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The Principle, Practice, and Morality of a Constitutional Republic in America

November 4, 2021
The Founding

Signing of the Constitution by Thomas Prichard Rossiter, c1860-1870.

Introduction

The American Founders made a revolutionary move when forming the new nation of the United States.  They departed from the old European system of monarchy—in which executive power resides in a hereditary monarch such as a king or queen—and created a new and unique political system, a constitutional republic.  A republic is a political system in which non-hereditary, elected executives and representatives govern for the citizens of a civil state.  The Founders’ American republic was based on the principle that the people hold political power or sovereignty and may choose representatives to govern for them.[1]  It is sometimes called a representative democracy.  In Federalist Paper 39, Founder and Constitution architect James Madison describes a republic as to include “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices…for a limited period, or during good behavior.”[2]  A constitutional republic follows a written constitution of laws by which the people, their representatives, and the government agree to abide.  A republic differs from a pure or direct democracy, as Madison explains in Federalist Paper 14, which is governed directly by the whole body of citizens who “meet and exercise the government in person.”[3]  Due to the direct involvement of all citizens, a direct democracy is only practical for a small nation, while a republic “may be extended over a large region.”[4]  America’s constitutional republic—its organization, limits, and laws—is laid out in the U. S. Constitution of 1787.

When constructing the American republic, the Founders studied the political systems and experiences of other ancient and modern nations for insights—including the democracies of ancient Greece, the republic of ancient Rome, and the first government of ancient Israel.  They were interested in Greece and Rome because these nations had democracies—unlike most other nations in history which were authoritarian.  Americans were also interested in ancient Israel for its moral guidance on wise governance.  Ultimately, the Founders created a new republic for America that resembled, in some ways, the ancient Roman Republic.  Americans supported this system, in part, because it was morally consistent with ancient Israel’s early practices in the Bible.  The Founders determined that a republic was the best form of government for the new nation because it supported Americans’ philosophical beliefs and governing principles of freedom, popular sovereignty or the people’s rule, consent of the governed, and limited self-government.  It was also a practical system, they saw, for effectively governing a large nation.[5]  The Founders’ innovative system in America became the first modern republic.

The Idea and Lessons of the Direct Democracy of Ancient Greece

When creating the American republic, the Founders looked to the city-state of Athens, Greece, of 594-338 BC to understand the strengths and weaknesses of direct democracy.  Indeed, the western idea and understanding of democracy comes from ancient Greece where democracy was first practiced.  The word “democracy” derives from …

The American Founders closely analyzed Greece’s direct democracy when considering the right form of government for America.  They appreciated Athens’s novel political system in which the whole people held governing power in the state.  “The Athenian democracy,” affirms Garbarino, “left a legacy that people can be loyal to the state rather than certain individuals and that the common people can direct the political institutions.”[9]  However, the Founders also saw that direct democracy is flawed and unstable because it lacks protections against factions and majority tyranny.  Factions, as Madison describes in Federalist Paper 10, are groups of citizens united by a common passion or interest “adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”[10]  Factions and majority tyranny, he says, can compromise the public good or the private rights of minorities and individual citizens.  Religious or moral restraints alone are not always enough to control these negative tendencies in the people.[11]  Madison elaborates on this vulnerability in a direct democracy like Athens: …

The Founders thus saw that direct democracy—though an admirable idea and system to give the people power—is vulnerable to instability, violence, oppression, and injustice.  It does not adequately serve the state or secure the people’s rights and freedoms over a long period.  The Founders hoped to avoid such dangers when designing the government of their new nation.

The Governing Practices and Model of the Ancient Roman Republic 

The American Founders also closely studied the ancient Roman Republic of 509-27 BC—the earliest example of a republic in history—for insight on how to best construct America’s government.  Unlike Greece’s direct democracy, the Roman Republic was a representative democracy—a democracy governed by representatives of the people, on the people’s behalf.  The Romans called this system a republic based on the Latin phrase res publica which means “public thing” as it regards the whole people and their general welfare.  Within their republic, the Romans applied a mixed government that contained elements of all three major forms of government—monarchy, aristocracy, and democracy—with the aim to check and balance the rule of the one, the few, and the many against each other.

Ancient Rome’s representative, mixed system provided a primitive separation of powers and checks and balances to limit both the people majority and the government itself.  For example, the Romans …

The American Founders saw many qualities in ancient Rome that contributed to their favor of republicanism.  To be sure, they saw some flaws in it, as Jones notes, like contention between consuls over executive authority, a military that held too much power, and lack of a constitution to prevent leaders from changing laws and institutions for their own interests.[15]  However, the Roman Republic, like America, aspired to popular sovereignty, consent of the governed, and limited self-government.  It gave the people governing power yet filtered the people’s rule through representatives to protect against factions and majority tyranny.  Further, it checked and balanced the state’s power to minimize corruption in the government.  It was also practical for a large nation, with representatives assembling and governing on the people’s behalf since all the citizens could not feasibly assemble.  As such, the Roman Republic became a model for the Founders’ United States government.

The Inspiration of the “Republic” of Ancient Israel

In addition to studying the ancient Greek and Roman democratic models, early Americans also looked to the history and governing practices of ancient Israel, as revealed in the Old Testament of the Bible, for moral guidance on wise governance in America.  Like the early American Puritans, founding-era Americans found support for republican government over monarchy in considering Israel’s success during its first, pre-monarchical government led by Moses and elders, and God’s disapproval of its later monarchy.  With such support, they defended popular sovereignty over the Divine Right of Kings, or the people’s rule over king’s rule.[16]

The American Puritans of the 1600s were among the first in America to practice representative government, having elected representatives in their colonies of Massachusetts and Connecticut.  The Puritans supported this practice from ancient Israel’s first government of 1200s-1100s BC—from the time of the Israelites’ Exodus from Egypt to their settlement in the land of Canaan.  While this government was theocratic, it applied elements of representation.  The prophet Moses served as the people’s leader and representative before God.  Moses eventually appointed elders to help lead, judge, and represent the tribes because the work was too heavy for him alone.  In Exodus 18:19-21, Moses’ father-in-law Jethro affirms Moses as “‘the people’s representative before God’” but advises him to “‘select capable men from all the people—men who fear God, trustworthy men who hate dishonest gain—and appoint them as officials over thousands, hundreds, fifties and tens.’”[17]  Moses listened and did what Jethro suggested.  Subsequently, in Deuteronomy 1:13-15, Moses says to the people, “‘Choose some wise, understanding and respected men from each of your tribes, and I will set them over you.  You answered me, ‘What you propose to do is good.’  So I took the leading men of your tribes, wise and respected men, and appointed them to have authority over you—as commanders of thousands, of hundreds, of fifties and of tens and as tribal officials.’”  The Puritans noticed that, during this period, God raised no protest against Israel’s choosing of elders and judges.

Puritan leaders John Winthrop, Thomas Hooker, and John Cotton cited Exodus and Deuteronomy to support elected representatives in their colonies.  Citing Deuteronomy 1:13, Hooker asserted in his 1638 Connecticut Court Sermon that “the choice of public magistrates belongs unto the people, by God’s own allowance.”[18]  In his 1641 Abstract of the Laws of New England, Cotton also cited Deuteronomy 1:13-15 in stating that “All Magistrates are to be chosen.”[19]  These verses, they believed, clearly supported representation by the people’s consent, for here the people explicitly approve of the election process and respond to Moses, “What you propose to do is good.”  Further, since the power of election is with the people, the Puritans noted, the people have a responsibility to elect godly, moral leaders.  Cotton cited Exodus 18:21 on the people’s need to choose “the ablest men and most approved amongst them” to govern.[20]  The Puritans believed that God supported such representation, for as Cotton writes in a 1636 letter, “Jethroes counsell was approved of God.”[21]  The Puritans concluded that the best states are governed by chosen representatives.

Founding-era Americans of the 1700s similarly found moral affirmation for republican government when considering ancient Israel’s history and governing practices.  Like the Puritans, they saw the benefits of representation in Israel’s first government and thus described this system as Israel’s “republic.”  This system resembled a republic, they thought, because it had no earthly king and appointed judges and elders, chosen by the people, to represent and decide cases for each tribe.  They drew from this example to support republicanism in their new nation.  Early Americans also found support for republicanism in 1 Samuel 8 in considering God’s disapproval of Israel’s later monarchy which began in 1020 BC.  1 Samuel 8 reveals God’s protest against Israel’s demand for a human, hereditary king to rule their nation.  It suggests that such kings often ruled not for God and people but for their own interests.  Through the prophet Samuel, God warns the people of the trials they will suffer under evil kings, that a king will take their best possessions and “you yourselves will become slaves.”[22]  Moreover, it reveals that God wanted to be their king.  God tells Samuel, “They have rejected Me as their king.”[23]

During the American Revolution, American ministers and patriots drew from ancient Israel’s history to support America’s fight for freedom and independence from the British Crown and quest for self-government.  They pointed out the opportunity in America to create a new, self-governing republic, affirmed by Israel’s first government.[24]  For example, in his 1775 sermon before the Massachusetts legislature, Harvard College president Samuel Langdon praised Israel’s first government as a “perfect Republic” and an “excellent general model” for modern government, and he conveyed God’s disapproval of monarchy.  Alluding to Exodus 18, Deuteronomy 1, and 1 Samuel 8, he asserts, …

Referencing Exodus 18:21, Langdon further praised the freedom in his colony of “chusing, from among ourselves, wise men, fearing God, and hating covetousness to be honorable Counsellors” for its government.[26]  He concluded by recognizing the potential opportunity to create a new republic in America, much like what the Puritans had enjoyed in their early colonies.  As such, he defended popular sovereignty over the Divine Right of Kings.

Not long after Langdon’s sermon, revolutionary pamphleteer Thomas Paine published his well-known 1776 political tract Common Sense which also defended republicanism over monarchy based on ancient Israel’s history and first government in the Bible.  Referencing Exodus 18, Deuteronomy 1, and 1 Samuel 8, Paine writes, … 

Based on the view that God favored Israel’s “republic” and disapproved of its monarchy, Paine, like Langdon, refuted the Divine Right of Kings doctrine in favor of popular sovereignty.  He denounced Britain’s policies in America and questioned the legitimacy of King George III’s rule and power.  Paine’s Common Sense was widely read in America and played a significant role in validating and strengthening Americans’ cause for independence and favor for republican government.

Based on ancient Israel’s history and governing practices in the Bible, the American Puritans and founding-era Americans believed that God favored popular sovereignty over the Divine Right of Kings.  In particular, they believed He favored representative government for His people.  As a result, patriot Americans viewed a republic as a moral and wise form of government for America.  With a similar view, Founder Samuel Adams, in a 1785 letter to Founder Richard Henry Lee, expressed his belief that God preferred a republic for America, writing, “I firmly believe that the benevolent Creator designed the republican Form of Government for Man.  Will you venture so far as to say that all other Institutions that we know of are unnatural & tend more or less to distress human Societies? ”[28]

A Constitutional Republic in the U. S. Constitution

When considering the best form of government for the new nation of the United States, the American Founders looked, in particular, to the unique governments of ancient Greece, Rome, and Israel for insight.  While they appreciated Greece’s direct democracy, they recognized its instability and impracticality for America.  However, they saw that Rome’s Republic, though having its own vulnerabilities, possessed many qualities that aligned with America’s needs, principles, and aspirations.  It also was morally consistent with Israel’s first government in its consensual representation.  As such, the Founders looked to Rome’s system as a model for the American system.

The Founders ultimately created a constitutional republic for the United States—with indirect self-governance by the people through elected civil representatives, as seen in Rome.  They chose this system because it upholds Americans’ governing values and principles of popular sovereignty, consent of the governed, and limited self-government.  More specifically, they saw that a republic 1) works well for a large nation and 2) has restraints to guard against instability, corruption, and tyranny.  Firstly, since the whole citizenry cannot feasibly assemble to govern the nation, a republic allows a small body of representatives to assemble and govern the nation for the people, on the people’s behalf.  Secondly, because a republic filters the people’s rule through representatives, it buffers the negative effects of factions and majority tyranny, facilitating more just, stable governance.  The benefit of elected representatives is that, ideally, they often possess more virtue than the people themselves and are more likely to protect the public good and citizens’ rights.  Elections of representatives, says Madison in Federalist Paper 10, help to sift out “unworthy candidates” and allow the people to choose individuals “who possess the most attractive merit and the most diffusive and established character.”[29]  Thus a republic, Madison explains, serves to: … 

A republic restrains impulsive governance and, as Donald Lutz affirms in his 1988 Origins of American Constitutionalism, encourages deliberation to determine “whether a proposed policy serves the community’s permanent, aggregate interests.”[31]  In addition, America’s large size further diffuses factions and majority tyranny, Madison notes, by making it “less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”[32]  In sum, the Founders, observes Garbarino, sought to create a self-government with “the checks and restraints that [direct] democracy lacked” and that “had a better chance at promoting human flourishing than did a true democracy.”[33]  A republic is, they believed, the most moral, just, and workable system for America.

Like ancient Rome, the Founders created a republic with a mixed system—incorporating elements of democracy, aristocracy, and monarchy—with checks and balances on each power and separation of powers to restrain the government itself.  As Jones explains, they created…

It is important to note that, in creating a republic, the Founders recognized the essential need in a republic for a virtuous people in order to function successfully.  Citizens, they saw, have the moral and civic responsibility to be civilly educated, uphold and support just laws and policies that protect citizens’ rights and freedoms, and elect moral representatives who seek the common, national good and practice restrained, limited government.  As such, the Founders continually exhorted the people of the need to maintain virtue.  For example, Founder Richard Henry Lee remarks, “It is certainly true that popular government cannot flourish without virtue in the people.”[37]  Bill of Rights contributor George Mason confirms, “Justice and virtue are the vital principles of republican government.”[38]  Founder and President George Washington states in his Farewell Address that “virtue or morality is a necessary spring of popular government.”[39]  Founder Benjamin Franklin points out, “Only a virtuous people are capable of freedom.”[40]  Madison similarly observes, “No theoretical checks…can render us secure.  To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.”[41]  The Founders further believed that good, moral religion is the most effective way for people to gain virtue.  For this reason, they greatly valued and encouraged moral religion—particularly Christianity—in society.  Founder John Adams thus observes, “We have no government armed with power capable of contending with human passions unbridled by morality and religion.  …  Our Constitution was made only for a moral and religious people.  It is wholly inadequate to the government of any other.”[42]  Indeed, the Founders, says Steven Waldman in his 2008 Founding Faith:  Providence, Politics, and the Birth of Religious Freedom in America, “were fairly obsessed with the question of how to instill enough virtue into citizens that a republic could flourish.  Institutions that could imbue personal and communal values…were viewed as essential building blocks for democracy.”[43]  In this regard, education and religion, school and church play an crucial role, the Founders believed, in a free republic.

Conclusion

When constructing a national government for the United States, the American Founders sought to create a political system that was moral, just, stable, and practical.  They sought a system that upheld Americans’ philosophical beliefs and governing principles of freedom, popular sovereignty, consent of the governed, and limited self-government—principles to which the early Puritans, the American colonies, and founding-era Americans like themselves had long aspired.  Americans also wanted a system that was morally consistent with their understanding of wise governance as conveyed in the Bible and ancient Israel.  Drawing on ancient Rome as a model and incorporating innovative changes, the Founders created a constitutional republic for America.  In this republic, the people govern indirectly through chosen representatives who are accountable to them and the law.  Ideally, the people elect moral representatives who uphold America’s values.  These representatives feasibly govern for the people as well as restrain or filter majority rule.  The republic functions within a mixed system that checks and balances its governing powers, providing further restraints on the government itself.  A written constitution, as the supreme law of the land, provides the legal framework within which the people, their representatives, and the government may operate.  As such, the Founders created the first modern republic—a political system that deters corruption and tyranny, encourages peace and stability, protects citizens’ individual rights and freedoms, maintains law and order, and reflects American values.  As Madison expresses in Federalist Paper 39, … 

The Founders’ departure from old-world monarchy and creation of a constitutional republic was a major shift in world history and governance and one of the most important outcomes of the American Revolution.

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[1] These representatives may be directly elected by the people or appointed by elected leaders and so indirectly elected by the people.  Both methods are forms of election.

[2] James Madison, Federalist Paper 39, 1788, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Books, 1961), 241.

[3] James Madison, Federalist Paper 14, 1787, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Books, 1961), 100.

[4] Madison, Federalist Paper 14, 100.

[5] Madison, Federalist Paper 14, 100.

[6] Alexander Hamilton, Federalist Paper 6, 1787, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Books, 1961), 54-55.

[7] Thucydides, The History of the Peloponnesian War, book 2, trans. Richard Crawley (London:  J. M. Dent & Sons, Ltd; New York: E. P. Dutton & Co., 1910, 1914), 142.  Thucydides wrote his History around 430-411 BC.

[8] Collin Garbarino, Athenian Democracy, in The Origins of Our Founding Principles, ed. Christopher Hammons (Houston, TX:  Morris Family Center for Law & Liberty at Houston Baptist University; Periclitus Press, 2020), 23-25.

[9] Garbarino, Athenian Democracy, 21.

[10] James Madison, Federalist Paper 10, 1787, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Books, 1961), 78.

[11] Madison, Federalist Paper 10, 80-81.

[12] Madison, Federalist Paper 10, 81.

[13] Steven L. Jones, The Fall of Rome, in The Origins of Our Founding Principles, ed. Christopher Hammons (Houston, TX:  Morris Family Center for Law & Liberty at Houston Baptist University; Periclitus Press, 2020), 32.

[14] Polybius, The General History of Polybius, in Two Volumes, 5th ed., vol. 2, book 4, trans. by James Hampton (Oxford:  W. Baxter, 1823), 178-79; Russell Kirk, The Roots of American Order, 3rd ed. (Washington, DC:  Regnery Gateway), 102; Jones, Fall of Rome, 36-43.

[15] Jones, Fall of Rome, 43-44.

[16] While the European kings believed that Israel’s monarchy supported the Divine Rights of Kings, the Americans refuted that position.

[17] All Bible verses are taken from the New International Version (NIV) unless otherwise noted.

[18] Thomas Hooker, Sermon Before the Connecticut General Court in Harford, May 31, 1638, in The Puritan Tradition in America, 1620-1730, Revised ed., ed. Alden T. Vaughan (Hanover, NH:  U Press of New England, 1997), 8. In a 1638 letter to John Winthrop, Hooker also refers to Deuteronomy 17:10-11 and 2 Chronicles 19 to support chosen representatives, stating, “A general counsel, chosen by all, to transact businesses which concern all, I conceive, under favor, most suitable to rule and most safe for relief of the whole.  This was the practice of the Jewish church, directed by God, Deut. 17:10, 11; 2 Chron. 19; and the approved experience of the best ordered states give in evidence this way.”  Thomas Hooker to John Winthrop, Fall 1638, in Collections of the Connecticut Historical Society, vol 1. (Hartford, CT:  Published for the Society, 1860), 12.

[19] John Cotton, Abstract of Laws of New England, 1641 (London:  Printed for F. Coules and W. Ley at Paules Chain, 1641), 1.

[20] Cotton, Abstract of Laws of New England, 1.  In a 1638 letter to William Fiennes, Cotton again cited Exodus 18:21 on electing godly representatives, stating, that “the judges, and officers to be set over the people, should be men fearing God, Exod. 18.21.”  John Cotton to William Fiennes, Lord Saye and Sele, 1636, in Puritan Political Ideas, 1558-1794, ed. Edmund S. Morgan (1965; repr. Indianapolis, IN:  Hackett, 2003), 170.

[21] John Cotton to William Fiennes, Lord Saye and Sele, 1636, in Puritan Political Ideas, 1558-1794, ed. Edmund S. Morgan (1965; repr. Indianapolis, IN:  Hackett, 2003), 170.

[22] 1 Samuel 8:17.  1 Samuel 8:10-18 says, “Samuel told all the words of the Lord to the people who were asking him for a king.  He said, ‘This is what the king who will reign over you will claim as his rights: He will take your sons and make them serve with his chariots and horses, and they will run in front of his chariots.  Some he will assign to be commanders of thousands and commanders of fifties, and others to plow his ground and reap his harvest, and still others to make weapons of war and equipment for his chariots.  He will take your daughters to be perfumers and cooks and bakers.  He will take the best of your fields and vineyards and olive groves and give them to his attendants.  He will take a tenth of your grain and of your vintage and give it to his officials and attendants.  Your male and female servants and the best of your cattle and donkeys he will take for his own use.  He will take a tenth of your flocks, and you yourselves will become his slaves.  When that day comes, you will cry out for relief from the king you have chosen, but the Lord will not answer you in that day.’”

[23] 1 Samuel 8:7

[24] See also Harry S. Stout, The New England Soul:  Preaching and Religious Culture in Colonial New England (New York:  Oxford U Press, 1986), 280, 293-5, 304.

[25] Samuel Langdon, Government Corrupted by Vice, and Recovered by Righteousness, A Sermon Preached Before the Honorable Congress of the Colony of Massachusetts Bay, May 31, 1775 (Watertown, MA:  Printed and sold by Benjamin Edes, 1775), 11-12.

[26] Langdon, Government Corrupted, unnumbered.

[27] Thomas Paine, Common sense, 1776, in The Works of Thomas Paine, Secretary for Foreign Affairs to the Congress of the United States, in the Late War, in Two Volumes, vol. 1 (Philadelphia:  Printed by James Carey, 1797), 10-11.  Gideon as mentioned in this excerpt was a judge, prophet, and military warrior who refused to become king of Israel in place of God after his defeat of Midian.  Judges 8:22-23 says, “The Israelites said to Gideon, ‘Rule over us—you, your son and your grandson—because you have saved us from the hand of Midian.’  But Gideon told them, ‘I will not rule over you, nor will my son rule over you.  The Lord will rule over you.’”

[28] Samuel Adams to Richard Henry Lee, Boston, 14 April 1785, in The Writings of Samuel Adams:  1778-1802, vol. 4, ed. Harry A. Cushing (New York:  G. P. Putnam’s Sons, 1908), 314.

[29] Madison, Federalist Paper 10, 82-83.

[30] Madison, Federalist Paper 10, 82.

[31] Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge, LA:  Louisiana State U Press, 1988), 85.

[32] Madison, Federalist Paper 10, 83.

[33] Garbarino, Athenian Democracy, 27, 28.  Brackets mine.

[34] See Jones, Fall of Rome, 43-44; See Kirk, Roots, 101-102.

[35] Article IV, Section 4 of the U. S. Constitution states, “The United States shall guarantee to every State in this Union a Republican Form of Government.”

[36] Jones, Fall of Rome, 45.

[37] Richard Henry Lee to Colonial Martin Pickett, Chantilly, 5 March 1786, in Memoir of the Life of Richard Henry Lee and His Correspondence, vol. 2, ed. grandson Richard H. Lee (Philadelphia, PA:  Carey and Lea, 1825), 70.

[38] George Mason to Patrick Henry, Fairfax County, Gunston Hall, 6 May 1783, in The Life of George Mason, 1725-1792, vol. 11, Kate Mason Rowland (New York:  G. P. Putnam’s Sons, 1892), 44.

[39] George Washington, Farewell Address to the People of The United States, 17 September 1796, in The Writings of George Washington, 1794-1798, vol. 13, ed. Worthington C. Ford (New York:  G. P. Putnam’s Sons, 1892), 308.

[40] Benjamin Franklin to Messrs. Les Abbes Chalut and Arnaud, Philadelphia, 17 April 1787, in The Works of Benjamin Franklin in Philosophy, Politics, and Morals, 1753-1790, vol. 6, ed. William T. Franklin (Philadelphia, PA:  William Duane, 1817), 199.

[41] James Madison, Speech on the Power of Judiciary at the Virginia Ratifying Convention, 20 June 1788, in The Writings of James Madison, vol. 5/1787-1790, ed. Gaillard Hunt (New York:  G. P. Putnam’s Sons, 1904), 223.

[42] John Adams to the Officers of the First Brigade of the Third Division of the Militia of Massachusetts, 11 October 1798, in The Works of John Adams, Second President of the United States, vol. 9, ed. Charles F. Adams (Boston:  Little, Brown, and Co., 1854), 229.

[43] Steve Waldman, Founding Faith:  Providence, Politics, and the Birth of Religious Freedom in America (New York:  Random House, 2008), 61.

[44] James Madison, Federalist Paper 39, 1788, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Books, 1961), 240. [/subscribe_to_unlock_form]

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Contributed by AHEF and Angela E. Kamrath.

This article is available as a printable PDF handout in the member resources section on americanheritage.org.  Simply sign up and login as a member (no cost), go to the resources page, and look under Miracle of America articles.

Source for more information:  Kamrath, Angela E.  The Miracle of America:  The Influence of the Bible on the Founding History and Principles of the United States of America for a People of Every Belief.  Second Edition.  Houston, TX:  American Heritage Education Foundation, 2014, 2015, 2020.  Third Edition (2020) is available!

Related Blogs/Videos:
1.  The Principle of Popular Sovereignty–the People’s Rule–in the U. S. Declaration and Constitution
2.  How Protestant Religious Reformers Supported Popular Sovereignty from the Bible
3.  How Reformed Political Thinkers Defended Popular Sovereignty From the Bible
4.  How Catholic Churchmen Supported Popular Sovereignty from the Bible
5.  Why Puritan Thomas Hooker Favored Democracy over Aristocracy
6.  Thomas Hooker as the “father of American Democracy”
7.  Why the Puritans Elected Representatives to Govern in their American Colonies
8.  How the Great Awakening Impacted American Unity, Democracy, Freedom, & Revolution
9.  Thomas Paine’s Common Sense:  God’s Opposition to Absolute Monarchy
10.  The American Revolution
11.  American Revolution Debate:  The American Quest for a New, Bible-Inspired Republic
12.  The American Quest for Self-Government
13.  America’s Founding Philosophy in the Declaration:  God as Supreme Judge, Lawgiver, and King
14.  The Creator God:  The Basis of Authority, Law, & Rights for Mankind in the Declaration
15.  Self-Evident Truth:  Equality and Rights in the Declaration of Independence
16.  The American, Bible-based Defense of Unalienable Rights in the Declaration
17.  The American Social Contract in the U. S. Declaration and Constitution
18.  The Bible-Inspired Influences on the U. S. Constitution and Bill of Rights
19.  The Principles of Limited Government and Separation of Powers in the U. S. Constitution
20.  The Covenant-Inspired Principle of Federalism in the U. S. Constitution
21.  The Purpose of American Civil Government


High School Activity – Influences on America’s Constitutional Republic

Activity/Source:  Miracle of America High School Teacher Course Guide, Unit 8, Part 1, Activity 4:  Influences on America’s Constitutional Republic, p. 270-271.  HS.

Purpose/Objective:  Students learn key principles of the United States Constitution including a self-governing constitutional republic, why Americans saw a republic as the best form of government for the nation, and how influential thinkers and early Americans connected this concept with the Bible.

Suggested Reading:  Chapter 8 of Miracle of America sourcebook/text. Students read sections Introduction, 3.9, 6.6, 8.3-11, 8.14-8.16, 8.20, & pp. 288-296.

Problem and Solution Map:  Students will analyze the philosophies, principles, experiences, and historical influences that led the founders to choose a constitutional republic for the new government–including the histories of ancient Greece, Rome, and Israel. The teacher may want to make a class reading set of the essay “The Principle and Practice of a Constitutional Republic” by Angela K. Kamrath as well as related sections in Chapter 8 of the Miracle of America text for students to read/study/review/discuss. Students should consider how early Americans viewed and admired the Rome’s Republic and Israel’s “republic.” Students should recognize and understand why many founding-era Americans thought a civil republic was the best form of government for their new nation. Students should be able to identify corresponding original writings, speeches, and Bible verses that support a civil republic. Students will organize their findings from the reading/discussion with a graphic organizer such as a “Problem and Solution Map” or one of the teacher’s choice.

To download this whole unit in the course guide, sign up as an AHEF member (no cost) to access the “resources” page on americanheritage.org.  To order the printed binder format of the course guide with all the units, go to the AHEF bookstore.

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Unabridged: The Moral Dimension of Rule of Law in the U. S. Constitution

July 1, 2021
The Founding

Lady Justice is a centuries-old personification of the concept of justice—depicted with a blindfold, scales, and a sword–representing impartiality, weighing of evidence, and authority.  A similar image appears at the entrance of the U. S. Supreme Court.  The U. S. Supreme Court bears the motto, “Equal Justice Under Law.”

  • Introduction
  • The Natural Law Tradition
  • The Biblical Law Tradition
  • The Rule of Law in Roman Law
  • The Rule of Law in English Common Law Tradition
  • The Rule of Law in Modern British Thought
  • The Rule of Law in the American Puritan Colonies
  • The Moral Law in American Thought and Jurisprudence
  • The Rule of Law in American Thought and Jurisprudence
  • The Rule of Law in the United States Constitution and American Common Law
  • Conclusion
  • Endnotes
  • Related Readings and Teaching Activity


Introduction

When the American Founders constructed the new nation of the United States, they applied important principles in the national government.  One of the most important, distinct principles they applied was the “Rule of Law.”  The Rule of Law is the governing principle of a state in which supreme authority resides in just, fixed laws and not in the arbitrary exercise of power by rulers.  To be authoritative and valid, says John Tyler, these laws must be just and thus moral.[1]  As Greek philosopher Aristotle expresses in his 350 BC Politics, “The laws, when good, should be supreme.”[2]  Ideally, every person, including those in power, is subject to and equal before the law.  No one is above the law.  In such a governing system, the law equally applies to as well as protects the rights of every citizen.  The natural result of this principle is the creation of a set of laws or constitution by which all citizens abide.[3]  This principle differs from “the Law of the Ruler” or “Ruler’s Law” in which a ruler or governing body may arbitrarily govern over subjects without limit or accountability, with absolute power.  Such rule often leads to tyranny, oppression, and violation of people’s rights.  While the Law of the Ruler was the historical norm in most civilizations around the world for thousands of years, the early Americans implemented a system under Rule of Law that is impartial, just, fair, and respectful of people’s rights.

The American principle of Rule of Law is very old.  It emerged in the Western world from ancient Mesopotamian, Hebraic, Greco-Roman, and Judeo-Christian civilizations and further developed in medieval and modern Roman, European, and American jurisprudence.  These strands of influence were both secular and religious and, though at times independent, reinforced one another.  The moral dimension of Rule of Law in America developed largely through the Natural Law tradition and, as I describe in this essay, the Biblical Law tradition.  These Moral Law traditions, as I refer to them together, reinforced one another and created a consistent reference point and standard for Rule of Law.  This essay highlights the Moral Law traditions undergirding Rule of Law in America by tracing these traditions in strands influential to American law including Roman, British, and American jurisprudence.  In line with and guided by these traditions, founding-era Americans created a new nation governed by Rule of Law with the United States’ Constitution and American common law.

The Natural Law Tradition

The Natural Law tradition, recognized for centuries in the Western world by both secular and religious sources, is a major influence on the moral dimension of Rule of Law in America.  This tradition stems from a worldview that humanity is governed by certain moral rules.  Existing before any written laws, the Law of Nature, or Natural Law, is considered the universal Moral Law of right and wrong, of good and evil, for all mankind, to which all humanity is subject regardless of time, place, or religious belief.  Many Western thinkers have understood this Moral Law as authored by a Creator God and known by man’s heart, conscience, and reason.  It is referred to as the “Law of Nations” as it applies to the conduct of nations.

Some of the earliest references to the Law of Nature are found in the Book of Genesis in the Old Testament of the Bible, written by Moses in 1400s BC.  In Genesis 3:22, after the creation and fall of man, God says, “The man has now become like one of us, knowing good and evil.”  In Genesis 9:5-6, God tells Noah He will hold mankind accountable for his evil-doing, as in the case of murder:  “‘From each human being, I will demand an accounting for the lifeblood of another human being.’”[4]  In the New Testament of the Bible, in his 57 AD Epistle to the Romans, the Apostle Paul identified God’s Natural Law as written on man’s heart.  Paul observes in Romans 2:14-15, “When Gentiles [non-Jews], who do not have the [written Mosaic] law, do by nature things required in the law, they are a law for themselves….  They show that the requirements of the law are written on their hearts, their consciences also bearing witness, and their thoughts sometimes accusing them and at other times defending them [brackets mine].”  Early secular references to the Law of Nature came from ancient Greek philosopher Aristotle in his 300s BC Rhetoric and ancient Roman philosopher Marcus Tullius Cicero in his 54-51 BC Treatise on the Republic.  Cicero was one of the first secular writers to articulate the Law of Nature as God’s universal Moral Law, describing it as man’s “right reason” from God.[5]  Philo Judaeus, a first-century Hellenistic Jew from Alexandria, Egypt, was perhaps the first to use the term “Law of Nature” to describe God’s universal Moral Law.

Important modern Western thinkers who defended Rule of Law recognized the Law of Nature.  For example, in his 1600-1615 Law Reports, British justice Edward Coke aptly explains the existence and purpose of the Law of Nature in biblical terms: …

English judge William Blackstone in his 1765-1769 Commentaries on the Laws of England notably describes the content of the Law of Nature with three precepts from the Romans—that “we should live honestly, hurt nobody, and render to everyone his due.”[7]  He describes the application of this law as supremely authoritative and universal to all mankind—“superior in obligation to any other” law and “binding over all the globe in all countries, at all times.”[8]

The Natural Law tradition became a key part of Western thought and jurisprudence.  Indeed, it is, as Tyler observes, “the oldest tradition in Western jurisprudence.”[9]  The Natural Law tradition is an important influence on the moral justification for Rule of Law in America, in setting the moral standard required for just civil law and governance.

The Biblical Law Tradition

The Biblical Law tradition is also an important influence on the moral dimension of Rule of Law in America.  The Bible reinforces the Law of Nature, Western thinkers saw, in demonstrating the content and application of this Moral Law.  The Bible demonstrates this Moral Law in three contexts of law— in the Law of Nature, Law of Moses, and Judeo-Christian Golden Rule.  Each context supports Rule of Law by revealing the standard for just civil law and government.

Firstly, the Bible acknowledges the Law of Nature in the books of Genesis and Romans, as previously mentioned.  In Genesis 3:22 and 9:5-6, God gave a moral rule of right and wrong to the whole human race.  In Romans 2:14-15, the Apostle Paul, in acknowledging that this law is written on man’s heart, recognized the authority and universal application of this law for all people, both Jews and Gentiles, regardless of status or religious belief.  Notably, many Western thinkers believed that the Law of Nature is known partially by man’s imperfect reason and more fully by the Bible’s written moral teachings.  Blackstone writes, … 

The Law of Nature, as acknowledged in the Bible, informs and supports Rule of Law by its universal application to all mankind.

Secondly, the Bible presents the Law of Moses as recorded in the first five books of the Old Testament—Genesis, Exodus, Numbers, Leviticus, and Deuteronomy.  Attributed to the prophet Moses who lived between 1400 and 1200 BC, the Mosaic Law reveals the existence of one God and lays out specific laws for the Hebrews, the ancient nation of Israel.  It includes the Ten Commandments and other moral, civil, criminal, and religious/ceremonial laws.  Believed to be divinely inspired or given by God, it is one of the oldest surviving written law codes in history.  The Mosaic Law informs and affirms Rule of Law by demonstrating the law’s supreme authority over and equal application to all the people of Israel—including both rulers and common people.  Moses tells the people in Deuteronomy 17:11 to judge by the authority of “the sentence of the law.”[11]  Applying the law equally to all, he says in Leviticus 19:15, “Do not pervert justice; do not show partiality to the poor or favoritism to the great, but judge your neighbor fairly,” and in Deuteronomy 1:17, “You shall not show partiality in judgment; you shall hear the small as well as the great.”  The Mosaic Law further supports Rule of Law with early elements of due process of law—in which no one can be denied one’s rights without proper legal procedure and just judgment according to the law.  Due process, says Tyler, includes prior notice of law, fair trial, and impartial judges.[12]  On prior notice, Moses tells the people to publicly read, write, and display the law on stones.[13]  On fair trial, he says that a conviction for an offense or crime requires “a thorough investigation” and the accused to “stand trial before the assembly.”[14]  The equal application of the law provides for impartial judges.

Thirdly, the Bible upholds the Judeo-Christian Golden Rule derived from the two Great Commandments in the Old and New Testaments.  Written in the first century A. D. by witnesses and early church leaders, the New Testament reveals that Jesus Christ fulfilled all the requirements of the Mosaic Law and, in Matthew 22:37-39, reduced it for His followers, both Jew and Gentile, to the two Great Commandments that embody the spirit, morality, and content of the natural and Mosaic laws—to love God and to love man or “your neighbor as yourself.”[15]  As American Founder Benjamin Rush explains in his Road to Fulfillment, these two commandments “form a complete summary of the spiritual law of the relations between God and man.”[16]  Founder Rev. John Witherspoon likewise observes in his sermon, Yoke of Christ, “The sum of the Moral Law is, ‘Thou shalt love.’”[17]  Christ reiterated the second commandment in Matthew 7:12 and Luke 6:31 in what is commonly known as the “Golden Rule” to “do to others what you would have them do to you.”  Echoing the Roman precept to “hurt no one,” the Apostle Paul expresses the Golden Rule in Romans 13:10 as, “Love does no harm to a neighbor.”  This rule agrees with man’s natural moral sense and applies to all who seek to please God—who all have a need and moral responsibility before God.  It informs Rule of Law by its content and implication to treat others respectfully, equally, fairly, and with love, as we ourselves desire to be treated, and by its application to all of God’s people.

In demonstrating aspects of God’s Moral Law in these three contexts, the Biblical Law tradition is an important influence on the moral development of Rule of Law in America.  The Bible demonstrates the content of the Moral Law to “love your neighbor as yourself, to “do to others what you would have them do to you,” and to “do no harm to a neighbor,” as well as the authoritative and equal application of this law to all God’s people.  The Biblical Law tradition is consistent with the Natural Law tradition because it upholds the same Moral Law.  Indeed, many modern Western thinkers saw the Law of Nature and God’s written Moral Law in the Bible as one Moral Law.  These Moral Law traditions provide a consistent point of reference for just civil law and government that supports Rule of Law and informs the expression of this governing principle in America.

The Rule of Law in Roman Law

Roman Law played a significant role in the development of the moral dimension of Rule of Law in the Western world—including in Britain and, ultimately, America.  Drawing knowledge from the Greeks and possibly the Hebrews, the ancient Romans implemented an early expression of Rule of Law and due process of law in their Republic.  Later, the medieval Romans incorporated the moral concept of the Law of Nature into the jurisprudence of their Roman empire.

The ancient Romans applied Rule of Law when they created their first body of written laws, the Twelve Tables, for their Republic in 451 BC.  Because the ruling-class judges often decided people’s cases arbitrarily and based on their own interests, the commoners demanded fixed laws that were the same for all.  Ten men or Decemviri thus engraved a set of laws on twelve stone tablets and publicly displayed them so that all could know and apply them.  The Twelve Tables ensured that commoners received fair, equal treatment and protection of rights.  Upholding equality in law, it states, “Laws of personal exception shall not be proposed.”[18]  An early expression of due process of law, it upheld—much like the Mosaic Law—prior notice, fair trial, and impartial judges.  On fair trial, it states, “Anyone whomsoever to be put to death without a trial and unconvicted…is forbidden.”[19]  As American Founder James Wilson observes in his 1790-1791 Lectures on Law, “The Decimvirs declared…that the laws should be equal and impartial to the high and to the low.”[20]

Later, the medieval Romans recognized the Law of Nature as a moral standard for their civil law.  Byzantine Roman Emperor Justinian I’s 529-565 AD Corpus Juris Civilis or Body of Civil Laws became the codified law of the Eastern Roman Empire and the basis of Roman law in Europe in the Middle Ages.  It was founded on the Twelve Tables but compiled after the Roman Empire’s christianization and recognition of one God.  The Corpus notably recognizes the God-given “Law of Nature and Nations,” describing it with the three Roman precepts, “to live honestly, to hurt no one, and to give to every man his due.”[21]  The precept to “injure no one” was originally expressed by Greek philosopher Socrates in Plato’s 380 BC Crito.[22]  The Romans thus acknowledged that their empire was governed under God’s Moral Law.  The Corpus upheld the authority of the civil law and, at least in theory, the equal application of the law to all including rulers.  It asserts that “laws shall be obeyed equally by all”[23] and that “all, though belonging to the imperial house, must live according to the laws.”[24]  Rulers were subject to the law since their authority “depends upon the authority of law.”[25]

The Corpus had an immense impact on the legal systems of medieval and modern Europe.  The principles of Roman law in the Corpus profoundly shaped English jurisprudence which, in turn, shaped American jurisprudence.  Upholding the authority, equality, and due process of law and later recognizing the Law of Nature as the basis of right governance, Roman law contributed in important ways to the moral development of Rule of Law in England and, subsequently, America.

The Rule of Law in English Common Law Tradition

Because English jurisprudence had a significant impact on American jurisprudence, it is important to consider the moral development of Rule of Law in English law.  Medieval Anglo-Saxon and Roman jurisprudence were instrumental in the development of the common law and Rule of Law in England.  The British drew from the Moral Law traditions, as recognized and/or cited in these strands, as the standard for their civil laws and validation for Rule of Law.

One of the earliest expressions of Rule of Law in English law is found in the c893 law code or “Doom Book” of King Alfred the Great of Wessex and the Anglo-Saxons.  Alfred’s code was based on previous Anglo-Saxon codes and on the Bible—including the teachings of Moses and Christ.[26]  When enacting laws in his realm, Alfred looked to Leviticus 19:15 in the Mosaic law where God through Moses directs the Israelites to “not show partiality to the poor or favoritism to the great, but judge your neighbor fairly.”  Alfred thus asserted that the law of his realm was to be applied equally without regard for a person’s status, stating, “Judge thou very evenly:  judge thou not one doom [law or judgment] to the rich, another to the poor; nor one to thy friend, another to thy foe [brackets mine].”[27]  Alfred also looked to the Judeo-Christian Golden Rule for guidance on his laws and thus upheld the fair and equal treatment of subjects.  His Doom Book states, “That which ye will that other men do not unto you, do ye not that to other men.  From this one doom [law] a man may remember that he judge everyone righteously [brackets mine].”[28]  As such, the Anglo-Saxons enacted Rule of Law in line with Biblical Law tradition by applying their laws equally to all subjects.  Their law code provided the foundation for English common law which solidified in the 1000s and 1100s.[29]

Building on English common law and its Bible-inspired principles of law, Britain’s Magna Carta or “Great Charter” of 1215 was also significant for instituting Rule of Law in England.  The Magna Carta was a royal charter and agreement between King John of England and his noblemen that applied the common law not only to the people but to the king and his magistrates.  It acknowledged the supreme authority of the “the law of the land” over rulers and that citizens had certain rights that could not be violated arbitrarily by those in power.[30]  Supporting due process of law, it states, “No freeman shall be taken, imprisoned, disseized, outlawed, exiled, or in any way harmed…save by the lawful judgment of his peers or by the law of the land.”[31]  Magna Carta was significant in establishing Rule of Law in England by its authoritative and equal application of the common law to both people and rulers and by its due process of law.

English jurisprudence was also shaped by the moral, organizing principles of Roman law—mainly through the works of Henry de Bracton, John Fortescue, and, later, William Blackstone.  In his influential c1235 On the Laws and Customs of England, English jurist Henry de Bracton, known as the “father of the common law,” organized the common law based on Roman law categories and terms, and incorporated the Roman moral concept of Law of Nature into English jurisprudence.  He described the Natural Law with the three precepts from the Roman Corpus, stating, “The precepts of right are these three:  to live honestly, to do no harm to another, to award to each his right.”[32]  In his c1470 In Praise of the Laws of England, English Chief Justice John Fortescue recognized the universality of the Natural Law, observing, “The law of nature in all countries is the same.”[33]  Further, he legally applied the Natural Law to the common law, asserting that man’s civil laws are invalid if they violate this Moral Law.  Thus, Roman law principles including the Natural Law tradition were incorporated into English jurisprudence and, along with the Biblical Law tradition, supported Rule of Law.  The phrase “Rule of Law” emerged in England around 1500.

English common law is the body of customary laws, which still exists today, shared by or common to the whole nation of England.  It was shaped over time by Anglo-Saxon customary laws and traditions, Magna Carta, and Roman law—and by the Moral Law traditions in these strands.  American Founder James Wilson describes this common law in his 1790-1791 Lectures on Law as “long and general custom” by the “free and voluntary consent” of the people.[34]  Russell Kirk explains in his 1991 Roots of American Order that the common law grew “out of the experiences and observations and consensus of many generations of wise men, and had been tested repeatedly for its conformity to natural justice.”[35]  English common law is ruled by stare decisis, Latin for “to stand by what has been decided,” in that judges are bound to decide cases according to previous legal decisions or precedent.  The purpose of precedents is to keep the law constant, equal, and just.  Kirk elaborates, …

The moral dimension of Rule of Law in English jurisprudence and law developed, in part, through the Moral Law traditions in Anglo-Saxon and Roman jurisprudence.  English common law upholds Rule of Law in adhering to the content and application of the Moral Law as well as due process and stare decisis.  The practice of Rule of Law in English common law strongly influenced the development and practice of this principle in America.

The Rule of Law in Modern British Thought

Despite the advancement of Rule of Law in England in the Middle Ages, the doctrine of the “Divine Right of Kings” became prominent in Britain in the 1600s under the Stuart kings who imposed absolute monarchy.  This doctrine supported the Law of the Ruler by asserting that the king or queen derived absolute authority directly from God and so was not accountable to any earthly authority such as a parliament.  Indeed, the monarch’s will, acts, and decrees were the law.  In response to this doctrine, some British thinkers of the 1600s—including Samuel Rutherford, Edward Coke, and John Locke—refuted Divine Right and reaffirmed Rule of Law.  In the 1700s, William Blackstone further strengthened Rule of Law with his modern presentation of English common law.  All of these thinkers’ moral assertions of law were rooted, directly or indirectly, in the Moral Law traditions and greatly affected British and American political and legal thought.

Scottish theologian and Westminster assemblyman Samuel Rutherford was one of the first modern writers to use the term “Rule of Law” and notably defended this principle from a moral and philosophical perspective based largely on the Biblical Law tradition.  In his 1644 Lex, Rex:  The Law and the Prince, Latin for “the law is king,” Rutherford argued that the people hold God-given political power and thus the king is accountable to the people and subject to the law—God’s Moral Law and just civil law.  Rutherford supported this argument from, among other sources, the Bible.  For one, he asserted that God disapproves of absolute rule by a monarch.  For in 1 Samuel 8:6-9, God, speaking through the prophet Samuel, warned the Israelites against having a king and the tyranny they would suffer under a fallible man.[37]  Rutherford observes, “T]hat he [God] is dissuading them [the Israelites] from suiting a king is clear from the text.  Because he saith [to Samuel], Give them their will; but yet protest their unlawful course [brackets mine].”[38]  Rutherford also supported his argument from the Bible’s three contexts of law.  Firstly, he noted that just as all people are subject to the Natural Law, all should be subject to just civil law, for “God’s law excepteth none at all.”[39]  Secondly, he like the Anglo-Saxons cited the equality of the Law of Moses in Leviticus 19:15 to “not show partiality to the poor or favoritism to the great,” and in Deuteronomy 1:17 to ‘not show partiality in judgment; you shall hear the small as well as the great.’”  Rutherford saw from these verses that civil law should be equally applied regardless of a person’s status, observing, “Nor can I think that God’s law, or his deputy the judges, are to accept the persons of the great, because they are great; …we cannot distinguish where the law distinguisheth not,” and “I see no exception that God maketh.”[40]  Thirdly, he asserted from the Judeo-Christian Golden Rule in Matthew 7:12 that kings, as human and not God, should be equally subject to the same laws as the people.  He states, “That the king doth bind himself to the same law that he doth bind others, is decent, and obligeth the king as he is a man.”[41]  By this rule, the king should not violate the rights of his subjects, just as he would not wish such violation against himself.  From these and other points, Rutherford concluded that the king “is not regula regulans [the rule of the regulator], but under rule of law [brackets mine].”[42]  Published during the English Civil War of 1642 to 1651, Rutherford’s Lex, Rex strongly discredited Divine Right and validated Rule of Law in British and American thought.  Rutherford’s ideas were familiar to the American Puritans including Thomas Hooker and shared by revolutionary writer Thomas Paine.[43]

British Chief Justice Edward Coke was an important legal figure who defended Rule of Law over Ruler’s Law in the British constitution—by emphasizing a common law for both king and people and due process of law.  The English common law is called the “law of the land” in Magna Carta, Coke notes in his 1628-1644 Institutes of the Laws of England, so “that the law might extend to all,” king and people.[44]  He denounces the “incertain and crooked cord of discretion” in Ruler’s Law and affirms the “due process of the common law.”[45]  Coke’s support for Rule of Law apparently came not only from common law tradition but from the Moral Law traditions.  Echoing Leviticus 19:15 and Deuteronomy 1:17 as the Anglo-Saxons, he describes the common law as the “golden metwand” or measuring rod by which “all men’s causes are justly and evenly measured” and “appointed to measure the cases of all and singular persons, high and low, to have and receive justice.”[46]  Also, in his 1608 Law Report, as mentioned, he recognizes the Moral Law in Romans 2:14-15 as “written with the Finger of God in the Heart of Man” and its universality—stating as Fortescue that “the Law of God and Nature is one to all.”[47]  Coke thus upheld the Moral Law traditions and drew from them to inform and support Rule of Law.  Coke’s defense of Rule of Law in the British constitution significantly shaped American jurisprudence and law.  American Founder Thomas Jefferson describes Coke’s Institutes as the “universal elementary book of law students” in America, and Founder John Rutledge calls it “almost the foundation of our law” in America.[48]  In his 1924 History of English Law, William Holdsworth says that Coke “preserved for England and the world the constitutional doctrine of rule of Law.”[49]  Indeed, Coke helped to preserve Rule of Law in England and America.

British Enlightenment-era philosopher John Locke was an influential political figure who supported Rule of Law as the means to protect citizens’ rights and maintain a just, orderly society.  In a secularized presentation, Locke defended this principle from the Moral Law traditions—including the Bible’s three contexts of law.  First, Locke recognized Rule of Law in the universal Law of Nature as described in Romans 2:14-15.  In his 1695 Reasonableness of Christianity, he observes, “The Law given by Moses being not given to all Mankind, how are all men sinners, since without a Law there is no Transgression?  To this the Apostle [Paul], v. 14. answers.”[50]  Locke affirmed that this natural “Moral Law (which is every where the same, the Eternal Rule of Right) obliges Christians and all Men everywhere.”[51]  In his 1689 Second Treatise of Civil Government, Locke saw, like Coke and Fortescue, that the Law of Nature applies to both ruler and commoner and is the basis of just civil law.  He writes, “The law of Nature stands as an eternal rule to all men, legislators as well as others.  The rules that they make for other men’s actions, as well as their own…, must be conformable to the law of Nature.”[52]  Drawing on Natural Law, Locke favored Rule of Law to govern citizens in society, explaining, “Freedom of men under government is, to have a standing rule to live by, common to every one of that society…and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man:  [just] as freedom of nature is, to be under no other restraint but the law of nature [brackets and boldface mine].[53]  Second, Locke looked to the equal application of the Mosaic Law to support Rule of Law.  Resounding Leviticus 19:15 and Deuteronomy 1:17 to show no “partiality to the poor or favoritism to the great” and to “hear the small as well as the great,” he asserts that civil authority should “govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at Court, and the countryman at plough [boldface mine].”[54]  Third, Locke affirmed Rule of Law based on man’s equality and the Judeo-Christian Golden Rule.  Quoting theologian Richard Hooker’s 1593 Laws of Ecclesiastical Polity, Locke writes, “‘The like natural inducement [motive] hath brought men to know that it is no less their duty to love others than themselves, for seeing those things which are equal, must needs all have one measure [brackets and boldface mine].’” [55]  In this way, Locke supported and explained Rule of Law by the Moral Law traditions.  Locke had a notable impact on American political thought on governance by Rule of Law.  In his 1777 Observations on the Government of Pennyslvania, Founder Benjamin Rush noted the impact of Locke’s ideas on American government:  “Mr. Locke is an oracle as to the principles…of government.”[56]  In a 1807 letter, Founder Thomas Jefferson cited Locke as a good source on “the organization of society into civil government” and “the system of principles on which such an organization should be founded, according to the rights of nature.” [57]

English justice William Blackstone was another important influence on Rule of Law—in providing a modern presentation of English common law for early Americans.  Adopting principles of previous moral thinkers and Roman law, Blackstone notably incorporated the Natural Law tradition into his common-law presentation.  His 1765-1769 Commentaries on the Laws of England taught early Americans about Natural Law and English common law and, consequently, about Rule of Law.  A professor of Roman law, Blackstone like Bracton described the Law of Nature with the three precepts in Justinian’s Corpus—that “we should live honestly, hurt nobody, and render to everyone his due.”[58]  He believed, like Fortescue and Locke, that just civil law must align with Natural Law, stating, “No human laws are of any validity if contrary to this [Law of Nature]:  and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original [brackets mine].”[59]  Blackstone’s Commentaries was the primary textbook on English common law for early Americans and, as such, played a key role in the transmission of Rule of Law in America.  Kirk explains, “Had the little-schooled American lawyers not been restrained by him, much of enduring value in the tested English rule of law might have been lost through ignorance or hasty improvisation.”[60]  Ultimately, English common law became the foundation of American common law.

British thinkers Rutherford, Coke, and Locke played a valuable role in refuting Divine Right and in morally defending Rule of Law in the modern era, while Blackstone made an impact with his modern, moral presentation of English common law.  In supporting Rule of Law from the Moral Law traditions as well as from man’s natural equality and rights, they helped to de-legitimize Divine Right, which fell out of use in England after the Glorious Revolution of 1688, and to reinforce and preserve Rule of Law in England and America.

The Rule of Law in the American Puritan Colonies

Along with British thought and law, the American Pilgrims and Puritans played a significant role in the moral development of Rule of Law in America’s founding and constitution.  In accordance with their beliefs in God’s sovereignty and man’s equality as well as the Biblical Law and English common law traditions, the Pilgrims and Puritans initiated and applied Rule of Law with their Mayflower Compact and colonial constitutions.

The American Pilgrims and Puritans, as radically reformed Protestant Christians, generally favored Rule of Law over Divine Right based on their Bible-inspired view that only God, and not any  man, has rightful absolute authority over His church.  God was their king and governed by His Moral Law.  Their view of God’s sovereignty was based in part on Isaiah 33:22 which says, “The Lord is our Judge, Lawgiver, and King; He will save us.”  American Puritan and Connecticut founder Thomas Hooker expressed such thinking in his 1648 Survey of the Summe of Church-Discipline:  “The Supreme and Monarchical power resides only in our Savior, can only be given and attributed to Him, and none other:  He is the King and Law-giver of His church, the Head of His Body.”[61]  While Hooker’s Survey addressed church governance, the Puritans applied the same view, reasoning, and form in their civil governance, for they desired to follow the Bible not only in their churches but in their colonial governments.  They thus found consistency in their philosophical view of God’s sovereignty with Rule of Law.

The Pilgrims and Puritans also favored Rule of Law based on their Bible-based view that all men are equal in standing before God and subject to God’s Moral Law.  When the Pilgrims on the Mayflower landed in America outside of England’s territory, they drafted their own charter, the Mayflower Compact of 1620.  This charter was a consensual agreement, signed by all heads-of-household, Pilgrims and non-Pilgrims alike, to create a civil body and to enact just laws for their colony of Plymouth.  Their compact placed all signers and their families, regardless of status, on equal standing in the new colony and in equal subjection to the colony’s future laws.  The signers agreed, as the compact states, “to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions, and offices…as shall be thought most meet and convenient for the general good of the Colony, unto which we promise all due submission and obedience.”[62]  In this way, the Pilgrims initiated Rule of Law in accordance with their view of man’s equal standing and accountability under the law.  The Pilgrims’ compact was, as Donald Lutz asserts in his Mayflower Compact, the “first expression” of such political equality in America.[63]  It created a framework, suggests Daniel Dreisbach, for Rule of Law in the colonies and in America.[64]  “The Pilgrims, more than any others,” says Dreisbach, “laid the foundation for an American political tradition committed to Rule of Law.”[65]

The Puritans supported Rule of Law in their colonies of Massachusetts and Connecticut in line with the Pilgrims’ compact and the Biblical Law tradition.  When Puritan pastor Thomas Hooker founded the colony of Connecticut in 1638, he favored governance by Rule of Law based on the Mosaic Law in Deuteronomy 17:11.  In Deuteronomy 17:11, Moses instructs the Israelites to judge cases according to the “sentence of the law” and not according to their own discretion:  “According to the sentence of the law in which they instruct you, according to the judgment which they tell you, you shall do; you shall not turn aside to the right hand or to the left from the sentence which they pronounce upon you.”[66]  Citing this verse, Hooker defended Rule of Law in a 1638 letter to Massachusetts governor John Winthrop, writing, …

The best protection for justice and rights, Hooker believed, was a government in which authority resides in clearly defined, constant laws, not in rulers who might judge arbitrarily or in error.  The Mosaic model in which authority resides in the “sentence of the law,” he believed, confirmed the justness and goodness of Rule of Law.  Consequently, the Puritans applied Rule of Law in their colonies in accordance with the Biblical Law tradition.

To implement Rule of Law, the Puritans created constitutions of law—the Fundamental Orders of Connecticut of 1639 and the Massachusetts Body of Liberties of 1641—to govern their colonies.  The Puritans reinforced Rule of Law in these constitutions with the equal application of law and due process of law as found in the Biblical Law and English common law traditions.  For example, the Massachusetts Body of Liberties expressed the equal application of the law to all colonists, stating, “Every person within this jurisdiction…shall enjoy the same justice and law that is general for the plantation, which we constitute and execute one toward another without partiality or delay.”[68]  It also upheld due process in stating, “No man’s person shall be restrained or imprisoned by any authority whatsoever, before the law hath sentenced him thereto.”[69]  Indeed, the Puritan constitutions—in their form, purpose, and application—resembled in some ways biblical- and common-law documents like Moses’ Ten Commandments and Magna Carta.  Thus, the Puritans upheld Rule of Law with their constitutions.

The early American Pilgrims and Puritans played a key role in the moral development of Rule of Law in the United States.  In line with their Bible-inspired philosophical beliefs of God’s sovereignty and man’s equality, as well as the Biblical Law and English common law traditions; the Pilgrims’ Mayflower Compact upheld colonists’ equal standing and subjection to the law, regardless of status.  The Puritans’ written constitutions upheld the authority, equal application, and due process of fixed law over arbitrary rule and changing laws.  The Puritan constitutions, says Dreisbach, “had a profound impact on how Americans view Rule of Law.”[70]  They laid the “groundwork,” observes Alexis de Tocqueville in his 1835 Democracy in America, for the modern constitutions of the United States.[71]  In these ways, the Pilgrims and Puritans began the practice of Rule of Law in their colonies and, ultimately, in America.

The Moral Law in American Thought and Jurisprudence

Founding-era Americans adopted important principles from Roman, British, and American colonial jurisprudence when forming the jurisprudence, laws, and government of the new nation of the United States.  One particular aspect of these historical strands that Americans agreed with and upheld is God’s universal Moral Law as conveyed in the Moral Law traditions.  Like previous moral thinkers, early Americans believed that the Moral Law is authoritative due to mankind’s creation, equality, and natural rights.  They further believed that this Moral Law—in its content and application—is the foundation of just civil law.  As such, Americans looked to the Moral Law as the standard for their government and laws in America.

Early Americans specifically acknowledged God’s universal Moral Law—its content to “injure no one” and universal application—from the Natural Law and Biblical Law traditions.  For example, revolutionary leader and Founder Samuel Adams in his 1794 Address to the Legislature of Massachusetts affirmed the Moral Law’s content and application from both traditions, stating, …

All men are equally bound by the laws of nature, or to speak more properly, the laws of the Creator: –They are imprinted by the finger of God on the heart of man [Romans 2:14-15].  Thou shalt do no injury to thy neighbor [Romans 13:10], is the voice of nature and reason, and it is confirmed by written revelation [or Bible]. [boldface & brackets mine][72]

Founder and U. S. Supreme Court Justice James Wilson in his 1790-1791 Lectures on Law also recognized the Moral Law’s content and application from these traditions.  The Moral Law’s content, he says, alluding to Blackstone’s Roman precepts, “prohibits injury and commands the reparation of damage done”; “restrains us from harming the innocent” who “have a right to be secure from harm”; and commands “fidelity to our engagements.”[73]  Wilson expressed the Moral Law’s equal application as demonstrated in the Biblical Law tradition.  Resounding the Mosaic Law’s Leviticus 19:15 and Deuteronomy 1:17 to “hear the small as well as the great,” he explains, …

Pointing to Romans 2:14-15 in which all know the Moral Law inwardly, Wilson further expresses,

Laws may be promulgated by reason and conscience, the divine monitors within us….  In this manner, they may be said to be engraven by God on the hearts of men [Romans 2:14-15]:  in this manner, He is the promulgator as well as author of natural law. [brackets and boldface mine][75]

Founder John Adams identified the content and application of the Moral Law in the Judeo-Christian Golden Rule of Matthew 22:37-39 and Matthew 7:12.  He writes in his 1796 Senate Notes, “One great advantage of the Christian Religion is, that it brings the great principle of the Law of nature and nations, —Love your neighbor as yourself, and do to others as you would that others should do to you, —to the knowledge, belief, and veneration of the whole people [boldface mine].”[76]  Clearly, founding-era Americans recognized and upheld God’s universal Moral Law as found in the Moral Law traditions.

Like previous moral-law thinkers, early Americans viewed God’s universal Moral Law as supremely authoritative based on God’s creation of man and mankind’s equality and natural rights.  As created by God, all human beings are, they believed, subject to God’s Moral Law.  Human beings are equal, they saw, in the sense of their creation, nature, value, and dignity, and in their responsibility and accountability before God.  Thus, every person has natural rights which are protected by God’s Moral Law.  In his 1786 Of the Mode of Education Proper in a Republic, Founder Benjamin Rush supported man’s equality based on God’s creation of man as revealed in the Bible:

The history of the creation of man, and of the relation of our species to each other by birth, which is recorded in the Old Testament, is the best refutation that can be given to the divine right of kings, and the strongest argument that can be used in favor of the original and natural equality of all mankind [boldface mine].[77]

Founding-era Americans further believed, like Locke and Blackstone, that God’s universal Moral Law, as conveyed in the Moral Law traditions, is the foundation of just civil law.  Civil laws that contradict the Moral Law are illegitimate and invalid.  Samuel Adams states in his 1772 Report on the Rights of Colonists, “All positive and civil laws, should conform as far as possible, to the Law of natural reason and equity [fairness] [brackets mine].”[78]  Wilson in his Lectures on Law likewise identifies the Moral Law as God’s “supreme law” and “the measure and the rule” of just civil law.[79]  He elaborates, …

Founder James McHenry in his 1813 Baltimore Bible Society address describes the Moral Law in the Bible as a worthy guide for American law:  “The Old and New Testaments taken together, are the only books in the world which clearly reveal the nature of God, contain a perfect law for our government, propose the most powerful persuasions to obey this law.”[81]  As such, early Americans looked to the Moral Law as a standard when forming America’s laws and government.

More specifically, the American Founders recognized the need to ground America’s civil government and laws in both the content and application of the Moral Law as conveyed in the Moral Law traditions.  Firstly, the Founders recognized the need to ground their civil laws in the Moral Law’s content.  Reiterating Blackstone’s three Roman precepts to “live honestly, hurt no one, and render to everyone his due” and the Golden Rule to “do unto others as you would have them do unto you,” Wilson specifies the Moral Law’s content and its necessity for just civil law:

Man’s rights are, to be free from injury, and to receive the fulfillment of the engagements, which are made to him.  His duties are, to do no injury, and to fulfill the engagements, which he has made.  …These are the pillars of justice. [boldface mine][82]

Reflecting this content, the civil law, Wilson asserts, should protect citizens and their rights from injury and violation:  “The state should protect the citizen, should defend him from injury, and should procure reparation for injuries which he has sustained.”[83]  Secondly, the Founders recognized the need to ground their civil laws in the Moral Law’s equal application.  For just as the Moral Law applies to all mankind, so should the civil law apply to and protect all citizens and their rights.  In a 1768 letter of the House of Representatives of Massachusetts, Founder Samuel Adams explains, “The spirit of the law of nature and nations, supposes, that all the free subjects of any kingdom, are entitled equally to all the rights of the constitution.”[84]  Adams, quoting Locke, repeats this idea in his Rights of Colonists, stating, …

With such equal application, the Founders supported the impartial interpretation and administration of civil laws to protect citizen rights.  Samuel Adams, citing Locke, affirms the need for “‘authorized independent Judges’”[86] and “indifferent and impartial Judges.”[87]  Founder John Adams similarly asserts in a 1776 letter, “The stability of government, in all its branches, the morals of the people, and every other blessing of society and social institutions, depend so much upon an able and impartial administration of justice.”[88] John Adams further explains in his 1779 Report on the Form of Government for the Commonwealth of Massachusetts, “It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice.”[89]  He concludes, “It is the duty of the people…in framing a Constitution of Government, to provide for an equitable mode of making laws, as well as for an impartial interpretation and a faithful execution of them, that every man may, at all times, find his security in them.”[90]  Thus, the Founders sought to create a civil government and laws for the United States that reflect the content and application of God’s Moral Law as seen in the Moral Law traditions.

Early Americans’ adherence to the Moral Law traditions is evident in the U. S. Declaration of Independence of 1776.  In the Declaration, Founder Thomas Jefferson acknowledges a “Creator” and the “Laws of Nature and Nature’s God” on which Americans base their rights, civil laws, and constitution.  U. S. President John Quincy Adams, son of Founder John Adams, observes in his July 4, 1821, oration that by the Declaration the American people are “bound by the [natural] laws of God, which they all, and by the [biblical] laws of the Gospel, which they nearly all, acknowledge as the rules of their conduct [brackets mine].”[91]

Founding-era Americans’ recognition of and philosophical alignment with God’s universal Moral Law—as conveyed in the Moral Law traditions and supported in Roman, British, and American colonial jurisprudence—led them to create and/or aspire to just civil laws and government in America that reflect the Moral Law’s content and application.  Consequently, it also undoubtedly led them to favor and support Rule of Law.

The Rule of Law in American Thought and Jurisprudence

During America’s founding, early Americans drew in part from the Moral Law traditions—as supported by Roman, British, and American colonial jurisprudence and by their own philosophical beliefs—to inform the governing principle and practice of Rule of Law in the United States.  The content and application of God’s universal Moral Law led them to implement Rule of Law as the most just and fair means of governance for the new nation.

Founding-era Americans saw in the Moral Law traditions consistency with Rule of Law.  For in contrast to the arbitrary, inconsistent application of law that often arises with Ruler’s Law, God’s Moral Law demonstrates an equal application of law that supports Rule of Law.  In his 1772 Rights of Colonists, Samuel Adams, for instance, notably defended Rule of Law over arbitrary rule much like the colonial Puritans who followed the Mosaic Law’s “sentence of the law” in Deuteronomy 17:11.  Adams also cited Locke’s apparent references to Leviticus 19:15 and Deuteronomy 1:17 to show “no partiality to the poor or favoritism to the great” and to “hear the small as well as the great.”  He writes, …

French writer Tocqueville in his 1835 Democracy in America similarly observed the influence of the Biblical Law tradition on the equal application of civil law in America, writing, “Christianity, which has declared that all men are equal in the sight of God, will not refuse to acknowledge that all citizens are equal in the eye of the law.”[93]

Early Americans also specifically affirmed that American common law—which includes the key principle of Rule of Law—is rooted in the Moral Law traditions.  For instance, Founder James Wilson expressed the influence of the Natural Law tradition on American common law, stating:

Man’s rights are, to be free from injury, and to receive the fulfillment of the engagements, which are made to him.  His duties are, to do no injury, and to fulfill the engagements, which he has made.  On these two pillars principally and respectively rest the criminal and the civil codes of the municipal law. [boldface mine][94]

U. S. Supreme Court Justice Joseph Story—a Blackstonian advocate of American common law and a primary commentator on early American jurisprudence—similarly pointed out in his 1829 induction speech as Harvard law professor how American law is rooted in the Biblical Law tradition:  …

During the American Revolution from 1775 to 1783, English political writer Thomas Paine further validated Rule of Law with his influential 1776 political pamphlet, Common Sense.  He did so by reiterating the biblical arguments found in Samuel Rutherford’s Lex, Rex and thus putting them freshly into the minds of Americans.  He cited 1 Samuel 8:6-9 where God disapproves of the Israelites’ making of an earthly king and warns of the tyranny they will suffer under absolute rule by fallible men.  Paine thus argued that God disapproves of absolute, arbitrary rule by an earthly monarch due to the unjust oppression and violation of man’s rights that often occurs under such rule.  He asserts, “As the exalting of one man so greatly above the rest, cannot be justified on the equal rights of nature, so neither can it be defended on the authority of Scripture; for the will of the Almighty, as declared by…the prophet Samuel, expressly disapproves of government by kings.”[96]  Paine concluded, as Rutherford, that the “Law is King.”  He expresses, …

Selling more than 500,000 copies, Paine’s Common Sense was the most widely-read book in America during the Revolutionary War.  With its clear prose, it reinforced and refreshed Americans’ moral justification, view, and favor of Rule of Law over Ruler’s Law.

In accordance with the Moral Law traditions and the view that the Moral Law is the standard for just civil law, the American Founders defended and instituted Rule of Law as the best means of governance for the new, independent nation and states of the United States.  Founder James Madison expressed in his 1788 Federalist Paper 62 the idea that a government with constantly changing, unpredictable laws “poisons the blessings of liberty itself.”  “It will be of little avail to the people,” he argued, if the laws “undergo such incessant changes, that no man who knows what the law is today, can guess what it will be tomorrow.”[98]  Jefferson expressed in his 1798 Resolutions Relative to the Alien and Sedition Laws, “In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”[99]  Founder John Adams recognized in his 1776 Thoughts on Government that “good government is an empire of laws.”[100]  As John Adams reaffirmed in his 1774 Novanglus Papers and 1779 Massachusetts Constitution, the Founders thus sought to create a good and just “government of laws, and not of men.”[101]

Based on the content and application of the Moral Law, the Founders aspired to and designed for the United States a system under Rule of Law that protects citizens and their rights from injury and violation, and treats all citizens and their rights equally and respectfully.  This system aligned with the their philosophical views and the Moral Law Traditions as upheld in Roman, British, and American jurisprudence.

The Rule of Law in the United States Constitution and American Common Law

The early Americans implemented a modern system of Rule of Law in the new nation of the United States in line with the Moral Law traditions and as supported by Roman, British, and American colonial jurisprudence.  The American Founders secured Rule of Law with the U. S. Constitution of 1787 that serves as the supreme governing authority in the nation, requires civil servants to enforce the law, upholds due process and equal protection of the law, and creates an independent judicial branch.  The American court system further secures Rule of Law by upholding stare decisis in American common law.

Firstly, the Founders’ Constitution specifically upholds Rule of Law in serving as the supreme authority in the nation to which all Americans, their civil representatives, and other civil laws are subject and by which all citizens are protected.  The people’s governors are bound and limited by this supreme law and cannot legally act, rule, legislate, or judge cases in contradiction to it.  The “supremacy clause” in Article 6 of the Constitution declares, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land [boldface mine].”  As supreme law, the Constitution is considered a fundamental law by which all other civil laws must abide.  No civil law is considered legal or legitimate if inconsistent with this fundamental law.  Founder Alexander Hamilton elaborates in his 1788 Federalist Paper 78,

Every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.  No legislative act, therefore, contrary to the Constitution, can be valid.  To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.  …This cannot be the natural presumption where it is not to be collected from any particular provisions in the Constitution.  …  A constitution is, in fact, and must be regarded by the judges as, a fundamental law. [boldface mine][102]

On this point, Founder and Constitution architect James Madison wrote in 1788 in Federalist Paper 53 of the “important distinction so well understood in America between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government.”[103]  Thus, the U. S. Constitution upholds Rule of Law in serving as the supreme authority by which all the people, their representatives, and other civil laws must abide and by which all citizens are protected of their rights and freedoms.

Secondly, the Constitution secures Rule of Law by requiring civil servants to enforce the law.  The U. S. President, as chief executive of the executive branch, serves to carry out the law and is responsible for doing so by the “take care” clause of the Constitution.  Article 2, Section 3 of the Constitution states that “The President…shall take Care that the Laws be faithfully executed.”  Federal and state judges are also bound to uphold the law.  Article 6, Clause 2 of the Constitution states, “This Constitution, and the laws of the United States…shall be the supreme law of the land, and the judges in every state shall be bound thereby.”

Thirdly, the Constitution also secures Rule of Law by providing all citizens with due process and equal protection of the law.  Amendment 5 of the U. S. Bill of Rights states, “No person shall be…deprived of life, liberty, or property, without due process of law.”  Later, following the American Civil War of 1861-1865, Amendments 13, 14, and 15 were added to the Constitution to ensure that emancipated slaves, just as other citizens, were protected under the law in the states.  Amendment 14 of 1868 states, “Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  These laws are intended to uphold the just, equal application of the law and to protect all citizens’ natural rights and freedoms, persons and property, against violations by others or by those in power.

Fourthly, the Founders secured Rule of Law in the Constitution by creating an independent judiciary with a third, separate judicial branch of government and tenured judges to interpret the law.  The Founders believed that an independent judiciary is necessary to guard the Constitution and individual rights from violation.[104]  Such a judiciary keeps lawmakers, Hamilton explains, “within the limits assigned to their authority” and declares “all acts contrary to the manifest tenor of the Constitution void.”[105]  On creating a separate judicial branch, Founders James Madison and Hamilton, quoting French philosopher Charles de Montesquieu’s 1748 Spirit of the Laws, explain, “‘There is no liberty if the power of judging be not separated from the legislative and executive powers.’”[106]  Quoting Montesquieu, Madison elaborates, “‘Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.  Were it joined to the executive power, the judge might behave with all the violence of an oppressor.’”[107]  The Founders also granted lifetime tenure to judges with good behavior, freeing judges from political or outside influences.  Hamilton saw such tenure as “the best expedient…to secure a steady, upright, and impartial administration of the laws.”[108]  The independent judiciary supports Rule of Law by keeping those in power in line with the Constitution and by protecting citizens’ rights.

In addition to the Constitution, early Americans secured Rule of Law by instituting a judicial system that abides by American common law.  American common law is based on English common law which includes the Moral Law traditions.  Russell Kirk explains in his 1991 Roots of American Order, “The basis of American law…is the common law which began to develop in England nine hundred years ago”[109]  Like English common law, American common law operates by stare decisis in which courts are bound to decide legal cases according to precedent.  In such a system, a legal case may establish a rule or principle by which to decide later cases of a similar nature.  Stare decisis ensures that the law is interpreted and administered impartially, not arbitrarily.  In his 1833 Commentaries on the Constitution of the United States, Justice Story explains the rationale of this system to maintain Rule of Law:  …

Based on English common law and Moral Law traditions, American common law with its practice of stare decisis plays a significant role in preserving Rule of Law.  Kirk observes, “In America, common-law principles would work upon public affairs more powerfully than any other influences except Protestant Christianity and the colonial social experience itself.”[111]

Early Americans secured Rule of Law in the United States by adopting principles from the Moral Law traditions and Roman, British, and colonial American jurisprudence and law.  The U. S. Constitution and its amendments secure Rule of Law by serving as supreme governing authority, requiring civil servants to enforce the law, protecting citizens’ rights through due process and equal protection of law, and instituting an independent judiciary.  The American judicial system secures Rule of Law by adhering to American common law including stare decisis.

Conclusion

In conclusion, when the founding-era Americans constructed the new nation of the United States, they designed a nation that governed not by Ruler’s Law of Divine Right but by an impartial,  fair, just system of Rule of Law.  The American Founders’ implementation of Rule of Law was shaped much by the Western concept of the Moral Law as conveyed in the Natural Law and Biblical Law traditions and as supported by Roman, British, and American colonial jurisprudence.  These sources were inspired by the content of the Moral Law to “live honestly, injure no one, and fulfill one’s engagements,” to “love your neighbor as yourself,” and to “do no harm to your neighbor.”  They were also inspired by the equal application of the Moral Law as seen in the Bible’s three contexts of law—the universal Law of Nature; the impartial Mosaic Law with justice for great and small; and the equally applied Judeo-Christian Golden Rule to “do to others as you would have them do to you.”  Based on this standard in the Moral Law traditions, the early Americans designed a nation under Rule of Law which they saw as the best, most just means of governance.  They implemented and secured Rule of Law in America with the U. S. Constitution and a judicial court system that abides by American common law.  This system protects the rights of all citizens in order to maintain a just, orderly civil society.  The United States’ system of constitutional laws and government has successfully realized and preserved Rule of Law for 245 years and continues to do so for all Americans today.

———-

[1]  John O. Tyler, Jr., The Necessity of the Rule of Law, in The Origins of Our Founding Principles, ed. Christopher W. Hammons (Houston, TX:  The Morris Family Center for Law & Liberty at Houston Baptist University, 2020), 171.  Tyler explains, “Justice is a moral concept, and laws must be moral to be just.”

[2]  Aristotle, The Politics of Aristotle, vol. 1, trans. Benjamin Jowett (Oxford:  Clarendon Press, 1855), bk 3, ch. 11, lxii.

[3]  Albert V. Dicey, Lectures Introductory to the Study of the Law of the Constitution (London:  Macmillan and Co., 1885).  See also H. Richard Niebuhr, The Kingdom of God in America (Middleton, CT:  Wesleyan U Press, 1988), 59.  Niebuhr notes that Rule of Law naturally leads to constitutions.

[4]  All Bible verses are taken from the New International Version (NIV) unless otherwise noted.

[5]  Marcus Tullius Cicero, Treatise on the Republic, in The Political Works of Marcus Tullius Cicero, vol. 1, ed. Francis Barham (London: Edmund Spettigue, 1841), 270.

[6]  Edward Coke, Calvin’s Case, 1608, in The Reports of Sir Edward Coke, part 7 (London:  Printed by E. and R. Nutt and R. Gosling, 1727), 12-13.

[7]  William Blackstone, Commentaries on the Laws of England, in Five Volumes, vol 1., ed. George Tucker (Philadephia:  William Young Birch and Abraham Small, 1803), bk. 1, pt. 1, sect. 2, 40.

[8]  Blackstone, Commentaries, vol. 1, bk. 1, pt. 1, 41.

[9]  Tyler, Necessity, 173.

[10]  Blackstone, Commentaries, vol. 1, bk. 1, pt. 1, 41.

[11]  New King James Version (NKJV).

[12]  John O. Tyler, Jr., Table on The Three Elements of Due process, 25 July 2020, in Four Fundamental Concepts Chart and Notes (Houston, TX:  Houston Baptist University) 2020, 2.

[13]  In Deuteronomy 31:11-12, God tells Moses to read the law publicly:  “When all Israel comes to appear…you shall read this law before them in their hearing.  Assemble the people…so they can listen and learn to…follow carefully all the words of this law.”  In Deuteronomy 27:8, Moses tells the people to write the whole law on publicly displayed plastered stones: “You shall write very clearly all the words of this law on these stones you have set up.”

[14]  In Deuteronomy 19:15-18, Moses says that “a matter must be established by the testimony of two or three witnesses,” that those in a dispute must stand before the judges, and that the judges “must make a thorough investigation.”   In Numbers 35:9-12, Moses tells the Israelites to designate cities of refuge to where those who accidentally kill someone may flee, so that “anyone accused of murder may not die before they stand trial before the assembly.”  In Deuteronomy 19:10, Moses says to designate such cities of refuge “so that innocent blood will not be shed in your land.”

[15]  In Matthew 5:17, Jesus tells the people, “‘Do not think that I have come to abolish the Law or the Prophets; I have not come to abolish them but to fulfill them.’”  In Matthew 22:37-40, Jesus tells the Pharisees the two greatest commandments:  “‘‘Love the Lord your God with all your heart and with all your soul and with all your mind.’  This is the first and greatest commandment.  And the second is like it: ‘Love your neighbor as yourself.’  All the Law and the Prophets hang on these two commandments.’”  These two commandments are also revealed in Deuteronomy 6:5, Leviticus 19:18, Matthew 7:12, Matthew 19:19, Mark 12:28-31, Luke 6:31, Luke 10:25-28, Romans 13:9-10, Galatians 5:14, and James 2:8.

[16]  Benjamin Rush, The Road to Fulfillment (New York:  Harper & Brothers, 1942), 15.

[17]  John Witherspoon, “The Yoke of Christ,” in The Works of John Witherspoon, in Four Volumes, 2nd ed., vol. 2, ed. John Rodgers (Philadelphia:  William W. Woodward, 1802), 296-297.

[18]  Allen C. Johnson et al., Ancient Roman Statutes: A Translation with Introduction, Commentary, Glossary, and Index, ed. Clyde Pharr (Austin, TX:  U of Texas Press, 1961), table 9, law no. 1-2, 12.

[19]  Johnson, Ancient Roman Statutes, table 9, law no. 6, 12.

[20]  James Wilson, Lectures on Law, 1790-1791, vol. 2, in The Works of the Honourable James Wilson, ed Bird Wilson (Philadelphia:  Bronson and Chauncey, 1804), 15.

[21]  Thomas Cooper, ed., The Institutes of Justinian, with Notes, 2nd ed. (New York:  Halsted & Voorhies, 1841), bk.1, t1. 3, 6; Charles H. Monro, trans., The Digest of Justinian, vol. 1 (Cambridge:  Cambridge U Press, 1904), bk. 1, tl. 10, 5.  These three precepts of Natural Law were originally expressed by c170-228 AD ancient Roman jurist Ulpian who stated in his Juris Praecepta or Legal Rules, “The basic principles of right are:  to live honorably, not to harm any other person, to render to each his own.”

[22]  Plato, Socrates:  Plato’s Apology of Socrates and Crito with a Part of His Phaedo, trans. Benjamin Jowett (New York:  Century Co., 1903), 103.

[23]  Fred Blume, trans., Code of Justinian, George W. Hopper Law Library, Univ. of Wyoming, <www.uwyo.edu/lawlib/blume-justinian/> (8 June 2021), 1.14.3.

[24]  Blume, Code of Justinian, 1.14.10.

[25]  Blume, Code of Justinian, 1.14.4.

[26]  Benjamin Thorpe, Ancient Laws and Institutes of England (Printed by Command of King William IV, Commissioners on the Public Records of the Kingdom, 1811), 25.  Alfred’s Doom Book explains of its Bible-inspired laws, “These are the dooms [or laws] which the Almighty God himself spake unto Moses, and commanded him to keep:  and after the only begotten son of the Lord, our God, that is, our Savior Christ, came on earth, he said [in Matthew 5:17] that he came not to break nor to forbid these commandments, but with all good to increase [or fulfill] them: and mercy and humility he taught [brackets mine].”

[27]  Thorpe, Ancient Laws, sect. 43, 24.

[28]  Thorpe, Ancient Laws, 26.

[29]  See also Francis N. Lee, King Alfred the Great and Our Common Law (Lulu.com, 2005; London:  Bexley Christian Publications, 2006).

[30]  Ernest F. Henderson, trans. and ed., Select Historical Documents of the Middle Ages, bk. 1 (London:  George Bell and Sons, 1905), sect. 52, 144; sect. 60, 146.

[31]  Henderson, Select Historical Documents, sect. 39 and 40, 142-143, 144.  The phrase “due process” first appeared in a 1354 law in England in place of “the law of the land” to express the same idea.

[32]  Henrici de Bracton, Legibus et Consuetudinibus Angliae, vol. 1, ed. Travers Twiss (London:  Longman & Co., 1878), 21.

[33]  John Fortescue, De Laudibus Legum Angliae:  A Treatise in Commendation of the Laws of England, ed. Andrew Amos, trans. Francis Gregor (Cincinnati, OH:  Robert Clarke & Co., 1874), 49.  Fortescue’s In Praise was first published in 1543.

[34]  James Wilson, Lectures on Law, 1790-1791, vol. 1, pt. 1, in The Works of the Honourable James Wilson, ed. Bird Wilson (Philadelphia:  Bronson and Chauncey, 1804), 206.

[35]  Russell Kirk, The Roots of American Order, Third Edition (Washington, DC:  Regnery Gateway, 1991), 371.

[36]  Kirk, Roots, 185.

[37]  1 Samuel 8:6-9 says, “But when they [the Israelites] said, ‘Give us a king to lead us,’ this displeased Samuel; so he prayed to the Lord.  And the Lord told him:  ‘Listen to all that the people are saying to you; it is not you they have rejected, but they have rejected me as their king.  As they have done from the day I brought them up out of Egypt until this day, forsaking me and serving other gods, so they are doing to you.  Now listen to them; but warn them solemnly and let them know what the king who will reign over them will claim as his rights.’”

[38]  Samuel Rutherford, Lex, Rex, or the Law and the Prince, 1644 (Edinburgh:  Robert Ogle and Oliver & Boyd, 1843), Question XVIII, 74.

[39]  Rutherford, Lex, Rex, Question XXVI, 128.

[40l]  Rutherford, Lex, Rex, Question XXVI, 131.

[41]  Rutherford, Lex, Rex, Question XXVI, 126.

[42]  Rutherford, Lex, Rex, Question XXVI, 129.

[43]  Thomas Hooker cited Samuel Rutherford’s 1636 Apologetical Exercises for Divine Grace in his 1648 Survey of the Summe of Church-Discipline on church governance.  The Puritans also shared similar political views as Rutherford.

[44]  Edward Coke, The Institutes of the Laws of England, Proeme, 1628-1644, part 2 (London:  Printed for E. and R. Brooke, 1797), ch. 29, sect. 8, 50.

[45]  Edward Coke, The Institutes of the Laws of England, Concerning the Jurisdiction of the Courts, 1628-1644, part 4 (London:  Printed for E. and R. Brooke, 1797), ch. 1, 40-41; Coke, Institutes, part 2, ch. 29, sect. 8, 50.

[46]  Coke, Institutes, part 4, ch. 47, 239; Coke, Institutes, part 2, ch. 11, 102-103.

[47]  Coke, Calvin’s Case, part 7, 12-13.

[48]  Thomas Jefferson to James Madison, Monticello, 17 February 1826, in Memoir, Correspondence, and Miscellanies:  From the Papers of Thomas Jefferson, vol. 4, ed. Thomas J. Randolph (Charlottesville, VA:  F. Carr & Co, 1829), 426.  Jefferson referred specifically to the first volume of Coke’s Institutes; John Rutledge to His Brother, Charleston, 30 July 1769, in John B. O’Neall, Biographical Sketches of the Bench and Bar of South Carolina, vol. 2 (Charleston, SC:  S. G. Courtenay & Co., 1859), 124.

[49]  William S. Holdsworth, A History of English Law, in Seven Volumes, vol. 5 (Boston:  Little, Brown, and Company, 1924), 493.

[50]  John Locke, The Reasonableness of Christianity, As Delivered in the Scriptures, 2nd ed. (London:  Printed for Awnsham and John Churchil at the Black Swan, 1696), 17-18.  See also John Locke’s Essays on the Law of Nature and Second Treatise of Civil Government.

[51]  Locke, Reasonableness, 22.

[52]  John Locke, Second Treatise of Civil Government, 1690, in Two Treatises on Government, Book 2 (London:  George Routledge and Sons, 1884), ch. 11, sect. 135, 262.

[53]  Locke, Second Treatise, ch. 4, sect. 22, 202.

[54]  Locke, Second Treatise, ch. 11, sect. 142, 266.

[55]  Locke, Second Treatise, ch. 2, sect. 5, 193.

[56]  Benjamin Rush, Observations Upon the Present Government in Pennsylvania:  In Four Letters to the People of Pennsylvania (Philadelphia:  Printed by Styner and Cist, 1777), 20.  Founder John Adams in his 1787 Defense of the Constitutions of Government of the United States of America also acknowledged Locke’s impact on American government:  “There have been three periods in the history of England, in which the principles of government have been anxiously studied, and very valuable productions published, which…are perhaps more frequently read abroad than at home.  …  The third period was the [English] Revolution of 1688, which produced Sidney, Locke…and others without number.”

[57]  Thomas Jefferson to John Norvell, Washington, 11 June 1807, in The Writings of Thomas Jefferson, vol. 11, ed. Albert E. Bergh (Washington, DC:  Thomas Jefferson Memorial Association, 1905), 222.

[58]  Blackstone, Commentaries, vol. 1, bk. 1, pt. 1, sect. 2, 40.

[59]  Blackstone, Commentaries, vol. 1, bk. 1, pt. 1, 41.

[60]  Kirk, Roots, 370.

[61]  Thomas Hooker, Survey of the Summe of Church-Discipline, 1648, ed. Thomas Goodwin (London:  Printed by A. M. for John Bellamy, 1648), part 1, ch. 11, 185.

[62]  William Bradford, Of Plymouth Plantation, 1602-1646, excerpt in The Mayflower Papers:  Selected Writings of Colonial New England, eds. Nathanial Philbrick and Thomas Philbrick (New York:  Penguin Classics, 2007), 14.

[63]  Donald S. Lutz, Mayflower Compact, 1620, in Roots of the Republic:  American Founding Documents Interpreted, ed. Stephen L. Schechter (Madison, WI:  Madison House, 1990), 21.

[64]  See also Daniel Dreisbach, “The Mayflower Compact:  1620 and the Formation of the American Republic,” mod. David Randall, National Association of Scholars, 18 March 2021 <https://www.youtube.com/user/NAScholars> <https://www.youtube.com/watch?v=Ipy6OLrwgUI> (18 March 2021).

[65]  Daniel Dreisbach, “The Mayflower Compact:  1620 and the Formation of the American Republic,” mod. David Randall, National Association of Scholars, 18 March 2021 <https://www.youtube.com/user/NAScholars> <https://www.youtube.com/watch?v=Ipy6OLrwgUI> (18 March 2021).

[66]  New King James Version (NKJV)

[67]  Thomas Hooker to John Winthrop, Fall 1638, in Collections of the Connecticut Historical Society, vol. 1 (Hartford, CT:  Published for the Connecticut Historical Society, 1860), 11.

[68]  Massachusetts General Court, Massachusetts Body of Liberties, 1641, in Documents of the Constitution of England and America:  From Magna Carta to the Federal Constitution of 1789, ed. Francis Bowen (Cambridge, MA:  John Bartlett, 1854), 58.

[69]  Massachusetts General Court, Massachusetts Body of Liberties, 60.

[70]  Dreisbach, “Mayflower Compact,” <https://www.youtube.com/watch?v=Ipy6OLrwgUI>.

[71]  Alexis de Tocqueville, Democracy in America, 1831-1832, ed. Richard Heffner (New York:  Penguin Books, 1956, 1984), 45-6.

[72]  Samuel Adams, Address to the Legislature of Massachusetts, 17 January 1794, in The Writings of Samuel Adams, 1778-1802, vol. 4, ed. Harry A. Cushing (New York:  G. P. Putnam’s Sons, 1908), 356.

[73]  Wilson, Lectures, vol. 1, 155; Wilson, Lectures, vol. 1, 293.

[74]  Wilson, Lectures, vol. 1, 308.

[75]  Wilson, Lectures, vol. 1, 64.

[76]  John Adams, Diary, Notes of a Debate in the Senate of the United States, 24 August 1796, in The Works of John Adams, Second President of the United States, vol. 3, ed. Charles F. Adams (Boston:  Charles C. Little and James Brown, 1851), 423.

[77]  Benjamin Rush, Of The Mode of Education Proper in a Republic, 1786, in Essays, Literary, Moral and Philosophical, 2nd ed. (Philadelphia:  Printed by Thomas and William Bradford, 1806), 8-9.

[78]  Samuel Adams, Report on the Rights of Colonists, 20 November 1772, in The Writings of Samuel Adams, 1770-1773, vol. 2, ed. Harry A. Cushing (New York:  G. P. Putnam’s Sons, 1906), 352.

[79]  Wilson, Lectures, vol. 1, 118; Wilson, Lectures, vol. 1, 310.

[80]  Wilson, Lectures, vol. 1, 104-106.

[81]  James McHenry, Address of the Baltimore Bible Society to the Citizens of Maryland, 1813, in Bernard C. Steiner, The Maryland Bible Society, One Hundred and Ten Years of Bible Society Work in Maryland, 1810-1920 (Baltimore, MD:  Maryland Bible Society, 1921), 13-14.

[82]  Wilson, Lectures, vol. 2, 466-467.

[83]  Wilson, Lectures, vol. 1, 371.

[84]  Samuel Adams, Letter of the House of Representatives of Massachusetts to the Earl of Shelburne, 15 January 1768, in The Writings of Samuel Adams, 1764-1769, vol. 1, ed. Harry A. Cushing (New York:  G. P. Putnam’s Sons, 1904), 155.

[85]  Samuel Adams, Rights of Colonists, 352.

[86]  Samuel Adams, Rights of Colonists, 357.  Adams is drawing from Locke’s Second Treatise, sect. 136, 262.  Locke recognized the need for “known authorized judges.”

[87]  Samuel Adams, Rights of Colonists, 353.

[88]  John Adams, Letter from John Adams to John Penn, January 1776, in The Works of John Adams, Second President of the United States, vol. 4, ed. Charles F. Adams (Boston:  Charles C. Little and James Brown, 1851), 207.

[89]  John Adams, Report on the Form of Government for the Commonwealth of Massachusetts, 1 September 1779, in The Works of John Adams, Second President of the United States, vol. 4, ed. Charles F. Adams (Boston:  Charles C. Little and James Brown, 1851), 229.

[90]  John Adams, Report on the Form of Government, 219-220.

[91]  John Quincy Adams, “The Nation’s Birth-Day,” Address at Washington, 4 July 1821, in Niles’ Weekly Register, Mar-Sept 1821 (Baltimore, MD), vol. 20, no. 21 (Mar-Sept, 21 July 1821): 331.

[92]  Samuel Adams, Rights of Colonists, 357.  Adams is quoting Locke’s Second Treatise, sect. 142, 266.

[93]  Tocqueville, Democracy in America, 34.

[94]  Wilson, Lectures, vol. 2, 466-467.

[95]  Joseph Story, A Discourse Pronounced Upon the Inauguration of the Author, as Dane Professor of Law in Harvard University, 25 August 1829 (Boston, MA:  Hilliard, Gray, Little, and Wilkins, 1829), 20-21.

[96]  Thomas Paine, Common Sense, 1776, in The Works of Thomas Paine, in Two Volumes, vol. 1 (Philadelphia:  Printed by James Carey, 1797), 10-11.

[97]  Paine, Common Sense, 30.

[98]  James Madison, Federalist Paper 62, 1788, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Penguin, 1961), 381.

[99]  Thomas Jefferson, Resolutions Relative to the Alien and Sedition Laws, 1798, in The Writings of Thomas Jefferson, Definitive ed., vol. 17, ed. Albert E. Bergh (Washington, DC:  Thomas Jefferson Memorial Association, 1907), 389.  Jefferson’s resolutions are understood to be the original draft of the Kentucky Resolutions of 1798.

[100]  John Adams, Thoughts on Government, Applicable to the Present State of the American Colonies, in a Letter From a Gentleman to His Friend, 1776, in The Works of John Adams, Second President of the United States, vol. 4, ed. Charles F. Adams (Boston:  Charles C. Little and James Brown, 1851), 194.

[101]  John Adams, Novanglus, or A History of the Dispute with America, From Its Origin in 1754 to the Present Time, 1774, in The Works of John Adams, Second President of the United States, vol. 4, ed. Charles F. Adams (Boston:  Charles C. Little and James Brown, 1851), 106; John Adams, Constitution of the Commonwealth of Massachusetts, 1779, in The Works of John Adams, Second President of the United States, vol. 4, ed. Charles F. Adams (Boston:  Charles C. Little and James Brown, 1851), 230.

[102]  Alexander Hamilton, Federalist Paper 78, 1788, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Penguin, 1961), 467.

[103]  James Madison, Federalist Paper 53, 1788, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Penguin, 1961), 331.

[104]  See Hamilton, Federalist Paper 78, 469.

[105]  Hamilton, Federalist Paper 78, 466-467.

[106]  James Madison, Federalist Paper 47, 1788, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Penguin, 1961), 302; Hamilton, Federalist Paper 78, 466.  Charles de Montesquieu in his 1748 The Spirit of the Laws (vol. 1) theorized the three branches of government–legislative, executive, and judicial.  The Americans were the first in the world to implement this three-branched system of government, with a separate judicial branch.

[107]  Madison, Federalist Paper 47, 303.

[108]  Hamilton, Federalist Paper 78, 465.

[109]  Kirk, Roots, 371.

[110]  Story, Commentaries on the Constitution of the United States, vol. 1, sect. 377-378, 349-350.

[111]  Kirk, Roots, 191.

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Contributed by AHEF and Angela E. Kamrath.

A brief overview of this essay as well as the full essay (with endnotes) is available as printable PDF handouts in the member resources section on americanheritage.org.  Simply sign up and login as a member (no cost), go to the resources page, and look under Miracle of America topic essays.

Source for more information:  Kamrath, Angela E.  The Miracle of America:  The Influence of the Bible on the Founding History and Principles of the United States of America for a People of Every Belief.  Second Edition.  Houston, TX:  American Heritage Education Foundation, 2014, 2015, 2020.  Third Edition (2020) is now available!

Related articles/videos:
1.  The Principle of Popular Sovereignty–the People’s Rule–in the U. S. Declaration and Constitution
2.  The Principle of Rule of Law
3.  Who Were the Pilgrims?  Why Did They Come to America?
4. The Pilgrim’s Mayflower Compact:  The Pilgrims’ First Self-Governing Act in America
5.  The Puritans in America Created the First Written Constitutions of Law
6.  Why the Puritans Favored Limited Government
7.  Why the Puritans in America Favored Rule of Law 
8.  Who Created the First Written Constitution in History?

9.  America’s Founding Philosophy in the Declaration:  God as Supreme Judge, Lawgiver, & King
10.  The Creator God in the Declaration:  The Basis of Authority, Law, & Rights for Mankind in the United States
11.  The Law of Nature in the Declaration:  The Universal Moral Law of Mankind
12.  The Law of Nature in the Bible
13.  The Law of Nature and Nature’s God in the Declaration:  One Moral Law Revealed by God in Two Ways
14.  The law of Nature and Nature’s God in the Declaration:  The American Basis and Standard for Just Civil Law
15. The Principle of Rule of Law in the Constitution
16.  The Bible-Inspired Influences on the U. S. Constitution and Bill of Rights
17.  The Principles of Limited Government and Separation of Powers in the U. S. Constitution
18.  The Moral Dimension of Rule of Law in the U. S. Constitution – A Brief Overview
19.  The Moral Dimension of Rule of Law in the U. S. Constitution (Unabridged)

Poster:  Declaration of Independence

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Lesson:  The Miracle of America High School Teacher Course Guide, Unit 8, Part 1, Activity 3:  Principles of the U. S. Constitution, p. 270.  MS-HS.

Principles of the U. S. Constitution….  

Purpose/Objective:  Students learn key principles of the United States Constitution including limited government, separation of powers, and checks and balances, and how influential thinkers and early Americans connected these concepts with the Bible.

Suggested Readings:
1)  Miracle of America book sections 1.1-3, 2.4, 2.6, 3.2, 3.4, 3.6-10, 6.5, 7.2-3, 7.10-11, 7.14, 7.18, 8.3, 8.5-7, 8.11, 8.19
2)  Principles of the United States Constitution handout by Angela E. Kamrath.  See “Supporting Resources”, pp. 392-396, in Miracle of America HS Teacher Course Guide, or “Miracle of America Snapshots” in member resources at www.americanheritage.org.

Activity:  Readings and Questions
Have students read the “Principles of the United States Constitution” handout and, as desired, relevant sections in Miracle of America text as indicated on the handout. (The Miracle book is high-level reading, so if you wish to have students read directly from the book, assign specific sections (not too much) and then analyze and discuss the reading together as a class. You may wish to project some text on-screen. Answer questions, clarify vocabulary, and fill in other information as needed. The text analysis will help students grasp the terms and concepts, and it is great practice for having students read historical text.) After the reading, students write answers to the questions that follow on the handout. Discuss. See “Principles of the United States Constitution” reading and questions in the “Supporting Resources” section of this course guide, pp. 392-396. (These and other review questions are also found in chapter 8 of the Miracle of America text/sourcebook, p. 297).

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To download this whole unit, sign up as an AHEF member (no cost) to access the “resources” page on americanheritage.org.  To order the printed binder format of the course guide with all the units, go to the AHEF bookstore.

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This blog is provided by the American Heritage Education Foundation (AHEF).  AHEF is a non-profit organization dedicated to the understanding and teaching of America’s founding philosophy, principles, documents, and history.  AHEF’s work is made possible by the donations of private individuals and organizations.  Please consider a tax-deductible donation to AHEF to support our mission.  Thank you!

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A Brief Overview: The Moral Dimension of Rule of Law in the U. S. Constitution

July 1, 2021
The Founding

Lady Justice is a centuries-old personification of the concept of justice—depicted with a blindfold, scales, and a sword–representing impartiality, weighing of evidence, and authority.  A similar image appears at the entrance of the U. S. Supreme Court.  The U. S. Supreme Court bears the motto, “Equal Justice Under Law.”

The following is a brief overview of the essay, The Moral Dimension of Rule of Law in the U. S. Constitution:

  • Introduction
  • The Natural Law Tradition
  • The Biblical Law Tradition
  • The Rule of Law in Roman Law
  • The Rule of Law in English Common Law Tradition
  • The Rule of Law in Modern British Thought
  • The Rule of Law in the American Puritan Colonies
  • The Moral Law in American Thought and Jurisprudence
  • The Rule of Law in American Thought and Jurisprudence
  • The Rule of Law in the U. S. Constitution and American Common Law
  • Conclusion
  • Related Readings and Teaching Activity

Introduction

Rule of Law is the governing principle of a state in which just, fixed laws act as supreme authority versus rulers’ arbitrary exercise of power.  By this principle, everyone, including those in power, are subject to and equal before the law.  No one is above the law, and the law protects the rights of every citizen.  To be supreme, the law must be just and thus moral.

This principle differs from “Ruler’s Law” or the “Law of the Ruler” in which a governing body may arbitrarily govern its citizens as subjects, slaves, or serfs–without meaningful accountability.

Ruler’s Law has been the historical norm for most of man’s 6,000 years of recorded governmental history in the form of monarchy, autocracy, plutocracy, aristocracy, oligarchy, empire, and military dictatorship.  The characteristics of Ruler’s Law are the following: … 

Though not the norm in history, Rule of Law can be traced back to Mesopotamian, Hebraic, Greco-Roman and Judeo-Christian civilizations.

The American founding is a successful, modern example of a large nation practicing Rule of Law.  American citizens, both religious and non-religious, live peacefully and with equal protection of rights under a tradition of Natural Law, Natural Rights, and Biblical Law principles that are the foundation of Rule of Law in this nation.

The Natural Law Tradition

The Natural Law tradition originates from the worldview that humanity must be governed by timeless moral principles versus temporary, man-made, fabricated decrees that can be changed by the next ruler in power.  This tradition has been recognized by both secular and religious sources, and it is a major influence on the moral dimension of Rule of Law in America because it treats everyone as equal.

Important modern Western thinkers who defended Rule of Law recognized the Law of Nature.  In his 1600-1615 Law Reports, British justice Edward Coke explains the nature and purpose of the Law of Nature in biblical terms:  …

English judge William Blackstone in his 1765-1769 Commentaries on the Laws of England notably described the content of the Law of Nature with the three precepts from the Romans–that “we should live honestly, hurt nobody, and render to everyone his due.”  He described the application of this law as supremely authoritative and universal–“superior in obligation to any other” and “binding over all the globe in all countries, at all times.”

Supported by both secular and religious sources over centuries, the Natural Law tradition became a key part of Western thought and jurisprudence.  It is, as observed by Dr. John Tyler, “the oldest tradition in Western jurisprudence.”

The Natural Law tradition is an important influence on the moral justification for Rule of Law in America, in setting the moral standard required for just law and governance.

In contrast to the oppressive control of citizens and the inconsistent application of law by rulers under Ruler’s Law, Rule of Law, beginning with the Natural Law Tradition, provides equal, fair, and respectful treatment of every citizen regardless of status, race, or creed.

The Biblical Law Tradition

The Bible acknowledges and reinforces the Law of Nature.  The Bible demonstrates Rule of Law in three contexts of law:  in the Law of Nature, the Law of Moses, and the Judeo-Christian Golden Rule.  Each context supports Rule of Law by illustrating and confirming the standard of just civil law and government.

First, the Law of Nature informs and supports Rule of Law by its moral content and universal application to all mankind, being written by on the heart of man.

Second, the Mosaic Law supports Rule of Law by its impartial application to all the ancient Israelites, both rulers and people.  The Mosaic Law instructed the Israelites to follow the “sentence of the law” and to “not show partiality to the poor or favoritism to the great, but judge your neighbor fairly” and to “hear the small as well as the great.”

Third, the Judeo-Christian Golden Rule in Matthew 22:37-39 supports Rule of Law by providing the content of God’s Moral Law to “love your neighbor as yourself,” “do unto others what you would have them do to you,” and “do no harm to a neighbor.”  It also supports Rule of Law by its equal, fair, respectful, and just application of this law to all of God’s people.

The Biblical Law tradition is consistent with the Natural Law tradition because it upholds the same Moral Law.  Indeed, one Moral Law is conveyed in both traditions.

The Moral Law traditions provide a consistent moral standard for just civil law and government that supports Rule of Law.

The Rule of Law in Roman Law

Roman Law played a notable role in the moral development of Rule of Law in the Western world—-including in England and, ultimately, in America.

The ancient Romans applied Rule of Law when they created their first body of written laws known as the Twelve Tables in 451 BC.  Because the ruling-class of judges often decided peoples’ legal cases arbitrarily and based on their own interests, commoners demanded fixed, definitive laws that were the same for everyone.  Ten men or Decemviri thus engraved a set of laws on twelve stone tablets and publicly displayed them so that everyone could know and apply them.  The Twelve Tables ensured that commoners received fair, equal treatment and protection of rights.

The Twelve Tables upheld equality in law, stating, “Laws of personal exception shall not be proposed. It also upheld due process of law–in which no one can be denied one’s rights without proper legal procedure and just judgment according to the law.  It states, “Anyone whomsoever to be put to death without a trial and unconvicted…is forbidden.”

American Founder James Wilson observed in his 1790-1791 Lectures on Law, “The Decimvirs declared…that the laws should be equal and impartial to the high and to the low.”

Emperor Justinian I’s 529-565 AD Corpus Juris Civilis became the codified law of the christianized Eastern Roman Empire and the basis of Roman law in Europe in the Middle Ages.  The Romans asserted that their empire was governed under God’s Moral Law and that this law was the source of just civil law.  The Romans recognized the Law of Nature in the Corpus.

The Romans described the Law of Nature with three precepts, “to live honestly, to hurt no one, and to give to every man his due.”  The precept to “injure no one” was originally expressed by Greek philosopher, Socrates, in Plato’s 380 BC Crito.

The Corpus upheld, at least in theory, the equal application of law.  It asserted that “laws shall be obeyed equally by all” and that “all, though belonging to the imperial house must live according to the laws.”  Rulers were subject to the laws since their authority “depends upon the authority of law.”

The principles of Roman law profoundly shaped English jurisprudence which, in turn, shaped American jurisprudence.  In asserting the authority, impartiality, and due process of law, and in recognizing the Law of Nature, Roman law contributed greatly to the development of Rule of Law in England and America.

The Rule of Law in English Common Law Tradition

Because English jurisprudence had a significant impact on American jurisprudence, it is important to consider the moral development of Rule of Law in English law.  Anglo-Saxon and Roman jurisprudence were instrumental in the development of common law and Rule of Law in England.

The Anglo-Saxons enacted Rule of Law in accordance with the Biblical Law tradition as seen in the Mosaic Law by making their laws impartial and equally applied to all subjects.  Their law code provided the foundation for English common law and became solidified in the 1000s – 1100s.

The Magna Carta or “Great Charter” of 1215 was an agreement between King John and his noblemen that applied the common law not only to the people but to the king and his magistrates.  It acknowledged the supreme authority of “the law of the land” over rulers and that citizens had certain rights that could not be arbitrarily abused by those in power.  Magna Carta also upheld due process of law.

In his c1470 In Praise of the Laws of England, English Chief Justice John Fortescue recognized the authority and universality of the Law of Nature: “The Law of Nature in all countries is the same.”  Roman Law principles including the Natural Law tradition were incorporated into English jurisprudence.

The phrase “Rule of Law” emerged in England around 1500.

Further, English common law operated by stare decisis, Latin for “to stand by what has been decided,” in which judges are bound to decide cases according to previous legal decisions or precedent.  The purpose of this practice is to keep the law constant, impartial, and just.  It prevents judges from deciding cases arbitrarily.

The Rule of Law in Modern British Thought

Despite the advancement of Rule of Law in the Middle Ages in England, the doctrine of “Divine Right of Kings” became prominent in the 1600s under the Stuart kings who imposed absolute monarchy–Law of the Ruler or Ruler’s Law.  This doctrine asserted that the monarch received absolute authority directly from God and was therefore not accountable to any earthly authority such as English Parliament.  The monarch’s will, acts, and decrees were the law.  In response, British thinkers including Samuel Rutherford, Edward Coke, and John Locke refuted Divine Right of Kings and reaffirmed Rule of Law.

In his 1644 Lex, Rex, Scottish theologian Samuel Rutherford supported Rule of Law based on the Biblical Law tradition, the Bible’s three contexts of law.  He asserted that all people are subject to just civil law just as they are subject to the Law of Nature, for “God’s law excepteth none at all.”  He also cited the impartiality of the Law of Moses to ”not show partiality in judgment; you shall hear the small as well as the great.”  He further asserted from the Judeo-Christian Golden Rule that kings, as human and not God, should be equally subject to the same laws as the people and should not violate the rights of subjects.  Rutherford strongly discredited Divine Right and validated Rule of Law in British and American thought.  His ideas were familiar to the American Puritans and to revolutionary writer Thomas Paine.

British Chief Justice Edward Coke defended Rule of Law over Ruler’s Law and affirmed due process of law.  In his 1628-1644 Institutes of the Laws of England, Coke explained that the English common law was called the “law of the land” in Magna Carta so that “the law might extend to all, both king and people.”  He described the common law as the “golden metwand” or measuring rod by which “all men’s causes are justly and evenly measured and appointed to measure the cases of all and singular persons, high and low, to have and receive justice.”

American Founder Thomas Jefferson described Coke’s Institutes as the “universal elementary book of law students” in America.  Coke helped to preserve Rule of Law in English and American law.

British Enlightenment philosopher John Locke supported Rule of Law as the best way to protect citizens’ rights and maintain a just and orderly society.  Locke favored Rule of Law based on the Moral Law traditions, though his presentation was largely secularized.  Locke drew on the Bible’s three contexts of law, including the universal application of Natural Law as described in Romans 2:14-15.  In his 1695 Reasonableness of Christianity and his 1689 Second Treatise of Civil Government, Locke recognized the universal application of the Law of Nature to all mankind.  Locke supported Rule of Law based on man’s equality and natural rights, and on the Moral Law as conveyed in the Moral Law traditions.

English justice William Blackstone also strongly supported Rule of Law.  His 1765-1769 Commentaries on the Laws of England taught early Americans about the Law of Nature, English common law, and Rule of Law.  Blackstone adopted the three precepts of Roman law to describe the Law of Nature–that “we should live honestly, hurt nobody, and render to everyone his due.”

Rutherford, Coke, and Locke played a vital role in affirming Rule of Law and refuting Ruler’s Law in the Divine Right of Kings.   Blackstone further reaffirmed Rule of Law with his modern, moral presentation of English common law.  Divine Right fell out of use in England after the Glorious Revolution of 1688.

The Rule of Law in the American Puritan Colonies

The American Pilgrims and Puritans, as reformed Protestant Christians, favored Rule of Law over Divine Right of Kings based on their Bible-inspired belief that only God has rightful absolute authority over His church.  God was their king.

In accordance with Biblical Law and English common law traditions, the Pilgrims’ and Puritans’ also favored Rule of Law based on their Bible-based view that all men are equal in standing before God and subject to God’s Moral Law.

The Pilgrims’ Mayflower Compact of 1620 initiated Rule of Law in America because it placed all signers and their families, regardless of status, on equal standing in the new colony and in subjection to the colony’s future laws–with God as Supreme Judge and King (versus an earthly king).  The Mayflower Compact was the “first expression” of such political equality in America and created a framework for Rule of Law in America.  “The Pilgrims, more than any others,” says Dr. Daniel Dreisbach, “laid the foundation for an American political tradition committed to the Rule of Law.”

To implement Rule of Law, the Puritans created constitutions of law for their new colonies in America.  Their Constitutions upheld the “sentence of the law” in line with Rule of Law and the Biblical Law tradition.  Their constitutions—in their form, purpose and application—resembled in some ways biblical and common law documents such as Moses’ Ten Commandments and Magna Carta which adhered to Rule of Law.

The Moral Law in American Thought and Jurisprudence

In accordance with their philosophical beliefs, founding-era Americans upheld and aligned with the Moral Law traditions when shaping America’s jurisprudence, civil laws, and government.  In doing so, they also aligned with and adopted important principles of Roman, British, and American colonial jurisprudence.  Early Americans agreed with Blackstone’s Moral Law precepts to “live honestly, hurt no one, and render to everyone his due” and the universal impartial, equal application of this law to all people based on man’s equality.  Further, they believed that the Moral Law–in both content and application–is the foundation of just civil law.

Founder Samuel Adams, in his 1794 Address to the Legislature of Massachusetts, affirmed the Moral Law from both the Natural and Biblical Law traditions.  He expresses:  …

American Founder and U. S. Supreme Court Justice James Wilson in his 1790-1791 Lectures on Law similarly recognized the Moral Law from these traditions.  The Moral Law’s content, he says, alluding to Blackstone, “prohibits injury and commands the reparation of damage done” and “fidelity to our engagements.”  On the Moral Law’s application, Wilson cited Romans 2:14-15 in stating that this law is “engraven by God on the hearts of men.”  Echoing the Mosaic law to “hear the small as well as the great,” he says that natural rights are given “in the same manner, to all; to the weak and artless, their small acquisitions, as well as to the strong and artful, their large ones.”

Founder John Adams saw the relevance and benefit of the Moral Law, as expressed in the Golden Rule, for all Americans.  He writes in his 1796 Senate notes, “One great advantage of the Christian Religion is, that it brings the great principle of the Law of Nature and nations–Love your neighbor as yourself, and do unto other as you would have others do to you,–to the knowledge, belief and veneration of the whole principle.”

Founder James McHenry described the Moral Law in the Bible as a worthy guide for American Law.  In his 1813 address for the Baltimore Bible Society, he states, “The Old and New Testaments taken together, are the only books in the world which clearly reveal the nature of God, contain a perfect law for our government, propose the most powerful persuasions to obey this law.”

Early Americans’ alignment with the Moral Law traditions led them to create and/or aspire to just civil laws and government that reflect this Moral Law in both its content and application.  John Quincy Adams, quoting John Locke, reiterated this view in his 1772 Report on the Rights of Colonists:  …

Encompassing both secular and religious moral worldviews and traditions, the American Declaration of Independence of 1776 upholds the Moral Law traditions in acknowledging a “Creator” and the “Laws of Nature and Nature’s God” on which Americans base their rights, civil laws, and constitution.  Both religious and non-religious early Americans viewed the Moral Law as the firm basis for just government and civil law.

The Rule of Law in American Thought and Jurisprudence

Early Americans drew in part from the Moral Law tradition to inform the governing principle and practice of Rule of Law in the United States.  The content and application of God’s universal Moral Law led them to implement Rule of Law as the most just and fair means of governance for the new nation.

Founding-era Americans saw in the Moral Law traditions consistency with Rule of Law.  In contrast to the arbitrary, inconsistent application of Ruler’s Law, God’s Moral Law demonstrates an equal application of law that supports Rule of Law.  In his 1772 Rights of Colonists, Samuel Adams defends Rule of Law.  Quoting Locke and resounding the Mosaic Law to “show no partiality to the poor or favoritism to the great,” he states, … 

Early Americans specifically affirmed that American common law is rooted in the Moral Law traditions.  Founder James Wilson expressed the influence of the Natural Law tradition on American law, stating,  “Man’s rights are to be free from injury, and to receive the fulfillment of the engagements, which are made to him.  His duties are, to do no injury, and to fulfill the engagements, which he has made.  One these two pillars…rest the criminal and the civil codes of the municipal law.”

U. S. Supreme Court Judge Joseph Story, a Blackstonian advocate of common law in America and one of America’s early commentators on American jurisprudence, pointed out how American law is rooted in the Biblical Law tradition. He states in a 1829 speech:  …

During the American Revolution from 1775-1783, English political writer Thomas Paine further validated the Rule of Law from the Moral Law traditions with his influential 1776 political pamphlet, Common Sense.  Paine reiterated the biblical arguments found in Samuel Rutherford’s Lex, Rex:  …

The American Founders defended and instituted Rule of Law as the best means of governance for the new nation and states of the United States.  As Founder John Adams affirmed, the American Founders sought to create a good and just “government of laws, and not of men.”

The Rule of Law in the United States Constitution and American Common Law

The U. S. Constitution of 1787 as the “law of the land” secures Rule of Law in serving as the supreme governing authority in the nation, requiring civil servants to enforce the law, upholding due process and equal protection of the law, and creating an independent judicial branch.  The American judicial system upholds Rule of Law in abiding by American common law including stare decisis.

The U. S. Constitution secures Rule of Law in being considered the supreme authority in the United States.  Article 6 of the U. S. Constitutions states, “This Constitution and the Laws of the United States which shall be made pursuant thereof…shall be the Supreme Law of the land.”  No civil law is considered legal or legitimate if inconsistent with this fundamental law.

The Constitution also secures Rule of Law by providing all citizens with due process and equal protection of the law.  Amendment 14 states, “Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Russell Kirk affirms that “the basis of American law….is the common law which began to develop in England nine hundred years ago” and that “in America, common-law principles would upon work public affairs more powerfully than any other influences except Protestant Christianity and the colonial social experience itself.”

The U. S. Constitution upholds Rule of Law in serving as the supreme authority by which all people, their representatives, and other civil laws must abide and by which all citizens are protected of their rights and freedoms.

Conclusion

The American Founders created a new nation, the United States of America, governed by Rule of Law that was designed to treat all people equally and fairly under the law.  For they had learned from history and their own experience that the arbitrary, subjective, and inconsistent application of law under Ruler’s Law often resulted in the unjust oppression of people and their rights.  As supported by the Natural Law and Biblical Law traditions and by Roman, British, and American jurisprudence, founding-era Americans embraced the philosophical principle of Rule of Law as the best means of governance for the protection of citizens’ rights.  Rule of Law provides for the fair, equal, and respectful treatment of every citizen regardless of status, race, or creed.

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Contributed by AHEF and Angela E. Kamrath / Summary Overview by Jack R. Kamrath.

This brief overview as well as the full essay (with endnotes) of The Moral Dimension of Rule of Law in the U. S. Constitution by Angela E. Kamrath are available as printable PDF handouts in the member resources section on americanheritage.org.  Simply sign up and login as a member (no cost), go to the resources page, and look under Miracle of America topic essays.

Source for more information:
Kamrath, Angela E.  The Miracle of America:  The Influence of the Bible on the Founding History and Principles of the United States of America for a People of Every Belief.  Second Edition.  Houston, TX:  American Heritage Education Foundation, 2014, 2015, 2020.  Third Edition (2020) is now available!

Related articles/videos:
1.  The Principle of Popular Sovereignty–the People’s Rule–in the U. S. Declaration and Constitution
2.  The Principle of Rule of Law
3.  Who Were the Pilgrims?  Why Did They Come to America?
4. The Pilgrim’s Mayflower Compact:  The Pilgrims’ First Self-Governing Act in America
5.  The Puritans in America Created the First Written Constitutions of Law
6.  Why the Puritans Favored Limited Government
7.  Why the Puritans in America Favored Rule of Law 
8.  Who Created the First Written Constitution in History?

9.  America’s Founding Philosophy in the Declaration:  God as Supreme Judge, Lawgiver, & King
10.  The Creator God in the Declaration:  The Basis of Authority, Law, & Rights for Mankind in the United States
11.  The Law of Nature in the Declaration:  The Universal Moral Law of Mankind
12.  The Law of Nature in the Bible
13.  The Law of Nature and Nature’s God in the Declaration:  One Moral Law Revealed by God in Two Ways
14.  The law of Nature and Nature’s God in the Declaration:  The American Basis and Standard for Just Civil Law
15. The Principle of Rule of Law in the Constitution
16.  The Bible-Inspired Influences on the U. S. Constitution and Bill of Rights
17.  The Principles of Limited Government and Separation of Powers in the U. S. Constitution
18.  The Moral Dimension of Rule of Law in the U. S. Constitution – A Brief Overview
19.  The Moral Dimension of Rule of Law in the U. S. Constitution (Unabridged)

Poster:  Declaration of Independence

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Lesson:  The Miracle of America High School Teacher Course Guide, Unit 8, Part 1, Activity 3:  Principles of the U. S. Constitution, p. 270.  MS-HS.

Principles of the U. S. Constitution….  

Purpose/Objective:  Students learn key principles of the United States Constitution including limited government, separation of powers, and checks and balances, and how influential thinkers and early Americans connected these concepts with the Bible.

Suggested Readings:
1)  Miracle of America book sections 1.1-3, 2.4, 2.6, 3.2, 3.4, 3.6-10, 6.5, 7.2-3, 7.10-11, 7.14, 7.18, 8.3, 8.5-7, 8.11, 8.19
2)  Principles of the United States Constitution handout by Angela E. Kamrath.  See “Supporting Resources”, pp. 392-396, in Miracle of America HS Teacher Course Guide, or “Miracle of America Snapshots” in member resources at www.americanheritage.org.

Activity:  Readings and Questions
Have students read the “Principles of the United States Constitution” handout and, as desired, relevant sections in Miracle of America text as indicated on the handout. (The Miracle book is high-level reading, so if you wish to have students read directly from the book, assign specific sections (not too much) and then analyze and discuss the reading together as a class. You may wish to project some text on-screen. Answer questions, clarify vocabulary, and fill in other information as needed. The text analysis will help students grasp the terms and concepts, and it is great practice for having students read historical text.) After the reading, students write answers to the questions that follow on the handout. Discuss. See “Principles of the United States Constitution” reading and questions in the “Supporting Resources” section of this course guide, pp. 392-396. (These and other review questions are also found in chapter 8 of the Miracle of America text/sourcebook, p. 297).

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To download this whole unit, sign up as an AHEF member (no cost) to access the “resources” page on americanheritage.org.  To order the printed binder format of the course guide with all the units, go to the AHEF bookstore.

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The Principles of Limited Government and Separation of Powers in the U. S. Constitution

July 24, 2020
The Founding

 

Washington as Statesman at the Constitutional Convention by Junius Brutus Stearns, 1856.

When the American Founders wrote the United States’ Constitution of 1787, they created a new form of government for the nation based on early Americans’ philosophical beliefs about mankind.  Most early Americans held a philosophical worldview—in line with the Bible—that mankind is fallible and, therefore, that civil government is necessary to restrain man’s evil in society.  They also believed that government itself should be limited in order to minimize evil within it.  To limit the central government, the Founders, inspired by philosopher Charles de Montesquieu, separated its functions and powers into three branches to create a unique American system of checks and balances never before applied in history.

Founding-era Americans’ conception of civil government was directly shaped by their philosophical view of human nature.  Most of them recognized that while mankind is created by God, possessing God-given natural rights and destined to be free, mankind with free will is also fallible.  Thus, while human beings are moral beings capable of much good, they are also corruptible and capable of much evil.  This view was supported by certain classic philosophers and the Bible as well as by human history and colonial experience.  Classic thinker Aristotle, for example, acknowledged in his 350 BCE Politics that man is full of beastly desires and passions.  He writes, “He who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men.”[1]  In the Bible, Genesis 3 tells of the Fall of Adam and Eve in the Garden of Eden, imputing sin and mortality to the human race.  In Jeremiah 3:5, God says of His people through the prophet Jeremiah, “‘You have spoken and done evil things, as you were able.’”  In Jeremiah 17:9, God confirms that “‘the heart is deceitful above all things, and desperately wicked; Who can know it?’”  The Apostle Paul similarly points out in Romans 3:10 that “‘there is none righteous, no, not one’” and in Romans 3:23 that “all have sinned and fall short of the glory of God.”[2]  The American Founders shared and similarly expressed this view of human nature.  Founder John Adams wrote in his 1787 Defense of the Constitutions of Government of the United States of America, “Trust not to human nature, without a control, the conduct of my cause.”[3]  Constitution architect James Madison wrote in Federalist Paper 37 of the “infirmities and depravities of the human character” and in Federalist Paper 55 of the “degree of depravity in mankind.”[4]  Founder Alexander Hamilton similarly acknowledged in Federalist Paper 78 the “depravity of human nature” and the “folly and wickedness of mankind.”[5]

The Fall and Expulsion from the Garden of Eden by Michelangelo, Sistine Chapel, 1509/1510.

Because of man’s sinful nature, early Americans believed that just civil government and laws are necessary on earth to uphold moral order and to restrain evil in society for the protection and preservation of mankind.  This idea is expressed in the Bible.  In Romans 13:1-4, Paul recognizes this ordinance for and purpose of just civil government.  He writes, …

The Founders aligned with the Bible’s position on the role of just government to restrict evil and uphold justice in society.  Hamilton posed in Federalist Paper 15, “Why has government been instituted at all?  Because the passions of men will not conform to the dictates of reason and justice without constraint.”[7]

Portrait of James Madison by James Vanderlyn, 1816, White House Collection.

The Founders’ understanding of human nature further led them to recognize that civil government itself, in being administered by imperfect people, must also be controlled in order to minimize corruption and abuse of power within it.  Madison expressed the two-fold need for restraints both by and within government in his Federalist Paper 51: … 

The Founders knew, therefore, that government is more likely to remain just, moral, and upright when it is based not on an idealistic view of the goodness of man but on a realistic view of man’s fallibility.  Adams thought that some philosophers of the past such as Plato, Manilius, and Condorcet had erred in their conceptions of government because they relied too much on the goodness of extraordinary men.  He noted of these thinkers, “Not one of them takes human nature as it is for his foundation.”[9]  He elaborated on this point in his Defense of the Constitutions, observing, “In the institution of government, it must be remembered, that although reason ought always to govern individuals, it certainly never did since the Fall, and never will till the [New] Millennium; and human nature must be taken as it is, as it has been, and will be [brackets mine].”[10]  As such, the Founders sought to create a limited government for imperfect men that could restrain evil both in society and within the government itself.

Puritans Going to Church by George Henry Boughton, c1884.

To be sure, the Founders’ understanding of the need for limited government was not new in America.  It had been ingrained in them not only by the Bible but also by human history and a century of colonial experience.  Their value of limited government resembled, as it were, the Bible-based values of the colonial American Puritans of the 1600s.  In their early colonies, the Puritans had also recognized man’s sinful nature and, as Rozann Rothman observes in her 1980 essay, The Impact of Covenant and Contract Theories on Conceptions of the U. S. Constitutions, that “there had to be limits on power just as there had to be sufficient power to secure the purposes of their community.”[11]  For example, leading Massachusetts Puritan pastor John Cotton wrote in his 1655 sermon “Limitation of Government” of the need to restrict man’s rule based on Jeremiah 3:5.  He admonished, … 

The Founders’ views were similar to those of the Puritans, says Rothman, in their “motivation and awareness of conflicting imperatives” of authority and restraint.[13]  Like the Puritans, the Founders sought to create a government that, through its form and structure, could address the realistic needs of man and society.  Rothman observes, “It seems clear that in each case [of the Puritans and the Founders], a dependence on institutional structure generated the habits and practices that transformed words, ideas and beliefs into a viable political order [brackets mine].”[14]  Though the Puritans’ colonial governments were more primitive, both generations valued limited government.

Charles-Louis de Secondat, Baron de Montesquieu, 1700s.

When considering the type of limited government to implement in the new nation, the Founders drew from the theory of French Enlightenment-era judge and philosopher, Charles de Montesquieu.  Montesquieu shared the Founders’ God-oriented worldview that man is fallible.  In his influential 1748 The Spirit of the Laws, Montesquieu observed that man “incessantly transgresses the laws established by God, and changes those of his own instituting” and is “hurried away by a thousand impetuous passions.”  Man needs laws, therefore, that “confined him to his duty.”[15]  In addition, to address the problem of imperfect governors, governing power must be limited, he thought, by dividing or separating it.  As such, each major function of government must reside in an independent branch that checks and balances the other branches.  For the combining of these functions in the same political body, he saw, had led to much oppression and tyranny throughout history.  He explains, “Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.  …  To prevent this abuse, it is necessary from the very nature of things that power should be a check to power.”[16]  Montesquieu thus articulated a novel structure of three independent branches of government—legislative, executive, and judicial.  He elaborates, …

Montesquieu’s theory was particularly unusual because it presented a third, independent judicial branch.  For civil states throughout history typically had only one or two arms of government, executive and/or legislative, with the judicial role exercised by one of these arms.  Yet the Founders endeavored to apply Montesquieu’s theory when constructing their new nation’s government.

James Madison, President of the United States by Thomas Sully, c1809-1817.  Madison is known as the “Father of the Constitution.”

The Founders structured the United States’ government with three independent branches—legislative, executive, and judicial—to make, implement, and interpret the law respectively.  Each branch possessed not only legal powers and functions but also limits and restraints.  Each branch was counterbalanced by and accountable to the other branches.  The Founders’ creation of a third branch—an independent judicial system of courts—became a distinguishing element of the American system.  Indeed, as Russell Kirk notes in his 1991 The Roots of American Order, one of the most remarkable features of the American system is the independent judiciary “endowed with the power to rule upon the constitutionality of the acts of national and state legislatures.”[18]  Madison defended the three separate branches to limit the government in his Federalist Paper 47, explaining, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny,” and “the preservation of liberty requires that the three great departments of power should be separate and distinct.”[19]  Madison in his Federalist Paper 51 described the separate branches as a check of one human ambition on another.  “Ambition must be made to counteract ambition,” he asserted, in order to supply, “by opposite and rival interests, the defect of better motives.”[20]  Constitution signer and first U. S. President George Washington in his 1796 presidential Farewell Address reiterated the need for separate branches because of man’s imperfection, noting,

A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position.—The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the Guardian of the Public Will against invasions by the others, has been evinced.[21]

The Founders’ three-branched system served as a kind of back-up plan if or when man’s virtue failed.  In this way, the Founders constructed a new, unique governing framework for America’s experiment in self-government never before implemented in the world.

As it were, the Founders also limited power in the U. S. central government by dividing powers between the national and state governments in the union in what became the American federal system.  The U. S. Constitution divided power by granting only necessary, enumerated powers to the national government and reserving all other powers to the states and people.  Amendments 9 and 10 of the U. S. Bill of Rights, for instance, state respectively that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[22]  This division of power further addressed the early Americans’ mistrust of concentrated central power and their aim to protect citizens’ rights and freedoms.

U. S. Constitution of 1787.

Clearly, the founding-era Americans’ Bible-based understanding of mankind influenced the form and structure of the American government laid out in the U. S. Constitution.  Given man’s fallen condition, the Founders designed a system with controls to diffuse power and thus minimize evil-doing.  In his 1919 The American Commonwealth, British jurist James Bryce reflected on the influence of this philosophy, as shared by the Puritans, on the U. S. Constitution of 1787:

[T]here is a hearty Puritanism in the view of human nature that pervades the instrument of 1787.  It is the work of men who believed in original sin, and were resolved to leave open for transgressors no door which they could possibly shut.  …  The aim of the Constitution seems to be not so much to attain great common ends by securing good government as to avert the evils which will flow, not merely from a bad government, but from any government strong enough to threaten the pre-existing communities or the individual citizen.[23]

In his 2006 Republicanism, Religion, and the Soul of America, Ellis Sandoz affirmed this Bible-aligned philosophical influence on the American system: … 

In conclusion, founding-era Americans recognized—in accordance with their Bible-oriented worldview of fallible mankind—the need for a limited civil government that could restrain man’s evil tendencies both in society and within the government itself.  To control the nation’s central government, the Founders separated its powers into three independent branches, including an independent judiciary, that checked and balanced one another.  In doing so, the Founders designed a new, modern governing system that was unprecedented in history.  Their bold initiation of separation of powers became a defining trait of the American system.  Sandoz describes it as “the genius of the Constitution” and “the well-known hallmark of America’s republican experiment itself.”[25]  America’s distinctive system of governance conveyed in the U. S. Constitution successfully endures and operates today.

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[1]  Aristotle, Politics, 350 B.C.E., book 3, part 16, trans. Benjamin Jowett (Oxford:  Clarendon Press, 1908), 140.  See also Aristotle, Politics, 350 B. C. E., book 3, part 16, trans. Benjamin Jowett, The Internet Classics Archives, Massachusetts Institute of Technology <classics.mit.edu>, 1994-2009.

[2]  New King James Version (NKJV)

[3]  John Adams, A Defence of the Constitutions of Government of the United States of America, 1787, vol. 3 cont., in The Works of John Adams, Second President of the United States, vol. 6, ed. Charles F. Adams (Boston:  Charles C. Little and James Brown, 1851), 204.

[4]  James Madison, Federalist Paper #37, 1788, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Penguin, 1961), 231; James Madison, Federalist Paper #55, 1788, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Penguin, 1961), 346.

[5]  Alexander Hamilton, Federalist Paper #78, 1788, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Penguin, 1961), 471.

[6]  New King James Version (NKJV)

[7]  Alexander Hamilton, Federalist Paper #15, 1787, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Penguin, 1961), 110.

[8]  James Madison, Federalist Paper #51, 1788, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Penguin, 1961), 322.

[9]  John Adams, Marginalia, 1811, in The Works of John Adams, vol. 4, no. 466, ed. C. F. Adams; Zoltan Haraszti, John Adams and the Prophet of Progress (Cambridge, MA:  Harvard U Press, 1952), 258; John Adams, Marginalia, 1811, in Harper’s New Monthly Magazine, vol. 25, no. 147, ed. Charles T. Congdon (New York:  Harper and Brothers, 1862), 357.

[10]  Adams, Defence, 115.

[11]  Rozann Rothman, The Impact of Covenant and Contract Theories on Conceptions of the U. S. Constitutions in Covenant, Polity, and Constitutionalism, Publius:  The Journal of Federalism, v10, n4, eds. Daniel J. Elazar and John Kincaid (Lanham, MD:  U Press of America, 1980), 161, 158.

[12]  John Cotton, “Limitation of Government,” 1646, in Political Thought in the United States:  A Documentary History, ed. Lyman T. Sargent (New York:  New York U Press, 1997), 36-8.  The original source of the sermon is John Cotton, An Exposition Upon the Thirteenth Chapter of the Revelation (London:  Printed for Livewel Chapman), 1655.  See Angela E. Kamrath, The Miracle of America:  The Influence of the Bible on the Founding History and Principles of the United States of America for a People of Every Belief (Houston, TX:  American Heritage, 2013, 2015, 2020), 73.

[13]  Rothman, Impact, 158.

[14]  Rothman, Impact, 159.

[15] Charles-Louis de Secondat, Baron de Montesquieu, The Spirit of Laws, 1748, Revised ed., vol. 1, trans. Thomas Nugent, ed. Jean Le Rond D’Alembert (London:  Colonial Press, 1900), bk. 1, 3.

[16]  Montesquieu, Spirit of Laws, vol. 1, bk. 11, 150.

[17]  Montesquieu, Spirit of Laws, vol. 1, bk. 11, 151-152.

[18]  Russell Kirk, The Roots of American Order (Washington, DC:  Regnery Gateway, 1991), 415.

[19]  James Madison, Federalist Paper #47, 1788, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Penguin, 1961), 301.

[20]  Madison, Federalist Paper #51, 322.

[21]  George Washington, Farewell Address to the People of the United States, 17 September 1796, in The Writings of George Washington, 1794-1798, vol. 13, ed. Worthington C. Ford (New York:  G. P. Putnam’s Sons, 1892), 306.

[22]  United States Bill of Rights, 1791.  See also Angela E. Kamrath, The Miracle of America:  The Influence of the Bible on the Founding History and Principles of the United States of America for a People of Every Belief (Houston, TX:  American Heritage Education Fdn, 2013, 2015, 2020), 290.

[23]  James Bryce, The American Commonwealth:  The National Government, The State Governments, new ed., vol. 1 (New York:  Macmillan, 1919), 306.

[24]  Ellis Sandoz, Republicanism, Religion, and the Soul of America (Columbia:  U of Missouri, 2006), 50, 72-73.

[25]  Sandoz, Republicanism, 50.

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Contributed by AHEF and Angela E. Kamrath.

This essay (with endnotes) is available as a printable PDF handout in the member resources section on americanheritage.org.  Simply sign up and login as a member (no cost), go to the resources page, and look under Miracle of America essays.

Source for more information:
Kamrath, Angela E.  The Miracle of America:  The Influence of the Bible on the Founding History and Principles of the United States of America for a People of Every Belief.  Second Edition.  Houston, TX:  American Heritage Education Foundation, 2014, 2015, 2020.  Third Edition (2020) is now available!

Related articles/videos:
1.  The Principle of Popular Sovereignty–the People’s Rule–in the U. S. Declaration and Constitution
2.  The Principle of Rule of Law

3.  A City on a Hill:  Why John Winthrop and the Puritans Came to America
4.  The Puritans in America Created the First Written Constitutions of Law
5.  Why the Puritans Favored Limited Government
6.  Why the Puritans in America Favored Rule of Law 
7.  Who Created the First Written Constitution in History?

8.  Why the Puritans Elected Representatives to Govern in their American Colonies
9.  America’s Founding Philosophy in the Declaration:  God as Supreme Judge, Lawgiver, & King
10.  The Creator God in the Declaration:  The Basis of Authority, Law, & Rights for Mankind in the United States
11.  The Law of Nature in the Declaration:  The Universal Moral Law of Mankind
12.  The Law of Nature in the Bible
13.  The Law of Nature and Nature’s God in the Declaration:  One Moral Law Revealed by God in Two Ways
14.  The Covenant-Inspired Principle of Federalism in the U. S. Constitution
15.  The American Social Contract in the Declaration and Constitution
16.  The Bible-Inspired Influences on the U. S. Constitution and Bill of Rights
17.  The Purpose of American Civil Government

Poster:  Declaration of Independence

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Lesson:  The Miracle of America High School Teacher Course Guide, Unit 8, Part 1, Activity 8:  Three Branches of Government, p. 271-272.  MS-HS.

Three Branches of Government….  

Purpose/Objective:  Students learn key principles of the United States Constitution including limited government, separation of powers, and checks and balances, and how influential thinkers and early Americans connected these concepts with the Bible.

Suggested Readings:
1)  The Principle of Separation of Powers in the U. S. Constitution by Angela E. Kamrath, The Founding Blog, July 24, 2020.  Print version in member resources at americanheritage.org.
2)  Miracle of America book sections 3.5, Ch 8 Intro, 8.4, 8.11, 8.20, pp. 288-296.
3)  Principles of Three Branches of Government handout by Angela E. Kamrath.  See “Miracle of America Snapshots” in member resources at americanheritage.org.
4)  Principles of the United States Constitution handout by Angela E. Kamrath.  See “Supporting Resources”, pp. 392-396, in Miracle of America HS Teacher Course Guide, or “Miracle of America Snapshots” in member resources at www.americanheritage.org.

Activity:  Roles and Responsibilities Comparison Chart (revised)
Students should discuss and understand the American Founders’ views of the need for civil government and the benefits of a limited government with separation of powers and checks and balances.  Students should recognize the influence of Montesquieu’s theory of separation of powers on the Founders, noting his similar worldview of mankind.  Discuss how the Founders implemented the first three-branch system–legislative, executive, and judicial–notably with an independent judiciary.  Discuss how the Founders’ novel implementation of this system differed from other previous two-branch systems practiced in ancient Greece and Rome, and in Europe.  Have students do some research or other reading if needed and complete a comparison chart on the role and responsibility of each branch of government.  Students may then consider, Why does the U. S. have a three-branch government?  What American philosophical view of humanity undergirds this system?  Where does it come from?  For another comparison, students might complete a comparison chart of older ancient and European two-branch systems with the U. S. system.  What was/might be a common problem with the two-branch system?  What are the benefits of the three-branch system?  See “Three Branches of Government Roles & Responsibilities Comparison Chart” in “Supporting Resources” section of Miracle of America HS Teacher Course Guide, p. 397.

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To download this whole unit, sign up as an AHEF member (no cost) to access the “resources” page on americanheritage.org.  To order the printed binder format of the course guide with all the units, go to the AHEF bookstore.

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This blog is provided by the American Heritage Education Foundation (AHEF).  AHEF is a non-profit organization dedicated to the understanding and teaching of America’s founding philosophy, principles, documents, and history.  AHEF’s work is made possible by the donations of private individuals and organizations.  Please consider a tax-deductible donation to AHEF to support our mission.  Thank you!

Copyright © American Heritage Education Foundation.  All rights reserved.

The Principle of Popular Sovereignty–the People’s Rule–in the U. S. Declaration and Constitution

May 28, 2020
The Founding

When founding the United States, the American founders adhered to the philosophical, governing principle of popular sovereignty, or the people’s rule.  Popular sovereignty is the idea that political power resides with the whole people of a community or state—not with any particular person, group, or ancestral line.  The modern, Western conception of this idea was shaped not only by the ancient models of democracy in Greece and Rome but also, in part, by the Bible and a Bible-oriented worldview.  In the Bible-oriented worldview, the Creator God gives all mankind, as equal and free, dominion over the earth and, therefore, earthly political power.  The people thus have rightful authority within the bounds of God’s moral law to choose how and who to govern for themselves, and their government and governors derive legitimate authority by the people’s consent.  In his 1980 essay, From Covenant to Constitution in American Political Thought, Donald S. Lutz explains how the people’s consent is the basis of legitimate authority:  “Consent becomes the instrument for establishing authority in the community and for expressing the sovereignty of God.  …  The people’s consent is the instrument for linking God with the rulers, whose authority then is viewed as sanctioned by Him, but because this authority comes through the people, the rulers are beholding to God through them.”[1]  The people may define and limit the powers of their government and governors, and they may remove governors who do not fulfill their duties or abide by just civil law.  It is important to note that the people and their governors are still fallible and accountable to God and His moral law, just civil law, and one another.  Ideally, God’s moral order may potentially be maintained through the people’s just civil law and governance.

The Divine Right of Kings

The principle of popular sovereignty contrasts with the doctrine of the “Divine Rights of Kings” that was practiced in Europe in the middle ages.  Divine Right held that a particular person or ancestral line derives authority to rule directly and only from God, usually by hereditary succession, and so is not accountable to any earthly authority or the people.  Such was the practice of absolute monarchy in which a king or queen ruled with little limit or restriction.  To question or rebel against the monarch’s rule was to question or rebel against God’s rule.  Divine Right emerged when many in Europe, in rejecting the supreme authority of the pope and the institutional Roman Catholic Church, sought the protection of their monarchies during the Protestant Reformation.  For, over time, the church had become, as some saw, corrupt and heretical in its teachings.  But the monarchs had also, in turn, become oppressive.  Popular sovereignty offered a new, hopeful alternative to the absolute rule of the “two swords” of pope and monarch and to the old combined church-state systems of Europe.  It offered greater civil and religious freedom and rights for the people.  In the wake of the Protestant Reformation and Counter-Reformation of the 1500s and 1600s in Europe, Protestant and Catholic political reformers began to develop a case for popular sovereignty, and they did so by drawing from the Bible.  Later, some important God-oriented Enlightenment-era philosophers took up this principle as the basis for just civil society and governance.  Ultimately, founding-era Americans adhered to popular sovereignty to justify the American Revolution and to form the new nation of the United States that values man’s equality, freedom, and consent.

Cover of Vindiciae Contra Tyrannos by Stephen Junius Brutus, 1579.

 

Samuel Rutherford, c1600s.

Following the Protestant Reformation—a Christian revival that rejected the authority of the pope and asserted the need for religious reforms in the church—some European reformed political writers rose up and challenged the Divine Right of Kings, calling for not only religious but also political reform in the civil state.  They argued for popular sovereignty based on the practice of the ancient Israelites in the Bible.  The pseudonymed French Huguenot writer Stephen Junius Brutus in his 1579 Vindiciae Contra Tyrannos or A Defense of Liberty Against Tyrants as well as Scottish Presbyterian minister and Westminster Assembly member Samuel Rutherford in his 1644 Lex Rex or The Law and the Prince looked to the example of the Israelites who chose their first king in 1 Samuel 10, 11, and 12.  In these verses, the Israelites asked God, through the prophet Samuel, for a king.  In response and following God’s direction, Samuel anointed Saul.  However, Saul did not become king until he was confirmed by the people’s consensus.  As Brutus and Rutherford observe, God granted the Israelites a role in choosing their king, and so a scriptural basis for popular sovereignty exists.  Brutus explains, “We have demonstrated that God institutes kings…and elects them.  We now say that the people constitute kings, confer kingdoms, and approve the election by its vote.” [2]  Rutherford also cited 2 Chronicles 22 and 23 in which Queen Athaliah usurped the throne of Judah without the people’s consent and was consequently overthrown by the people.  Rutherford concludes that “the power of creating a man a king is from the people.” [3]  Such political writers strengthened the idea of the consent of the governed–the authority and right of the people to choose their government and governors.

Saint Robert Bellarmine by Italian School 1500s.

 

Francisco Suarez

Catholic counter-reformers of the Counter-Reformation—a Catholic revival that upheld the leadership of the pope but recognized his fallibility and the need for institutional reforms in the church—also argued for popular sovereignty for the civil state, though they did so separately.  They asserted from Genesis that God gave all mankind earthly dominion and therefore political power.  Italian Jesuit priest Robert Bellarmine in his De Laicis or Of the Laity from his 1596 Disputations de Controversiis Christianae Fide and Spanish Jesuit priest Francisco Suarez in his 1612 De Legibus or Tract on Laws cited Genesis 1 in which God created mankind, represented by Adam and Eve, and told them to multiply and take dominion over the earth.  Genesis 1:27-28 states, … 

Bellarmine and Suarez asserted from these verses that God gives earthly dominion to all mankind—not to any particular person, group, or lineage.  As such, the whole people rightly hold earthly political power.  Bellarmine states, “Secular or civil power…is immediately in the whole multitude…for this power is in the divine law [the Bible], but the divine law has given this power to no particular man [brackets mine].”[4]  Suarez similarly argued that political power began when people formed communities.  He explains, “Political power did not begin until families began to be gathered together into one…community; …the community did not begin by the creation of Adam, or by his will alone, but of all of them which did agree in this community.”[5]  These churchmen concluded that the people of a community or civil state hold political authority in that realm, and the people may delegate authority to their chosen governors.  In this way, popular sovereignty, as Lutz notes, was “developed both by Protestant thinkers and by Catholic theologians independently.”[6]

In the 1600s, Enlightenment-era British philosophers John Locke and Algernon Sidney presented and supported popular sovereignty in a more secularized context based on reason.  However, they also notably grounded their ideas in the Bible.  In fact, they reasserted the same the Bible-based arguments as the earlier Protestant and Catholic writers on the subject.

Portrait of John Locke by Sir Godfrey Kneller, 1697.

In his 1689 First Treatise of Civil Government, Locke refuted the Divine Right of Kings as asserted by King James I’s court theologian Robert Filmer in his 1680 Patriarcha.  Filmer claimed that the first man in Genesis, Adam, was the first king and that the king of England, being a direct heir of Adam, was rightfully king by succession.  Locke countered that, according to Genesis 1, no rank pre-exists among human beings in which one person naturally has authority over another person simply by succession.  Rather, human beings in creation and in a state of nature exist as equal.  As such, they are naturally free.  Referencing Genesis 1:28, Locke observes, … 

Locke went on to argue from the Bible and reason in his 1689 Second Treatise of Civil Government that because all men naturally are equal and free, “without being subjected to the will or authority of any other man,” a just civil society is based on popular sovereignty through the people’s consent.[8]  He says, “That which begins and actually constitutes any political society is nothing but the consent of any number of freemen capable of majority, to unite and incorporate into such a society.  And this is that, and that only, which did or could give beginning to any lawful government in the world.”[9]  As such, free men may willingly enter into civil society and submit themselves to a chosen authority by consent.

Algernon Sidney

English Whig parliamentarian Algernon Sidney shared Locke’s view of popular sovereignty and similarly defended it from the Bible and reason.  In his 1698 essay, Discourses Concerning Government, Sidney asserted that absolute monarchy was flawed and not favored in the Bible but that popular sovereignty agreed with Holy Scripture.  He aligned with Bellarmine’s interpretation of Genesis 1.  Referring to Filmer’s Patriarcha and Bellarmine’s Of the Laity as well as to Genesis 1:28 and Deuteronomy 17:20, Sidney pointed out that Filmer’s opposition to Bellarmine’s interpretation had no scriptural or rational merit.  Sidney explains, … 

Sidney essentially argued that unlimited, absolute power held by fallible men often leads to corruption and tyranny.  Instead, the Bible supports popular sovereignty among men.

During the American founding era in the mid-1700s, early Americans drew heavily from Locke and Sidney on popular sovereignty to justify and defend the American revolutionary cause and the forming of a new, independent nation.  Revolutionary Americans frequently cited Locke and Sidney because these philosophers clearly articulated the long-held views and practices of colonial Americans.  Indeed, the American colonists had applied popular sovereignty in their colonies for over a century.  Locke and Sidney effectively expressed and refined the political thought of early Americans during the founding era.  American Founder and statesman Thomas Jefferson, in fact, cited Locke and Sidney as some of his direct sources in writing the U. S. Declaration of Independence.  In a 1825 letter to Henry Lee, for instance, he explained that the Declaration’s authority rests on “the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.”[11]  In a 1825 Report to the President and Directors of the Literary Fund at the University of Virginia, Jefferson later reiterated that “as to the general principles of liberty and the rights of man, in nature and in society, the doctrines of Locke…and of Sidney…may be considered as those generally approved by our fellow citizens of…the United States.”[12]  The language of the Declaration resembles Locke’s, explains Donald S. Lutz in his 1988 Origins of American Constitutionalism, “because the Americans enthusiastically fastened upon his clear, efficient vocabulary for expressing what they had already been doing for years” in their colonies.[13]  Sidney’s Discourses likewise became well-known in America as a “textbook of revolution” during the American Revolution.  As it were, Locke and Sidney’s grounding of popular sovereignty in the Bible reveals a strong connection between the Bible and American political thought.  Lutz affirms that Sidney “combines reason and [biblical] revelation in his analysis, and thus shows how easily the Declaration can be an expression of earlier, biblically based American constitutional thought [brackets mine].”[14]

U. S. Supreme Court Justice James Wilson

 

Benjamin Rush by Charles Willson Peale, c1818.

The American Founders aligned with Locke and Sidney’s views and explanations of popular sovereignty—drawn and defended from the Bible as well as reason—in order to justify the American Revolution and the founding of the self-governing nation of the United States.  They upheld the view that all men are created naturally equal and free by God.  As such, political power resides with the people, and just governments are based on the people’s consent.  Founder and law professor James Wilson thus expressed in his 1790-1791 Lectures on Law, “As in civil society, previous to civil government, all men are equal.  So, in the same state, all men are free.  In such a state, no one can claim, in preference to another, superior right.  In the same state, no one can claim over another superior authority.”[15]  In his 1793 court decision Chisholm vs. Georgia, Wilson again asserted popular sovereignty as it relates to civil law, stating, “Laws derived from the pure source of equality and justice must be founded on the CONSENT of those, whose obedience they require.  The sovereign, when traced to his source, must be found in the man.”[16]  Notably, the Founders took both a Bible-oriented as well as a rational, common-sense approach to support equality and popular sovereignty.  However, both approaches still acknowledged a Creator God.  In his 1798 essay, Of the Mode of Education Proper in a Republic, Founder and physician Benjamin Rush, for example, cited the Bible as the basis for equality among men.  Alluding to Genesis 1, he expresses: … 

In a 1826 letter, Jefferson affirmed the equality of men from a more rational, common-sense perspective.  He writes, … 

Jefferson, however, still acknowledged a Creator God and mentioned as much in the Declaration.

Presidential Portrait of Thomas Jefferson by Rembrandt Peale, 1800.

 

Alexander Hamilton by John Trumbull, 1806.

Significantly, the Founders expressed and applied the philosophical principle of popular sovereignty in the key founding documents of the United States—the Declaration and Constitution.  The U. S. Declaration of Independence of 1776 recognizes, for example, a Creator God, the equality of all men, and just government instituted by the people’s consent.  In doing so, it asserts the philosophical basis as well as the act of founding the new nation.  It reads,

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; 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. [bold face mine][19]

Subsequently, the Founders practically applied popular sovereignty in the U. S. Constitution of 1787 by setting up a modern, democratic form of government—a Constitutional Republic—in which the people freely vote on and elect their governors and representatives.  The people elect, for example, their president and congressional legislators.  The Constitution lays out and defines the laws, powers, and structure of this new form of government.  Moreover, the Founders required the Constitution, with its new government and laws, to be approved and ratified by the American people in order to go into effect.  It was thus based on the people’s consent.  The Constitution’s Preamble thus begins, “We the people of the United States…do ordain and establish this Constitution [bold face mine].”[20]  In his 1787 Federalist Paper 22, Founder Alexander Hamilton affirmed popular sovereignty through consent as the basis and legitimacy of American government.  He writes, “The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE.  The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”[21]  Clearly, the Founders strongly adhered to popular sovereignty and shaped their new nation and its civil government and laws according to this principle.

United States’ Constitution and Declaration of Independence

In conclusion, founding-era Americans formed the United States of America based on the principle of popular sovereignty—the idea that political power resides with the whole people of a civil state, not with a particular person by succession.  This idea is expressed and applied in the U. S. Declaration and Constitution through the consent of the governed—the people’s authority and right to choose and define the powers of their government and governors.  Articulated by Bible-oriented thinkers of the Reformation, Counter-Reformation, and Enlightenment; this American principle was derived not only from ancient democratic models, reason, and common sense but also from the Bible and a Bible-based worldview in which God created all mankind equal and free and gave them dominion over the earth including political power.  Such had been, as it were, the long-held belief and practice of the early American colonists.  Adopting the language of Enlightenment-era philosophers Locke and Sidney, founding-era Americans asserted this principle to justify the American Revolution and their authority and right to form an independent, self-governing nation.  The American Founders subsequently developed for the nation a unique, modern democratic political system with elected representatives—a Constitutional Republic—that honors and respects the people’s values of equality, freedom, rights, and consent.  The early Americans’ adherence to the modern, Western principle of popular sovereignty thus demonstrates the strong role of the Bible and a God-oriented worldview on America’s founding political philosophy.

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[1] Donald S. Lutz, From Covenant to Constitution in American Political Thought, in Covenant, Polity, and Constitutionalism:  Publius:  The Journal of Federalism, v10, n4 (1980):  109-110.

[2] Stephen Junius Brutus, Vindiciae Contra Tyrannos, Concerning the Legitimate Power of a Prince Over the People, and of the People Over a Prince (A Defense of Liberty Against Tyrants), 1579, ed. George Garnett (Cambridge, UK:  Cambridge U Press, 1994, 2003), 68-69.  Brutus is thought by many scholars to be Theodore Beza, Philippe de Mornay, or Hubert Languet.

[3] Samuel Rutherford, Lex Rex, or the Law and the Prince, 1644 (Edinburgh, Scotland:  Robert Ogle and Oliver & Boyd, 1843), 6-8, 80, 143.

[4] Robert Filmer, Patriarcha, 1680, in Two Treatises on Civil Government, John Locke (London:  George Routledge and Sons, 1884), 14.  See also Robert Bellarmine, De Laicis (Of the Laity) or The Treatise on Civil Government in Book 3 of 1596 Disputationes de Controversiis Christianae Fidei.  Bellarmine and Suarez were cited by Sir Robert Filmer, the court theologian of King James I of England, who in his Patriarcha defended the Divine Right of Kings.  Filmer refuted Bellarmine and Suarez.

[5] Filmer, Patriarcha, 24.  See also Francisco Suarez, Tractatus de Legibus or Tract on Laws III, 1612, vol. 5.

[6] Lutz, Covenant to Constitution, 109-110.

[7] John Locke, A First Treatise of Civil Government, 1689, in Two Treatises on Civil Government, John Locke (London:  George Routledge and Sons, 1884), 122-3.

[8] John Locke, A Second Treatise of Civil Government, 1689, in Two Treatises on Civil Government, John Locke (London:  George Routledge and Sons, 1884), 217.

[9] Locke, Second Treatise, Routledge, 242.

[10] Algernon Sidney, Discourses Concerning Government, to which are added Memoirs of His Life, 1698, 3rd ed. (London:  Printed for A. Millar, 1751), 16-17.

[11] Thomas Jefferson to Henry Lee, Monticello, 8 May 1825, in The Writings of Thomas Jefferson, definitive ed., ed. Albert E. Bergh, vol. 15 (Washington, DC:  Thomas Jefferson Memorial Association, 1907), 118-119.

[12] University of Virginia Board of Visitors, Transcript of the Minutes of the Board of Visitors of the University of Virginia, during the Rectorship of Thomas Jefferson, Mar. 4, 1825, from Manuscripts From the University of Virginia Collection, 360-498, in The Works of Thomas Jefferson, vol. 19, ed. Albert E. Bergh (Washington, DC:  Thomas Jefferson Memorial Association, 1907), 460–461.

[13] Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge, LA:  Louisiana State U Press, 1988), 114.

[14] Lutz, Origins, 119.

[15] James Wilson, Lectures on Law, Part 1, 1790-1791, in The Works of the Honourable James Wilson, vol. 1, ed. Bird Wilson (Philadelphia, PA:  Lorenzo Press, Printed for Bronson and Chauncey, 1804), 309.

[16] Chisholm v. Georgia, 2 U.S. 419 (1793). Natural Law, Natural Rights, and American Constitutionalism Online Resource (2012), Witherspoon Institute, <http://www.nlnrac.org/american/scottish-enlightenment> (accessed April 2012).

[17] Benjamin Rush, Of The Mode of Education Proper in a Republic, in Essays, Literary, Moral and Philosophical, 2nd ed. (Philadelphia, PA:  Printed by Thomas and William Bradford, 1806), 8-9.

[18] Thomas Jefferson to Roger C. Weightman, Monticello, 24 June 1826, in Memoir, Correspondence, and Miscellanies:  From the Papers of Thomas Jefferson, ed. Thomas J. Randolph (Charlottesville, VA:  F. Carr & Co., 1829), 441.

[19] United States Declaration of Independence, 1776.  See also Angela E. Kamrath, The Miracle of America:  The Influence of the Bible on the Founding History and Principles of the United States of America for a People of Every Belief (Houston, TX:  American Heritage Education Fdn, 2013, 2015, 2020), 236.

[20] Preamble, United States Constitution, 1787.  See also Kamrath, Miracle of America, 289.

[21] Alexander Hamilton, Federalist Paper #22, The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Penguin, 1961), 152.

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Contributed by AHEF and Angela E. Kamrath.

This article is available as a printable PDF handout in the member resources section on americanheritage.org.  Simply sign up and login as a member (no cost), go to the resources page, and look under Miracle of America articles.

Source for more information:  Kamrath, Angela E.  The Miracle of America:  The Influence of the Bible on the Founding History and Principles of the United States of America for a People of Every Belief.  Second Edition.  Houston, TX:  American Heritage Education Foundation, 2014, 2015, 2020.  Third Edition (2020) is now available!

Related Blogs/Videos:
1.  How Protestant Religious Reformers Supported Popular Sovereignty from the Bible
2.  How Reformed Political Thinkers Defended Popular Sovereignty From the Bible
3.  How Catholic Churchmen Supported Popular Sovereignty from the Bible
4.  The Context of the Protestant Reformation
5.  The Igniting of the Protestant Reformation – Martin Luther’s 95 Theses
6.  The Key Tenets of the Protestant Reformation
7.  The Key Political Thinkers & Writings of the Reformation Era
8.  The Catholic Counter-Reformation
9.  Why Puritan Thomas Hooker Favored Democracy over Aristocracy
10.  Thomas Hooker as the “father of American Democracy”
11.  Why the Puritans Elected Representatives to Govern in their American Colonies
12.  Great Awakening Principle:  The Dignity of the Human Being
13.  Great Awakening Principle:  All Men Equal Before God
14.  How the Great Awakening Affected Society:  Education, Missions, Humanitarianism, Women, Gospel
15.  How the Great Awakening Impacted American Unity, Democracy, Freedom, & Revolution
16.  Thomas Paine’s Common Sense:  God’s Opposition to Absolute Monarchy
17.  The American Revolution
18.  American Revolution Debate:  The American Quest for a New, Bible-Inspired Republic
19.  The American Quest for Self-Government
20.  The Creator God:  The Basis of Authority, Law, & Rights for Mankind in the Declaration
21.  Self-Evident Truth:  Equality and Rights in the Declaration of Independence
22.  The Law of Nature:  The Universal Moral Law of Mankind in the Declaration
23.  The American, Bible-based Defense of Unalienable Rights in the Declaration


High School Activity – The Principle of Popular Sovereignty:  The Consent of the Governed

Activity:  Miracle of America High School Teacher Course Guide, Unit 1, Part 1, Activity 6:  Principle of Popular Sovereignty, p. 57, 328.  HS.

Purpose/Objective: Students learn definition, meaning, basis, and characteristics of Popular Sovereignty and how it differs from the Divine Right of Kings and absolute power.

Suggested Reading: Chapter 1 of Miracle of America text/sourcebook. Students read sections 1.2-1.3.  See also Miracle of America reference book/text, Sections 1.2-1.3, 2.4, 3.10, 6.5, 7.11, 7.16, 8.6, 8.14.

Comparison/Contrast Chart: Students create a two-column chart, titling the left column “Divine Right of Kings” and the right column “Popular Sovereignty.” Students right down characteristics of each concept in the appropriate column, perhaps including definition, basis/reasoning for it, who holds power and why, how power is obtained/delegated, how this system characterizes society, historical context/time, etc.

To download this whole unit, sign up as an AHEF member (no cost) to access the “resources” page on americanheritage.org.  To order the printed binder format of the course guide with all the units, go to the AHEF bookstore.

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This blog is provided by the American Heritage Education Foundation (AHEF).  AHEF is a non-profit organization dedicated to the understanding and teaching of America’s founding philosophy, principles, documents, and history.  AHEF’s work is made possible by the donations of private individuals and organizations.  Please consider a tax-deductible donation to AHEF to support our mission.  Thank you!

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The Covenant-Inspired Principle of Federalism in the U. S. Constitution

April 23, 2020
The Founding

Diagram of the Federal Government and American Union by N. Mendal Shafer, c1862.  Published by J. T. Pompilly, Cincinnati, OH, at Library of Congress.

When the United States became an independent nation following the American Revolution, the American colonies formed a confederation of states under the Articles of Confederation of 1781.  The Articles joined together the new states and created a weak central government with little authority in which the states held most of the power.  However, by 1787, the Articles no longer sufficed for the states’ and nation’s needs because it allowed the states to impede interstate commerce, left the nation open to internal rebellion and external invasion, and did not secure civil and religious freedoms.  Consequently, delegates from each state convened at the Constitutional Convention at Independence Hall in Philadelphia to revise the Articles.  Instead of revising the Articles, however, they drafted the United States Constitution of 1787 and created a new, stronger central government.

After the constitutional delegates drafted and approved the Constitution, they sent it to the U.  S. Congress for review.  Congress sent it to the states to have it reviewed in the states’ ratification conventions.  The state conventions consisted of elected representatives who informed the public about, debated over, and voted on the new proposed government.  While many supported ratification of the Constitution, some opposed it.  Those who favored ratification were known as “Federalists,” and those who opposed ratification were called “Anti-Federalists.”  Federalists including James Madison, Alexander Hamilton, and John Jay defended and explained the Constitution and its new government to the American people through a series of newspaper articles which became known as the “Federalist Papers.”  For Madison and Hamilton described the new American system as “federal” in character.  One of the main objections of the Anti-Federalists was that the Constitution did not include a Bill of Rights to ensure the protection of citizens’ rights.  They sought reassurance and reinforcement of such protections.  Federalists countered that an explicit list of rights might be incomplete and that the Constitution already protected individual rights because it granted only certain limited powers to the central government.  Yet they agreed to add a Bill of Rights.  With the Federalists’ assurance that a Bill of Rights would be added, the Constitution ultimately won the people’s approval and was finally ratified by the first nine states after ten months.  The U. S. Bill of Rights was added in 1791.

In drafting the U. S. Constitution, the Founders developed an important governing principle and system called “federalism.”  “Federalism” and “confederalism” both generally refer to an inter-governmental association of states.  Federalism is a system of government in which political power is divided between the national and state governments.  In confederalism, the states hold most of the power.  Federalist systems differ from unitary systems in which the central government holds most or all governing power.  Hamilton in Federalist Paper 9 generally describes a federalist system (using the terms federal and confederal interchangeably) in this way: …

The essence of federalism, affirms Donald S. Lutz in his 1988 The Origins of American Constitutionalism, is “the preservation of local control, diversity, and the individual character of each component [as in each state], and the provision for unity on matters where unity is required [brackets mine].”[2]  American federalism in the Constitution was more specifically characterized by 1) a consensual, binding agreement or compact among the states and people to associate or join together in unity for a common purpose, and 2) the division or sharing of power between the national and state governments—with further diffusion of central power through participation of representatives in the national government.  In addition to some possible secular historical influences, the Founders’ federalist system was influenced to a degree by the early American Puritans and their Bible-inspired practice of covenants in their colonial constitutions.  Building on these early influences, the Founders created a new, successful model of federalism to order and govern a large nation of many states.  This unprecedented system created a strong, accountable union among the states and people, and preserved the states’ and people’s sovereignty and rights.

Moses Descends from Mount Sinai with the Ten Commandments by Ferdinand Bol, 1662.

Interestingly, the concept of federalism has an historical, philosophical root that stems back to the principle and practice of covenants as found in the Bible and Western reformed thought.  As pointed out by Lutz in his Origins and by Gary Amos and Richard Gardiner in their 1998 Never Before in History:  America’s Inspired Birth, the English word “federal” comes from the Latin word foedus which means “covenant or pact.”[3]  The Latin Vulgate Bible of 405 notably uses foedus as a translation for the Hebrew word “berith” used to describe covenants in the Bible.  The English word “covenant,” in turn, comes from the French word “convenir” which means “to agree on.”  A covenant is a consensual, binding promise or agreement between two or more parties, often made in the presence of a higher authority like God or king who acts as a party, witness, or guarantor of the agreement to hold the parties accountable.  This agreement centers on the relationship and responsibilities of those involved, and it creates a very strong bond or union between the parties.

According to the Bible, covenants originated with God, and they were practiced by God and His people in both the Old and New Testaments.  They were the means by which God related with His people, and how His people related with one another.  In the Old Testament, as described in Exodus 19:5-6, the tribes of ancient Israel entered into a covenant with God to be His people and follow His laws and so became a nation.[4]  The nation of Israel, as it were, also entered into civil covenants with their civil rulers as found in 2 Samuel 5, 2 Kings 11, and 2 Chronicles 22-23.[5]  In this civil covenant, the king agreed to rule justly and follow God, and the people agreed to submit to him based on those terms.  If the king did not fulfill his duties or abused his power, the people could remove him from power.

Embarkation of the Pilgrims by Robert W. Weir, 1843.  The painting depicts the Pilgrims’ migration to America and the Bible’s important role in their lives and move.

The Protestant Reformation in Europe in the 1500s led to the extensive study of covenants in the Bible.  Religious and political reformers articulated it in religious and, ultimately, political terms.  Reformation-era Protestants, for example, developed a Covenant Theology, asserting the belief that all creation, humans, and society—including government and politics—exist in covenant with God and are subject to God’s moral laws.  Swiss reformer Heinrich Bullinger presented this theology in his 1534 Brief Exposition of the One and Eternal Testament or Covenant of God, and John Calvin taught it in his well-known 1536 Institutes of the Christian Religion.  Subsequently, Calvinist political reformers such as Theodore Beza in his 1574 On the Rights of Magistrates and Stephen Junius Brutus in his 1579 Defense of Liberty Against Tyrants developed a modern civil covenant between rulers and ruled based on the practice of the ancient Israelites.[6]  Others like Johannes Althusius in his 1603 Politics Methodically Set Forth developed a covenant-based political theory in which covenantal or contractual agreements are the basis of society and civil state.[7]  The increased examination of covenants in the Bible during this period enabled the principle of covenants to advance in modern European religious and political thought prior to the Puritans’ migration to America in the 1600s.

In the 1600s and early 1700s, the Pilgrims and Puritans in America, as Calvinists, embraced and applied the Bible-inspired principle of covenants in both their church and civil bodies in their early American colonies.  In a religious context, the Puritans practiced covenants in their Congregational churches and doctrines, and they included the concept in their Reformed confession of faith, the Westminster Confession of 1646.  In a civil context, the Pilgrims who migrated to Plymouth in 1620 created the first civil covenant in America with their Mayflower Compact in which they joined together to form a civil body.  In 1630, Puritan leader John Winthrop gave his well-known “city on a hill” sermon, A Model of Christian Charity, that spoke of the Puritans’ covenantal promise to love God and others, follow God’s moral law, and uphold justice and mercy.  Ultimately, the Puritans created the first covenantal constitutions of law in their colonies of Connecticut and Massachusetts—with the Fundamental Orders of Connecticut of 1639 and the Massachusetts Body of Liberties of 1641.

The Puritans’ Fundamental Orders of Connecticut of 1639, the first written constitution.  Connecticut State Library, 1934.

The Founders’ modern model of federalism was influenced, at least in part, by the early American Puritans’ practice of covenantal constitutions as found in the colony of Connecticut.  Indeed, the Puritans’ Connecticut constitution, the Fundamental Orders of 1639, was the first constitution ever created, and, as Lutz asserts, the first expression of federalism in the American colonies.[8]  Connecticut’s colonial government was federal in being based on a covenant among the colonists to join together to form a central governing body and to abide by a common set of laws.  The Orders were adopted by the free men of the towns of Hartford, Wethersfield, and Windsor–binding the towns together by covenant.  The colonists formed a central governing body, the Connecticut General Court, to govern the colony.  The Orders thus state that the colonists “do therefore associate and conjoin ourselves to be as one Public State or Commonwealth; and do…enter into Combination and Confederation together.”[9]  Connecticut’s colonial government was also federal in its sharing of political power between the central governing authority and the member towns.  Under the Orders, for example, the free men of each town elected deputies and magistrates as local representatives to the General Court.  They also elected a governor.  The Orders gave each colonist one equal vote and so expressed the people’s will, says Lutz, through majority or plurality rule.  As a result, it preserved the members’ local political power.[10]  The Connecticut constitution was thus “the first of many federal designs made by Americans and their English colonial predecessors,” observes Lutz.  It was “a covenant-derived compact written by a deeply religious people who knew a great deal about the political and religious covenants in the Bible.”[11]  The New England Puritans and their covenantal constitutions thus became important initiators in the development of American federalism.

As such, the general principle of federalism was familiar to founding-era Americans when the Founders drafted the U. S. Constitution.  Indeed, the Founder’s modern Constitution, though secularized, demonstrated similar qualities of federalism that were found in the Puritans’ covenantal colonial constitutions and governments.  Drawing from this history and experience, the Founders developed a uniquely modern American governing system for the United States that would come to define American federalism.

The Looking Glass for 1787, A house divided against itself cannot stand, Mat. chap 13th verse 26, by Amos Doolittle, New Haven, CT, 1787. This Connecticut political cartoon depicts the ratification of the Constitution. The wagon represents Connecticut, and the two groups are the Federalists and Anti-Federalists. The title references Matthew 12:25 where Jesus says to the Pharisees, “‘Every kingdom divided against itself is brought to desolation, and every city or house divided against itself will not stand.'” The author clearly sided with the Federalists.

The U. S. Constitution demonstrates federalism, firstly, in that it created an association of states joined together by a consensual, binding agreement—by a compact or contract—to form and abide by a national law and government.  In this arrangement, the states and people affirm mutual responsibility and make a strong commitment to the union.  The written Constitution itself acts as the embodiment and proof of this agreement as well as defines the specific terms and responsibilities of the compact.  The contractual nature of this arrangement required the states’ and peoples’ approval and ratification—the consent of the governed—to be legitimately enacted and recognized as civil law.  Indeed, the Founders’ difficult task and feat included negotiating an agreement among all the diverse states and winning the support of the American people.  The Constitution’s preamble thus begins, “WE THE PEOPLE of the United States…do ordain and establish this Constitution for the United States of America.”[12]

Though the Constitution was expressed in secularized terms, its contractual nature reflected in spirit, form, and purpose the Puritans’ application of covenants in their colonial constitutions.  For both applications involved a binding agreement—an essentially unbreakable bond—among constituents to the larger civil body or community.  As Rozann Rothman explains in her 1980 essay, The Impact of Covenant and Contract Theories on Conceptions of the U. S. Constitutions, “The rhetoric of the Constitution was the rhetoric of contract and compact, for this language summed up the practical concerns as well as the hopes and fears of a revolutionary generation.  But the constitution was permeated with the substance of covenant which anchored and perpetuated the commitment to the Union.”[13]  She elaborates, …

The requirement and act of ratification of the Constitution distinctly demonstrated the consensual agreement made by the people and highlighted the Constitution’s form and function as a compact.  Ratification, says Rothman, “sealed the bargain” and “reflected a mixture of concepts derived from covenant theology and contract theories.”[15]  She expounds, “Just as the Puritans anchored their theology and state in voluntary consent to the covenant, so was the Constitution anchored in the voluntary commitment of a people to the Union.  This commitment was the source of obligation and proved strong enough to withstand the vicissitudes of American history.”[16]  Clearly, the Founders’ Constitution was based on a consensual compact that resembled the Puritans’ covenant, and this compact engendered the states’ and people’s strong commitment to the union.

The Federal Pillars, a series of illustrations published in The Massachusetts Centinel in 1788, depicts the states that ratified the Constitution and the order (from left to right) in which they ratified. This edition shows the first nine states that ratified, August 2, 1788.  The Constitution had to be ratified by nine out of thirteen states in order to go into effect.

The U. S. Constitution demonstrates federalism, secondly, in that it is characterized by a structural division or sharing of power and authority between the national and state governments, with each government holding exclusive and concurrent powers.  The Constitution divided power by granting only necessary, enumerated powers to the national government and reserving all other powers to the states and people.  Amendments 9 and 10 of the U. S. Bill of Rights, for instance, state respectively that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[17]  This division of power spoke to the colonial and revolutionary American mistrust of absolute or overbearing centralized power and the valuing and protection of the people’s rule and rights through limited government.  The Founders greater goal was to effectively order, secure, and govern the new nation while also protecting the sovereignty, rights, and powers of the states and people.  The union aimed to serve the national good while preserving state and individual rights and freedoms.

The Founders further diffused central power by having representatives participate in the national government itself.  In this system, local and national representatives are elected by the states and people to the national legislative and executive branches.  Local representatives in the U. S. Congress, for example, participate by overseeing, drafting, or reviewing national legislation and/or by debating and voting in the national legislative process.  The elected U. S. President, as the national head of state and commander-in-chief, executes and makes decisions about the manner in which to carry out national policy and defense.  This representative system ensures that the states and people have a voice and representation in the national government, thereby making it accountable, directly or indirectly, to the electorate.  In the process, as Rothman points out, it also strengthens the commitment of the states and people to the union.  Rothman explains, …

Opening to the U. S. Constitution.

In conclusion, the American Founders developed a modern federalist system for the United States to effectively order and govern a large nation of many states while preserving the people’s sovereignty and natural rights.  The United States Constitution expresses federalism in creating an association of states and people joined together by a compact and in dividing power between the nation and states, with further diffusion of central power through local and national representatives.  Its character is federal, says Russell Kirk in his 1991 The Roots of American Order, in “reconciling national needs and self-government in its member states.”[19]  Though secularized, the Constitution was notably influenced by and reflected in spirit, form, and purpose the early American Puritans’ Bible-inspired practice of covenants in their colonial constitutions.  In fact, the Latin word foedus for “federal” was originally used to describe a covenant in the Bible.  As Lutz affirms, “American federalism originated at least in part in the dissenting Protestants’ familiarity with the Bible,” and “its roots are in covenants.”[20]  Rothman concurs, “Notions of covenant, albeit secularized and at times implicit, shaped the Framers’ conception of the form, purpose and function of a constitution.”[21]

With their Federal Constitution, the Founders created a new, modern, uniquely American system never before implemented in history, and it would come to define American federalism as we know it today.  Daniel J. Elazar says in his 1969 The Politics of American Federalism that “for all intents and purposes, federalism as modern men know it is an American invention.”[22]  This application of federalism, affirms Lutz, is a “central political symbol in the American constitutional tradition.”[23]  Americans thus refer to the “federal constitution” and the “federal government.”  This principle is further conveyed in the nation’s motto, E Pluribus Unum or “Out of Many, One.”

[1] Alexander Hamilton, Federalist Paper 9, 1787, in The Federalist Papers, ed. Clinton Rossiter (New York:  Mentor Penguin Books, 1961), 76.

[2] Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge, LA:  Louisiana State U Press, 1988), 43.

[3] Lutz, Origins, 43; Gary Amos and Richard Gardiner, Never Before in History:  America’s Inspired Birth, ed. William Dembski (Dallas, TX:  Haughton, 1998), 141-145.

[4] “[God said to Moses and the Israelites] Now therefore, if you will indeed obey My voice and keep My covenant, then you shall be a special treasure to Me above all people; for all the earth is Mine.  And you shall be to Me a kingdom of priests and a holy nation.’”

[5] 2 Samuel 5:1-4, 2 Kings 11:4 & 17, and 2 Chronicles 22-23.  2 Samuel 5:3:  “All the elders of Israel came to the king at Hebron, and King David made a covenant with them at Hebron before the Lord. And they anointed David king over Israel.”  2 Kings 11:4, 17:  “Jehoiada [the prophet who represented God] sent and brought the captains of hundreds…into the house of the Lord to him.  And he made a covenant with them and took an oath from them in the house of the Lord, and showed them the king’s son. …  Then Jehoiada made a covenant between the Lord, the king, and the people, that they should be the Lord’s people, and also between the king and the people.”  2 Chronicles 23:3, 16, 20:  “Then all the assembly made a covenant with the king [Joash] in the house of God. … Then Jehoiada [the prophet who represented God] made a covenant between himself, the people, and the king, that they should be the Lord’s people. … Then he took the captains of hundreds, the nobles, the governors of the people, and all the people of the land, and brought the king down from the house of the Lord; and they went through the Upper Gate to the king’s house, and set the king on the throne of the kingdom.”

[6] The pseudonymed author Stephen Junius Brutus was possibly Theodore Beza, Philippe de Mornay, or Hubert Languet.

[7] Althusius drew from the Bible, the Reformers, and Covenant Theology to develop his covenant-based political theory.

[8] Lutz, Origins, 44.

[9] Connecticut Secretary of State, The Fundamental Orders of Connecticut, 1639, in State of Connecticut Register and Manual, 1922 (Hartford, CT:  State of Connecticut, 1922), 39-43.  See also Angela E. Kamrath, The Miracle of America:  The Influence of the Bible on the Founding History and Principles of the United States of America for a People of Every Belief (Houston, TX:  American Heritage Education Fdn, 2013, 2015, 2020), 92.

[10] Lutz, Origins 45.

[11] Lutz, Origins, 44.

[12] Preamble, United States Constitution, 1787.  See also Kamrath, Miracle of America, 289.

[13] Rozann Rothman, The Impact of Covenant and Contract Theories on Conceptions of the U. S. Constitutions in Covenant, Polity, and Constitutionalism, Publius:  The Journal of Federalism, v10, n4, eds. Daniel J. Elazar and John Kincaid (Lanham, MD:  U Press of America, 1980), 163.

[14] Rothman, Impact, 156-7.

[15] Rothman, Impact, 155.

[16] Rothman, Impact, 162.

[17] United States Bill of Rights, 1791.  See also Kamrath, Miracle of America, 290.

[18] Rothman, Impact, 158-159.

[19] Kirk, Roots, 415.

[20] Lutz, Origins, 43, 44.  For primary sources, see Stephen J. Brutus’s 1579 Vindiciae Contra Tyrannos or Defense of Liberty Against Tyrants; Johannes Althusius’s 1603 Politics Methodically Set Forth; Samuel Pufendorf’s 1673 Whole Duty of Man According to the Law of Nature, and John Locke’s 1690 Second Treatise of Civil Government.

[21] Rothman, Impact, 150.

[22] Daniel J. Elazar, The Politics of American Federalism (Lexington, MA:  D. C. Health & Co., 1969), vii.

[23] Lutz, Origins, 44.

Contributed by AHEF and Angela E. Kamrath.

This essay (with endnotes) is available as a printable PDF handout in the member resources section on americanheritage.org.  Simply sign up and login as a member (no cost), go to the resources page, and look under Miracle of America essays.

Source for more information:
Kamrath, Angela E.  The Miracle of America:  The Influence of the Bible on the Founding History and Principles of the United States of America for a People of Every Belief.  Second Edition.  Houston, TX:  American Heritage Education Foundation, 2014, 2015, 2020.  Third Edition (2020) is now available!

Related articles/videos:
1.  The Principle of Popular Sovereignty
2.  The Igniting of the Protestant Reformation – Martin Luther’s 95 Theses
3.  Three P’s That Led to Freedom in the West:  Printing Press, Protestant Reformation, and Pilgrims
4.  The Reformation led to the Translation and Printing of the Bible into People’s Common Languages
5.  The Mayflower Compact:  The Pilgrims’ First Self-Governing Act in America.
6.  The Pilgrims’ Mayflower Compact as Covenant
7.  How the American Puritans Were Like the Bible’s Israelites
8.  A City on a Hill:  Why John Winthrop and the Puritans Came to America
9.  The Puritans in America Created the First Written Constitutions of Law
10.  Early American Puritan Thomas Hooker as the “Father of American Democracy”
11.  Why the Puritans Elected Representatives to Govern in their American Colonies
12.  Why the Puritans Favored Limited Government
13.  American Revolution Debate:  The Principle of Civil Covenants
14.  The American Social Contract in the Declaration and Constitution
15.  The Bible-Inspired Influences on the U. S. Constitution and Bill of Rights

Poster:  Declaration of Independence

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Lesson:  The Miracle of America High School Teacher Course Guide, Unit 8, Part 1, Activity 3:  Principles of the United States Constitution, p. 270.  MS-HS.

Principles of the United States Constitution….  

Purpose/Objective:  Students learn key principles of the U. S. Constitution including constitutional republic, rule of law, separation of powers, elected representatives, and federalism; and how influential thinkers and early Americans connected these concepts in the Bible.

Suggested Readings:
1)  Chapters 1, Chapter 2 (2.4-2.6), Chapter 3 (3.3-3.5, 3.9-3.11) and Chapter 8 (8.3-8.7) of Miracle of America reference/text.
2)  Principles of the U. S. Constitution and Principles of the U. S. Bill of Rights handouts by Angela E. Kamrath.

Activity:  Reading and Questions
Have students read the “Principles of the United States Constitution” handout and, as desired, relevant sections in Miracle of America text as indicated.  Have student read specific sections and then analyze and discuss the reading together as a class.  You may wish to project some text or visuals on-screen.  Answer questions, clarify vocabulary, and fill in other information as needed to help students grasp the terms and concepts.  After the reading, students write answers to the questions that follow on the handout.  Discuss.  See “Principles of the United States Constitution” reading and questions in the “Supporting Resources” section of this course guide, pp. 393-397.  (These and other review questions are also found in chapter 8 of the Miracle of America text, p. 297).

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To download this whole unit, sign up as an AHEF member (no cost) to access the “resources” page on americanheritage.org.  To order the printed binder format of the course guide with all the units, go to the AHEF bookstore.

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The Bible-Inspired Influences on the U. S. Constitution and Bill of Rights

December 20, 2019
The Founding

Scene at the Signing of the Constitution of the United States by Howard Chandler Christy, 1940.

Following the American Revolution and the birthing of the United States, the American Founders undertook the task of creating a new body of laws and a new civil government for the new nation.  This agreed-upon set of laws became the United States’ Constitution of 1787.  Russell Kirk elaborates in his 1991 The Roots of American Order, on the meaning of a constitution:  “The true constitution of any political state is not merely a piece of parchment but rather a body of fundamental laws and customs that join together the various regions and classes and interests of a country, in a political pattern that is just.”[1]  While the Declaration of Independence is an expression and agreement among Americans of the philosophical values and principles to which they adhere—the “who” and “why”—as a people and nation, the U. S. Constitution lays out a just, workable form of government and laws—the “how”—to practically order and govern the new nation according to its values and principles.  The Constitution frames the United States government, provides for the country’s national security and defense, upholds justice, and protects the civil and religious liberties of the people.  The Constitution is an important founding document of the American people.

While the U. S. Constitution is a practical legal document, it is based on a consensus of long-held moral, philosophical, and political beliefs, principles, and customs recognized and practiced by the American people.  Some important philosophical influences on the Constitution include the colonial and state constitutions, the Great Awakening, modern Enlightenment thinkers, and the Declaration of Independence.  Notably, all of these particular influences were shaped by a God-oriented worldview based on and/or consistent with the Bible.  This worldview was held by colonial and founding-era Americans as well as by the political philosophers they read.  In fact, the Bible itself was also a very strong, direct influence on founding-era Americans who drafted and ratified the Constitution.

The Puritans in the American colony of Connecticut drafted what is considered to be the first written constitution in the world, the Fundamental Orders of Connecticut of 1639.

The American colonial constitutions and the state constitutions in the new nation were a strong influence on the governing principles and laws of the U. S. Constitution.  Drafted from 1776 to 1783, the state constitutions were themselves shaped by the colonial constitutions that preceded them.  They were, as Donald Lutz explains in his 1980 essay From Covenant to Constitution in American Political Thought, the culmination of two centuries of governance and law in the American colonies and of selected European and American ideas.  Particularly impactful on the state and federal constitutions were the Puritan constitutions of colonial Connecticut and Massachusetts, and the religiously tolerant colonies of Rhode Island and Pennsylvania.  Many of these colonies’ laws and practices were inspired by and/or defended from the Bible.  In fact, the American practice of constitutions began with the Puritans’ Bible-inspired covenantal constitutions in New England in the 1600s.[2]  As Alexis de Tocqueville observes in his 1831-1832 Democracy in America, …

Clearly, the Puritan constitutions, in their form and content, had a conspicuous impact on America’s modern constitutions.  The state constitutions which drew from the colonial constitutions, as Founder John Adams indicates in his 1778 Defense of the Constitutions of Government of the United States, were the first modern constitutions and became models for the U. S. Constitution.[4]  As such, the colonial constitutions and laws became a precedent through which the state and federal constitutions gleaned long-held American, Bible-inspired governing principles and customs.

Some important governing principles found in the Puritan colonial constitutions—the Fundamental Orders of Connecticut of 1639 and the Massachusetts Body of Liberties of 1641—that were taken up in America’s modern state and federal constitutions include popular sovereignty, consent of the governed, self-governmentcivil covenants, federalism, rule of law, constitutionalism, and limited government.  The modern constitutions also took up religious freedom which was first attempted by religious non-conformists in the colonies of Rhode Island and Pennsylvania.

Though not distinctly political, traveling evangelist Rev. George Whitefield’s preaching during the Great Awakening had democratic elements in its style and message.

Another influence on founding-era Americans and the Constitution was the Great Awakening—the Christian evangelical revival that swept through the American colonies in the early to mid-1700s just prior to the American Revolution.  Traveling evangelist George Whitefield and theologian Jonathan Edwards were the most prominent figures of this revival.  Traveling evangelists’ teachings and preachings on the Bible during this period focused on spiritual life and devotion, and on spreading the Christian Gospel to all.  While the revival was a religious movement, not a political one, it greatly affected American culture, society, and politics.  For example, in teaching about Christ’s love and redemption for all mankind and about the individual’s choice in “born again” religious conversion, it advanced ideas of human dignity, equality, and religious tolerance.  As Mark A. Noll notes in his 1992 A History of Christianity in the United States and Canada, it also had a democratic element in encouraging individuals to take an active role in their religious duties, relying less on the clergy.  These ideas consequently affected Americans’ political views of democracy, freedom, and individual rights.  Noll explains that this spirit of the Awakening that incorporated “a frank expression of popular democracy…had much to do with the rise of a similar spirit in politics later on.”[5]  What is more, as historians observe, the revival helped to unify colonists under a common set of basic moral and civil values, and thus to develop a stronger national identity.

Portrait of French Enlightenment philosopher Charles-Louis de Montesquieu.  Montesquieu was the most frequently cited secular writer of the American founding era.

Founding-era Americans also drew from the best ideas of the European Enlightenment to help develop and defend the U. S. Constitution.  According to Lutz in his Origins, Americans most frequently cited French philosopher Charles-Louis de Montesquieu, English jurist William Blackstone, and British philosopher John Locke in their political writings during the American founding era from 1760 to 1805, with Montesquieu topping that list.[6]  These particular thinkers resonated with early Americans who shared their moral and political values.  Early Americans cited them to defend and justify the self-government they had practiced in their colonies, and to further inform and sharpen their political views and practices as they fought for and formed a new, independent nation.  According to Donald Lutz in his 1988 The Origins of American Constitutionalism, Americans applied the works of these philosophers in order to “transform preferences into coherent theory, and thus to undergird familiar institutions.  At the same time, these foreign-bred ideas were pressing Americans to think more deeply, reconsider their commitments and institutions, and seek a more secure political grounding for the future.”[7]  Americans drew, for example, from Locke’s articulation of natural rights and Blackstone’s understanding of the Law of Nature to strengthen the basis for man’s unalienable rights and a moral standard for law and justice.  Americans also drew from Montesquieu’s theory of separation of powers—with three governing branches including a separate judiciary—when considering constitutional design.  Montesquieu’s separation of powers for fallible mankind informed the Founders’ system of checks and balances in the American government.  Notably, all of these writers recognized a Creator of the universe, with a moral law for fallible mankind, and they applied this perspective to shape their political theories.  Indeed, they often referenced the Bible and biblical ideas in their writings.  As such, their political ideas easily aligned with the views and values of founding-era Americans.

Second Continental Congress voting on the United States Declaration of Independence by Robert Edge Pine c1784-1801.

Perhaps the most immediate and direct philosophical influence on the Constitution was the Declaration of Independence of 1776.  Without the Declaration and its expression of the people’s philosophical values and principles, the Founders would have had no solid, formative basis or framework for constructing the Constitution and its laws.  The Declaration necessarily established the moral, philosophical, rational, political, and legal ground of governance upon the Law of Nature and Nature’s God, the God-given equality and unalienable rights of man, popular sovereignty, consent of the governed, and social contract.  Affirming this point, Ellis Sandoz in his 2006 Republicanism, Religion, and the Soul of America observes, “The philosophical foundation of the Bill of Rights [contained in the Constitution] is set forth in the Declaration of Independence’s first sentences, especially the announcement of ‘certain unalienable rights’ grounded in the ‘laws of nature and nature’s God.’”[8]  Lutz similarly explains in his Origins, “If the social compact represented by the Declaration of Independence had not still been in effect, there would have been no basis for a new national constitution.”[9]  The Declaration thus grounded the Constitution in certain Bible-aligned moral and social beliefs and understandings.

The Bible was the most frequently cited book in the political literature of the American founding era.

Ultimately, the Bible itself had a strong influence on early Americans in the development of the U. S. Constitution.  For one, the aforementioned secular sources that influenced the Constitution aligned with biblical ideas of moral truth and law, and of mankind’s dignity and fallen condition.  Through the moral and political principles in these secular historical sources, the Bible indirectly impacted Americans’ constitutional laws and design.  In addition, the Bible also directly impacted the views of early Americans in being frequently cited by American founders and statesman, Whigs and revolutionaries, and clergymen and ministers during the founding era.  In fact, according to Lutz’s research findings as presented in his Origins, the Bible was the most frequently cited book in the political literature of the American founding era from 1760 to 1805, surpassing all the secular writers.[10]  Lutz further points out that the “prominence of ministers in the political literature of the period attests to the continuing influence of religion during the founding era.”[11]  These findings reveal that the Bible was a very strong moral, philosophical, religious, and political influence on founding-era Americans and their political ideas.  Lutz concludes, …

James Madison, President of the United States by David Edwin and Thomas Sully, c1809-1817. Considered the “Father of the Constitution,” Madison drafted and promoted the U. S. Constitution and U. S. Bill of Rights.

Drawing from these sources, the Constitution applies a number of governing principles including popular sovereignty, consent of the governed, self-government, republicanism, federalism, social contract, rule of law, common law, constitutionalism, separation of powers, limited government, unalienable rights, and religious freedom.  Some of these principles were legally expressed and implemented in the U. S. Constitution through, for example, constitutional law, checks and balances with three governing branches, elected or appointed representatives, the right to vote, habeas corpus, due process of law, and later through the Civil War Amendments abolition of slavery and equal protection of the laws.  Further, the U. S. Bill of Rights of 1791—which comprises the first Ten Amendments to the Constitution—explicitly reinforces citizens’ rights to: … 

These listed rights aim to reinforce the individual’s dignity and civil rights as well as the people’s free and just self-government.

The U. S. Constitution begins with “We the People” and creates a self-governing republic based on the moral and social beliefs and understandings of the people.

In conclusion, the U. S. Constitution, drafted by the American Founders and ratified by the American people, outlines a self-governing republic by and for the American people.  Though a practical document of human governance and law, it embodies and implements in its content and design Americans’ long-held moral, philosophical, and political principles and values.  These principles and values stem from, among other sources, the colonial and state constitutions, the Great Awakening, select Enlightenment-era thought, the Declaration, and the Bible.  In these particular sources, colonial and founding-era Americans, as well as the political philosophers they read, adhered to a Creator-oriented, Bible-based worldview with certain understandings of truth, morality, and humanity. As such, their views ultimately shaped the laws, practices, and design of their Constitution.  As Kirk observes, …

Adhering to timeless truths, the Constitution still endures after 230 years and serves as an inspiration and model for nations around the world.

[1]  Russell Kirk, The Roots of American Order, Third Edition (Washington, DC:  Regnery Gateway, 1991), 416.

[2]  Donald S. Lutz, “From Covenant to Constitution in American Political Thought,” in Covenant, Polity, and Constitutionalism:  Publius:  The Journal of Federalism, Vol. 10, No. 1, Fall 1980, eds. Daniel J. Elazar and John Kincaid (New York:  U Press of America, 1980), 102.

[3]  Alexis de Tocqueville, Democracy in America, 1831-1832, ed. Richard D. Heffner (New York:  Penguin Books, 1956), 45-6.

[4]  John Adams, A Defense of the Constitutions of Government of the United States of America, 1778, Vol. 3 cont., in The Works of John Adams, Second President of the United States, Vol. 6, ed. Charles F. Adams (Boston, MA:  Charles C. Little and James Brown, 1851), 219.

[5]  Mark A. Noll, A History of Christianity in the United States and Canada (Grand Rapids, MI:  Eerdmans, 1992), 112.

[6]  Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge, LA:  Louisiana State U Press, 1988), 139-147.

[7]  Lutz, Origins, 139-140.

[8]  Ellis Sandoz, Republicanism, Religion, and the Soul of America (Columbia, MO:  U of Missouri Press, 2006), 68.

[9]  Lutz, Origins, 112.

[10]  Lutz, Origins, 140-142.

[11]  Lutz, Origins, 140.

[12]  Lutz, Origins, 142.

[13]  Kirk, Roots, 416-7.

Contributed by AHEF and Angela E. Kamrath.

This essay (with endnotes) is available as a printable PDF handout in the member resources section on americanheritage.org.  Simply sign up and login as a member (no cost), go to the resources page, and look under Miracle of America essays.

Source for more information:  Kamrath, Angela E.  The Miracle of America:  The Influence of the Bible on the Founding History and Principles of the United States of America for a People of Every Belief.  Second Edition.  Houston, TX:  American Heritage Education Foundation, 2014, 2015.  Third edition (2020) is available!

Related articles/videos:
1.  The Principle of Popular Sovereignty
2.  The Mayflower Compact:  The Pilgrims’ First Self-Governing Act in America
3.  The Pilgrims’ Mayflower Compact as Covenant
4.  The Puritans in America Created the First Written Constitutions of Law
5.  Early American Puritan Thomas Hooker as the “Father of American Democracy”
6.  Why Puritan Thomas Hooker Favored Democracy over Aristocracy
7.  Why the Puritans Elected Representatives to Govern in their American Colonies
8.  Why the Puritans Favored Limited Government
9.  The First Experiments in Freedom of Belief and Religious Tolerance in America
10.  Roger Williams:  First Call for Separation of Church and State in America
11.  Great Awakening Principle:  The Judeo-Christian Law of Love
12.  Great Awakening Principle:  All Men Equal Before God
13.  Great Awakening Principle:  The Dignity of the Human Being
14.  The American Revolution:  An Introduction
15.  The American Quest for Self-Government
16.  American Revolution Debate:  The American Quest for a New, Bible-Inspired Republic
17.  The American Revolution was sometimes called the “Presbyterian Rebellion”
18.  American Revolution Debate:  God Desires Freedom, Not Slavery, for His People
19.  American Revolution Debate:  The Principle of Civil Covenants
20.  Thomas Paine’s Common Sense:  God’s Opposition to Absolute Rule
21.  The American Social Contract

22.  The Creator God:  The Basis of Authority, Law, & Rights for Mankind in the United States of America
23.  Self-Evident Truth:  A Philosophy of Rights in the Declaration of Independence
24.  The Law of Nature:  The Universal Moral Law of Mankind
25.  The Law of Nature and Nature’s God:  The American Basis and Standard for Just Civil Law
26.  John Locke and Algernon Sidney:  A Bible-based Defense of Equality and Popular Sovereignty for the American Founders
27.  The American, Bible-based Defense of Unalienable Rights 
28.  The American, Bible-based Defense of Religious Freedom
29.  The Purpose of American Civil Government
30.  The Bible was the Most Cited Source of the American Founding Era

Poster:  Declaration of Independence

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Lesson 1:  The Miracle of America High School Teacher Course Guide, Unit 3, Part 2, Activity 8:  The Massachusetts Body of Liberties and Our Rights Today, p. 119-120.  MS-HS.  See also pp. 95-96 in The Miracle of America reference book.

The Massachusetts Body of Liberties and Our Rights Today….  



Lesson 2:  The Miracle of America High School Teacher Course Guide, Unit 8, Part 1, Activity 3:  Principles of the United States Constitution, p. 270.  MS-HS.

Principles of the United States Constitution….

Purpose/Objective:  Students learn key principles of the United States Constitution including constitutional republic, rule of law, separation of powers, elected representatives, and federalism; and how influential thinkers and early Americans connected these concepts with the Bible.

Suggested Readings:
1)  Chapter 8 of Miracle of America reference/text.  Students read sections 8.3-8.8, 8.11, 8.14-8.16, 8.20, & pp. 288-296.

Activity:  Reading and Questions
Have students read the “Principles of the United States Constitution” and “Principles of the U. S. Bill of Rights” handouts and, as desired, relevant sections in Miracle of America text as indicated on the handouts.  After the reading, students complete the questions and activities on the handouts.  Discuss.  See handouts in the “Supporting Resources” section of the HS course guide, pp. 392-402.  The essays are also available in the member resources section of the AHEF website at americanheritage.org under “Miracle of America Snapshots.”

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To download this whole unit, sign up as an AHEF member (no cost) to access the “resources” page on americanheritage.org.  To order the printed binder format of the course guide with all the units, go to the AHEF bookstore.

—–

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This blog is provided by the American Heritage Education Foundation (AHEF).  AHEF is a non-profit organization dedicated to the understanding and teaching of America’s founding philosophy, principles, documents, and history.  AHEF’s work is made possible by the donations of private individuals and organizations.  Please consider a tax-deductible donation to AHEF to support our mission.  Thank you!

Copyright © American Heritage Education Foundation.  All rights reserved.

You’re invited: ASHES IN THE SNOW Teacher Workshop – Nov. 25, 2019 (Houston area)

November 22, 2019
The Founding

Dear Friends of AHEF,

You and your colleagues are invited to

The Victims of Communism Memorial Foundation’s
ASHES IN THE SNOW Teacher Workshop
(Houston area)

Date: Monday, November 25, 2019
Time: 9:30 AM to 1:00 PM (CST)
Location: Harris County Department of Education
Ronald Reagan Building
6300 Irvington Blvd.
Houston, TX 77022
Room 100A-C

This half-day professional development workshop will help you develop a better understanding of the ideology, history, and effects of communism in the 20th century.

As some today question our nation’s moral, political, and economic underpinnings, your knowledge of communism will help you compare/contrast and defend America’s founding heritage of individual rights, free enterprise, and private property. As American Founder James Madison once said, “The advancement and diffusion of knowledge is the only guardian of true liberty.”

This workshop will include a curriculum resource for teachers – Communism: Its Ideology, Its History, Its Legacy. It will be followed by a film screening of Ashes in the Snow (the movie adaptation of the bestselling YA novel Between Shades of Gray by Ruta Sepetys on the Baltic deportations in WWII) and a Q&A session.

Boxed lunches will be provided.

Credits: 6 hrs (includes 3 hrs GT credit)
Cost: $0.00 (free admission)
Please register to attend.

REGISTER HERE

The Victims of Communism Memorial Foundation is a U.S-based non-profit educational organization. The mission of VOC is to educate this generation and future generations about the ideology, history, and legacy of communism. The foundation was established by an Act of Congress to build a memorial in Washington, D.C. to commemorate the more than 100 million victims of communism.

This notice is posted by the American Heritage Education Foundation in partnership with The Victims of Communism Memorial Foundation.

The American Defense of Religious Freedom in the First Amendment of the Constitution

October 31, 2019
The Founding

Freedom of Worship by Norman Rockwell, 1943, Norman Rockwell Museum.

Following the American Revolution and the birth of the United States of America, the thirteen American colonies became states in the union and began to draft their state constitutions.  One of the most significant issues within the states had to do with religion.  Americans differed in their views about how to implement religious tolerance and freedom, and about state churches—in which one religious sect receives government financial support and legal privileges.  For while all the states had become more religiously tolerant in the 1700s, nine of the thirteen states still had a state church.  The state church, and the relationship between the church and civil government, was a source of intense debate for Americans.  “The American revolution of religion began,” explains A. James Reichley in his 1985 Religion in American Public Life, “in the battle over religious clauses in the state constitutions.”[1]

Many Americans saw the importance and benefits of religion—namely Christianity—in society in promoting virtue and morality, peace and order among the people.  But they disagreed over how to preserve it in a free society, or how to implement civil government in a Christian or moral context.  Some supported state churches as they had known, while others called for the revolutionary separation of church and civil government.  Heated debates arose in states with official churches like New England’s Massachusetts, Connecticut, and New Hampshire where Puritan Congregationalism was established and in the states of Virginia, New York, Maryland, the Carolinas, and Georgia where Anglicanism was established.  The issue was less intense in middle colonies with no state churches like Rhode Island, Pennsylvania, New Jersey, and Delaware which began as pluralistic Christian societies.  The arguments over religion in states like Virginia would later impact the American Founders’ approach to religious freedom at the national level in the U. S. Constitution.

Deal’s Island Camp Meeting. A sketch appearing in The Parson of the Islands: A Biography of the late Rev. Joshua Thomas by Adam Wallace, 1872. Thomas spread Methodism on the Eastern shores of Virginia and Maryland.

Americans who supported state churches saw this establishment as essential for promoting religion—specifically Christianity—and morality in society.  They feared that separating church and government would lead to competition among religious groups, disturbance, disorder, disunity, and the downfall of Christianity in society.[2]  They thus upheld the old-world view that civil rulers are the fathers and mothers of the church, tending to its welfare, as interpreted from Isaiah 49:23 where God tells His people, “Kings shall be your foster fathers, and their queens your nursing mothers.”  Yet they saw the civil ruler’s role not to enforce church doctrine, as seen historically, but to financially support the church and protect religious tolerance.  Tolerant state churches promoted religious freedom, they argued, because they allowed non-conformists to organize and pay taxes to their own churches, and to choose their own ministers.  Pious individuals, they thus thought, should find no threat or violation of conscience in submitting to the authority of a tolerant state church.

In contrast, Americans who wanted to do away with state churches agreed about the benefits of religion in society but thought church and civil government should have distinct domains.  They favored total religious freedom—not just tolerance—through the administrative and financial separation of these two institutions.  Notably, supporters of separation, or Separationists, drew some of their key arguments from the Bible and its teachings—as did early proponents of religious freedom including Rhode Island founder Roger Williams, Pennsylvania founder William Penn, and British philosopher John Locke.  Their primary argument for separation and total religious freedom was the Lockean principle that religious freedom is a natural right.  They supported separation for the following reasons:  1) Separation protects man’s natural right of religious freedom; 2) Civil government has no authority over spiritual matters; 3) Separation reduces corruption in church and government; 4) State churches are not biblical; and 5) True religion can succeed on its own merits.  The revolutionary idea of separation was defended by instrumental American founders including James Madison, Thomas Jefferson, and Benjamin Franklin.  It was further strengthened by the American values of freedom and equality fought for in the revolution.  To be sure, at the same time that they supported separation, the Founders repeatedly emphasized the importance of religion in a self-governing society in order to instill morality and virtue in the free people.

Separation Protects the Natural Right of Religious Freedom

First, Separationists acknowledged that religious freedom is a natural, unalienable right—a right given by God to all mankind and which cannot be taken away by man without just cause.  Consequently, civil government’s proper role is simply to protect this right, not to regulate religion.  Separation ensures that the proper roles of church and government are maintained.  One leading New England Baptist pastor Rev. Isaac Backus expressed this idea in his 1779 Declaration of Rights of the Inhabitants of Massachusetts Bay, saying, … 

Isaac Backus. Backus also wrote a treatise against tax-supported religion titled Government and Liberty Described and Ecclesiastical Tyranny Exposed, 1778.

In his 1785 Memorial and Remonstrance Against Religious Assessments, in which he opposed a church tax in Virginia, U. S. Constitution and Bill of Rights architect James Madison of Virginia also recognized this point.  Drawing from Locke, he asserts, … 

Portrait of James Madison by James Vanderlyn, 1816.

As long as civil liberties are not violated and civil society is not threatened, one’s religious beliefs and practices, Backus and Madison argued, are outside of government’s domain.

AHEF President and Miracle of America author Angela Kamrath speaks on religious freedom as an unalienable right at an HBU-AHEF Teacher Workshop, “The History and Foundation of Religious Freedom in America.”

For this reason, Separationists opposed even tolerant state churches because such establishments still assumed authority not just to protect but to grant religious rights to people.  For if a state church or government has the power to grant religious tolerance, it also has the power to change or remove that tolerance.  The establishment could then impose a different belief, intolerance, persecution, or other oppressions.[5]  Madison stressed this danger, posing,

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?  That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?[6]

Backus shared this concern, saying that though a current ruler or political power may enforce Christianity, earthly states can change, and a state power that at one time supports Christians may at another time persecute them.  Consequently, Separationists wanted to do away with the notion that church and government are tied together.

Civil Government Has No Authority Over Spiritual Matters

Second, Separationists—just as Williams, Penn, and Locke—argued that civil government does not have authority over spiritual matters because it cannot properly discern or judge them.  Drawing from Locke’s 1689 Letter Concerning Toleration and his definition of a commonwealth, Declaration author Thomas Jefferson of Virginia elaborated on this point in his 1776 Notes on Religion: …

Portrait of Thomas Jefferson by Charles Willson Peale, 1791.

Since government cannot determine the fate of a person’s soul, it has no reasonable authority over man’s conscience or religious belief.

Separation Reduces Corruption in Church and Civil Government

Third, Separationists, like Williams, Penn, and Locke, argued that a combined state-church system, as history shows, corrupts religion and civil government.  In requiring people to engage in certain religious practices or else suffer punishment, such a system can violate people’s consciences and produce weak, insincere, and/or violent religion.  In addition, a state church’s overseers can become complacent or more easily occupied with worldly interests like money, power, and position, and less concerned with spiritual life.  Lay church members can become overly dependent on the clergy’s teachings and less on sacred scripture itself.  Separation reduces corruption in both institutions and makes religion more free, pure, and true.  As such, in their 1784 Petition Against the Religious Assessment Bill, a group of non-conformist citizens who petitioned against church taxes in Virginia lamented the historical mixing of church and government in the 300s by Roman Emperor Constantine I.  Though originally well-intentioned, this ancient combined system, they saw, led to impure religion and church.  They observe,

Nor was it better for the church when Constantine first established Christianity by human laws.  True, there was rest from persecution.  But how soon [was the church] overrun with error, superstition, and immorality.  How unlike were ministers then, to what they were before, both in orthodoxy of principle and purity of life.[8]

Pope Sylvester I and Emperor Constantine I, 1247, San Silvestro Chapel at Santi Quattro Coronati, Rome.

This establishment only served to “call in many hirelings whose chief motive would be temporal interest.”[9]  Madison similarly observed the corrupting effects of a combined state-church system on religion and churches in history:

During almost fifteen centuries, has the legal establishment of Christianity been on trial.  What have been its fruits?  More or less in all places, pride and indolence in the clergy, ignorance and servility in the laity.  In both, superstition, bigotry and persecution.[10]

A combined system pollutes civil government, Madison further thought, in encouraging religious and political tyranny rather than government’s proper role as guardian of the people’s liberties.  Madison believed that “religion & government will both exist in greater purity the less they are mixed together.”[11]  Jefferson similarly observed in his Notes on Religion that state churches often lead to false religion.  Citing Romans 14:23, he expresses,

No man has power to let another prescribe his faith.  Faith is not faith without believing.  No man can conform his faith to the dictates of another.  The life & essence of religion consists in the internal persuasion or belief of the mind.  External forms of worship, when against our belief are hypocrisy & impiety.  Rom. 14. 23:  “He that doubteth is damned, if he eat, because he eateth not of faith.  For whatsoever is not of faith, is sin.”[12]

Jefferson later reiterated this point in his 1786 Virginia Statute for Religious Freedom, a bill which made separation a law in Virginia, providing total religious freedom.  The statute says, …

Separationists thus sought for administrative and financial distinction between church and civil government in order to have less corruption in both spheres and more free, sincere religion.

State Churches Are Not Biblical

Fourth, Separationists argued that state churches are not biblical because they a) lead to religious oppression and b) depart from early church practice.  For one, the religious oppression that often issues from state churches is contrary to the spirit of the Christian Gospel.  Like Williams, Penn, and Locke, they argued that religious coercion goes against the teachings of Christ on life, faith, peace, meekness, gentleness, forbearance, and charity or love.  These teachings are found, for example, in 1 Corinthians 13, Ephesians 4, and Colossians 3 and speak of “bearing with one another in love.”  Madison thus denounced religious intolerance and oppression as contrary to “Christian forbearance, love and charity.”[14]  Jefferson likewise observed in his Notes on Religion that “according to the spirit of the gospel, charity, bounty, liberality is due” to all.[15]

The Dunking of David Barrow and Edward Mintz in the Nansemond River, 1778.  Preachers who did not conform to the state church in Virginia were harrassed.

Separationists also pointed out that the early Christian church in the Bible was not tied to civil government.  It had no government aid where it emerged and did not grow by government force.  It received only voluntary financial support.  Despite no public financing, the early church and Christianity flourished in this period.  Citing the example of the early church, the Virginia petitioners declared that “Christ the head of the Church has left plain directions concerning religion, and the manner of supporting its teachers, which should be by free contributions.”[16]  They elaborated,

Certain it is that the Holy Author of our religion not only supported and maintained His Gospel in the world for several hundred years without the aid of civil power, but against all the powers of the earth.  The excellent purity of its precepts and the unblameable behavior of its ministers (with the divine Blessing) made its way through all opposition.[17]

Madison affirmed that early Christianity survived on its own without government support.  He expounds,

[A state-church establishment] is not requisite for the support of the Christian religion.  To say that it is, is a contradiction to the Christian religion itself, for every page of it [the Bible] disavows a dependence on the powers of this world.  It is a contradiction to fact, for it is known that this religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them; and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence.  Nay, it is a contradiction in terms.  For a religion not invented by human policy, must have pre-existed and been supported before it was established by human policy.[18]

Because the Bible evidences that early Christianity existed and thrived apart from human government, it provided strong support for separation between church and civil government.

True Religion Can Succeed on its Own Merits

Fifth, many Separationists believed, like Locke, that religion should prosper or decline based on its own merits.  Good religion like Christianity, they believed, can defend itself and prevail in a free exchange of ideas.  Madison argued that state churches only weaken Christians’ “pious confidence in its [Christianity’s] innate excellence and the patronage of its Author [God],” and conveys this doubt to others.  Alluding to Hebrews 12:2, he asserted that true faith trusts in God, the “Author and Finisher of our faith,” for its endurance.[19]  Madison later reaffirmed that “there are causes in the human breast, which ensure the perpetuity of religion without the aid of law.”[20]  Jefferson expressed this same idea in his Virginia Statute, writing, “[T]ruth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error.”[21]  American Founder Benjamin Franklin of Pennsylvania also shared this view that good religion can sustain itself.  In a 1780 letter, he writes,

When a religion is good, I conceive it will support itself, and when it does not support itself, and God does not take care to support it, so that its professors are obliged to call for help of the civil powers, ‘tis a sign, I apprehend, of its being a bad one.[22]

Portrait of Benjamin Franklin by Joseph Duplessis, c1785

Incidentally, this reason echoes Acts 5:38-39 where Gamaliel advises the Pharisees not to fight against the Gospel and Jesus’ disciples since truth will prevail.  He admonishes,

Keep away from these men [Jesus’ disciples] and let them alone; for if this plan or this work is of men, it will come to nothing; but if it is of God, you cannot overthrow it—lest you even be found to fight against God.

As such, many Separationists thus believed that good religion like Christianity would continue to spread and prosper based on its own qualities and virtues.

In defense of this argument, Separationists cited examples of early American colonies such as Pennsylvania which did not have a state church and was religiously diverse with Christians of many different sects and denominations.  In this colony, morality, peace, and order were maintained.  The Virginia petitioners observe,

That religious establishment and government are linked together, and that the latter cannot exist without the former, is contrary to experience.  Witness the state of Pennsylvania, wherein no such establishment hath taken place.  Their Government stands firm.  And which of the neighbouring states has better members, or brighter morals, and more upright character?[23]

Penn’s Vision by Violet Oakley, 1902-1906, Pennsylvania State Capitol. In this mural, Penn points persecuted Christians in Europe to his colony in America.

Jefferson likewise observed in his 1785 Notes on the State of Virginia the voluntary support of religion and the preservation of morality, peace, and order in Pennsylvania.  He notes,

Religion is well supported [in Pennsylvania]; of various kinds indeed, but all good enough; all sufficient to preserve peace and order; or if a sect arises whose tenets would subvert morals, good sense has fair play, and reason laughs it out of doors, without suffering the State to be troubled with it.[24]

Contrary to fears, the colonies without state churches, Separationists noted, did not experience disorder or the dissolution of Christianity due to greater religious freedom.  Rather, churches and religious groups there were adequately sustained by voluntary support.  Separationists concluded that independent, voluntary, privately-funded churches were possible.[25]

The Values of Freedom and Equality in the Revolution Reinforce Religious Freedom

The principles of religious freedom as a natural right and of separation between church and civil government were further reinforced at this time by Americans’ views and values of freedom and equality stemming from the American Revolution and as expressed in the Declaration of Independence.  To many, state churches violated equal rights and were contrary to America’s fight for freedom.  After the revolution, religious dissenters who had fought for freedom in the war would not tolerate religious discrimination by fellow Americans.  Catholics, for example, who had previously lacked freedom to worship in many Protestant colonies, asserted their equal religious rights as citizens.  Catholic statesman Charles Carroll of Maryland declared that “freedom and independence—acquired by the united efforts, and cemented with the mingled blood of Protestant and Catholic fellow-citizens, should be equally enjoyed by all.”[26]  Citing his Virginia Declaration of Rights of 1776, Madison shared this view of religious freedom based on equality, arguing in his Memorial and Remonstrance:  … 

In the wake of the revolution, religious freedom was thus recognized and accepted by many Americans as something that should be equally enjoyed by all citizens in the new nation.

The Importance of Religion in a Free, Self-Governing Society

It is important to note that as the American Founders implemented separation at the national level, they repeatedly emphasized the importance of voluntary religion in promoting virtue and morality in a free society.  For they knew that a self-governing republic like the United States requires a virtuous citizenry in order to successfully function and endure.  For example, Declaration signer Benjamin Rush aptly expressed the relationship of religion to a republic, stating, “…[T]he only foundation for a useful education in a republic is to be laid in Religion.  Without this there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments.”[28]  Statesman, commander general, and first U. S. President George Washington observed, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.  In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness—these firmest props of the duties of men and citizens.”[29]  Declaration signer and second U. S. President John Adams also stressed the importance of religion for virtue and republicanism, writing in a letter, “Statesmen…may plan and speculate for liberty, but it is religion and morality alone, which can establish the principles upon which freedom can securely stand.  The only foundation of a free constitution is pure virtue.”[30]  As such, the Founders strongly encouraged the teaching and expression of religion and morality.

Director of the Center for Law & Liberty and Professor of Government at Houston Baptist University Dr. Chris Hammons speaks on the American Founders’ views and value of religion in society at an HBU-AHEF Teacher Workshop, “The History and Foundation of Religious Freedom in America.”

Conclusion

In conclusion, the founding of the United States compelled the states in the union, as well as the national government, to recognize the religious rights of all citizens and to address the issue of state churches.  While some Americans believed tolerant state churches were workable, others saw separation between church and civil government as the most effective way to protect citizens’ natural, unalienable right of religious freedom.  Drawing from the Bible and Christian teaching, Separationists opposed state churches as unbiblical, corrupting, and outside proper domain; recognized that government cannot judge spiritual matters; and saw that true religion can prosper without force and regulation.  In the end, the Separationists won the argument.

AHEF President and Miracle of America author Angela Kamrath speaks on the Virginia statute and how the American Founders applied religious freedom in the new nation at an HBU-AHEF Teacher Workshop, “The History and Foundation of Religious Freedom in America.”

Subsequently, some states like Virginia implemented complete separation for total religious freedom.  Jefferson’s 1786 Virginia Statute for Religious Freedom, for example, passed in Virginia with majority support a few months after Madison wrote his Memorial and Remonstrance.  The bill asserted religious freedom as a natural right; eliminated the state church with its religious laws and taxes, and all government involvement in religion; separated civil rights from religious conviction; placed all religious groups on equal standing; and declared religion a voluntary pursuit.  The approval of Jefferson’s statute, says Frank Lambert in his 2003 The Founding Fathers and the Place of Religion in America, provided “a truly revolutionary religious freedom” and was “one of the most revolutionary moments in the entire American Revolution.”[31]  Indeed, Jefferson saw this bill as one of his greatest accomplishments.  While some states maintained tolerant or partial state churches in the 1700s and early 1800s, all states gradually eliminated them in the 1800s as they fell out of favor, even before they were declared unconstitutional.

Virginia Statute for Religious Freedom of 1786 by Thomas Jefferson.

Despite the gradual separation of church and civil government in the states, nearly all the state constitutions from the late 1700s onward continued to reference God and acknowledge the need for religion in society.  They either invoked the favor and guidance of God or expressed gratitude for His blessings of liberty.  In a 1892 court case Church of the Holy Trinity v United States, Supreme Court Justice David J. Brewer noted the inclusion of God in most states’ constitutions, observing:

If we examine the constitutions of the various states, we find in them a constant recognition of religious obligations.  Every constitution of every one of the forty-four states contains language which either directly or by clear implication recognizes a profound reverence for religion and an assumption that its influence in all human affairs is essential to the wellbeing of the community.[32]

Very notably, after implementing separation, the states continued to recognize in their founding documents God as the basis of their civil and religious liberties, and the need for religion in society.

The Religious Clause of the First Amendment to the U. S. Constitution states, “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.”

The move toward religious freedom and separation in states like Virginia was important nationally because the state constitutions provided precedents and practical models to the American Founders as they drafted the U. S. Constitution and Bill of Rights.  Ultimately, the Founders separated church and civil government at the national level—prohibiting the establishment of a national church, and securing the “free exercise” of religion in the First Amendment of the Constitution.  As such, they addressed the historically perplexing issue of religion through a Bible-inspired, natural-rights, and rational approach to religious freedom.  This approach enabled them to meet the needs of a pluralistic society and provide greater religious freedom than ever before realized in any nation in history.  In doing so, they created a society where true religious faith, practice, and expression could freely flourish and be enjoyed by all.

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[1]  A. James Reichley, Religion in American Public Life (Washington, DC:  Brookings Institution, 1985), 219.

[2]  James Madison, Memorial and Remonstrance Against Religious Assessments, 1785, in The Writings of James Madison:  1783-1787, vol. 2, ed. Gaillard Hunt (New York:  G. P. Putnam’s Sons, 1901), 189.

[3]  Isaac Backus, A Declaration of the Rights, of the Inhabitants of the State of Massachusetts-Bay, in New England, 1779, in The Sacred Rights of Conscience:  Selected Readings on Religious Liberty and Church-State Relations in the American Founding, eds. Daniel L. Dreisbach and Mark D. Hall (Indianapolis, IN:  Liberty Fund, 2009), 276.

[4]  Madison, Memorial, 184-5.  Madison also acknowledged in the Virginia Declaration of Rights of 1776 that religion is “the duty which we owe to our Creator.”

[5]  Madison, Memorial, 188-90.

[6]  Madison, Memorial, 186.

[7]  Thomas Jefferson, Notes on Religion, October 1776, in The Works of Thomas Jefferson in Twelve Volumes, vol. 2, Federal Edition, ed. Paul L. Ford (New York:  G. P. Putnam’s Sons, 1904), 252-268.

[8]  Virginia Citizens, Petition Against The Religious Assessment Bill to the Virginia General Assembly, 2 November 1784, in The Sacred Rights of Conscience:  Selected Readings on Religious Liberty and Church-State Relations in the American Founding, eds. Daniel L. Dreisbach and Mark D. Hall (Indianapolis, IN:  Liberty Fund, 2009), 308.

[9]  Virginia Citizens, Petition, 308.

[10]  Madison, Memorial, 187.

[11]  James Madison to Edward Livingston, Montpelier, 10 July 1822, in United States Congress, Letters and Other Writings of James Madison:  1816-1828, vol. 3, Congress (Philadelphia:  J. B. Lippincott & Co., 1865), 275.

[12]  Jefferson, Notes on Religion, 252-268.  Williams had declared in his 1644 The Bloudy Tenent of Persecution for Cause of Conscience from Isaiah 10, “True it is, the sword may make, as one the Lord complained, Isa. x., a whole nation of hypocrites.”  Penn had asserted in his 1671 The Great Case of Liberty of Conscience that “Force may make an hypocrite.  It is faith, grounded upon knowledge and consent, that makes a Christian.”

[13]  Thomas Jefferson, An Act for Establishing Religious Freedom, 1786, in Thomas Jefferson, Notes on the State of Virginia, 8th ed. (Boston, MA:  Printed by David Carlisle, 1801), 326-328.  See also Virginia Statute for Religious Freedom, 1786, in A History of Us:  Sourcebook and Index:  Documents That Shaped the American Nation, vol. 11, ed. Steven Mintz (New York:  Oxford U Press, 2002), 56-58.

[14]  Madison, Memorial, 189.  Madison also used this phrase and argument in the Virginia Declaration of Rights of 1776 where he wrote of the “mutual duty of all to practice Christian forbearance, love, and charity towards each other.”  Locke had asserted in his Letter Concerning Toleration that “If the gospel and the apostles may be credited, no man may be a Christian without charity, and without that faith which works, not by force, but by love.”

[15]  Jefferson, Notes on Religion, 252-268.

[16]  Virginia Citizens, Petition, 308.

[17]  Virginia Citizens, Petition, 307-308.

[18]  Madison, Memorial, 187.

[19]  Madison, Memorial, 187.  Hebrews 12:2 states, “Looking unto Jesus, the author and finisher of our faith, who for the joy that was set before Him endured the cross, despising the shame, and has sat down at the right hand of the throne of God.” (NKJV)

[20]  James Madison to Edward Everett, Montpelier, 19 March 1823, in United States Congress, Letters and Other Writings of James Madison:  1816-1828, vol. 3 (Philadelphia:  J. B. Lippincott & Co., 1865), 307.

[21]  Jefferson, Act for Establishing Religious Freedom, 326-328.  Jefferson also expressed in his Notes on Religion, “Truth will do well enough if left to shift for herself.  …  She has no need of force to procure entrance into the minds of men.  Error indeed has often prevailed by the assistance of power or force.  Truth is the proper & sufficient antagonist to error.”  Locke had asserted in his Letter Concerning Toleration that truth prevails “when strong arguments and good reason are joined with the softness of civility and good usage.”  Locke, incidentally, saw Christianity as the true religion.

[22]  Benjamin Franklin to Dr. Richard Price, Passy, 9 October 1780, in The Life and Writings of Benjamin Franklin in Two Volumes, vol. 1, eds. William Temple Franklin and William Duane (Philadelphia:  M’Carty & Davis, 1834), 367.

[23]  Virginia Citizens, Petition, 308.

[24]  Thomas Jefferson, Notes on Virginia, 1782, excerpted in The Life and Writings of Thomas Jefferson, ed. Samuel E. Forman (Indianapolis:  Bowen-Merrill Co., 1900), 154.

[25]  Madison, Memorial, 189.

[26]  John Carroll to the Editor of Columbian Magazine, 1 September 1787, in Biographical Sketch of the Most Rev. John Carroll:  first archbishop of Baltimore, ed. John Carroll Brent (Baltimore, MD:  John Murphy, 1843), 142-3.

[27]  Madison, Memorial, 186.  Madison first used the phrase “free exercise of religion” in the religion clause of the Virginia Declaration of Rights of 1776 where he says that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.”  Madison later used the “free exercise” phrase in the First Amendment of the U. S. Constitution to secure religious freedom in the new nation.

[28]  Benjamin Rush, Of the Mode of Education Proper in a Republic, in Essays, Literary, Moral and Philosophical, 2nd ed. (Philadelphia, PA:  Printed by Thomas and William Bradford, 1806), 8.

[29]  George Washington, Farewell Address, 17 September 1796, in The Addresses and Messages of the Presidents of the United States, 1789-1846, vol. 1, comp. Edwin Williams (New York:  Edward Walker, 1846), 75.

[30]  John Adams to Zabdiel Adams, Philadelphia, 21 June 1776, in The Works of John Adams, Second President of the United States, vol. 9, ed. Charles F. Adams (Boston:  Little, Brown, & Co., 1854), 401.

[31]  Frank Lambert, The Founding Fathers and the Place of Religion in America (Princeton, NJ:  Princeton U Press, 2003), 225, 235.

[32]  Church of the Holy Trinity v. United States, 143 U.S. 457 (1892).

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Contributed by AHEF and Angela E. Kamrath.

This essay (with endnotes) is available as a printable PDF handout in the member resources section on americanheritage.org.  Simply sign up and login as a member (no cost), go to the resources page, and look under Miracle of America essays.

Source for more information:  Kamrath, Angela E.  The Miracle of America:  The Influence of the Bible on the Founding History and Principles of the United States of America for a People of Every Belief.  Second Edition.  Houston, TX:  American Heritage Education Foundation, 2014, 2015.  Third edition (2020) is available!

Related Videos:
1.  American Founders Supported Natural Rights from the Bible, Nature & Reason – Angela E. Kamrath (3.32 min)
2.  Natural Rights Central to the Declaration of Independence – Angela E. Kamrath (.49 min)
3.  How the American Founders Applied Religious Freedom in the New Nation – Angela E. Kamrath (1.36 min)
4.  American Founders Emphasized Religion’s Importance in Society – Dr. Chris Hammons (3.12 min)
5.  The Issue of Religion in the U. S. Constitution – Dr. Chris Hammons (4.51 min)
6.  Thomas Jefferson and the “Wall of Separation” – Dr. Chris Hammons (7.57 min) 

Related Essays:
1.  The Principle of Popular Sovereignty
2.  The Two Kingdoms Doctrine 
3.  Challenges in the Early Puritan Colonies:  The Dilemma of Religious Laws & Religious Dissent
4.  Roger Williams and His Quest for Religious Purity
5.  Roger Williams:  First Call for Separation of Church and State in America 
6.  William Penn and His “Holy Experiment” in Religious Tolerance
7.  Early Americans supported Religious Tolerance based on God as Judge of Conscience
8.  Early Americans opposed Religious Persecution as contrary to the Biblical Teachings of Christ.
9.  Early Americans argued Religious Coercion opposes Order of Nature
10.  Early Americans Believed Religious Coercion Opposes Reason
11.  Early Americans Supported Religious Tolerance within Civil Peace and Order
12.  Philosopher John Locke & His Defense of Religious Tolerance
13.  The Religious Landscape of the Thirteen Colonies in the Early 1700s
14.  The American Revolution:  An Introduction
15.  The Creator God in the Declaration:  The Basis of Authority, Law, & Rights for Mankind in the United States of America
16.  Self-Evident Truth:  A Philosophy of Rights in the Declaration of Independence
17.  John Locke and Algernon Sidney:  A Bible-based Defense of Equality and Popular Sovereignty for the American Founders
18.  The American, Bible-based Defense of Unalienable Rights in the Declaration 
19.  America’s Founding Philosophy in the Declaration:  God as Supreme Judge, Lawgiver, and King
20.  America’s Founding Philosophy in the Declaration:  Divine Providence
21.  Gen. George Washington and the Continental Army Rely on God in the American Revolution

Additional Readings/Handouts:
1)  Why Religious Freedom is an Unalienable Right in America by Angela E. Kamrath, American Heritage Education Foundation.  Paper available to download from member resources, americanheritage.org.
2) Principles of the Bill of Rights by Angela E. Kamrath found in the “Supporting Resources” of the Miracle of America HS Teacher Course Guide, pp. 400-405, or in the “Miracle of America Snapshots” handout under member resources (see Miracle of America articles) at americanheritage.org.  Corresponding educational activities are included in the course guide.
3)  Principles of the First Amendment by Angela E. Kamrath found in the “Supporting Resources” of the Miracle of America HS Teacher Course Guide, pp. 406-416, or in the “Miracle of America Snapshots” handout under member resources (see Miracle of America articles) at americanheritage.org.  Corresponding educational activities are included in the course guide.
4)  Preamble Excerpts of 47 State Constitutions with Adoption Dates found in Miracle of America text, pp. 291-294.
5)  Chapter 8 of Miracle of America reference book/text.  Students read sections 8.1-8.2, 8.5, 8.12, and pp. 290-294.
6)  See “Related Essays” and “Related Videos” listed above.

Poster:  Declaration of Independence

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Activity:  The Miracle of America High School Teacher Course Guide, Unit 8, Part 2, Activity 3:  The Debate For or Against Religious Establishments, p. 254.  MS-HS.

The Debate For or Against Religious Establishments….

Purpose/Objective:  Students learn about the principle and natural right of religious freedom guaranteed by the First Amendment of the U. S. Bill of Rights and later by the states, and administrative separation of church and state; considering the meaning, worldview/philosophy, Bible-based connection, and application of these concepts by historical influential thinkers and early Americans.

Suggested Readings:
1)  Chapter 8 of Miracle of America reference book/text.  Students read sections 8.2, 8.5, 8.8-8.10, 8.12-8.13, 8.17-8.20, & pp. 288-296.
2)  The American, Bible-based Defense of Religious Freedom by Angela E. Kamrath (above essay).
3)  See also “Additional Readings/Handouts” listed above.
4)  See also “Related Essays/Videos” listed above.

Activity:  Virginia Mock Debate

  • Virginia Mock Debate. The teacher will group students into two groups of founding-era Americans residing in Virginia—Virginians who were for and against religious establishments.  Have students read copied selections from Miracle of America text, research, etc. to understand their position and arguments.  Students should use their political pamphlets from the activity above as a large part of their research/preparation.  Students should be familiar with important original documents, sermons, etc. along with Bible references historically applied by like-minded Americans in order to argue and defend their position.  Student groups should prepare with notes or outlines beforehand as needed.  Groups may decide to assign different points/arguments to different students.  All students should have an opportunity to participate, contributing at least one point or piece of information.  Giving students the option to dress in early American attire and/or to role play early American figures would add an additional element of fun and entertainment. See the “Class Debate Rubric” in the “Supporting Resources” section of the Miracle of America HS Teacher Course Guide, p. 321.

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To download this whole unit, sign up as an AHEF member (no cost) to access the “resources” page on americanheritage.org.  To order the printed binder format of the course guide with all the units, go to the AHEF bookstore.

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