Legal Foundations: The Framework of Law
by Gerald R. Thompson
A Christian Nation?
The question is often asked whether England or America either have been, or are now, a “Christian nation.” To answer this, it must first be determined, “What is a Christian nation?” This inquiry necessarily involves consideration of a variety of legal factors, for the religious character of a nation is inextricably bound up in its institutions and laws. Accordingly, behind the religious question lurks a jurisprudential issue: “To what extent, and in what sense, should the laws of any nation reflect Christian values?” These are the questions to be explored in this chapter, with particular attention paid to how they were resolved in the American experience.
The scriptures contain a number of admonitions for the people of a nation to turn toward God and remain faithful to Him. Faithfulness toward God is often portrayed as the means by which people achieve economic prosperity or national healing.
- [If] My people who are called by My name humble themselves and pray, and seek My face and turn from their wicked ways, then I will hear from heaven, will forgive their sin, and will heal their land. [2 Chr. 7:14.]
- Blessed is the nation whose God is the Lord, The people whom He has chosen for His own inheritance. [Ps. 33:12.]
However, many questions arise from a generalized interpretation of the above scriptures. Textually, references to “My people” or “the people whom He has chosen” apply strictly to ancient Israel. Are these scriptures applicable to modern nations, and if so, how? The Bible tells us the manner in which Israel was to observe its covenant with God, but other nations do not have this covenant relationship with the Creator. How, then, are other nations supposed to indicate faithfulness toward God? Is it enough for Christians in a nation to be faithful toward God to enjoy His blessings, or must the nation as a whole evidence a faithfulness toward God? If the latter, what form does this national faithfulness take? Can a “Christian nation” openly tolerate non-Christians?
- “Therefore I say to you, the kingdom of God will be taken away from you, and be given to a nation producing the fruit of it.” [Mat. 21:43.]
Apparently, nations other than ancient Israel can evidence faithfulness toward God, but the form this may take remains to be explored.
In Anglo-American jurisprudential history, there exist various assertions that England and America each are, or were, a Christian nation. However, again, there is little in these assertions which define the form or substance of what it means to be a Christian or a religious nation.
- Christianity is part of the laws of England. [Blackstone, 4 COMMENTARIES *59.]
- [N]o purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation. . . . There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning. They affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons. They are organic utterances. They speakthe voice of the entire people. [Holy Trinity Church v. U.S., 143 U.S. 457 (1892) at 470.]
TYPES OF A GODLY (“CHRISTIAN”) NATION.
An examination of history reveals essentially four possible types of religious national identity: 1) democracy; 2) theocracy; 3) establishment; and 4) republic. As will become evident, these definitions are not mutually exclusive. For example, ancient Israel satisfied all four definitions for a time. And, England and America have each satisfied as many as three of the definitions at one time.
A democracy, for the present purposes, refers not to the way the people exercise civil rule over each other, but simply to the fact that a majority of the population happens to profess the same religious faith as a matter of individual choice. In other words, a nation could be said to be a Christian nation in a democratic sense if a majority of the population are Christians. Of course, the religious majority may cause certain laws respecting religion to be enacted and enforced, but this is not now in view.
Certainly there was a time in America, as well as England, when a majority of the population professed Christian religious beliefs.
- The people of this state, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice; . . . the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those impostors. [People v. Ruggles, 8 Johns. 290, 294, 295 (NY).]
However, a Christian nation which depends on the existence of popular concensus is an elusive thing. Such a definition of “Christian nation” is entirely political, not legally based. That is, popular opinion is not a matter of legal prescription. There is little or no legal stability or security because popular concensus can change at any time.
If a Christian nation is defined solely in demographic, or “democratic,” terms, it must be admitted that neither England nor the United States are good candidates for “Christian nation” status at present. Plus, a merely demographic definition of a Christian nation has little to commend itself either as to jurisprudence or as a legacy for future generations.
Historically, some people viewed America as God’s “new Israel,” suggesting that it was intended to be a Christian nation in a theocratic sense. Some people have suggested that ancient Israel’s theocratic form of government is the model for all modern nations. However, here we must be careful to distinguish a theocracy (or, the rule of God) from a theonomy (the rule of God’s law). The definition of a theocracy is such that ancient Israel is the only nation in the history of the world so far which can claim to be a theocracy in the legal sense.
Definition of theocracy. A theocracy, in the legal sense, is a nation where: 1) God personally rules national affairs as the supreme civil head of state; and 2) God is an actual party to the nation’s civil covenant, or constitution.
The “rule of God” means that civil affairs are governed by God personally as supreme civil head of state.
God was king (the supreme civil head of state) over ancient Israel. This is evidenced in the fact that when the Israelites asked for a human monarchy, it wasviewed by God as a rejection of His direct civil rule.
- For the Lord is our judge, The Lord is our lawgiver, The Lord is our king; He will save us– [Isa. 33:22.]
- And the Lord said to Samuel, “Listen to the voice of the people in regard to all that they say to you, for they have not rejected you, but they have rejected Me from being king over them.” [1 Sam. 8:7.]
However, the institution of the monarchy in ancient Israel did not terminate the theocracy. All that was effected was a change in the form of government. Israel’s constitution (the Ten Commandments) was not amended, nor were its laws. Further, God retained ultimate civil authority in Israel, which is shown by His retention of the right to determine who could lawfully sit on Israel’s throne under the monarchy. This right to appoint the monarch was reserved in advance of entering the Promised Land, and was exercised in the appointments of Saul, David, and the terms of the Davidic covenant.
- “When you enter the land which the Lord your God gives you, and you possess it and live in it, and you say, ‘I will set a king over me like all the nations who are around me,’ you shall surely set a king over you whom the Lord your God chooses . . ..” [Deut. 17:14-15.]
- “And your house and your kingdom shall endure before Me forever; your throne shall be established forever.” [2 Sam. 7:16.]
Jesus has the eternal right (in fulfillment of the Davidic covenant) to rule as king of Israel as a personal, civil head of the nation.
- “And behold, you will conceive in your womb, and bear a son, and you shall name Him Jesus. He will be great, and will be called the Son of the Most High; and the Lord God will give Him the throne of His father David; and He will reign over the house of Jacob forever; and His kingdom will have no end.” [Lu. 1:31-33.]
Not only did God exercise direct rule over Israel as its supreme head of state, but He was an actual party to Israel’s civil covenant, or constitution.
- So Moses took the blood and sprinkled it on the people, and said, “Behold the blood of the covenant, which the Lord has made with you in accordance with all these words.” [Ex. 24:8.]
- He has remembered His covenant forever, The word which He commanded to a thousand generations, The covenant which He made with Abraham, And His oath to Isaac. Then He confirmed it to Jacob for a statute, To Israel as an everlasting covenant. [Ps. 105:8-10.]
Israel’s uniqueness. Ancient Israel was unique – God has not exercised direct rule over any other nation as its supreme civil head of state, nor has He been an actual party to any other nation’s civil covenant. Indeed, the Bible states that Israel is a unique nation among all of the nations of the world.
- “`Now then, if you will indeed obey My voice and keep My covenant, then you shall be My own possession among all the peoples, for all the earth is Mine; and you shall be to Me a kingdom of priests and a holy nation.’ These are the words that you shall speak to the sons of Israel.” [Ex. 19:5-6.]
- He declares His words to Jacob, His statutes and His ordinances to Israel. He has not dealt thus with any nation; And as for His ordinances, they have not known them. Praise the Lord! [Ps. 147:19-20.]
- “For you are a holy people to the Lord your God; the Lord your God has chosen you to be a people for His own possession out of all the peoples who are on the face of the earth.” [Deut. 7:6. See also, Deut. 14:2.]
Consequently, neither England nor America have ever been a theocracy in this legal sense. If it is possible for the United States to be a Christian nation, we must look elsewhere.
Both England and America have a history of religious establishments. Thus, if having Christianity as the established religion is the test for being a Christian nation, both nations have qualified as such for part of their history.
Definition of establishment. The definition of an establishment for present purposes is where a nation legally prescribes, either legislatively or constitutionally, matters of redemption law. This legal prescription is often referred to as making a particular religion (Christianity) the official national religion, but in fact it may take a variety of forms, any number of which may be used in combination with each other. Some examples (not an exhaustive list) follow:
The nation has a legally prescribed religious faith, that is, civil law prescribes what people must believe about God. This was certainly the case in ancient Israel.
- “You shall have no other gods before Me. You shall not make for yourself an idol, or any likeness of what is in heaven above or on the earth beneath or in the water under the earth. You shall not worship them or serve them; for I, the Lord your God, am a jealous God, visiting the iniquity of the fathers on the children, on the third and the fourth generations of those who hate Me, but showing lovingkindness to thousands, to those who love Me and keep My commandments.” [Ex. 20:3-6.]
This model was followed in some early state constitutions in America, such as the one in South Carolina.
- That all persons and religious societies who acknowledge that there is one God, and a future state of rewards and punishments, and that God is publicly to be worshipped, shall be freely tolerated. The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State. . . . And that whenever fifteen or more male persons, not under twenty-one years of age, professing the Christian Protestant religion, and agreeing to unite themselves in a society for the purposes of religious worship, they shall, (on complying with the terms herein after mentioned,) be, and be constituted, a church, and be esteemed and regarded in law as of the established religion of the State, and on a petition to the legislature shall be entitled to be incorporated and to enjoy equal privileges. [So.Carolina Const. of March 19, 1778, art. XXXVIII.]
The vitality of the nation (or state) is said to depend on the maintenance and preservation of a particular religious faith. Again, this form of establishment was modeled in ancient Israel.
- “Now it shall be, if you will diligently obey the Lord your God, being careful to do all His commandments which I command you today, the Lord your God will set you high above all the nations of the earth. And all these blessings shall come upon you and overtake you, if you will obey the Lord your God. . . . But it shall come about, if you will not obey the Lord your God, to observe to do all His commandments and His statutes with which I charge you today, that all these curses shall come upon you and overtake you.” [Deut. 28:1-2,15.]
This model was followed in some early state constitutions. The Massachusetts Constitution of 1780, for example, disclaimed establishment as to any particular sect or denomination of Christians, but at the same time clearly “established,” through tax revenues, the state’s support of generic Protestant Christianity.
- As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and as these cannot be generally diffused through a community but by the institution of the public worship of GOD, and of public instructions in piety, religion, and morality: Therefore . . . the legislature shall, from time to time, authorize . . . the support and maintenance of public Protestant teachers of piety, religion, and morality . . .. And every denomination of Christians . . . shall be equally under the protection of the law: and no . . . one sect or denomination . . . shall ever be established by law. [Const. of Massachusetts (October 25, 1780), Art. III.]
In England, this pattern was followed in the negative, that is, the law prescribed what religious faith a monarch was prohibited from following.
- And whereas it hath been found by experience, that it is inconsistent with the safety and welfare of this protestant kingdom, to be governed by a popish prince, or by any King or Queen marrying a papist . . .. [Bill of Rights (1689), ¶ IX.]
Civil privileges are accorded to citizens professing a specific redemptive faith, but denied to others. Thus, in Israel, a person who defiled a sacrifice to God would be “cut off” from the people, that is, excluded from civil participation in the nation.
- “For whoever eats the fat of the animal from which an offering by fire is offered to the Lord, even the person who eats shall be cut off from his people.” [Lev. 7:25.]
After a similar fashion, some colonial and state governments provided that a condition of holding selected public offices was having an approved religious afiliation or taking a religious oath.
- It is ordered, sentenced and decreed . . . that the Governor be always a member of some approved congregation. [Fund. Orders of Connecticut, Sec. 4.]
Form of oath: I,, do profess faith in God the Father, and in Jesus Christ, His onlySon, and in the Holy Ghost, one God blessed forevermore; and I do acknowledge the Holy Scriptures in the Old and New Testament to be given by divine inspiration. [Delaware Declaration of Rights (September 11, 1776).]
A fourth kind of establishment is where the nation or state has a jurisdictional merging of church and civil spheres. In other words, civil punishments are meted out for religious offenses. Again, this was the case in ancient Israel.
- “Now a man or a woman who is a medium or a spiritist shall surely be put to death. They shall be stoned with stones, their bloodguiltiness is upon them.” [Lev. 20:27.] “Moreover, the one who blasphemes the name of the Lord shall surely be put to death; all the congregation shall certainly stone him. The alien as well as the native, when he blasphemes the Name, shall be put to death.” [Lev. 24:16.] [See also, Deut. 17:2-5 (false religious worship).]
The practice of civilly punishing religious offenses was carried out both in England [“Offenses against God and religion”] and in some of the American colonies.
- If any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death. Dut. 13:6, 10. Dut. 17:2, 6. Ex. 22:20. . . . If any man shall Blaspheme the name of god, the father, Sonne or Holie ghost, with direct, expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death. Lev. 24:15, 16. [Massachusetts Body of Liberties (1641), Sec. 94, “Capitall Laws.”]
Present legal status. Of course, the main problem with legal establishments of religion in America is that they have been utterly rejected as a means of promoting public virtue. Thus, all of the states which formerly had established religions abandoned them by the 1830’s. Further, the First Amendment to the U.S. Constitution (which has been interpreted as applying to each of the states as well) expressly denies that Congress may make any law “respecting an establishment of religion.” This position is consistent with the idea that civil government has no jurisdiction over matters of the heart and mind. Consequently, if we are to find any continuing legal legacy of what it means to be a Christian nation, we cannot find it by returning to the religious establishment motif.
- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .. [U.S. Const., amend. I.]
A republic may be defined as a consensual form of government in which there is “a government of laws, and not of men.” This latter phrase is intended to denote a government in which law itself rules the nation, every person is under the law, and the law is that which conforms to the objective legal order created by God. A republic, then, is the form of government which is intended to institute a theonomy (rule of God’s law) via the consent of the governed.
- “Yet they seek Me day by day, and delight to know My ways, As a nation that has done righteousness, And has not forsaken the ordinance of their God. They ask Me for just decisions, They delight in the nearness of God.” [Isa. 58:2.]
- [T]he religion which has introduced civil liberty, is the religion of Christ and His apostles .. .. This is genuine Christianity, and to this we owe our free constitutions of government . . . the moral principles and precepts contained in the Scripture ought to form the basis of all of our civil constitutions and laws. [Noah Webster (1833).]
The hallmark of a republic (apart from political concerns about representative government) is the consensual adoption of a legal framework consistent with the law of nature and God’s law as revealed in the Bible. This does not mean that the nation or state is attempting to reinstitute the Mosaic law, but that its laws and institutions presuppose the laws of the Creator which apply to all people.
- [W]e are a religious people and our institutions presuppose a Supreme Being. . . . [Zorach v. Clauson, 343 US 307, 313 (1952).]
- Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; . . . not Christianity with an established church and tithes and spiritual courts, but Christianity with liberty of conscience to all men. [Updegraph v. Com., 11 Serg. & R. 394, 400.]
- Probably at the time of the adoption of the Constitution, and of the first amendment to it . . . the general if not the universal sentiment in America was, that Christianity ought to receive encouragement by the state so far as was not incompatible with the private rights of conscience and the freedom of religious worship. [Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (1851).]
A republican form of government is the operative legal model in the United States.
- The United States shall guarantee to every state in this union a Republican form of government . . .. [U.S. Const., art. IV, §4.]
- The government of the United States has been emphatically termed a government of laws, and not of men. [Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), at 163. See also, Const. of Massachussetts, October 25, 1780, Art. XXX.]
LEGAL BASIS FOR A REVOLUTION
Fortunately, in determining whether the United States has ever consented to be ruled by the law of nature and the laws of God in the Bible, we are not left with mere inferences. Rather, the documentary history of our nation reveals that the biblical basis of law was explicitly recognized and adopted as the nation’s operative legal framework. In addition to the English, colonial and state documents examined above [chap. IX], this intention was manifested in the documentary records leading up to the formation of the United States as a legal entity.
Resolutions of the Stamp Act Congress, October 19, 1765.
The Resolutions of the Stamp Act Congress were adopted by the American colonies in response to the Stamp Act, a tax enacted by Parliament on March 22, 1765.
Form. In form, the Resolutions were merely a petition for a redress of grievances.
The Americans declared their continued allegiance to the English crown and Parliament.
- 1st. That his majesty’s subjects in these colonies, owe the same allegiance to the crown of Great Britain, that is owing from his subjects born within the realm, and all due subordination to that august body, the parliament of Great Britain.
The Resolutions, after defining the problems created by the Stamp Act, asserted that the colonists had the right to petition the English government for a repeal of the Stamp Act.
- 13th. That it is the right of the British subjects in these colonies, to petition the king or either house of parliament. . . . to procure the repeal of the act for granting and applying certain stamp duties . . ..
The action of the Congress was analogous to the response of Peter and the apostles when they had been told not to speak or teach in the name of Jesus by the Jewish Council. The apostles differed with the Council, but let the Council “be the judge.”
- And when they had summoned them, they commanded them not to speak or teach at all in the name of Jesus. But Peter and John answered and said to them, “Whether it is right in the sight of God to give heed to you rather than to God, you be the judge; for we cannot stop speaking what we have seen and heard.” [Acts 4:18-20.]
Legal basis. The Resolutions, having affirmed the colonists’ allegiance to Great Britain, regarded the colonists as Englishmen. Thus, the legal basis of the document was founded entirely on British law: the rights of Englishmen and the British constitution.
- 2d. That his majesty’s liege subjects in these colonies are entitled to all the inherent rights and privileges of his natural born subjects within the kingdom of Great Britain.
- 6th. That all supplies to the crown, being free gifts of the people, it is unreasonable and inconsistent with the principles and spirit of the British constitution, for the people of Great Britain to grant to his majesty the property of the colonists.
Declaration and Resolves of the First Continental Congress, October 14, 1774.
Following the repeal of the Stamp Act in 1766, England reasserted its authority to legislate for the American colonies. The colonists viewed these new acts as oppressive, and gradually came to realize that the problems of individual colonies were the problems with all. The First Continental Congress was convened in 1774 to address these problems confronted by the colonies.
Form. In form, the Declarations and Resolves were a refusal to submit to the authority asserted by the English government over the colonies.
After listing various grievances against England and citing the fact that prior petitions for redress “have been repeatedly treated with contempt,” the document asserts that the colonists have certain rights which England must respect. To the extent that England violated the colonists’ rights by its exercise of power, the authors refused to submit to such exercise, although only peaceable resistance was to be made.
- To these grievous acts and measures, Americans cannot submit, but in hopes their fellow subjects in GreatBritain will, on a revision of them, restore us to that state, in which both countries found happiness and prosperity, we have for the present, only resolved to pursue the following peaceable measures . . ..
Again, the authors regarded themselves as still being Englishmen, and in so doing, affirmed the covenantal nature of the British constitution and its applicability to them. This understanding is indicated by the reliance on the rights of the original settlers in America and the application of those rights to the colonists as their descendants.
- Resolved, N.C.D. 2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and naturalborn subjects, within the realm of England.
- Resolved, N.C.D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.
The action of the Continental Congress was analogous to the response of Peter and the apostles when they were called before the Jewish Council a second time. Instead of leaving judgment to the Council, they refused to submit to its orders not to teach.
- And when they had brought them, they stood them before the Council. And the high priest questioned them, saying, “We gave you strict orders not to continue teaching in this name, and behold, you have filled Jerusalem with your teaching, and intend to bring this man’s blood upon us.” But Peter and the apostles answered and said, “We must obey God rather than men.” [Acts 5:27-29.]
Legal basis. The First Continental Congress, like the Stamp Act Congress, viewed the colonists as still being Englishmen. For that reason, the English constitution and the colonial charters and compacts (having been obtained from the English crown) were continued to be relied upon for the rights asserted. However, a new legal basis was added this time, namely, the immutable laws of nature.
- That the inhabitants of the English colonies in NorthAmerica, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following RIGHTS:
The question of whether to rely on the law of nature as a legal basis for the document was one of the central issues debated within the Congress.
- The two points which labored most were: 1. Whether we should recur to the law of nature, as well as to the British constitution, and our American charters and grants. . . . 2. The other great question was, what authority we should concede to Parliament . . .. [John Adams (1802).]
In relying on the laws of nature, the Congress made a conscious choice to adopt a legal framework based on the revealed laws of God, since the connection between the laws of nature and God’s law were well known at that time.
- To say the Parliament is absolute and arbitrary is a contradiction. The Parliament cannot make 2 and 2, 5; Omnipotency cannot do it. . . . Parliaments are in all cases to declare what is for the good of the whole; but it is not the declaration of Parliamemnt that makes it so: There must be in every instance a higher authority, viz. God. Should an Act of Parliament be against any of His natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity, and justice, and consequently void. [James Otis, The Rights of the British Colonies Asserted and Proved (1764).]
Declaration of the Causes and Necessity of Taking up Arms, July 6, 1775.
Armed conflict broke out between the colonists and British troops at Lexington on April 19, 1775. Even so, many colonists still hoped for a peaceful settlement of their differences with England. The Second Continental Congress was assembled to obtain a redress of grievances from, and restore harmony with, Great Britain. Although the purpose of the Declaration was to seek reconciliation, not independence, it approved the use of armed resistance to secure the colonists’ rights.
Form. In form, the Declaration was a final warning and offer of peace before war is formally declared.
Once again, grievances against Great Britain are listed, and the Declaration notes that many prior petitions and entreaties made by the colonists were fruitless. The Declaration then issues a stern warning that the colonists will fight for liberty in spite of all hazards, and that they would rather die as freemen than live as slaves. In issuing this warning, the Congress calls the Creator God as witness to the Declaration and makes a request for His divine providence to protect them through the conflict.
- We gratefully acknowledge, as signal instances of the Divine favour towards us, that his Providence would not permit us to be called into this severe controversy, until we were grown up to our present strength, had been previously exercised in warlike operation, and possessed of the means of defending ourselves. With hearts fortified with these animating reflections, we most solemnly, before God and the world, declare, that, exerting the utmost energy of those powers, which our beneficent Creator hath graciously bestowed upon us, the arms we have been compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverence, employ for the preservation of our liberties; being with one mind resolved to die freemen rather than to live slaves.
The Declaration closes with a reminder that the colonists will fight until aggression ceases, and makes a final appeal for peace and reconciliation. In so doing, the Congress implores the mercies of God to “relieve the empire from the calamities of civil war.”
- We shall lay [arms] down when hostilities shall cease on the part of the aggressors, and all danger of their being renewed shall be removed, and not before. With an humble confidence in the mercies of the supreme and impartial Judge and Ruler of the Universe, we most devoutly implore his divine goodness to protect us happily through this great conflict, to dispose our adversaries to reconciliation on reasonable terms, and thereby to relieve the empire from the calamities of civil war.
The conduct of the Second Continental Congress was analogous to what God expected of the ancient Israelites when they approached an enemy city, namely, to offer terms of peace before declaring war.
- “When you approach a city to fight against it, you shall offer it terms of peace. And it shall come about, if it agrees to make peace with you and opens to you, then it shall be that all the people who are found in it shall become your forced labor and shall serve you. However, if it does not make peace with you, but makes war against you, then you shall besiege it.” [Deut. 20:10-12.]
Legal basis. The Declaration, in contrast to prior documents, regarded the Continental Congress as “Representatives of the United Colonies,” implying that they were beginning to see themselves as Americans more than Englishmen. This is reflected in the choice of legal bases used to support the Declaration.
The Congress, by declaring that Parliament had exercised power unjustified by the British constitution, essentially held the English government to be in breach of that constitution.
- The legislature of GreatBritain, however, stimulated by an inordinate passion for a power not only unjustifiable, but which they know to be peculiarly reprobated by the very constitution of that kingdom . . ..
The Declaration does not rely upon the British constitution or the colonial charters to justify taking up arms, but instead relies on general principles derived from theCreator, common sense and the nature of humanity, in short, the law of nature.
- But a reverence for our great Creator, principles of humanity, and the dictates of common sense, must convince all those who reflect upon the subject, that government was instituted to promote the welfare of mankind, and ought to be administered for the attainment of that end.
Although the colonial charters are recited as authorizing the colonial legislatures, the Congress viewed the legislatures themselves as perfect, not the charters.
- Societies or governments, vested with perfect legislatures, were formed under charters from the crown . . ..
TO CHARTER A CHRISTIAN REPUBLIC
Modern scholarship commonly regards the Declaration of Independence as a document of mere expediency which was used to justify a political revolution. However, the Declaration is a document of immense legal importance to the United States, for it chartered a new nation, established the national legal context, and has continuing legal importance. Even the structure of the Declaration reflects the structure of a legal brief: it has an opening statement, followed by a presentation of evidence, and concluded with a brief closing argument.
The United States National Charter.
The primary legal significance of the Declaration lies in the fact that it is the document which chartered the United States of America as a separate nation. The Declaration was the means by which the United States achieved its independent legal status.
New legal status. Prior to the Declaration, America was governed by the Magna Carta and the rest of the British constitution. The colonial charters and compacts, as well as the rights of Englishmen, were all predicated on the existence of the British constitution and its applicability to the colonies. In asserting independence from Great Britain, the Declaration claimed not only political independence, but legal independence as well. In other words, the legal effect of the Declaration was to declare that the British constitution and all of the laws, charters and compacts under it were of no further legal validity in America.
- We, therefore . . . in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.
A redress for breach of covenant. In form, the Declaration of Independence is a redress for breaches of covenant, i.e., the British constitution. In essence, the recognition of repeated breaches of covenant gives rise to a presumption that the British constitutional covenant, though irrevocable, is no longer applicable to America by reason of a forfeiture by the English government.
- The History of the present King of Great Britain is a history of repeated Injuries and Usurpations, all having in direct Object the Establishment of an absolute Tyranny over these States. . . . Nor have We been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. . . . We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace, Friends.
Affirmed in the U.S. Constitution. The fact that the Declaration chartered the United States is confirmed by the language of the U.S. Constitution.
The Constitution requires representatives in Congress to have been a U.S. citizen for seven years, and Senators to have been a citizen for nine years. The framers of the Constitution drafted the document in such a way that it would be possible to qualify for office immediately upon ratification. In other words, no one could have qualified to be elected to Congress unless it were possible to have been a citizen for at least seven years by the time ratification was completed. Thus, the nation could not have been chartered by the Constitution itself – a document antecedent to the Constitution would have had to accomplish that result.
- No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States. [Art I, §2, Cl. 2.]
- No person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States. [Art. I, §3, Cl. 3.]
The requirement that the President must have been a resident, rather than a citizen, of the United States for fourteen years is consistent with the fact that the Declaration preceded the drafting of the Constitution by only eleven years and two months. Thus, no one could have been a citizen of the United States for fourteen years in 1787, or even upon ratification in 1789. Yet, it would have been possible for people to have resided within the territorial boundaries of the United States for that period of time.
- [N]either shall any person be eligible to that office [of President] who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States. [Art. II, §1, Cl. 5.]
The final paragraph of the Constitution attaches significance to the date of America’s independence, implicitly recognizing that the Declaration, rather than the Constitution, chartered the nation.
- Done in Convention, by the unanimous consent of the States present, the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the Independence of the United States of America the twelfth. [Final paragraph.]
The Legal Context for the Nation.
The Declaration not only created a new nation, butexplained the legal basis for doing so. Accordingly, the national charter established the legal context for not only the founding, but the continuance, of the nation.
The national legal context. The Declaration justified the political and legal separation of the United States from Great Britain on the basis of the laws of nature and of nature’s God. In so doing, the Declaration established the laws of nature and of nature’s God as the express legal context for the nation. That is, the independence of the nation and its claim to legal validity depend on the existence of this legal context and its applicability to America. By implication, so long as the United States exists, this legal context governs its institutions and laws.
- When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.
The Declaration relies exclusively on the laws of nature and of nature’s God for its legal justification. This is a significant departure from prior documents, which relied on the British Constitution, the rights of Englishmen, and/or the various colonial charters and compacts. In discarding these other legal bases, the Declaration makes it clear that the former legal bases no longer apply to the United States.
The laws of nature and nature’s God. The “laws of nature and of nature’s God” was not a new or novel legal concept. Rather, it was a short-hand phrase for the law of nature (as defined by Blackstone, Grotius, and others), and the law of nature’s God (historically referred to as the divine law, the revealed law, or the law of God). In other words, the Declaration expressly incorporated God’s will impressed upon the creation and the law of God as revealed in the Bible into the legal context of the United States, and made these the basis of all our laws.
- The highest glory of the American Revolution was this: it connected, in one indissoluble bond, the principles of civil government with the principles of Christianity. “From the day of the Declaration . . . they (the American people) were bound by the laws of God, which they all, and by the laws of The Gospel, which they nearly all, acknowledged as the rules of their conduct. [John Quincy Adams (July 4, 1821).]
The nature of the legal system. The nature of the legal system embraced by the Declaration is one that: 1) acknowledges the Creator God, as well as His laws of creation; 2) affirms the general tenets of God’s law, to wit, that all men are created equal and have certain inalienable rights; and 3) recognizes that the form of government is a function of the consent of the governed to be “instituted among men,” not endowed by God.
- We hold these Truths to be selfevident, 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. That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.
The Declaration also acknowledges that God is the supreme Lawgiver (man’s legal rights are endowed by the Creator and nations are governed by the laws of nature’s God), that God is the supreme Governor (implied in the Declaration’s appeal to the Protection of Divine Providence), and that God is the supreme Judge of men and nations.
- We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions . . . for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
Binding On Nation And States.
Once the Declaration was signed, it defined the non-negotiable principles essential to the lawful formation of any civil government in the United States.
- If the Declaration of Independence is not obligatory, our entire political facbric has lost its magna carta, and is without any solid foundation. But if it is the basis of our form of government, it is the true expositor of the principles and terms we have employed. [J. Taylor, New Views of the Constitution of the United States (1823).]
Foundation for the U.S. Constitution. The Declaration, inasmuch as it chartered the nation, established the legal context upon which any federal government, including the U.S. Constitution, would necessarily be dependent. In this respect, the Constitution may be viewed as the bylaws of the nation which implemented the purposes of its charter.
- This was the platform upon which the Constitution of the United States had been erected. Its VIRTUES, its republican character, consisted in its conformity to the principles proclaimed in the Declaration of Independence, and . . . its stability and duration . . . was to depend upon the stability and duration in the hearts and minds of the people of that virtue, or in other words, of those principles, proclaimed in the Declaration of Independence, and embodied in the Constitution of the United States. [John Quincy Adams (April 30, 1839).]
Binding on all the states. The legal context of the Declaration applied to the original thirteen states and their governments by virtue of the fact that they each signed the Declaration, agreeing to be bound by its terms. All subsequent states have been admitted on the basis of an “equal footing” or “same footing” as the original states. This is made evident by the admission statutes of each of the states, as well as such laws as the Northwest Ordinance. In other words, the legal context and fundamental law of the United States applicable to the original states is also applicable to all the states.
- And whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted by its delegates, into the Congress of the United States, on an equal footing with the original States, in all respects whatever. [Northwest Ordinance (July 13, 1787).]
The cornerstone of liberty in America. The Declaration, having established a uniform legal context throughout the United States based on the laws of nature and of nature’sGod, is the cornerstone of liberty for the nation. By it, the laws of God and the attendant liberty they bring are made a part of the legal fabric of the nation and all of its component parts. By virtue of the Declaration, the Bible (the law of nature’s God) is made a competent legal authority in the United States, sufficient to guide and inform the workings of government, the framing of laws and the pronouncment of judgment. By it, the United States has the legal heritage of a republic founded on biblical principles of law. By virtue of the Declaration, the United States can truly claim to have been founded as a Christian nation.
- The laws of the Christian system, as embraced by The Bible, must be respected as of high authority in all our courts and it cannot be thought improper for the officers of such government to acknowledge their obligation to be governed by its rule . . .. [Our government] originating in the voluntary compact of a people who in that very instrument profess the Christian religion, it may be considered not as republic Rome was, a Pagan, but a Christian republic. [Judge Nathaniel Freeman (1802).]
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* Copyright © 1993, 2010 Gerald R. Thompson. Used by permission.