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, 2^nd 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, 2^nd 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, 2^nd 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, 2^nd 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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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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