ORIGIN OF CIVIL GOVERNMENT
(Its Application to American Government)
by Kerry Lee Morgan*
“So God created man in his own image, in the image of God he created him; male and female he created them.” Genesis 1:27.
“We hold these Truths to be self-evident, that all Men are created equal. . . .” Declaration of Independence (1776).
Having surveyed the laws of nature and of nature’s God, and natural law, we see that the framers referenced this law as the basis for what they were then about to assert. They declared this law justified separation from an existing civil government. They declared certain universal principles that revealed whether a civil government was lawful or lawless.
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 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 Declaration articulated several derivative principles of the laws of nature and of nature’s God. First, that people are created by God, and that by this circumstance therefore are to be treated equally before the law. Second, all people are endowed by God with certain unalienable rights. Third, that people are also endowed with the right to civilly govern themselves according to their written consent. This means that they can extend their governments power, but only lawful or “just power.” Fourth, the people retain the right to alter or abolish an unlawful form of government as exercising self-government. Fifth, the people may organize the civil government’s powers in such a way as to secure their happiness. Let us examine each of these in turn starting with equality.
The first principle articulated in the Declaration of Independence grounded in law declares that “all men are created equal . . .” The Bible indicates that men and women are created in God’s image, that they are equally human before God. 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.” The rule of equality is tied to the creation of mankind in God’s image. The term “men” is a reference to the authority of human beings, male and female, not a gender reference to males.
The law of nature is the law which God declared at the creation of mankind. That is a simple proposition. God created mankind and said they were male and female and both were in His image. This is the law regarding human beings, that male and female are equally human. All human beings regardless of race, color or nationality are equally human. The framers said this law of equality laid down at creation by God pertains to how we may eventually set up a civil government, though it is the case that slavery rather than the civil equality of the sexes was their immediate concern.
Equality In the Original Constitution
The principle of equality was reflected in the national Constitution. For instance, 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. These Constitutional provisions were instrumental in eradicating both emoluments and hereditary succession of power. “[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.
The principle of equality is 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 sex], 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.
With respect to equality between the states represented in the Senate, Article V asserts that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Slavery and Involuntary Servitude
Many 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 conforming the new Constitution to the principle of equality in this context. Abraham Lincoln later noted that the spirit of the founders toward slavery, “was hostility to the principle, and toleration, only by necessity.” Abraham Lincoln, Speech on the Kansas Nebraska Act at Peoria, Illinois, October 16, 1854.
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 the trade altogether after 1808. But it did not open the door to the abolition of slavery itself.
Thomas Jefferson, author of the Declaration consistently opposed slavery. He labeled it a “moral depravity” and a “hideous blot.” He also regarded slavery as contrary to the laws of nature and of nature’s God. Jefferson advocated legislation to abolish slavery, and in 1778 he drafted a bill in Virginia that prohibited the importation of enslaved African persons. Yet his view did not carry the day. The strength of slavery was still on the increase. The Declaration articulated the true principle of equality according to the law of nature, but the Constitution was only able to plant the seeds of equality in its generation.
The Constitution did so at least in three ways. As noted by scholar Thomas G. West in Vindicating the Framers, pp. 16-17 (1997), the Constitution counted 3/5 of slaves toward representation in Congress and toward the Electoral College. The Southern states advocated that slaves count on a one to one basis, thereby increasing the number of possible representatives those states would send to the House of Representatives. The northern states, however, opposed this and the 3/5 counting compromise was struck.
Another constitutional step toward fulfillment of the equality principle was in empowering Congress to ban the migration and importation of slaves after 25 years, or after 1808. Thus, the trade in human beings was guaranteed at each state’s discretion for 25 years, but became subject to Congressional authority thereafter. The slave trade was abolished in 1808 by Congress on the strength of this clause. Yet, the institution itself remained.
Finally, the Constitution provided that runaway slaves would be returned to their owners. The Constitutional language employed, however, did not refer to slaves, but rather to persons. Article IV, Section 2, Clause 3, stated that “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” This clause at least refers to persons held to labor, rather than constitutionalizing the concept of slaves held to servitude.
While the Constitution gave protection to slavery, within it were the seeds of change. But those seeds could not and still cannot be realized if the concept of equality as a principle derived from the laws of nature as God laid down from His creation of human beings in His image from the beginning, is continually rejected or denied. We may take issue with the Constitution’s framers for not adequately applying the principle of equality. We may criticize them. But those today who would reject the foundation of equality itself mankind made by God equally in His image as a universal legal proposition, are guilty of the greater sin. We may rightly judge them more severely than the framers are judged. The framers fell short of applying the principle, but modern critics reject the very foundation itself. The principle of equality they restated from the law of nature as established by God the Creator while universally true, is like many things in life, for future generation to flesh out in practice each in their own generation.
Jesus reminds us about what is lesser and what is greater. He says: “Woe to you, blind guides, who say, Whoever swears by the temple is bound by nothing. But whoever swears by the gold of the temple is bound by the oath.’ Blind fools! Which is greater, the gold or the temple that makes the gold sacred? And, Whoever swears by the altar is bound by nothing. But if anyone swears by the gift on it he is bound by the oath.’ You are blind! For which is greater, the gift or the altar that makes the gift sacred?” Matthew 23:16-23. Which is greater, the law of nature and principle of equality, or a consistent application of that principle in the same generation? This is a question to be posed to the naysayers.
In the period preceding the Civil War, led by orators such as Steven Douglas and jurists such as Chief Justice Roger Taney, some separated the interpretation and implementation of the Constitution regarding slavery from the equality 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 the Supreme Court’s decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Chief Justice Taney’s majority opinion relied on an historical analysis to support the Court’s decision that Scott was not an American citizen and these historical practices, rather than the standard of equality, should control the outcome. While it is always proper to consider the factual situation existing at the founding, it is the immutable rule of the law of nature and its derivative principle of equality which controls, not the inconsistent practices of men.
Amendments To Implement the Principle of Equality
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 these 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, may 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 procedural due process of law to their citizens. The Supreme Court’s transformation of that clause into a substantive one opening the door to judicially created rights, is a perversion of the law of nature and the Constitution itself.
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 African-Americans could also share in making the laws by which all would be equally judged.