is always right. Consequently, the Declaration reflects a legal principle of biblical origin. This relationship is not a perfect match, but a concrete nexus exists. In essence, God gives rights and civil government secures rights. Rights are secured when they are protected from interference or denial. It is wrong to deny another his God-given rights. Punishment of those who interfere or deny another their rights serves to promote freedom.

President George Washington declared that, “The basis of our political systems is the right of the people to make and to alter their constitutions of government.”⁴⁵ Abraham Lincoln called this “the leading principle – the sheet anchor of American republicanism.”⁴⁶ This principle requires that civil government exercise only those powers which are specifically granted and is found throughout the Constitution. The Preamble asserts that “We the People, of the United States, . . . do ordain and establish this Constitution . . .” The whole notion of constitutional government is predicated upon the requirement that people consent together to establish the form of civil government, and that political sovereignty is delegated directly to that government. Article I, Section 1 reinforces this proposition. It notes that only the legislative powers specifically “granted” by the people of the United States may be exercised by the Congress. Congress may only legislate with respect to those objects the people constitutionally extended to Congress in writing. Government by consent is also reflected in Article I, Section 9, Clauses 7 and 8, and Article I, Section 10 as noted earlier. At no time may a judicial body exercise legislative power whatsoever.

Article IV, Section 4 indicates that ” the United States shall guarantee to every State in this Union a Republican Form of Government . . .” Both the national and state governments are republican in nature. Republican means that the people’s representatives govern according to a written delegation of authority. This is in contrast to a democratic system in which the representatives govern according to the popular consent of the people, whether that consent is written or unwritten.

If the people desire any branch of the national government to engage in an activity which would require the exercise of a power not enumerated or extended, or with respect to Congress, necessary and proper to carry such a power into execution, then the people need to amend the Constitution. This will ensure that there is no mistake as to the nature, extent and type of power given, or the proper scope of its exercise, including the branch to which it has been entrusted.⁴⁷

The jury trial provisions of the Sixth and Seventh Amendments reflect government by consent in the context of a judicial case or controversy. The jury literally must consent to the state proceeding against a peer, or in civil suits, by determining liability and assessing damages.

Article VII provided the specific means by which the people originally consented to be governed by the Constitution. It declares that the “Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

There are many other constitutional provisions which reflect government by consent. They include Article I, Sections 2 and 4 (congressional elections); Article II, Section 1 (Presidential elections); the Twelfth Amendment (regarding the election of the President and Vice-President); the Fifteenth Amendment (prohibiting abridgement of the vote on account of race or color, etc.); the Seventeenth Amendment (regarding popular election of Senators); the Nineteenth Amendment (regarding abridgement of the vote on account of sex); the Twenty-Second Amendment (limiting to two the terms of the President); the Twenty-Fourth Amendment (prohibiting a poll or other tax on voting); and the Twenty-Sixth Amendment (granting eighteen-year olds the right to vote). All these concern or protect the process by which the consent of the governed is made manifest. Article V, which outlines the amendment process, is also built upon that principle.

ALTER OR ABOLISH

The Declaration of Independence acknowledges another unalienable right – the right to alter or abolish the form of government. It asserts

that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or 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.

The phrase “destructive of these Ends” refers to the unalienable rights which civil government is instituted to preserve. It was the right to alter or abolish the form of government which the people exercised when independence was declared. The nature of this right presumes that it is not to be exercised lightly. If wrongly employed, it may constitute treason, defined by Article III, Section 3.

The framers declared that the people were free to organize the powers of government in whatever form they considered would secure their liberty. Accordingly, the people took steps to exercise their right and abolished the monarchial form of government because it was destroying their liberty. The framers recognized in the Declaration that “such has been the patient Sufferance of these Colonies.” They noted that in “every stage of these Oppressions we have Petitioned for Redress in the most humble Terms.” Petitioning, however, was not a sufficient remedy for the people, for

when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.

In other words, the people will right themselves, but not for light and transient causes.

Article V is an excellent example of the rule regarding alteration or abolition of the national form of government. Through amendments, the people can establish a more perfect government of the United States, that is, render it better able to accomplish its purposes.

Many of the founders recognized that slavery, as practiced in the United States at the time of independence, was an affront to the principles acknowledged in the Declaration. During the Constitutional Convention, the delegates could not arrive at a consensus completely conforming the constitution to the principle of equality in this context. Abraham Lincoln noted that the spirit of the founders toward the principle of slavery, “was hostility to the principle, and toleration, only by necessity.”⁴⁸ Article I, Section 9, Clause 1 contemplated a move toward conformity to the Declaration principle, by permitting Congress to impose taxes upon the slave trade and to abolish it altogether after 1808.

In the period preceding the Civil War, many persons, led by orators such as Steven Douglas and jurists such as Chief Justice Roger Taney, separated the interpretation and implementation of the Constitution with regard to slavery from the principles of the Declaration of Independence. By making this separation, these men attempted to transform a tolerated evil soon to expire into a positive right. This is the essence of the Supreme Court’s holding in Dred Scott.⁴⁹ Chief Justice Taney wrongly concluded that because the practice of some of the Declaration’s framers was slavery, their practices rather than the standard of equality, should govern. While it is always proper to consider the factual situation existing at the founding, it is the immutable rule of law which controls, not the sometimes inconsistent practices of men.

The Thirteenth, Fourteenth and Fifteenth Amendments, however, changed this practice. The Thirteenth Amendment, abolishing slavery, finds its justification in the Declaration’s principle “that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among theses are Life, Liberty and the Pursuit of Happiness.”

The Fourteenth Amendment, Section 1 further reflects the principles of equality and unalienable rights by acknowledging that men, created equal, are entitled to enjoy the equal protection of the law and share equally in the privileges and duties of citizenship. In addition, state governments were barred as a matter of constitutional law from denying due process of law to their citizens.

The Fifteenth Amendment, which extended the vote to non-whites and former slaves, drew its justification from the principles of government by consent. This Amendment assured that Blacks could also share in the making of the law by which all would be equally judged. Though the analogy is less than complete, this same principle is found in the Nineteenth Amendment granting women the right to vote.

ORGANIZATION OF POWERS

Lastly, the Declaration asserts that the people are responsible for instituting 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.”

The representatives in the First Continental Congress organized the powers of the new national government in 1774 under the “Articles of Association.”⁵⁰ In 1777 this organization took on a different character. Drafted by John Dickinson, then a delegate from Pennsylvania who voted against the Declaration of Independence, the “Articles of Confederation and Perpetual Union” were put forward.⁵¹ According to President John Quincy Adams, however, “there was no congeniality of principle between the Declaration of Independence and the Articles of Confederation.”⁵² The confederation’s powers were organized in such a way as to undermine rather than “to provide new Guards for their future Security.”⁵³ Adams declared that the “fabric of the Declaration and that of the Confederation . . . were the products of different minds and adverse passions.”⁵⁴ In an effort to revise the Articles of Confederation, a convention was called. More than revision, however, took place. Within four months the framers had written a national Constitution in order to secure the safety and virtue of the people in a more perfect union.

They achieved this compatibility by first abolishing the monarchial form of government and instituting in its place a republican one. Reflecting on a republican form, James Madison wrote:

It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government.⁵⁵

Beyond this, the framers subsequently set out to alter their system of government in two ways. First, with respect to the national government, they separated its power into executive, legislative and judicial branches. Noting that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny,”⁵⁶ the founders made each branch separate and distinct, with few exceptions. For instance, the President’s veto power noted in Article I, Section 7 extends to the Executive a check on legislative authority. The Senate, as a check on the other branches, is granted authority to try impeachments according to Article I, Section 3. This includes impeachment of judicial officers as noted by Alexander Hamilton in Federalist No. 81.

The three separate branches are also independent of one another. Madison said:

If it be a fundamental principle of free Government that the Legislative, Executive & Judiciary powers should be separately exercised, it is equally so that they be independently exercised.⁵⁷

If one national branch did exercise another’s power, it would not be according to the Constitution, but by usurpation.

Second, the framers divided civil power between the states and the national government. The jurisdiction of the national component of the federal system “extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”⁵⁸ The states do not exercise national power, and the national government does not exercise state power. Each government exercises only those powers granted in their respective constitutions.

Article I, Section 8 lists most of the powers that have been granted to the national legislature. The Tenth Amendment affirms the division of powers between the state and national government by declaring, “the powers not delegated to the United States by the Constitution nor prohibiting it to the States, are reserved to the States respectively, or to the people.” This division reflects an underlying commitment to self-government as well as reaffirming that the national government has only a few powers best handled by the people as one nation. The vast bulk of civil power rests constitutionally with the people acting through state and local governments according to state constitutions, and in their capacity as individual citizens.

BINDING ON THE U.S. CONSTITUTION

Once the Declaration was signed, it defined the non-negotiable principles essential to the lawful formation of any civil government.⁵⁹ If a government departed from these principles, it forfeited its authority to continue governing. This was the situation in 1776, when Americans relied upon these principles to legitimate their revolution against English tyranny.⁶⁰ The people maintained that their unalienable rights came to them from “our Creator” and that “in order to secure these rights, governments are instituted among men.” They no longer contended for the rights of Englishmen as they had in 1774 and 1775.⁶¹ Necessarily, the government of the United States and, of course, the government of the individual states must be guided by and conform to these principles if they are to sustain their authority to continue governing.

When approved, the Declaration announced to the world that the colonists were indeed “one people.”⁶² This collective legal entity was referred to as the United States of America. The Preamble of the Constitution followed suit by reaffirming that Americans were a “people.” Furthermore, the Preamble indicated the “people of the United States” (already “one” by the Declaration) sought to form “a more perfect union” – a union more perfect than that created by the Articles of Confederation. The Articles of Confederation which preceded the Constitution were inconsistent with the Declaration’s premise that the people establish the form of government. The Articles were erroneously premised upon the notion that the states alone could establish a civil government.

The Constitution also reaffirmed the binding legal force of the Declaration by its other terms. Article I, Section 2, for instance, stipulates that representatives must have been “seven years a citizen of the United States” prior to holding office. It would not have been possible for the first House of Representatives to convene in 1789 if the Declaration lost its legally binding authority after the Constitution was adopted. The framers would have looked silly had they established a government in which no one could serve for seven years. This same proposition holds true for Senators who are required by Article I, Section 3 to have been “nine years a citizen of the United States.” Americans became citizens in 1776 on the strength of the Declaration, not by virtue of the Constitution.⁶³

Finally, Article VII of the Constitution again reaffirms the binding characteristics of the Declaration’s principle of government by consent. This Article also recognizes that the unanimous consent of those in the Constitutional convention was recorded in the year of “the independence of the United States of America the twelfth.” This reaffirms that the United States began in 1776, not 1787, and that the Constitution and the Declaration are inseparable as a matter of law and principle.⁶⁴

APPLICABLE TO ALL SUBSEQUENT STATES

The Declaration’s principles apply to states newly admitted into the Union as well as the original thirteen states. One precedent for this rule is evidenced by Virginia’s pre-constitutional cession of its land claims northwest of the Ohio river. Virginia stipulated that states formed within that territory would have to be “distinct republican states, and admitted members of the federal Union, having the same rights of sovereignty, freedom and independence as the other states.” The Northwest Compact subsequently crystallized the agreement between the states and national government and provided for the formation of future states out of the territory under certain conditions.⁶⁵

The subsequent admission statutes for Louisiana, Mississippi, Alabama, and Tennessee refer to the Articles of the Northwest Ordinance as authoritative even though those states are clearly south of the Ohio river. The Articles declared that all such states “shall be republican, and in conformity to the principles contained in these articles,” and furthermore, shall stand on “equal footing” with the original states. As a matter of fact, all admission statutes contain the words “equal footing” or, to identical effect, “same footing.”

By affirming “equal footing with the original states” in subsequent admission statutes, the framers intended to bind new states to the principles of the Declaration. The admission statutes of several states expressly provide that their respective state Constitutions shall be both republican in form and “not repugnant to the principles of the Declaration of Independence.” These states include Nevada (1864), Nebraska (1867), Colorado (1876), Washington (1889), Montana (1889), Utah (1896), North and South Dakota (1899), Arizona, New Mexico (1912), Alaska (1958) and Hawaii (1959).⁶⁶ By virtue of the “equal footing” doctrine, the legal principles of the Declaration of Independence must be observed by every state government.

GOVERNING ALL PUBLIC OFFICIALS

It is essential that state officials (and federal officials to the extent constitutionally permitted) recognize they are bound to observe the principles of the Declaration as well as those of the Constitution. This does not present a conflict since both are part of one consistent whole. Congressional recognition of the legally binding nature of the Declaration’s principles on state governments is of special importance to those citizens who are seeking to be secure in their unalienable rights vis-a-vis state power. Such recognition carries special responsibility for the thoughtful state delegate, representative or senator.

State legislators have a weighty responsibility to draft and enact only those laws which conform to the principles contained in the Declaration. Federal representatives in Congress also have this responsibility as far as their power is Constitutionally grounded or enumerated. Such laws must reflect the fact that unalienable rights are not derived from civil government, nor subject to alienation. The Declaration makes it clear that civil governments are instituted to secure such rights. Of course, the people have the duty and right to turn out of office officials who refuse to abide by these principles, as well as alter or abolish governments which fail to systematically secure their God-give rights.

It is the challenge of each generation to rediscover our unalienable rights in every area of life as well as ensure that civil government work for the preservation of those rights, and not their alienation.⁶⁷ Without the standard of the “Laws of Nature and of Nature’s God,” however, such an inquiry will more closely approximate the blind leading the blind. This is an apt depiction of our government’s present approach to defining rights: lawyers, special interest groups and government officials leading their clientele through the quagmire of relativistic legal rules which lack substantial footing in law, history, or fact. It is vital that the integrity of unalienable rights and objects of civil government be kept constantly in mind so that proper action can be taken when these standards are abused by government officials, special interests or the people themselves.

CONCLUSION

In reviving the American republic of the 1860’s, Abraham Lincoln referred to the Declaration of Independence. He affirmed that the United States was “conceived in liberty, and dedicated to the proposition that all men are created equal.”⁶⁸ Like the framers, Lincoln realized that certain truths, or rules of right and wrong conduct applied to all men and nations without regard to the age in which they lived, their location on the globe, or the circumstances of history which surrounded them.

The framers acknowledged their dependence on the immutable laws of God. These laws were “binding over all the Globe, in all countries, and at all times.”⁶⁹ These laws were applicable to the formation and governance of free and independent states as well as any union they might subsequently establish. With precision the framers articulated certain legal principles derived from those immutable laws. First, people are all created by God, therefore enjoying equality before the law. Second, all people are endowed by God with certain unalienable rights. Third, the people are 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.

Neither the Declaration nor the Constitution can interpret themselves, nor is the Declaration the ultimate standard for interpreting the Constitution. The laws of nature and of nature’s God are the standard. The Declaration, however, clearly articulates principles of that law and the Constitution reflects the practical interweaving of those principles in its provisions. Without the immutable laws of nature and of nature’s God as an interpretive guide, however, the Declaration of Independence and the Constitution lose their moral force.

On the occasion of the fiftieth anniversary of the inauguration of George Washington, President John Quincy Adams noted:

The Declaration of Independence and the Constitution of the United States, are parts of one consistent whole, founded upon one and the same theory of government . . . . (yet) even in our own country, there are still philosophers who deny the principles asserted in the Declaration as self-evident truths.⁷⁰

Let us no longer deny those principles which formed the “theory of government.” Let them be reaffirmed so that we may freely celebrate our tricentennial, less than one hundred years hence.