ORIGIN OF CIVIL GOVERNMENT
(Its Application to American Government)
by Kerry Lee Morgan*
“So Moses came and called the elders of the people and set before them all these words that the Lord had commanded him. All the people answered together and said, All that the Lord has spoken we will do.'” Exodus 19:7-8.
“And when all Israel saw that the king did not listen to them, the people answered the king, What portion do we have in David? We have no inheritance in the son of Jesse. To your tents, O Israel! Look now to your own house, David.’ So Israel went to their tents.” I Kings 12:16.
“That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, 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.” Declaration of Independence (1776).
Government Established By Mankind or A Government Instituted By God?
Let us turn from an examination of duty and unalienable right and the wrongdoer being the one who impairs their exercise, to another proposition stated in the Declaration. The Declaration asserts that, “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.”
“Just Power” v. Raw Power
Note that the framers did not declare that God instituted the national government of the United States or that it may naturally exist or exercise just any power it desires. Nor does it say this or that civil government may enjoy any power the People see fit to Constitutionally extend to it, as if the People en masse could lawfully strip human beings and families of those responsibilities God originally decreed. How absurd. The People have no lawfully authority even by their consent to create a tyrannical government, make themselves its slaves, declare anyone they please to be a wrongdoer, or collectively abridge the rights of their neighbor. The fact that people have done so does not make it right.
The Declaration of Independence recognizes this limitation on the power of the people to establish governments by their consent when it says: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” It does not say “deriving any powers” the people are inclined or agree to give it. It says “just powers.” What are just powers? Is it some amorphous term that we must leave to judges to define? No. Just powers are by definition limited by the law of nature that law which God laid down at or about the time of creation.
That law states the first and foremost authority is the individual human being, male and female. No civil power is a just power if it impairs the individual self-governing authority of any human being. This includes the realm of belief and ideas, of the mind and reason, of faith and opinion, of speech, expression, writing, association and religion. It includes the authority to govern one’s own body, including food and drink, medical treatment, drugs and alcohol, choice of employment, and free will. In short, self-government includes the means and ends of obeying God with your heart, soul, mind and strength and your neighbor as yourself including charity at the individual’s sole discretion. God later also authorized human beings to punish murderers by death.
That law of nature also stated that families are the second perpetual form of earthly government. The just powers of any civil government must never impair the family’s authority over the land, its dwelling and property, its self-defense and the means thereof, its food, drink, health and medical care and treatment, its children and their diet, health, medical care, education and upbringing, or the institution and definition of marriage as pertaining to a man and woman.
Impairment of these, regulation of these, and punishment of these are not “a just power” and no person or group of persons have any authority to extend these objects to any civil government. This is not a comprehensive list but it is a good start.
The Declaration begins with the assertion that its propositions are grounded upon the laws of nature and of nature’s God. We ought not be surprised, therefore, to find reliance thereupon throughout the document. What is a just power is a civil power consistent with the law of nature. Remember the just powers of a civil government are not a list of powers that exist from creation. They are only those powers which are delegated to a civil government which itself is a creation of the people according to their respective nations. Civil government is something created by human beings, not something preexisting or of divine origin. So too civil power is that power which the people agree upon extending to their government so created, but limited by the law of nature of individual self-government and of marriage and family authority, the only perpetual earthy authorities God created.
As discussed in previous chapters, including chapter 9, “just powers” do not include those powers reserved by God to Himself by His universal law of nature and which He never extended to any human being. This is another way of saying what we have just said, except from God’s point of view. These include God’s exclusive authority over the human heart and human mind or what we call freedom of the mind or intellectual freedom. It also includes freedom from compulsory association and God’s exclusive jurisdiction to punish the offenses listed in Romans 1:26-32 (excluding murder). Nor do “just powers” include jurisdiction over what we shall eat or drink. Just powers are not by definition powers granted to and exercised by the family as defined and empowered by God in Genesis, discussed in detail in prior chapters 2, 12, 15 and 17. Just powers do not include the power to interfere with the voluntary self-government associated with voluntary organizations, churches or ecclesiastical societies.
An example of a people exceeding their authority in extending unjust power to a civil government is found in Israel. When Israel declared that a king should rule them in I Samuel 8, they were exercising their authority to be governed by their own consent. While they lawfully but foolishly established a monarchy by their consent, when they granted their new king the power to make them his slave, they acted lawlessly. The choice of slavery was not a “just power.” They had authority to change their form of government even if it was an evil or foolish choice, but they had no authority to grant the king power to make them his slaves. 1 Samuel 8:10-20, esp. 17. Samuel outlined the power given to the king by the People’s consent in versus 10-20. This is a classic laundry list of powers that fail the Declaration’s “just powers” test. That God let the people give their civil government unjust powers, does not establish their authority to do so, or ratify the king’s power as just. It is simply to observe that God recognized that the people could consent to alter their form of civil government, even if it excluded Him.
Ancient Israel made the classic false bargain, slavery for security. They gave up freedom for illusory governmental security and they became slaves. This is a common failing among the peoples and nations of the earth throughout all periods of history. We have seen it in our own day especially after September 11, 2001, when the World Trade Center in New York was attacked. The Congress and President amassed tremendous power thereafter, essentially institutionalizing the surveillance state and destroying the remnant of privacy. God made mankind to be free but losing privacy is a form of slavery with your civil master knowing your every movement, statements and opinions. All that is missing are the physical shackles. When will people ever learn?
It is popular today in some circles to remark that, “God establishes civil authority.” After all, it is written in Psalm 47:8 that “God reigns over the nations! God sits on his holy throne!” And Psalm 82:8 says: “Rise up, O God, and execute judgment on the earth! For you own all the nations.” God has jurisdiction over the nations because he created them. Acts 17:26. But this does not mean He has established any particular civil government.
We have also discussed Romans 13 as making a like assertion. Our study thus far, however, has not shown that God has instituted or established any human civil government. The only civil government He established on this earth so far in human history is His own civil government of Israel. But that was instituted by their own consent, and then later of Judah, not unilaterally by God.
Attorney Gerald R. Thompson has underscored this idea that God is neither a civil government nor king maker. He observes: “But when it is said that God sets up and removes rulers, or gives kingdoms to whomever He chooses, it does not mean that He: 1) bypasses the consent of the people; 2) uses coercion; 3) violates anyone’s free will; or 4) overturns, overrules, or sidesteps the laws of that nation. In other words, when it is said that God raises up or tears down individual rulers, it does not mean that God is instituting a new form of government in any nation, nor that He is altering or abolishing any form of government. Promoting or demoting individuals with respect to positions of power does not put God in the government formation business. His intervention in the life of individuals is perfectly consistent with the principle that governments are instituted by men.” https://lonang.com/commentaries/foundation/right-to-alter-or-abolish-government/
Even the most charitable reading of Romans 13 does not mean that civil officials are thereby unlimited in their power. It does not mean that civil authority can be made unlimited in power even by the People. It cannot mean that any form of civil government subsequently established has a perpetual existence. Nor can it mean any civil government enjoys continued existence by God’s will. It certainly does not mean that the People must obey a tyrannical government, or a government which claims unlimited power, or a government whose power is not just power, or whose acts are not constitutionally authorized, or even a civil government whose acts serve any purpose beyond the equal security of our unalienable rights.
Instead, even when it is loosely said that “God establishes civil authority” this should mean only that He empowers a People in a nation to organize a civil government if they so choose by their consent, for the purpose of better securing their unalienable rights than might be accomplished without civil government. He empowers a People to apply to that civil government so organized, the purpose of securing their pre-existing rights and to extend to it those just powers designed to accomplish that end and no other.
Such a civil government will have but one central purpose. Its organizational form serves that purpose. That purpose is to secure our rights. Our rights are secured by punishment of murder and by proportionate punitive responses according to the law of lex talionis. When the civil government no longer serves that purpose, or fails to serve that purpose, or undermines that purpose, or turns against that purpose, or itself becomes lawless or a lawbreaker, then that government has outlived its usefulness. We do not need it. We are better off without it. Let the people propose its alteration or abolition when this is the case.
God did not make the human race for patriotic or nationalistic slavery. He made us for freedom. God is reasonable with the exercise of His power, the security of our rights and the Administration of Justice. He believes in the power of self-government, volition and love of one’s neighbor. He shows mercy. In this respect, God is no Caesar. The untethered state, however, believes in the lawless use of law, punishes the people without cause in kangaroo judicial proceedings, and enjoys the pleasure of armed force and physical violence at its beck and call. In this respect, Caesar is no god.
Aleksandr Solzhenitsyn in The Gulag Archipelago declared it well when exposing the corrupt Soviet judicial system under Joseph Stalin. Referring to the OSO — the Special Council of the State Security Ministry which convicted arrestees charged with committing political crimes, he stated, “The OSO enjoyed another important advantage in that its penalty could not be appealed. There was nowhere to appeal to. There was no appeals jurisdiction above it, and no jurisdiction beneath it. It was subordinate only to the Minister of Internal Affairs, to Stalin, and to Satan.” Aleksandr Solzhenitsyn, The Gulag Archipelago, 1918-1956, Vol. 1, Harper & Row, p. 295.
Limited and Defined Constitutional Power
This principle of “just powers” further requires that every civil government exercise only those powers specifically granted and in America, are found in our constitutions. The preamble to the federal constitution 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 limited 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.” James Monroe, “First Annual Message,” quoted in Richardson, Messages, 2:181. The Supreme Court, however, has rejected this principle.
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, if any.
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 a version of government by consent, not to form a government, but to elect its officers. 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 because of race or color, etc.); the Seventeenth Amendment (regarding popular election of Senators); the Nineteenth Amendment (regarding abridgement of the vote because 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 concerns protect the process by which the consent of the governed is made manifest. Finally, Article V, which outlines the amendment process is also built upon this principle.