ORIGIN OF CIVIL GOVERNMENT
(Its Application to American Government)
by Kerry Lee Morgan*
“The end of the matter; all has been heard. Fear God and keep his commandments, for this is the whole duty of man.” Ecclesiastes 12:13
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights. Declaration of Independence (1776).
We have examined equality. Let us now turn to unalienable rights. 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 concept of a Creator endowing human beings is not enlightenment thinking. Nor do atheists talk about a Creator. It has Biblical origins from the beginning. Genesis describes the creation of human beings and how God gave both men and women on equal terms the same responsibilities and duties. Here is every seed bearing plant for food. Here is the land, work it and till it to feed and sustain you. Bear children and sustain and enlarge your family. After the flood God said here are the animals and birds and fish for food and clothing and to domesticate. We have covered these grants of authority in prior chapters.
The Declaration recognizes this existing order. It recognizes the way of things according to the Creator and the importance of mankind, male and female. But the Declaration goes further and states a legal proposition from this order of things. It says mankind has certain rights. It says these rights are unalienable. It says these rights come from the endowment or grant of the Creator. What does all this mean? How do we get from here, from land and seed and food and children to unalienable rights?
God created human beings and gave them specific authority and responsibility. God created and described marriage and the family. Polygamy was wrong, monogamy was right. He articulated the authority of a man and a woman. He described the authority of a husband and wife. He described the duties of parents in connection with their children. He describes the fact that children are born in a family to their parents.
God also went to a great deal of trouble to describe what mankind should be doing. God said to Adam and Eve they should have children. God said that they should have many children. God said that they should fill the earth. God said that their children should fill the earth and subdue the earth. He entrusted parents with the education and upbringing of their own children. So that Adam and Eve and their children could subdue the earth, He gave to them seed bearing plants. He gave them fruit trees for food. He gave them the animals of the earth, though only after the flood for food to eat. He gave them every bird in the air and all the creatures of the earth. He gave them every green plant for food.
After the flood, He extended the authority to mankind to take the life of a murderer and subsequently identified certain protections and principles of due process associated with that deprivation. There was no civil government in existence to interfere with, regulate, compel or usurp these individual and familial tasks, functions, duties and responsibilities.
We also learned that the civil government’s lawful purpose if established by the consent of the people is to protect and secure the free exercise of each of the forgoing duties and obligations. It is not for the civil government to compel or regulate them, but rather to restrain and enjoin others including itself from impairing or interfering with such duties and obligations. These are examples of the duties which individuals and family members owe to God. They owe it to God because God set the tasks before them by His word and will. The record is not unclear on this point. This brings us to the link with unalienable rights.
A Duty To God Is An Unalienable Right To Be Free From Interference by Others
What is the bridge between the duties owed to God that He laid down at the creation of the world and the idea of unalienable rights? It is straightforward and logical. It begins with an understanding of responsibilities. It progresses from responsibilities to a duty to God. It then moves from the duty we owe to God, as a right against human wrongdoers with their interference with those duties.
The responsibilities God entrusts to every man and women by His creation of them, and of husbands and wives, fathers and mothers, marriage and family, are also duties which each owe back to God. For instance, God said that mankind should exercise authority over the land. This responsibility in turn is a duty men and women individually owe to God. When a man or woman exercises that duty, they should not be interfered with by other persons or civil government. Thus, we say that human beings have a right from God to perform that duty. It is an unalienable right because it cannot be impaired by any person and not by the civil ruler who enjoys no authority or immunity to act as a wrongdoer itself.
When we refer to unalienable rights, we mean that human beings by their being created in the image of God and by virtue of them being asked by God to perform certain universal responsibilities, have an unalienable right to be free from the interference, regulation or control of other persons (including local, state and federal civil governments) in exercising those preexisting responsibilities and duties to God, who requested them in the first place. Those who interfere with exercising those duties are the wrongdoers identified in Romans 13. Civil government, as instituted by a specific people living within a predefined geographical boundary, is entrusted to secure the free exercise of such duties.
It is wholly unsatisfactory to talk about such “duties” without also acknowledging their correlative, “rights.” There is no “duty” that does not necessarily or logically imply a corresponding “right.” Thus, a God-given responsibility entrusted to human beings, and other responsibilities entrusted to married persons and to families by God, are duties which preexist even the existence of civil government in time and in history from creation. As such, a human being has a “right” as against all others to exercise that duty free from interference, regulation and control. That “duty” is unalienable in the sense of being absolute, so that the individual on whom God imposes it cannot free himself from it. In such instances, that duty’s corresponding right must also be likewise “unalienable.” As such, the person to whom it attaches cannot be lawfully deprived of its exercise by any other person or official and clearly not by any civil government.
Rights Versus Rights
The legal definitions 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. Noah Webster’s 1828 Dictionary defines unalienable as that which “cannot be legally or justly alienated or transferred to another.” The concept of inalienability (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 judgments. The concept of unalienable rights does, however, preclude civil government from balancing rights against governmental interests, whether such interests are compelling, rational or just made up by some bureaucrat.
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 may not deny or disparage. The Virginia 1776 Constitution declared that “all men are by nature free and independent, and have certain inherent rights . . . .” Pennsylvania’s 1776 Constitution stated that “all men are born equally free and independent, and have certain natural, inherent and inalienable rights . . . .” Delaware and North Carolina’s 1776 Declaration of Rights proclaimed that “all men have a natural and unalienable right to worship Almighty God . . . .”
The idea of inalienability 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. Inalienability 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.” Black’s Law Dictionary (5th ed. 1979).
We note 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 envisions a system of justice animated by a jurisprudence in which rights may be wrongs. See Roe v. Wade, 410 U.S. 113 (1973), (The right to privacy under the Due Process Clause of the 14th Amendment extended to a woman’s decision to have an abortion). Lawrence v. Texas, 539 U.S. 558 (2003) (Intimate consensual sexual conduct was part of the liberty protected by substantive due process under the 14th Amendment). Obergefell v. Hodges, 576 U.S. 644 (2015) (The fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution). This vision of justice, however, is also contrary to the established rule that jus ex injuria non oritur. A right does (or can) not rise out of a wrong. See LONANG Amicus Brief in Mississippi v. Jackson Women’s Health filed July 27, 2021 at https://lonang.com/amicus-briefs/
George Mason drafted the Virginia Declaration of Rights in 1776 which declared: “That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” The Virginia Declaration also affirmed that “all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.” In other words, God does not make civil governments, only the people do.
Rights In The Constitution’s Text
Unalienable rights animate both the text and the amendments to the national Constitution. When James Madison introduced the proposed amendments on June 8, 1789, he moved to insert them between the third and fourth paragraphs of Article I, Section 9. That Article and Section placed express limitations on the power of Congress.
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 secure the right to procedural 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,” as well as the Declaration’s unalienable right of liberty. See An Act for Religious Freedom, adopted by the Virginia Assembly on January 16, 1786, recited in Code of Virginia, Sec. 57-1 (1950). One of the controlling premises of this statute, like that of the First Amendment, is that “Almighty God hath created the mind free.”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 self-defense, life and that of individual and family self-government. The Third and Fourth Amendments protect the sanctity of the home and property from government invasion and taking. 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. There are others in the Amendments but these are key.