Constitution’s Week in Review – 20 August 2016

As I watched some of the Olympics coverage this week I couldn’t help reflect on the central role “rules” play in an ordered society.  Image if two soccer teams showed up for their match and the refs announced that the rules were mere “guidelines,” that the public expected them (the refs) to “keep up with the times.” “In the end,” says the Head Ref, “the final score will be determined by how well we think each team played.”

I suspect: “Say what?” would be the mildest of the reactions from the players.

Yet the American public seems to not care much whether our government plays by the rules of the Constitution or not.  Just saying.

It Seems To Be All About The First Amendment This Week.

Can a church operate on Biblical beliefs? I wonder how many states, besides Iowa, have a “Civil Rights Commission.”  My guess is that most do.  Does your state?  If so, you might want to start monitoring it to see if its members intend to follow the lead of Iowa’s Commission (ICRC).

In 2007, the Iowa legislature expanded the state’s Civil Rights Act to make it illegal to discriminate based on sexual orientation and gender identity.  The ICRC then issued an online brochure[1] that stated churches would “sometimes” be held accountable for the guidelines.  Naturally, this caused great confusion among the state’s churches, with some charging that the ICRC was forcing gender-neutral bathrooms on them[2] and even that the ICRC intended to monitor sermons for compliance.  Those on the Left called it a non-issue.[3]  With the help of Alliance Defending Freedom, other churches filed suit to have the brochure clarified.[4]

It appears the ICRC has no intention, for now, of filing complaints against churches for failing to allow gender-confused individuals to use the bathroom of their choice or for preaching bible-based admonitions against homosexuality.  But there remains great confusion over whether churches must become “members-only” in order to be totally immune.

How’s gender-confusion being dealt with in your state?

Mosques vs Churches.  Does the First Amendment require government at every level to accommodate every religion equally?  I know what the Framers of the Constitution would have said.  We’ll soon find out what today’s courts think.

Muslims of Sterling Heights, Michigan, asked for a zoning waiver that would allow them to build a second mosque in the city, and were turned down.  Claiming bigotry, the Muslims filed suit[5] and, rather than wait for the suit to be resolved, the Obama administration jumped into the fray and launched their own investigation of the claim.

If a Christian Church had instead been denied a zoning variance for similar reasons, I doubt the result would be a lawsuit.  But the way things are going in this country, with Christians being told to “shut up and color,” I won’t be surprised to see churches being similarly restricted and reacting similarly.  But back to the central question: must government, in this case city government, treat all religions equally?  If a variance is given to one religion or denomination must it then be given to all?  Can there still be valid reasons for turning down a zoning request?  Or to avoid any hint of bias, must we allow Muslims in America to erect mosques wherever they desire?  The landscape of America is changing, and the pace of that change is quickening.  At some point Americans will have to decide whether they wish to retain some sort of a national identity.  What do you think?

What does Free Speech Include?  People often point to Canada as our “enlightened neighbor to the north.”  Sporting a nationalized healthcare (from which the wealthy flee to obtain their care in America) and a bold, brash young Prime Minister, it is easy to overlook the “dark side” of Canadian life.  Like this:  would we be comfortable in America with unelected commissioners dispensing fines when comedians’ jokes start crossing imaginary lines in the sand?

Quebec’s Human Rights Tribunal fined a Canadian comedian[6] $42,000 for joking about a disabled boy.  Unfortunately, the boy he chose to joke about really existed and was sort of a national icon; that certainly didn’t help.  But I think we can all agree that while such a joke is clearly in poor taste, we’re headed down a steep, steep slope if we start prosecuting people for poor taste.  On the bright side, the aisles of Walmart would quickly empty,[7]

That Nasty Bible Again.  Mikey Weinstein[8] of the Military Religious Freedom Foundation continues to wage his one-man crusade against Christianity in the Air Force, this time complaining about a Bible left in plain view on an Air Force Major’s desk.[9]  Official Air Force policy says Bibles on desks is acceptable, but that didn’t stop Mr. Weinstein, who hoped to capitalize on a ruling last week by the U.S. Court of Appeals for the Armed Forces which upheld the bad conduct court-martial of a Marine who displayed Bible verses on her computer workstation.  Weinstein’s complaint will fail, but I predict the publicity-hungry ex-Air Force officer (you don’t know how much it pains me to acknowledge Weinstein was such) will not be dissuaded.

Upcoming Events: It is shaping up to be a busy Fall.  I will be putting on at least one Constitution Seminar in either September or October in the Tidewater area, but the date and location are not yet certain.

On Tuesday, 6 September, our Natural Law Discussion Group, having finished a look at Natural Law, at least for the moment, will undertake an abridged version of Institute On The Constitution’s Duty of the Jury Course.  This course explores the traditional power of juries to judge both the law and the facts.  In the colonial period and even into the 1860s, juries routinely exercised this power.  Not so much today; primarily because juries are routinely and specifically instructed by judges that they do not have this power.  The discussion group is (and has always been) open to anyone with an interest in studying what we’re studying.  The next bi-monthly meeting will be 6 September from 6:30-8:30 pm in the Oyster Point area of Newport News, VA.  For the exact address, send an email to: gary@constitutionleadership.org.

12 Sep Lessons in Liberty – The Electoral College

The functioning of the Electoral College today bears little resemblance to the Framers’ intentions.  Rather than complete its death blow with a Constitutional Amendment, groups like National Popular Vote have decided a final end-run is all that’s needed.  Can the Framers’ intent be restored?  Come find out on Monday, 12 September, 7-9pm at the Foundation for American Christian Education in Chesapeake, VA.  For those outside the local area, the presentation will be livestreamed.  Registration is $10 either way at www.face.net.

19 Sep Christian Financial Concepts Webinar – The Electoral College

The following Monday, I give a one-hour abbreviated version of my Electoral College presentation for the Christian Financial Concepts[10] webinar series.  Participation is free, but this will by necessity be a more truncated view of the issues involved.

WFYL Radio: We the People, the Constitution Matters.  Having completed a look at the principles of the Declaration of Independence, our intrepid commentators take on the topic of “Progressivism in America.”  Join us Friday mornings from 7-8am beginning 26 August, as we cover the sordid history of Progressivism, how it gained a foothold in America, the damage it has already done and where its acolytes plan to take this country in the very near future.

The “Constitution’s Week in Review” is a project of the Constitution Leadership Initiative, Inc.  To unsubscribe from future mailings by Constitution Leadership Initiative, click here.

[1] http://www.christianpost.com/news/churches-sex-segregated-bathrooms-transgender-feel-unwelcome-closed-to-public-iowa-commission-166167/

[2] http://thefederalist.com/2016/07/06/iowa-bureaucrats-force-trans-bathrooms-on-churches-forbid-non-pc-preaching/

[3] https://stream.org/iowa-civil-rights-commission-spokesperson-urges-churches-trust-wont-target-sermons-religious-practices/

[4] http://www.adfmedia.org/News/PRDetail/10015

[5] http://www.freep.com/story/news/local/michigan/macomb/2016/08/10/muslims-sue-sterling-heights-mosque/88526616/

[6] http://heatst.com/culture-wars/comedian-fined-42000-for-telling-a-joke/

[7] https://www.youtube.com/watch?v=rj0QGecsg3Y

[8] http://www.christiannewswire.com/news/38272018.html

[9] http://www.washingtontimes.com/news/2016/aug/18/air-force-orders-investigation-bible-officers-desk/

[10] http://www.christianfinancialconcepts.com/webinars.php

 

The Constitution’s Week in Review – 2 July 16

Happy Birthday America!

Most people associate July 4th with our nation’s “birth” (the day was declared a national holiday after all), overlooking the fact (or perhaps they’ve never been taught) that it was two days earlier, on July 2nd, when the Continental Congress actually voted to pass Virginia’s resolution calling for independence.  Writing the next day to Abigail, John Adams gushed:

“The Second Day of July 1776 will be the most memorable Epocha, in the History of America.  I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival.  It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty.  It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

The day after Adams wrote those words, the draft of the Declaration was “wordsmithed” and finally approved, leading to our national holiday being recognized on that day instead.  The story of the passing of Lee’s resolution is full of drama and intrigue.  Enjoy the read.[1]

While it is fitting and proper to wish the nation a “happy birthday,” it is also fitting and proper to note the precarious situation the country finds itself in.  Immense challenges: economic, cultural and constitutional, threaten our future prosperity and freedoms.

Take time to celebrate – and then get back to work reversing the wounding of our great nation that has taken place over the last eight years.

Article 3 – The Judiciary

Showing us in vivid detail the value of term limits for federal judges, Judge Richard Posner of the 7th Circuit declared study of the original Constitution to be a complete waste of time,[2] at least for judges: “I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation,” waxed the jurist, who was appointed to the bench in 1981 by President Ronald Reagan (who probably regrets the appointment).   I agree in part with the judge, however.  The Supreme Court has indeed turned the Constitution into a system of common law, judge-made law, departing from the idea of a fixed standard of law, to be modified only by “amendment in the way which the Constitution designates.”[3]

The judge’s amazing statement joins a host of equally controversial ones in the past that make it unlikely (in the eyes of some at least) that the judge would ever be nominated to the Supreme Court.  Condemning Justice Antonin Scalia for making politically charged public statements[4] while doing the same hardly enlarges one’s credibility.  So, since Congress seems unwilling to propose a term limits amendment, even one focused exclusively on jurists, and since the Article V Convention project is still being rabidly fought by some on the Right, it appears unlikely that we will ever have access to a mechanism for removing jurists whose opinions make them unsuitable for continued service.  Oh well.

1st Amendment – Right of Conscience

As I’ve hinted numerous times in these pages, if you want a chance to express your right of conscience, you best do it soon – the right may not be around much longer.

If you care to let your conscience peek out on the campus of the University of Northern Colorado, at least in some non-politically correct way, you might find yourself the subject of an inquisition by the “Bias Response Team.”[5]  At the moment, the teams seems content to merely point out apparently unperceived “bias” (translation: anything the Left does not believe in); but how long will it be before an unfavorable ruling by the “bias police” results in disciplinary action or worse for some unlucky college student?

In related news, the Mississippi state legislature’s attempt to provide some protection to their citizens to act within the limits of their conscience came screeching to a halt as  a U.S. District Judge ruled[6] that Mississippi’s House Bill 1523,[7] violated the U.S. Constitution.  The Bill was an attempt to pushback against last year’s Obergefell v. Hodges decision legalizing homosexual “marriage.”  LGBT groups applauded the ruling.

Hopefully, the ruling will be appealed but at the moment that is not certain.

So the question remains: is there any aspect of Christian faith/Christian conscience which should be allowed to inform your public actions?  What do you think?

2nd Amendment – Never Let a Shooting Go To Waste

Sensing a change in the mood of the American public over whether persons on the government’s “no-fly” list should be allowed to purchase guns, Congressional Democrats are preparing to turn their “sit-in demonstration” into a road-show.  If you are comfortable with people who find themselves, for whatever reason, on a secret government list being denied the ability to purchase a gun, than go about your business, nothing to see here.  I see potential problems.

 Recommendations and Events:

Constitution Seminars.  I have no Constitution Seminars scheduled at the moment.  If you have a group of 10 or more individuals within a day’s drive of Yorktown, Virginia, and would like one presented, let me know via email to: gary@constitutionleadership.org.   Keep in mind that I’ll be unavailable from 1 August to 18 September.

Lessons in Liberty.  On Monday, July 11, from 7:00-9:00 p.m. EDT, The Foundation for American Christian Education’s Lessons in Liberty series will welcome Jim Wallis, who will speak on the topic: Was Jesus a Socialist?  You can attend in the FACE classroom in Chesapeake, Virginia, or live online via Livestream.

This lecture explores the divergence of both Christianity and the Jewish people from their covenantal, Hebrew roots. And will take on a related questions such as, “Was the early church communal in the modern Marxist sense?” and “How about the Moses/Joshua Hebrew model, was it a republic or a theocracy?”

The cost to attend, either in the classroom or online, is $10.  Register at http://www.face.net/.

On Friday, 8 July, we’ll begin a new feature on “We the People, the Constitution Matters” that I will call, for lack of a better term: Constitutional Tennis.  Just after the break at the midpoint of each show, one of our three commentators will pose a question about the Constitution, to be answered by any caller who knows the answer.  The first caller to answer the question correctly will be allowed, in turn, to pose a question of their own to any of our commentators.  If the question can’t be answered on the spot that commentator will be assigned the task of researching and answering the question at the start of the following week’s show.  “Team Listener” will get a point for each correctly answered question and “Team Scholar” will get a point for each on-the-spot question answered correctly.  We’ll announce the running point total each week.

You can listen to “We the People, the Constitution Matters” at www.1180wfyl.com each Friday from 7-8am EDT.  The recorded show is also re-broadcast each Saturday at 11am and Sunday at 2pm.

On 8 July, we’ll resume our continuing discussion of the principles of the Declaration of Independence by examining the principle that a “long train of abuses and usurpations, pursuing invariably the same Object evince[ing] a design to reduce them under absolute Despotism” is a necessary precondition for a people to legitimately change their form of government.   We will also contrast what comprised that “long train” in 1776, with what we are experiencing today.  It should be an interesting comparison.

[1] http://udspace.udel.edu/bitstream/handle/19716/4467/article3.pdf;jsessionid=6CF19E9A57FD05120A914311C63B1D7C?sequence=1

[2] http://www.americanthinker.com/blog/2016/06/has_richard_posner_committed_an_impeachable_offence.html

[3] George Washington, Farewell Address, 1796.

[4] http://abcnews.go.com/Politics/OTUS/supreme-court-justice-antonin-scalias-political-outbursts/story?id=16694778

[5] http://www.gopusa.com/?p=11819?omhide=true

[6] https://mississippitoday.org/2016/06/30/federal-judge-strikes-down-house-bill-1523/

[7] http://billstatus.ls.state.ms.us/documents/2016/html/HB/1500-1599/HB1523SG.htm

The Founders’ View of Natural Law

Note: A few months ago someone in my area decided to form a Natural Law Discussion group.  I joined, and I’ve enjoyed some vibrant and informative discussions as we explored the long history of natural law, natural rights, and the key philosophers who, over millennia, have theorized about both.  Each member of the group takes turn researching and then presenting on one of the people who played major roles in expounding upon the subject: Aristotle, Aquinas, Hobbes, Locke, etc.  What follows is my contribution to the effort; it was presented to the group on 28 June 2016.

Natural Law and Natural Rights are enjoying a mild renaissance today, largely as a result of new interest in the Constitution and its Bill of Rights.  That this interest comes in response to blatant violations of constitutional order, including attacks on traditionally understood rights and principles by the Obama administration, particularly the right of conscience, is unfortunate, but proves the need for the renaissance.  Poll after depressing poll shows Americans to be Constitutionally illiterate, ignorant of other Founding documents and American history in general, and disengaged from the vital role all citizens must play in “keeping” the Republic.

The Founders believed wholeheartedly in Natural Law and Natural Rights; that much is easily demonstrated.  Jefferson’s invocation of natural law in the Declaration of Independence (“the laws of nature and nature’s God) as a means of justifying the colonists’ separation from Great Britain is certainly the most famous and widely known reference.  But beyond what we find expressed in the Declaration, what shape did the Founder’s understanding of natural law take?  What were the contours?

To answer that question we will first ask: Where and how did the Founding Fathers learn about natural law in the first place?

In one sense, they needn’t have studied the subject at all.  St. Paul wrote that God’s moral law, part of the natural law, is “written on the heart”[1] of each individual.  We intuitively know that we have the option of right and wrong behavior because God imprinted this information into our consciousness from the start.  But we know from experience and observation that the moral law written on each individual heart is not always perceived or acted upon correctly.  Sin clouds are ability to discern this law with complete accuracy.  A more complete revelation is thus needed and God supplies that, and supplied it as well to those of the Founding Period, through the Bible.  “[T]he Bible… was… found in nearly every home,” writes historian Forrest McDonald; and, we can add: read, studied and internalized.  William Bradford wrote in his famous journal, “On Plimouth Plantation,” that the Pilgrim settlers had no choice but to camp near their landing on the Massachusetts shoreline. They could not, “as it were, go up to the top of Pisgah to view from this wilderness a more goodly country.”  Bradford did not need to elaborate or explain his reference to an obscure mountaintop in the Middle-east where Moses first glimpsed the Promised Land, Bradford’s contemporaries would have instantly understood, and seen the parallel.

But the Founders learned during their classical schooling and in their later study as adults that there was more to Natural Law than what is revealed in the Bible alone.

In 1825, a year before he would die, Thomas Jefferson explained the reasoning behind the Declaration of Independence to old friend and fellow Virginian, Henry Lee.  Jefferson wrote: “All [the] authority [of the Declaration of Independence] rests … on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.”[2]

The “elementary books of public right” were also the elementary books of natural law.  The existence of natural law and the foundation it provided for natural rights was clearly one of Jefferson’s “harmonizing sentiments of the day.”  But an examination of the authors Jefferson cites in his letter to Lee confirms that the Founders were exposed to many different and not always “harmonizing” views of natural law.  Aristotle and Locke, for example, took decidedly different views of the subject, as did Cicero and Sidney.  Plus, the authors Jefferson cites were not the only ones the Founders read.  Every Founder of adequate means purchased and read many other books that either focused on or at least touched on the subject.

In his insightful essay: “A Founding Father’s Library,” historian Forrest McDonald lists many books that one could expect to find in nearly every Founder’s library — books such as: “The Rights of War and Peace” by Hugo Grotius, “The Laws of Nature and Nations” by Samuel Pufendorf, and “The Principles of Natural and Political Law” by Jean Jacques Burlamaqui.  Emmerich Vattel’s “Law of Nations” and “the celebrated Montesquieu’s” “Spirit of the Laws” were both favorites.  Sir William Blackstone’s “Commentaries on the Laws of England” and Edward Coke’s “Institutes of the Lawes of England” were digested by everyone undergoing legal training.  According to James Madison, Blackstone’s four volumes were “in every man’s hand.”  Another “elementary book[] of public right,” Algernon Sidney’s Discourses Concerning Government, over which he lost his head, literally, has been called the “textbook of the American Revolution.”[3] All these authors had something to say about natural law and natural rights and the Founders quoted from them all.

Interestingly, Coke and Blackstone, the two great jurists, both harmonized natural law with God’s law.  Blackstone explaining the “the laws of nature” this way: “This will of [our] maker is called the law of nature.  For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the…direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws….Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due..” Blackstone explained the “laws of Nature’s God” by writing: “[D]ivine providence… in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures.”

Constitution signer James Wilson summarized it this way: “The law of nature and the law of revelation are both Divine: they flow, though in different channels, from the same adorable source. It is indeed preposterous to separate them from each other.”

“By the 17th century, natural law philosophy had developed into a multifarious body of thought with distinct conservative and radical strains.  The conservative natural law school exemplified by such thinkers as Hugo Grotius, Thomas Hobbes, and Samuel Pufendorf drew decidedly authoritarian political implications from the natural law principle of natural liberty and equality.  They tended to emphasize a strong, and even absolute, version of political sovereignty and generally rejected popular self-government and the right of revolution.  For their part, radical natural law theorists such as John Locke, Benedict Spinoza, and Algernon Sidney built an argument for popular sovereignty on the bedrock principles of individual rights, especially the right to property and the right of conscience, as well as a natural right of revolution.”[4]

In addition to this philosophical divide, Aristotle and Cicero wrote of a purely natural law, not sourced in God, while Locke, Sidney, Blackstone and Coke all pointed to God as the origin of this law.  Hobbes and Aquinas took equally opposing views. How did the Founders distill these many conflicting viewpoints?

Despite this splintering of natural law theory, or perhaps because of it, by 1776, the British legal system had already begun to abandon natural law theory in favor of the supremacy of Parliament.  The Founders saw this sea change taking place and became more vehement in their insistence on natural law as the foundation for their rights.

Since the majority of the dominant Founders were lawyers, we can conclude that the view of Cooke and Blackstone prevailed over that of Cicero and Aristotle.  That is not to say that Cicero and Aristotle did not contribute to the Founders’ view of political philosophy in other significant ways.  While some Founders may have held to a purely naturalistic view of natural rights; the theistic view clearly predominated.  Carl Becker, scholar of the Declaration, concluded that “the natural rights philosophy was essentially at one with the Christian faith.”[5]

The Founders, some of them at least, also modified their views over time.  Early on, Thomas Jefferson was heavily influenced by both Coke and Locke. He constantly recommended Locke to his friends, provided Locke a prominent place in the curriculum of the University of Virginia, and even remarked that “Locke’s little book on government is perfect as far as it goes.”  Of Coke, Jefferson wrote: “Coke Lyttleton was the universal elementary book of law students and a sounder Whig never wrote nor of profounder learning in the orthodox doctrines of . . . British liberties.”

In 1770, young lawyer Thomas Jefferson defended a black slave of mixed-race heritage in an attempt to gain his freedom.  Jefferson argued (unsuccessfully) that “everyone comes into the world with a right to his own person and using it at his own will … This is what is called personal liberty, and is given him by the author of nature, because it is necessary for his own sustenance.”  In A Summary View of the Rights of British America (1774), Jefferson asserted that Parliament had no power to encroach “upon those rights which God and the laws have given equally and independently to all.”  Later, in his Notes on Virginia (1781), Jefferson warned: “… can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?”  In 1823, Jefferson toned down the theism of his previous writings: “We believed, with them, that man was a rational animal, endowed by nature with rights, and with an innate sense of justice…”[6] (emphasis added)

We should also note that of the three references to God in the Declaration of Independence, only the first was in Jefferson’s original draft, the other two[7] were added by the full Congress.

In his 1776 essay entitled: On the Right to Rebel Against Governors, The Reverend Samuel West says: “The most perfect freedom consists in obeying the dictates of right reason, and submitting to natural law. When a man goes beyond or contrary to the law of nature and reason, he becomes the slave of base passions and vile lusts; he introduces confusion and disorder into society, and brings misery and destruction upon himself. This, therefore, cannot be called a state of freedom, but a state of the vilest slavery and the most dreadful bondage. The servants of sin and corruption are subjected to the worst kind of tyranny in the universe. Hence we conclude that where licentiousness begins, liberty ends.”

This minister’s reference to “right reason” is pure Aristotelian, while his warning about “servants of sin” could have equally been said by Aquinas.

Samuel Adams, “The Last Puritan,” also mixed his references.  In The Rights of the Colonists, published in November 1772, he wrote: “If men, through fear, fraud, or mistake, should in terms renounce and give up any essential natural right, the eternal law of reason and the great end of society, would absolutely vacate such renunciation; the right to freedom being the gift of God Almighty, it is not in the power of man to alienage this gift, and voluntarily become a slave.”  Adams suggests we use our faculty of reason to conclude that our natural rights should not be alienated, because they are the gift of God.  The Founders say no conflict between reason and revelation; the two were not mutually exclusive, both had a role to play.

In an essay published in the Boston Gazette in August 1765 (two months before the Stamp Act Congress convened), John Adams insisted that: “[You have] rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe.”

Adams later wrote that the principles of the American Revolution were “the principles of Aristotle and Plato, of Livy and Cicero, and Sidney, Harrington, and Locke; the principles of nature and eternal reason; the principles on which the whole government over us now stands.”[8]

The following Founders (at least) acknowledged natural rights and natural law in their writings: George Washington, John Adams, Thomas Jefferson, James Madison, Alexander Hamilton, John Jay, James Wilson, James Iredell, Oliver Ellsworth, Benjamin Rush, Gouverneur Morris, Roger Sherman, John Quincy Adams, John Dickinson, George Nicholas, James Monroe, Edmund Randolph, George Mason, Patrick henry, Richard Henry Lee, George Clinton, Elbridge Gerry, Sam Adams, John Hancock, and James Otis.  Samuel Bryan (“Centinel”), Richard Henry Lee ( “The Federal Farmer”?) , and Robert Yates “(Brutus”) all expressed their views during the ratification debates.

While perhaps not every single one of the Founders would agree that God was the source of natural law, they all agreed that natural rights sprang from that law, and they took every opportunity to document those rights.  Here is a partial list of key “rights” documents composed during the Founding Period:

  • 1639 – Fundamental Orders (Connecticut)
  • 1641 – Body of Liberties (Massachusetts)
  • 1677 – Declaration of the People (Virginia)
  • 1765 – Declaration of Rights and Grievances (Congress)
  • 1766 – An Inquiry Into the Rights of the British Colonies. (Richard Bland)
  • 1772 – The Rights of the Colonists (Samuel Adams)
  • 1774 – A Summary View of the Rights of British America (Thomas Jefferson)
  • 1774 – Declaration and Resolves (Congress)
  • 1775 – Declaration on the Causes of Taking Up Arms(Congress)
  • 1776 – Declaration of Rights (Virginia)
  • 1776 – Declaration of Independence (Congress)

 

Based on various writings and speeches of the Founders, following is a sampling of some of the rights attributed directly to natural law:

“all men are created equal” (Jefferson, Declaration, 1776)

“there is a parity of privileges,” (Alexander Hamilton, The Farmer Refuted, 1775)

there is a “right to remain in a State of Nature as long as they please” (Samuel Adams, 1772)

there is a “right to life, liberty [and] property,” (numerous writers)

there is a “right to support and defend (life, liberty and property)” (Samuel Adams, 1772)

“every natural Right not expressly given up or from the nature of a Social Compact necessarily ceded, remains” Samuel Adams, 1772)

there is a “right of self defense,” (St. George Tucker, View of the Constitution of the United States, 1805)

there is a right of the people to alter their government (James Otis, The Rights of the British Colonies Asserted and Proved, 1764)

there is a “a right …to nullify … all assumptions of power by others” (Thomas Jefferson, Kentucky Resolutions, 1798)

there is a right to “pursu[e]and obtain[] happiness and safety.” (Virginia Declaration of Rights, 1776)

there is a right to “conviction and conscience [over religious beliefs]” (James Madison, “Memorial and Remonstrance Against Religious Assessments,” 1785)

there is a right of “speaking, writing and publishing their Sentiments with decency and freedom; of peaceably Assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances.” (Roger Sherman, Proposal to House Committee of Eleven, 1789)

there is a right to “trial by jury” (Declaration of Rights and Grievances, 1765)

“Additionally, some Virginians included in their natural rights such concepts as … freedom from ex post facto laws, the right to an impartial judge, and a right to defend their liberties by force…”[9]

This may seem to some a meager list.  James Iredell of North Carolina envisioned one much larger.  At the North Carolina Ratifying Convention on July 29, 1788, speaking of the need for a Bill of Rights, he said:  “Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.”

 

While the Founders may have struggled to identify and articulate all their natural rights, an impossible task really, they entertained no confusion over the relationship between natural law and civil law, the former must take precedence over the later.

“All positive and civil laws, should conform as far as possible, to the Law of natural reason and equity.” Samuel Adams, The Rights of the Colonists.

“Human law must rest its authority ultimately upon the authority of that law which is Divine.”  James Wilson, Of the General Principles of Law and Obligation.

“When human laws contradict or discountenance the means which are necessary to preserve the essential rights of any society, they defeat the proper end of all laws and so become null and void.”  Alexander Hamilton, The Farmer Refuted.

“Now all acts of legislation apparently contrary to natural rights and justice … must be in the nature of things, considered as void.  The laws of nature are the laws of God, whose authority can be superseded by no power on earth.  A legislature must not obstruct our obedience to him from whose punishments they cannot protect us.  All human constitutions which contradict His laws we are in conscience bound to disobey.  Such have been the adjudication of our courts.”  George Mason, as argued in Robin v. Hardaway, Virginia General Court, 1772.

Finally, what about abridgement of their natural rights?  The Founders accepted the notion that natural rights were subject to limitations imposed by the natural law.  “All natural rights,” said Jefferson, “may be abridged or modified…by the [natural] law.”  But “only as we have submitted to them.  The rights of conscience we never submitted, we could not submit.  We are answerable for them to our God.”  On another occasion Jefferson claimed “our liberty depends on the freedom of the press, and that cannot be limited without being lost.”[10]  “This abridgement could take the form of (1) consideration for the common good, (2) respect for the equal rights of others, and (3) realization that when the basis of the right is absent, the exercise of the claimed right can properly be denied.”[11]

In summary, America’s Founders believed in natural law and most believed it was a gift of their Creator.  The thinking of some Founders on the subject appears to have also been influenced somewhat by enlightenment thinking.  Regardless of the source of natural law, such law was discoverable and actionable as a means of invoking natural rights.  It was their natural rights that the colonists felt were being abused and usurped, and a new nation resulted.

So, what’s the point?  Why is it important to understand the Founder’s views of Natural Law and Rights?  First, as I tell all my classes, you must understand the Founders’ worldview, which includes their view of law and rights, to correctly understand any documents from the Founding Period.  Second,  As secular society attempts to push the Christian community further and further into the corners of the public square, the idea that our natural rights are a gift of God is being replaced with a secular equivalent: that all rights are purely and simply a gift of Government.  To the extent that American society accepts this counterfeit theory, true liberty is lost and is replaced by subservience to an almighty, omniscient, and omnipresent civil government.  That’s where we are headed as a nation, and the secularists are determined to win this battle at all costs; many Americans, however, refuse to believe there is even a war afoot.  True freedom rests then on conservatives and other patriotic, freedom-loving Americans to keep the torch of natural rights burning brightly and not let it be extinguished.

My involvement in this Natural Rights discussion group has been quite rewarding and intellectually stimulating.  Why don’t you consider starting one in your area?

Suggested reading:

Natural Law, Natural Rights: www.nlnrac.org/classical/

https://www.nccs.net/natural-law-the-ultimate-source-of-constitutional-law.php

http://www.shestokas.com/uncategorized/natural-law-and-the-legitimate-authority-of-the-united-states/

Phillip Hamburger, “Natural Rights, Natural Law and the American Constitutions” Yale Law Journal, Vol 102, pp. 907-960.

Diarmuid F. O’Scannlain, “The Natural Law in the American Tradition” Fordham Law Review, Vol 79, Issue 4, p. 1513.

Clarence Manion, “The Natural Law Philosophy of the Founders,” Natural Law Institute Proceedings.

Clarence Manion, “The Founding Fathers and the Natural Law: A Study of the Source of Our Legal Institutions,” American Bar Association Journal, Vol 35, No. 6 June 1949, pp. 461-464, 529-530.

Chester James Antieau, “Natural Rights and The Founding Fathers-The Virginians,” 17 Wash. & Lee L.Rev. 43 (1960), http://scholarlycommons.law.wlu.edu/wlulr/vol17/iss1/4.

Brutus on “Rights” http://press-pubs.uchicago.edu/founders/documents/v1ch14s26.html.

 

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[1] Romans 2:15.

[2] Thomas Jefferson, letter to Henry Lee, May 8, 1825

[3] Caroline Robbins, “Algernon Sidney’s Discourses Concerning Government:Textbook of Revolution,” William and Mary Quarterly, 1947, 3rd Series, 4:266-296

[4] Lee Ward, Natural Law and the Colonial Roots of American Constitutionalism, accessed at: http://www.nlnrac.org/american/colonial-roots.

[5] Becker, What is Still Living in the Political Philosophy of Thomas Jefferson?, 48 Am. Hist. Rev. 691, 695 (1943)

[6] Letter to Judge William Johnson, June 12, 1823.

[7] “the Supreme Judge of the world,” “the protection of divine Providence,”

[8] http://www.nlnrac.org/classical/aristotle#_edn3

[9] Manion, p. 46.

[10] Letter to Dr. James Currie, Jan. 18, 1786.

[11] Antieau, p. 52.

Constitutional Corner – The Imperial Presidency

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“Nothing is more essential to the establishment of manners in a State than that all persons employed in places of power and trust be men of unexceptionable characters.  The public cannot be too curious concerning the character of public men.”  Samuel Adams, in a letter to James Warren on November 4, 1775.

As we prepare to enter what could well prove to be the most ruthless, mean-spirited, and most uncivil presidential election season in modern times, it would be well worth our time to take a step back, a few deep breaths, and reflect on both the office of President as it is defined by the Constitution as well as the character of the current candidates vying for that high office.  America has seen rancorous elections in the past, beginning in 1800, but this one could take the cake.

Part of what makes recent presidential elections so emotional is that, over the years, the Office of President has become something it was never intended to be.  Let’s look back:

George Washington had it easy; no previous precedents to bind him, only the broadly formed words of the new Constitution as his guide, the ink barely dry.

The Philadelphia delegates had shuddered at the thought of a kingly Chief Executive, but shuddered equally at the examples created by some of the new state Constitutions. Their state Governors were weak, impotent, mere figureheads.  As they designed the U.S. Presidency the delegates knew some of the powers of a king would be absolutely necessary, but which ones?  “Their challenge was to invent an executive office that would be strong enough to provide effective governance without threatening the newly developed and most cherished republican form of government.”[1]

Certainly the power to negotiate foreign treaties should be vested in the President; the Confederation Congress had had this power, and exercised it reasonably well, fielding a stable of diplomats of the first order and negotiating the “tie-breaking” treaty with France; but still, this is a power best left to a single person than a committee.  Executing the laws?  That was a given.  Congress didn’t want to both write and enforce the law (but the Executive, as it turns out, would be more than willing to do both).  But what of the war-making power?[2]  That was a landmine waiting to go off, and the delegates knew it – except that they didn’t have landmines back then.  Best not to have a Chief Executive with the power to drag us off into costly wars (in both lives and fortune) every few years such as the kings of Europe were wont to do.  The solution: the delegates would give most of the war-associated powers to the Congress and only allow the President to lead the forces into battle (or lead from behind, as has become fashionable of late).  And so Article 2 of the Constitution came to be.

But still, Washington had to make it up as he went; everything he did would set the first precedent; that much was apparent.  Best tread cautiously then, which he did – seeking advice from both sides of each argument before setting his tack.

Today’s Presidents operate on the precedents that Washington and every President since have set, some Presidents (and their precedents) have been respectful of the Framers’ principle of a limited government of enumerated powers, some Presidents have appeared oblivious (at best) or arrogantly spiteful (at worst) of this principle.

Many Presidents, perhaps most of them, have exceeded the limits of their Constitutional powers, beginning with Washington whose declaration of neutrality, ostensibly binding individual Americans from lending support to either Britain or France in their incessant bickering, was an exercise in arbitrary, unconstitutional power.  Lincoln acknowledged that it was necessary he violate the Constitution in order to save the nation.  Writing of Theodore Roosevelt’s approach to the president’s power, Erin Ruth Leonard thinks: “The decisive and benevolent–if possibly unconstitutional–actions that Theodore Roosevelt took benefitted America by making it a more equal and progressive place.”[3]  So as long as unconstitutional use of presidential power results in something “more equal and progressive,” it’s apparently A-OK.  Roosevelt himself said: “My belief was that it was not only [the President’s] right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws.”  Sorry Framers, you tried, but you failed.  Woodrow Wilson viewed the Constitution as an artifact of a stilted past: “The government … is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life.“  Voila!  The “Living Constitution” emerges from the primordial ooze.

Presidential Executive Orders are a favored way of abusing presidential power.  Here’s a short summary of many of them.[4]  David Harsanyi, writing at Federalist.com,[5] believes President Obama’s “legacy” will be one of executive overreach.

And with (nearly) each new precedent, the power of the President grew and grew, only occasionally slapped down by a jealous Congress or a Supreme Court.  Now, candidates for the highest office in the land, the “leader of the free world,” Commander in Chief of the mightiest military the world has ever known, put principle aside, decorum on hold, and say and do whatever their handlers think necessary to attain the office.  It is a sad spectacle, really.  Debate after mind-numbing debate, pushing the same policy promises, most of which they know they will be unable to deliver without the gracious help of Congress, the candidates march on, and eventually dwindle as reality sets in.

Just over 1,000 words describe the most powerful office on earth.  Reading Article 2 (and the few powers found outside it) one gets a sense of the Framers’ caution.  The President negotiates treaties but must convince 2/3 of the Senators the treaty is in the country’s best interest.  He can negate the will of 353 legislators,[6] but the Congress can override his veto.  The President will be compensated for his services – but only what Congress thinks proper.  He can nominate judges and other high officials, but the Senate must confirm them; he can “fill up all Vacancies that may happen during the Recess of the Senate” but they expire at the end of the next session.  Finally, he can be removed from office and sent packing by the Congress.  This is no King.

But we have turned the office into something much different today.  Now we look for a candidate who promises to fix everything that’s broken, solve all our problems, stop the rising of the oceans.

The people of Israel asked Samuel to appoint a King to rule over them “like the other nations.”  Samuel warned them of the consequences if he acceded to their request: “This is what the king who will reign over you will claim as his rights: He will take your sons and make them serve with his chariots and horses, and they will run in front of his chariots.  Some he will assign to be commanders of thousands and commanders of fifties, and others to plow his ground and reap his harvest, and still others to make weapons of war and equipment for his chariots.  He will take your daughters to be perfumers and cooks and bakers.  He will take the best of your fields and vineyards and olive groves and give them to his attendants.  He will take a tenth of your grain and of your vintage and give it to his officials and attendants.  Your male and female servants and the best of your cattle and donkeys he will take for his own use.  He will take a tenth of your flocks, and you yourselves will become his slaves.  When that day comes, you will cry out for relief from the king you have chosen, but the Lord will not answer you in that day. But the people refused to listen to Samuel. “No!” they said. “We want a king over us.  Then we will be like all the other nations, with a king to lead us and to go out before us and fight our battles.” [7]

Interestingly, the more power “we the people” allow, and Congress allows, and the Courts allow the President to acquire, the more America begins to take on the trappings of Samuel’s warning.

Despite clear warnings, today we look for a King.  The successful nominee will be the person who promises to solve the most problems for the greatest number of Americans, the person who promises the least disruption to the gravy train that is today our federal government.

As I asked on WFYL radio last week: “Where are the Washingtons?  Where are the Jeffersons?  I’d even take a hot-headed John Adams over any of the present stock.”  None of our first three presidents was elected because of promises they made or policies they endorsed; they were elected to the highest office in the land because of who they were, the character they had exhibited, and the service to their country they had already demonstrated.  That should be the prime criteria today, but it isn’t.

What qualities should we want, insist on really, in a President of the United States?  Mark Alexander has a nice essay on that question here.[8]  I’d start with an example from Exodus 18, which I’ll paraphrase:

“Select able men who fear God, men of truth, those who hate dishonest gain.”

I want someone who acknowledges that there is a transcendent God who “governs in the affairs of men,”[9] someone who promises to call upon God for both guidance and strength, and acknowledges that the laws of this God lay supreme over all man-made law.  I want a President with an obvious sense, perhaps even an inflated sense of accountability and great discipline in his personal conduct, a President who has demonstrated the ability to self-govern and who will both model and encourage this practice in all Americans.  Lastly, I want a President who willingly acknowledges the Constitutional limits of the office and agrees to step down before violating these limits.

Eleanor Roosevelt said: “….our system is founded on self-government, which is untenable if the individuals who make up the system are unable to govern themselves.”  This applies equally well to the President.

We discussed this issue last week on WFYL Radio.  If you want to learn the views of my two co-commentators, please download or listen to the podcast, available here.[10]

[1] Thomas E. Cronin, “Inventing the American Presidency,” University Press of Kansas, 1989. p. ix.

[2] For a thorough analysis of the evolution of Presidential war-making power, at least through President Nixon’s first term, I recommend “The imperial Presidency” by Arthur m. Schlesinger, Jr., Houghton Mifflin Company, 1973.

[3] http://www.let.rug.nl/usa/essays/1901-/theodore-roosevelts-broad-powers-erin-ruth-leonard.php

[4]http://www.heritage.org/research/reports/2001/02/the-use-and-abuse-of-executive-orders-and-other-presidential-directives

[5] http://thefederalist.com/2016/01/05/obamas-legacy-will-be-executive-abuse/

[6] If only 287 Representatives and 66 Senators have voted for a bill, the President’s veto is probably secure.

[7] 1 Samuel 8: 11-20 (NIV)

[8] http://patriotpost.us/alexander/41349

[9] As Benjamin Franklin did at the Constitutional Convention.

[10] http://www.1180wfyl.com/podcasts.html

 

Constitutional Corner – The Founders’ Worldview Continued

Constitutional Corner – The Founders’ Worldview Continued

Last week I conjectured that if there appears to be a disconnect between a Congressmen’s statement of faith and his or her voting record, the problem may lay in their worldview. A worldview is the “lens” through which you view the world. Worldviews are complex, constantly shifting as new information is processed, and reflect only the experiences and information to which we have individually been exposed.

Few individuals have any idea what their worldview consists of or how it lines up with certain “classical” or topical worldviews. Of the 492 of the 535 Congressmen who claim to be Christian (the 92%), I’m certain that only a handful have taken the time to assess whether or not they have a Christian or Biblical worldview to go along with their statement of faith. For that matter, how many of the 78% of Americans who claim to be Christian have done so?

The worldview of Americans has been changing, as I will vividly demonstrate in a moment. The chief reasons for this change have been changes in the curriculum of our public schools and the declining influence of Christianity in our culture. Approximately 89% of children attend public schools, so the influence of that curriculum is widespread. Children in public schools spend the major part of each weekday under the influence of that curriculum; parents who hold different views on certain topics than what is infused in the public school curriculum face an uphill battle in trying to counter the influence on their children.

Public school textbook monitors for more than 50 years have been warning of the growing presence of socialist and even communist doctrine in our public school textbooks. As students who have been taught using this curriculum themselves return to the classroom as teachers, the effect becomes even more pervasive and persuasive.

Socialism, environmentalism, communalism, one-world government doctrine and other influences have replaced patriotism, individualism, capitalism, and republicanism (i.e. our form of government). As a result, America is changing; and many would contend, not for the better. In fact, some contend we stand on the brink of cultural collapse. Which will arrive first: cultural collapse or economic collapse?

One reason few Americans have any idea what their worldview consists of lies in the lack of ways to measure it. How do you go about measuring the amalgamation of personal views on hundreds of topics? And how would you do so in an analytical way that allows comparisons from individual to individual and group to group? One way would be to construct an assessment instrument, a test, that measures your view on certain representative topics. I’m aware of only one organization: Nehemiah Institute, that has taken the time and effort to construct such a test.

Called the PEERS™ test, which stands for its five main topic areas: Political, Economic, Educational, Religious and Social, the PEERS™ test consists of 70 questions which measure the extent to which you agree or disagree with key worldview statements. The test takes less than 10 minutes to administer and results in a numerical score that determines the extent to which you hold to a Christian, Moderately Christian, Secular Humanist or Socialist worldview.

Nehemiah Institute has been administering this same PEERS™ test to public and private school children since 1988. The results are alarming, as this graph vividly shows.

(See chart on Nehemiah Institute website)

Public school students, which began in 1988 with a largely secular humanist worldview, have been trending downward ever since towards a completely socialist worldview. This is not unexpected, given the changes in public school curriculum that have been taking place over the last 50 years. More alarming are the results of students attending traditional Christian schools. Their results, which began well below what would be considered a Biblical worldview, have followed the trend of the public schools; today’s Christian School student sees the world nearly identically to the way a typical public school student sees the world. Yes, they may attend church more regularly, but when asked questions on economics, politics, social issues, even their religion, the Christian school student’s answers are often indistinguishable from those of the public school student. One explanation for this is found in the textbooks of Christian schools, which in many cases are identical to those used in public schools. Another explanation is to be found in Christian school teachers who, despite statements of faith in Christ, do not hold a comprehensive Biblical worldview – and don’t realize it because they have not taken the effort to assess their worldview.

One glimmer of hope on the chart above lies in the very small percentage of Christian schools which have purposefully structured their curriculum to reflect a comprehensive Biblical worldview. Their students, understandably, score reasonably well on the PEERS™ test, and have been even showing slight improvement over the years.

Home schooled children score in the middle, as might be expected due to the wide variety of curriculum employed.

This explains, I think, how in 2015 we can have 92% of our Congressmen and women claim to be Christians and yet draft and pass legislation that I’m convinced would never have passed the very first Congress. On March 4, 1789, as the first Congress took their brightly polished seats, if they had been administered todays PEERS™ test, I think by and large they would have scored pretty well. Granted, we might have to explain some terminology they would encounter (ex: “fractional reserve banking.” The Founders knew well the principles of fractional reserve banking, I don’t believe the term had been invented yet or was in widespread use), but I think the Founders results would have demonstrated…, well I don’t want to give everything away here.

I will go into much greater detail on how I think the Founders would have done on the PEERS™ test this Monday night, 18 May, at the Foundation for American Christian Education when I present “Do you have a Founders Worldview?” The Foundation is at 4225 Portsmouth Blvd, Chesapeake, VA. The lecture is from 6:30-8:30 pm and will be livestreamed for those outside the local area. If you would like to attend, either in the Foundation’s classroom or via Livestream, advance registration is required. Go to http://www.face.net/event/FoundersWorldview. There is a nominal charge.

If you would like to see how you would probably score on the PEERS™ test, you can do so at Pillars of the World.

The WFYL “Constitution Matters” panel will be discussing this issue Friday morning, 7-8am EDT. You can listen to the live broadcast via www.1180wfyl.com. Click on “Listen Live.”

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founders’ view of their Constitution. Comments on this essay and ideas for future essays should be sent to constitutionlead@gmail.com.