ORIGIN OF CIVIL GOVERNMENT
(Its Application to American Government)
by Kerry Lee Morgan*
“So Moses listened to the voice of his father-in-law and did all that he had said. Moses chose able men out of all Israel and made them heads over the people, chiefs of thousands, of hundreds, of fifties, and of tens. And they judged the people at all times. Any hard case they brought to Moses, but any small matter they decided themselves.” Exodus 18: 24-26.
“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).
Completing our review of the key principles of the Declaration derived or deduced from the law of nature, we find the assertion that the people, not the government itself, 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.” “As to them” means as to the people, not as to their representatives in congress, the president or supreme or subordinate judicial officers. As noted in the quotation above, Moses adopted a judicial branch subordinate to God as part of the administration of justice in Israel. God did not command such a system but He acknowledged its usefulness. “You shall not be partial in judgment. You shall hear the small and the great alike. You shall not be intimidated by anyone, for the judgment is God’s. And the case that is too hard for you, you shall bring to me, and I will hear it.” Deuteronomy 1:17.
The representatives in the First Continental Congress organized the powers of a new national government in 1774 under the “Articles of Association.” The Association of the Continental Congress, October 20, 1774, as printed in Documents of American History, vol. I, Henry Steele Commanger, ed., (Englewood, N.J.: Prentice-Hall, 1973), p. 84. Just three years later in 1777, this organization of the national government 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.
According to President John Quincy Adams, however, “there was no congeniality of principle between the Declaration of Independence and the Articles of Confederation.” The Jubilee of the Constitution: A Discourse Delivered at the Request of the New York Historical Society, in the City of New York, on Tuesday, the 30th of April, 1839; Being the Fiftieth Anniversary of the Inauguration of George Washington as President of the United States, on Thursday, the 30th of April, 1789., by John Quincy Adams. Adams argued that the new confederation’s powers were organized in such a way as to undermine, rather than “to provide new Guards for their future Security.” Adams declared that the “fabric of the Declaration and that of the Confederation . . . were the products of different minds and adverse passions.” 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 asserting that it would better secure the safety and virtue of the people in a more perfect union than did the Articles of Confederation. The framers were following through on the Declaration’s claim that the people, this time in convention, were free to alter their form of government and reorganize it in such a way so as to better secure their rights. At least that is what was claimed.
The framers had already abolished the monarchial form of government under a king in the colonies at the time of the 1776 revolution. In 1787, they specifically instituted in its place a government republican in form. 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.” James Madison, The Federalist Papers, No. 39. (New York: The New American Library, Inc., 1961), p. 240.
Beyond this, the 1787 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,” the founders made each branch separate and distinct, with few exceptions. James Madison, Federalist No. 47, at p. 301. Only a few powers remained combined in one or another branch. 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.” James Madison, Notes of Debates in the Federal Convention of 1787 (Athens: Ohio University Press, 1966), p. 326. If one national branch did exercise another’s power, it would not be according to the Constitution, but by usurpation.
The framers also 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.” James Madison, Federalist No. 39. 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 the powers granted to the national legislature. Article 2 defines the president’s power and Article 3, that of the judiciary. Article 4 addresses State governmental issues. Article 5 concentrates on how to amend the Constitution. Article 6 lays out rules on debts, the supremacy of the Constitution as written (not as interpreted) and oaths. Article 7 focuses on adoption of the Constitution making it valid. Multiple amendments changed some of these particulars while also enumerating rights of the people not to be impaired or abridged.
The Tenth Amendment affirms the division of powers between the states 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. 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.
The Constitution of 1787 was the practical expression of the people altering the form of their national government from its 1784 version. In so doing, they followed the Declaration’s guarantee that the people may alter their governments when they so choose. The wisdom of doing so by “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” sets the standard, but whether the people have chosen wisely or not, can only be determined by their experience with that new form over the passage of time. Does it tend to freedom or does it tend to slavery? That is the prescient question.