True Justice and The Foundation of American Law

[Gordon Ray Kissinger]

The Laws of Nature and of Nature's God:
The True Foundation of American Law
by Kerry L. Morgan

THE TRUE FOUNDATION OF AMERICAN LAW

http://www.lonang.com/conlaw/1/c12a.htm 

Introduction
What About The Bible?
Who Can Say What Is God's Law?
The Link to English Common Law
The Laws of Nature and of Nature's God

 

INTRODUCTION

 

An examination of the true foundation of American law must begin with the question: "Is the law of God supreme or is it subject to the laws of peoples and nations?" Two answers to this question are possible. The first answer is that God exists and his law, including his laws pertaining to the creation of nations, governments and constitutions, are supreme, right and absolute. The second answer is that whether or not God or his law exist, the law of peoples and nations, are supreme, right and absolute at least until they are changed.

Ascertaining the requirements of any law - human or Divine - requires people to make judgments about what the rule of law is and what that law commands. It requires people to understand the sources and foundations of law.

This essay explores the sources and foundations of American law. The thesis of this essay is that the essential American legal principles of equality, rights and government by consent, are derived from the laws of God, articulated in the Declaration of Independence under the general appellation of the "Laws of Nature and of Nature's God," and incorporated into the various state constitutions and the federal Constitution. This essay briefly surveys the laws of nature and of nature's God as that law was first expressed in Creation and then verbalized in the Declaration's text and the Constitution's clauses.

It is hoped that as a result of this examination and survey, the basic outline of God's law of Creation as it has found expression in the American legal and constitutional context will plainly emerge. The emergence of such an outline will enable students of law generally, and of constitutional law specifically, to begin thinking in terms of the law of God with an eye toward reinvigorating the true foundations of American law and government.

WHAT ABOUT THE BIBLE?

As one might expect, the Bible is fairly clear on the subject of the supremacy of God and his law. It indicates that there is no God except the Lord God.¹ God is the God of creation and He is the Creator of all things visible and invisible.² God impressed his laws upon creation and he governs its operation accordingly.³ God gave his law so that people would seek after God and know what God requires of every person.⁴ Of course, the laws of God are right, perfect, and eternal.⁵ They apply over the entire globe and are written in God's creation because God is the Creator of all the earth.⁶ These rules also apply to all people and are written within each man, woman and child because God is the Creator of all people.⁷ God also reiterated the basic elements of his rules of right and wrong in the Bible.⁸

The implications of this situation are straightforward. Since God created all things, he also has the right to rule them according to his laws.⁹ He rules the nations according to his laws.¹⁰ His laws rule the nations irrespective of whether a given nation believes in God or recognizes his laws.¹¹ This does not mean that the nations are perfect nor does it mean that people who do not worship God cannot rule.¹² Nor does it mean that God will judge lawbreakers according to our timetables of justice.

It does mean, however, that God will not let a corrupt government rule forever.¹³ God judges justly on the earth and punishes lawless leaders and nations.¹⁴ Nations which forget God may completely perish.¹⁵ Nations which honor God and try to follow his laws, however, can expect to receive his care and protection.¹⁶

WHO CAN SAY WHAT IS GOD'S LAW?

Of course, the substance of the law of God can be misunderstood. It can be invoked to require that which it does not and prohibit that which it may not. Historically, God's law has been twisted by priest and pagan alike.¹⁷ There is no infallible Oracle to say which declaration or interpretation of God's law is authentic. There is, however, evidence which provides a sufficient indication of the general requirements and prohibitions of God's law. These expressions provide reliable standards of right and wrong. The first expression of law is God's physical creation - the universe. A second expression resides within all people, namely, conscience and reason. A third expression of God's law is found in His written revelation, the Bible. These are concurrent expressions of God's law which we may consider in our effort to adequately determine what the law prohibits, allows and commands.¹⁸

In contrast to God's law, the civil laws of nations are not written on anyone's conscience or mind. They are not written in the physical creation. Nor are they appended to the Bible. The civil laws of nations are only written in their own lawbooks. Consequently, the validity and force of such laws are based solely on national authority. There is no other supporting evidence or "witness" to testify for the validity of specific civil laws. This shortcoming, however, is not necessarily a fatal one. In order for the civil laws of any nation to be authoritative, they must at least be supported by the testimony of another source and that they are consistent with God's delegation of authority to civil governments.

In order for the laws of a nation to be valid, they must at the very least harmonize with, and not contradict, the law of God. We know the law of God by looking to its expressions. If the laws of a nation conflict with one of the expressions of the law of God, then something is amiss. Or, perhaps we do not understand one or the other clearly.

The optimum situation would be where the laws of a nation are consistent with each of the expressions of the law of God. But, perhaps the best that can be generally hoped for is that civil laws be found to not contradict the most universal expression of the law of God in creation - the law of nature. The heavens and the earth declare that law. Thus we may deduce a rule to guide us: only when civil law does not contradict this fundamental and universal expression of the law of God can it be recognized as prima facie valid. That is to say, civil laws, so far as can be judged from first appearances, are valid if they do not violate God's law as reflected in the law of nature. And we can know if our interpretation of the law of nature is correct if it comports with the Bible.

Consistency with creation, therefore, is the minimum test to validate the laws of nations. Historically, this was recognized in the legal maxim, lex spectat naturæ ordinem, the law regards the order of nature. A law which fails this initial test is of no binding legal effect because it remains unsupported. Every civil law requires the supporting testimony of the law of God in at least one of its expressions in order to be of binding effect. Indeed, no nation should be bound to a malum in se rule or law simply because it is written in a statute book.¹⁹

THE LINK TO ENGLISH COMMON LAW

The supremacy of God's law was generally recognized in the English common law. Sir William Blackstone, the preeminent English legal authority widely followed by the American founders, recognized the binding legal nature of the law of God as understood in its basic principles. Blackstone maintained that English law (and therefore, American law) had its roots in the laws of God.

Blackstone recognized that "law, in its most general and comprehensive sense, signifies a rule of action." He identified the essential legal relationship that exists between God and his creation by observing, "Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being."²⁰ God was acknowledged as the lawgiver and therefore the one who laid down certain immutable rules of action, that is, of right and wrong conduct.

Recognizing the relevance of the creation and the Bible, Blackstone noted that "[u]pon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these."²¹ In other words, the law of God whether written in God's creation (nature) or in the Bible (revelation), spoke with a unified voice. Moreover, this law is absolute: any law of man to the contrary is of no effect.

Various individuals, peoples, and governments have interpreted God's laws differently at different times.²² The framers of the American system of government, however, were in one accord in "presuppos[ing] the existence of a God, the moral ruler of the universe, and a rule of right and wrong, of just and unjust, binding upon man, preceding all institutions of human society and government."²³ In other words, the framers recognized that God laid down rules that governed the universe and nations and that these laws could be sufficiently understood because they are communicated by a God who wants people to know them.²⁴ They presupposed a God who is not silent.

President John Quincy Adams, writing in 1839, looked back at the founding period and recognized the true meaning of the Declaration's reliance on the "Laws of Nature and of Nature's God." He observed that the American people's "charter was the Declaration of Independence. Their rights, the natural rights of mankind. Their government, such as should be instituted by the people, under the solemn mutual pledges of perpetual union, founded on the self-evident truths proclaimed in the Declaration."²⁵

THE LAWS OF NATURE AND OF NATURE'S GOD

The Declaration of Independence is a document with its roots in the law of God. Perhaps the best place to begin understanding how the Declaration serves in this capacity is to discern how the framers understood and applied its principles to the creation and formation of civil government. If we can understand how they took the Declaration's principles and applied them to the formation of constitutions, then we too should be able to apply those same principles to any other legal difficulties that our constitutional governments may face.

The first paragraph of the Declaration of Independence sets the stage for the American revolution and its indispensable reliance on the laws of God, the Creator.²⁶ It declares:

 

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with one 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 entitles them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

By invoking the "Laws of Nature and of Nature's God" the 56 signers of the Declaration incorporated a legal standard of freedom into the forms of government that would follow. The theory of freedom adopted was simply that God's law was supreme and gave freedom. The phrase "Laws of Nature and of Nature's God" referred to the laws that God in his capacity as the Creator of the universe had established for the governance of people, nations and nature. These laws are variously described as the laws of Creation, God's Creation laws or as the framers elected to refer to them, as the laws of nature and of nature's God. This body of law, whatever it is called, can be ascertained by people through an examination of God's creation, the text of the Bible, and to a certain degree, instinct or reason.

The decision to expressly rely upon God's law of creation was not a superficial one, but ably debated for many years before and after the Declaration was drafted.²⁷ Thomas Jefferson, for instance, reflecting on the Declaration of Independence, wrote in 1825 that its essential point was "not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject."²⁸ For the common sense of the subject, the framers turned to the laws of creation. They gave the principles of that law expression in the Declaration. The American Revolution was the context in which the Declaration's principles were discerned and expressed for all the world to hear and consider anew.²⁹

Next:   The Cornerstone of Inalienable Rights

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FOOTNOTES

*   Copyright © 1990, 2006 Kerry L. Morgan. Used with permission. Excerpted from The Laws of Nature and of Nature's God: The True Foundation of American Law.
     1.    Isaiah 45:22-23. See also, Revelation 22:13.
     2.    Genesis 1:1, Romans 1:20, Colossians 1:16.
     3.    Psalm 19:1-3,7-9,11.
     4.    Genesis 2:16-17. See also, Acts 17:24-28a.
     5.    Psalms 119:128a [right], 142,151 [perfect], 160 [eternal].
     6.    Genesis 1:1-2:3 [Account of creation of heavens and earth]. Acts 4:24 & 14:15; [Affirmation that God made the heavens, earth, the sea and all therein]. Acts 17:24 [God made the world and dwells in heaven, not in man-made temples].
     7.    Romans 2:14-15.
     8.    Exodus 20:1-17, Matthew 22:36-40, Romans 5:20 and 13:8-10.
     9.    Psalm 24:1, 29:10, 90:2. See also, Psalm 2:10.
   10.    Psalm 2:1-4.
   11.    1 Chronicles 29:11-12. Compare Exodus 5:2 with Exodus 9:27-28. See also, Exodus 12:31-32.
   12.    Jeremiah 27:4-8.
   13.    Jeremiah 25:9 and Daniel 4:30-37.
   14.    Psalm 58:11, 82:1-8, Ezekiel 14:12-14, Job 12:17-24.
   15.    Jeremiah 12:14-17.
   16.    Daniel 4:30-37, Deuteronomy 11:26-29.
   17.    Jeremiah 8:8, 14:14-15, Matthew 7:15.
   18.    Acts 17:24-28.
   19.    Malum in se means a wrong in itself. "An act is said to be malum in se when it is essentially and inherently evil, that is, immoral in its nature and injurious in its consequences, without regard to the fact of its being noticed or punished by the law of the state. Such are most or all of the offenses cognizable at common law, (without the denouncement of a statute;) as murder, larceny, etc." An offense which is malum in se differs from one that is malum prohibitum. Malum prohibitum is a "thing which is wrong because prohibited: an act which is not inherently immoral, . . . an act involving an illegality resulting from positive law." Thus, laws which claim to punish an act that is inherently evil must be supported by the law of nature. Acts which are merely wrong because they are prohibited do not belong to the class of things that are inherently evil.
   20.    William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765; reprint ed., Birmingham: The Legal Classics Library, 1983) 1:38-39. While searching for the relationship between God and the American founding, some authors have focused on the personal religious beliefs of the Founders and Framers. See, M.E. Bradford, A Worthy Company (Plymouth Rock Foundation; N.H., 1982) and John Eidsmoe, Christianity and the Constitution (Grand Rapids: Baker Book House, 1987). Others have tended to concentrate on the condition of colonial religious liberty, the presence of an established church, the decline of Puritan influence and the effects of enlightenment and deistic thinking. With respect to the latter point, see generally, C. Gregg Singer, A Theological Interpretation of American History (Philadelphia: Presbyterian and Reformed Publishing Co., 1981).
        These yardsticks, however, do not measure foundational legal concepts. In other words, operating on the belief that matters such as the eternal salvation or religious predilections of the framers constitute the indispensable criteria for measuring our legal heritage, may cause us to overlook the laws of God's creation as the expositor of the American system of law, government and rights. For a very interesting background on the Bible and law, see, D. Seaborne Davies, The Bible in English Law (The Jewish Historical Society of England: London, 1954) 3-23.
   21.    Blackstone, supra note 20, at 42.
   22.    For a discussion of Puritan adaptation of Biblical laws, see generally, Cotton Mather, Magnalia Christi Americana [The Great Works of Christ in America] (Edinburgh Carlisle, PA: Banner of Truth Trust, 1979). One of their first codified statute books, entitled "The Laws and Liberties of Massachusetts of 1648," cited capital offenses next to their corresponding Biblical chapter and verse. The Laws and Liberties of Massachusetts of 1648 (Reprint ed., Birmingham: The Legal Classics Library, 1982) 5-6. For a discussion of Virginia's adaptation of the same, see "For the Colony in Virginea-Britannia: Lawes Divine, Morall and Martiall, &c." (1612) reprinted in Tracts and Other Papers Relating Principally to the Origin, Settlement, and Progress of the Colonies in North America, (Compiled by Peter Force, Washington, D.C., 1844; reprint ed., Gloucester, MA: Peter Smith, 1963) Vol. 3:10-19.
   23.    John Quincy Adams, The Jubilee of the Constitution, a discourse delivered at the request of the New York Historical Society, on Tuesday, April 30, 1839, reprinted in 1986 Journal of Christian Jurisprudence 1, at 6.
   24.    Not every law of God, however, has been made known to man or is knowable by man. This condition is inherent in the fact that God is infinite and mankind, his creation, is finite and fallen.
   25.    Adams, supra note 23, at 4.
   26.    The Declaration of Independence, July 4, 1776, quoted in Richard L. Perry, ed., Sources of Our Liberties (Chicago: American Bar Foundation, 1978), at 317. The term "Creator" appears in the second paragraph of the Declaration. The terms "Supreme Judge" and "Divine Providence" which appear in the last paragraph, refer to God in the first paragraph, i.e., the "Laws of Nature and of Nature's God." See, Gary T. Amos, Defending The Declaration (Brentwood, Tennessee: Wolgemuth & Hyatt, Publishers Inc., 1989), pp. 40-41 and pp. 50-59.
   27.    For reference to the framer's discussion pertaining to reliance on the idea of the laws of nature, see, The Works of John Adams, Delegates in The Continental Congress of 1774 (Books for Libraries Press: Freeport, New York) 2:371-374.
   28.    Thomas Jefferson, in a letter to Richard Henry Lee dated May 8, 1825, quoted in Thomas Jefferson's Writings (New York: The Library of America, 1984), 1501.
   29.    This understanding was not a peculiarly American concept by any means. Montesquieu, who was well known to the framers, had also acknowledged that God was the lawgiver and Creator of the universe. He wrote, "God is related to the universe as creator and preserver; the laws by which he has created all things are those by which he preserves them." Baron de Montesquieu, The Spirit of Laws (Dublin: G & A Ewing, 1751; reprint ed., Birmingham: The Legal Classics Library, 1984), 2.