The men that drafted the United States Constitution acknowledged that human government eventually degenerates into tyranny apart from three related sources of law. The concept of natural law stems from the recognition that everything in the universe, including mankind, reveals something of the character of its Creator.
The concept of natural law is foreign to many of our modern scientists, educators, lawyers and even theologians due to the fact that much of the modern belief system is founded on the premise that everything happens randomly and that reason itself has nothing to do with the processes that we observe in our environment. Thus, according to many modern law professors, law is whatever the courts deem it to be.
A second source of law for the Founders was the law of Scripture. For years, it has been conventional wisdom to declare that the men that drafted the U.S. Constitution were deists; i.e., they believed that that a divine intelligence created the universe and then set it to operate like a clock without any intervention on the part of the Creator. The facts show that most of the Founders believed that the God of the Bible wants to be known by mankind and rewards those that diligently seek Him.
The Founders believed that the Scripture reveals things that God wants us to know about Him and about how to relate to God and each other. People that declare that we “should not mix religion with politics” don’t understand the Bible or history or the Constitution.
The Founders prayed during their deliberations, quoted the Scripture and made reference to “the laws of nature and of nature’s God” in the Declaration of Independence. Such phrases have a distinguished pedigree and were very familiar to men like Thomas Jefferson who had studied the common law of England via Blackstone, Coke and Bracton.
Bracton has been called the “Father of the Common Law” who wrote a treatise in the thirteenth-century dealing with the third source of law referenced by the Founders; i.e., English common law. Most of the thinkers that developed common law principles were, like Bracton, learned in church law and Roman law. In the time of King James I, Coke confronted the King’s lawyers in an ongoing controversy as to whether the law was whatever the king says it is or whether the English people possessed inalienable rights that were revealed in nature, the Scripture and English common law.
The debate reached a focal point when Parliament raised an army to do battle with King Charles I during the English Civil War (1642-48). By 1776, men like John Locke and Sir William Blackstone had firmly placed English legal thinking within a system that squarely opposed the classical Greek and Roman traditions that dominated most of European thinking by that time. See the Ninth Circuit’s Nordyke case decided April 20, 2009.
Although God’s laws have been recognized from the earliest times in the history of Catholic and Protestant thought, the tendency to subvert Judeo-Christianity by reinventions of Aristotle and Plato constantly threatened to subvert freedom. Even the bargain that Europe and America struck with the slave traders was posited upon Neo-Platonic thought. Puritan bred New Englanders and their counterparts among evangelical English Christians made up the ranks of Abolitionists that fought the slave trade because it marred the image of God to deprive a fellow man of freedom.
Blackstone also acknowledged what he called municipal or civil law in areas where God has allowed freedom to adopt rules that deal with areas that do not have an intrinsic relationship to God’s character. For example, the prohibition against murder stems from who God is; i.e., the value that God places on human life. The prohibitions in the Law of Moses against theft are a recognition of property rights; i.e., that the Lord has placed some of his dominion (or lordship; i.e., qualities of sovereignty) in each individual.
A law governing the export of wool to a foreign country, on the other hand, cannot be said to violate a moral law. A law that would require the taking of an innocent life is a quite different matter than, for example, an excise tax on imported petroleum or tea.
But this brings us to a question to which lawyers and philosophers and politicians have devoted many volumes. From where do we derive rights? The concept of inalienable rights was as little understood in ancient times as it is by most of us today. The pagan Greeks and Romans owned slaves and could dispose of their slaves as they wished because of the belief that a man’s superiority allowed him to sell, sodomize or even kill his slave.
Human worth was relative to one’s position in government and the thinking of men like Plato and the other classical philosophers reflected an elitist view of society. Thus, within the classical/pagan world view, all men were inherently unequal. Therefore, the prevailing assertion that the Founders drafted a document that represents a stream of Enlightenment thought and/or Greco-Roman jurisprudence should be rejected.
From the time of the Gregorian Reform in 1075, scholars conducted a systematic inventory in order to correlate and unify every area of knowledge so that government and law and theology and science reflected the truth of God’s Word. It was during that time that the concept of property as a right became firmly recognized.
A right (ius) or dominium was also recognized as a meritum (legal claim). Over the years leading up to 1789, various orders within the Catholic Church (e.g., Dominicans) and Protestant theologians like John Calvin continued to recognize rights as rooted in God’s command to mankind to take dominion over the environment. Thus, man has a duty to establish good government, to respect other men and women’s property and to protect life.
To forfeit one’s own life by not defending against physical attack is not permitted except in unusual circumstances where the duty to obey a higher calling demands that we lay down our duty to defend our God-given life, dignity, property and freedom.
From the foregoing basic discussion of the origin of rights, it may seem like such controversies belong to theoretical study of ancient philosophy. The fact is that the same controversy goes on to today. Current events announced in newspaper headlines reflect an underlying discussion as to the character of American government and whether it should be more like European government. The role of government in the economy has been a big issue, especially since the 1930s. For example, there are controversies over whether it is appropriate to encourage citizens to defend their families with armed force while so much senseless gun violence is committed every day. The recent shootings in Binghamton, NY are a case in point.
Beyond all the statistics and arguments, we can say with certainty that, even though we live pursuant to a “social contract” where compromise is inevitable, certain rights are inalienable. We cannot enter a contract to give up (or alienate) our right to defend our families and should disband a government that violates human dignity by wantonly killing the innocent, including religious or ethnic minorities.
If this seems too abstract, then take note of the fact that the twentieth-century witnessed socialism spread across much of the globe. Whether totalitarian socialism manifests as tribal warfare in Rwanda, the Khmer Rouge killing fields in Cambodia, National Socialism and corporate statism in the midst of the Germany Holocaust or Fascism, Bolshevism or something else- statist ideology is one of the most salient features of the 1900s- i.e., genocide.
Natural law was often referred to as “the law of nations” and international law is still premised upon precepts and principles that have consciously been developed from common law principles.
Hugo Grotius was a Dutch lawyer who laid the groundwork for a systematic understanding of international law as a unified field of knowledge. He started with the recognition that inalienable rights are an inherent characteristic of man’s dignity which derives from God having created mankind in His own image. Nevertheless, Grotius compromised with the spirit of his age (and the humanistic philosophies of Plato and Aristotle that informed the Enlightenment). By doing so, he opened up the Calvinistic commercialism of the Netherlands to the evil of slave trading.
The idea that the Second Amendment means something different than what the Founding Fathers wrote when they drafted the Constitution is another aspect of the same controversy. The idea that the Constitution means whatever the courts say it means coexists with theologians that declare that the Bible means whatever individuals interpret it to mean; the Scripture, however, declares about itself that Scripture is not for private or personal interpretation- each of us has the responsibility to submit our understanding to each other, to previous generations and to what God himself proclaims about his Word within the context of all the Scripture. By the same token, when we interprete the Constitution we should look to what the drafters meant to say; i.e., their intent.
Underlying the “spirituality” of many mainstream theologians is a pagan escape from reason that says man must create a sense of order on his own in a universe that has no order higher than a mystic pantheism that cannot be explained but must rather be sensed by a “leap of faith”. Some call this Christian existentialism; others prefer to call it mysticism. To anyone that cares about freedom, the jargon of such modern philosophers and theologians are the semantics of incipient statism.
David Kopel has written an article, “To Your Tents, O Israel,” in which he examines the Scriptural roots of the Second Amendment and then looks at the Biblical roots of the men and women that made America. By removing much of this history from our schools, educators have set us up for tyranny. Just as the Books of the Law were removed from Israel until rediscovered by Josiah, we Americans need to rediscover the Scriptural roots of our U.S. Constitution. Read and then weep in repentance for what we have been so busy forfeiting.