It is common today to hear Supreme Court opinions referred to as “settled law,” but is that really what they are? Of course, most of those reading this would say that the Supreme Court does not have the power to make law, but does the Court have the power to determine which interpretation of the law everyone must follow? This interpretation of the law by the Supreme Court is what is often meant when people use the term “settled law,” but that term is a complete misnomer.
The term “settled law” is actually a carryover from British courts at the time of the Revolution, and it was used primarily as a reference to those portions of the common law which had been adjudicated in the courts. This usage can be seen in the 1874 edition of the Albany Law Journal which contains this statement:
“Though the common law of England at the time of the revolution was adopted by us, none but the plainest principles were considered to be settled law until passed upon by the courts.”
This demonstrates that the concept of settled law is a part of the branch of law known as common law, but what does that tell us about the use of this term in the context of the Supreme Court in America?
Quite simply, it tells us that Supreme Court opinions do not establish settled law. Why not? Only the states can determine what is and what is not part of the common law. The federal government does not have a common law; it only has statutory law. This was expressly stated by the Supreme Court itself in Erie Railroad Co. v. Tompkins where the Court declared unequivocally:
“There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State, whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.”
The concept of settled law has no application to federal laws because the federal government does not have any common law to be settled by the courts. Only the states can have settled law within their various common law jurisdictions. To speak of settled law on a federal level is literally nonsense.
But if Supreme Court opinions do not establish settled laws, what exactly do they do?
Again, the answer is very simple. Supreme Court opinions tell the parties to a particular case (the plaintiffs and the defendants) how the law applies to their particular situation. That’s it. The Court has no power to give its rulings any greater influence than that. Each individual determination by the Court applies only to the particular situation and to the particular parties that were before the Court at the time that they gave their opinion.
In support of this conclusion, the Supreme Court itself declared in Martin v. Wilks that:
“A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings.”
And in Hansberry v. Lee, the Court said:
“It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process. A judgment rendered in such circumstances is not entitled to the full faith and credit which the Constitution and statute of the United States prescribe; and judicial action enforcing it against the person or property of the absent party is not that due process which the Fifth and Fourteenth Amendments require.”
And in Parklane Hosiery Co. v. Shore, the Court proclaimed that:
“It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard.”
There are many additional cases which could be cited as well. Over and over and over again, our Supreme Court has recognized that the lack of a federal common law prevents the Court from establishing settled law and that no opinion from the Court is binding on anyone other than those who were given an opportunity to defend themselves before the Court. Though many people still refer to Court opinions as “settled law,” the simple fact remains that the Supreme Court has no lawmaking power because we have no common law on the federal level of our government.
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Whenever I am invited somewhere to speak or to sell my books, I take with me a little 9 question trivia quiz about American history. I thought you might enjoy taking the quiz as well and perhaps sharing it with your friends. All of the questions are from my book Hidden Facts of the Founding Era, and most people only know the answers to 2 or 3 of them. Here is the list of 9 questions with the answers given at the end.
1. In what year did America become an independent nation?
a. 1775
b. 1776
c. 1777
2. Who was the head of the American government before George Washington was elected President?
a. John Adams
b. Charles Thompson
c. Thomas Jefferson
3. Which founder created his own Bible by cutting out all the portions the New Testament that he did not agree with?
a. Thomas Jefferson
b. James Madison
c. John Hancock
d. None of the above
4. What kind of religion did Benjamin Franklin believe in?
a. Deism
b. Christianity
c. Rationalism
5. Who was Thomas Paine?
a. A founding father whose writings sparked the Revolution
b. A world renowned champion of liberty
c. A rebel and an outcast who was despised by the founding fathers
6. What was John Adams’ opinion of the great Enlightenment thinkers such as Voltaire, Rousseau and Diderot?
a. That they were the source of his political philosophy
b. That they were men of noble character
c. That they were an ignorant lot of cowardly atheists
7. Where did the freedom of religion come from?
a. It was a Jesuit plot designed to subvert true Christianity
b. The founders were secularists who wanted to be free from religion
c. It was a distinctly Baptist doctrine founded on the teachings of the New Testament
8. What was George Washington’s involvement in the Masonic Lodge?
a. He left the lodge before the Revolution and referred to it as mere child’s play
b. He was Grand Master of all the lodges in America
c. He was Grand Master of the Lodge of Alexandria
9. Who wrote that “the government of the United States of America is not in any sense founded on the Christian Religion”?
a. George Washington
b. John Adams
c. The King of Algiers
Answers
1. 1775: On December 22, 1775, the British Parliament passed the American Prohibitory Act which removed all protection from the American colonies and commanded military action against them. According to British law, this act made the colonies free and independent states.
2. Charles Thompson: Mr. Thomson was the Secretary of the Continental Congress from 1774 to 1789. After retiring from Congress, he provided the world with the very first English translation of Septuagint (Greek Old Testament) which he combined with his translation of the New Testament to create the first American translation of the Bible. He also published a Harmony of the Gospels which Thomas Jefferson praised very highly.
3. None of the above: The so-called Jefferson Bible was not a Bible at all but rather an abbreviated collection of events and sayings from the life of Jesus that Jefferson thought would be useful for teaching Christian philosophy. The title Jefferson gave to this collection was “The Life and Morals of Jesus of Nazareth.”
4. Christianity: Franklin recorded in his autobiography that he was a Deist as a teenager, but at the age of 29, he wrote: "Christ by his Death and Sufferings has purchas'd for us those easy Terms and Conditions of our Acceptance with God, propos'd in the Gospel, to wit, Faith and Repentance."
5. A rebel and an outcast: John Adams called Paine's pamphlet Common Sense "a poor, ignorant, short-sighted, crapulous mass" and claimed that Paine "understood neither government nor religion." Gouverneur Morris was content to let Paine rot in a French jail, and even Thomas Jefferson did not refrain from insulting his reasoning.
6. An ignorant lot of cowardly atheists: John Adams wrote to Thomas Jefferson the following statement about the Enlightenment thinkers: "And what was their philosophy? Atheism, -- pure, unadulterated atheism." He then proceeded to call them cowards and to condemn them as being completely destitute of common sense.
7. A distinctly Baptist doctrine: The very first English book on the freedom of religion was written in 1611 by Thomas Helwys, the founder of the first Baptist Church in England. The first colony to establish religious freedom was the Baptist colony of Rhode Island, and historian George Bancroft wrote that "Freedom of conscience, unlimited freedom of mind, was, from the first, the trophy of the Baptists."
8. He left the lodge before the Revolution: Washington told Jonathan Trumbull that Masonry was "merely child's play," and he wrote to G. W. Snyder that he did not preside over any lodge, "nor have I been in one more than once or twice within the last thirty years."
9. The King of Algiers: This phrase appeared in the Treaty of Tripoli as part of a letter written from one Arab king to another encouraging friendly relations with the Americans. It has often been attributed to the founding fathers, but it was not written by any of them nor even by an American.
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In the latter half of the 18th century, the nations of Europe renewed their experiments with an ancient philosophy known today by the name of socialism. This philosophy, that the government should tax the rich and provide for the poor, has been implemented from time to time throughout human history and always with catastrophic results. When England, France, and the other European powers started bringing back this ancient concept, the leading philosophers of America, including many of our founding fathers, argued strongly against it. One of those philosophers was Benjamin Franklin, who wrote a lengthy article opposing one of the socialist laws that had been passed in England.
Franklin’s article was written to oppose a law prohibiting the exportation of corn from England to the rest of Europe. The goal of the law was to force the price of corn to go down in England by creating a surplus of that particular commodity. The British government was attempting to prevent the farmers from making what they considered to be too much profit and to force them to share their wealth with the poor by lowering their prices. Franklin viewed this as a socialist tax against the farmers.
In more recent times, the American government has been making a similar attempt through laws like the minimum wage law. Like the law prohibiting the exportation of corn, the minimum wage law is essentially a tax on the rich to provide for the poor, and Franklin’s arguments are just as appropriate for our day as they were for his. Here is what Franklin had to say about these socialist laws in his article “On the Price of Corn, and Management of the Poor”:
I am one of that class of people, that feed you all, and at present is abused by you all; in short I am a farmer...
You say, poor laborers cannot afford to buy bread at a high price, unless they had higher wages. Possibly. But how shall we farmers be able to afford our laborers higher wages..?
This operates, then, as a tax for the maintenance of the poor...
For my own part, I am not so well satisfied of the goodness of this thing. I am for doing good to the poor, but I differ in opinion about the means. I think the best way of doing good to the poor, is, not making them easy in poverty, but leading or driving them out of it.
In my youth I travelled much, and I observed in different countries, that the more public provisions were made for the poor, the less they provided for themselves, and of course became poorer. And, on the contrary, the less was done for them, the more they did for themselves, and became richer.
There is no country in the world where so many provisions are established for them; so many hospitals to receive them when they are sick or lame, founded and maintained by voluntary charities; so many alms-houses for the aged of both sexes, together with a solemn general law made by the rich to subject their estates to a heavy tax for the support of the poor. Under all these obligations, are our poor modest, humble, and thankful; and do they use their best endeavours to maintain themselves, and lighten our shoulders of this burthen? — On the contrary, I affirm that there is no country in the world in which the poor are more idle, dissolute, drunken, and insolent.
The day you passed that act, you took away from before their eyes the greatest of all inducements to industry, frugality, and sobriety, by giving them a dependence on somewhat else than a careful accumulation during youth and health, for support in age or sickness.
In short, you offered a premium for the encouragement of idleness, and you should not now wonder that it has had its effect in the increase of poverty. Repeal that law, and you will soon see a change in their manners...
Six days shalt thou labor, though one of the old commandments long treated as out of date, will again be looked upon as a respectable precept; industry will increase, and with it plenty among the lower people; their circumstances will mend, and more will be done for their happiness by inuring them to provide for themselves, than could be done by dividing all your estates among them.
Both America and eventually England heeded the warnings against socialism expressed by Franklin and other philosophers. Both nations opposed the socialism of the French revolution and avoided the consequent revolutions of 1848. They have enjoyed centuries of prosperity as a result, but over the course of the past 100 years both nations have been adopting more and more socialist laws. We need leaders who will heed the warnings of men like Franklin and return our nation to its Biblically-grounded capitalist roots.
By the way, did you know that Franklin became a Christian in 1735 at the age of 29? You can read Franklin’s own confession of faith in Christ in my book Franklin on Faith.
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There has been much debate over the years in regards to the view of immigration and border control that was shared among the founding fathers of our nation. Historians on both sides of the argument have attempted to co-opt the founders into their camp, and there is so much misinformation on the subject that it is difficult to ascertain anything about the actual view of our founders without abandoning modern research and returning to the original source documents from those great men who formed our nation.
When we return to the original writings of the founders, we can see two extremely important points about immigration that are often overlooked by modern scholarship on both sides of the debate.
1. There is a huge difference between immigration and naturalization.
Most of the quotations floating around the internet and purporting to reveal the founders’ views of immigration are actually statements about naturalization. For example, when Alexander Hamilton wrote that: “the influx of foreigners must, therefore, tend to … change and corrupt the national spirit,” he was not writing about immigration (the act of moving to a new land) but rather about naturalization (the process of becoming a citizen). This statement was part of Hamilton’s argument for requiring foreigners to live in America for five years before they could apply for citizenship and gain the right to vote. He concluded his argument with this statement:
“Some reasonable term ought to be allowed to enable aliens to get rid of foreign and acquire American attachments; to learn the principles and imbibe the spirit of our government; and to admit of at least a probability of their feeling a real interest in our affairs. A residence of at least five years ought to be required.”
Hamilton was not arguing for limits on immigration; he was arguing for delayed naturalization.
Similarly, James Madison said that we should invite “the worthy part of mankind to come and settle amongst us,” that the goal of this invitation was “to increase the wealth and strength of the community,” and that those not adding to the wealth and strength of the community “are not the people we are in want of.” In all of these statements, Madison was speaking of naturalization and not of immigration. In fact, Madison introduced these statements with the explanation that:
“When we are considering the advantages that may result from an easy mode of naturalization, we ought also to consider the cautions necessary to guard against abuses.”
He closed his address with the statement that:
“I should be exceeding sorry, sir, that our rule of naturalization excluded a single person of good fame, that really meant to incorporate himself into our society; on the other hand, I do not wish that any man should acquire the privilege, but who, in fact, is a real addition to the wealth or strength of the United States. It may be a question of some nicety, how far we can make our law to admit an alien to the right of citizenship, step by step; but there was no doubt, but we may, and ought to require residence as an essential.”
Once again, Madison, just like Hamilton, was arguing for delayed naturalization and not for any kind of limit on immigration.
In regards to naturalization, our founding fathers were adamant that assimilation into the American language and culture should be a requirement for citizenship. In regards to immigration, however, the founders never once argued for a limit on the number or type of people allowed to enter our borders.
2. Immigration was not just about improving America.
Throughout the writings of the founders, there are many references to the benefits of immigration, and some of those benefits have been forgotten in the flurry of debates. Both sides seem to be focused on the benefits of immigration to America, and the founders spoke of such benefits as well. More often than not, however, the founders were just as focused on the benefits to the immigrants themselves and even on the benefits that were enjoyed by the nation being left.
Jefferson, for example, explained that America’s immigration system was not based “on the selfish principle of increasing our own population at the expense of other nations” but rather on a desire “to consecrate a sanctuary for those whom the misrule of Europe may compel to seek happiness in other climes.” He then went on to explain how America’s open immigration system actually provided a benefit for other nations. He wrote that:
“This refuge once known will produce reaction on the happiness even of those who remain there, by warning their task-masters that when the evils of Egyptian oppression become heavier than those of the abandonment of country, another Canaan is open where their subjects will be received as brothers.”
Washington also expressed his desire for America to be a safe haven for those oppressed in other countries. He explained that:
“The bosom of America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations And Religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.”
Madison’s 1791 article on immigration lists several benefits that America’s open immigration policy would bring to other nations. According to Madison, one of those benefits was that allowing immigrants to come to America would help the economy of the nation that they were leaving. He pointed out that many nations were “permitting, and even promoting emigrations to this country” in order to boost their own economy, and he praised them for their efforts.
Madison then proceeded to endorse open immigration in order to provide relief for the poor and the beggars of other nations. He wrote that:
“Freedom of emigration is due to the general interests of humanity. The course of emigrations being always, from places where living is more difficult, to places where it is less difficult, the happiness of the emigrant is promoted by the change: and as a more numerous progeny is another effect of the same cause, human life is at once made a greater blessing, and more individuals are created to partake of it.”
He even argued that increased immigration would improve the declining morals of other nations.
“It may not be superfluous to add, that freedom of emigration is favorable to morals. A great proportion of the vices which distinguish crowded from thin settlements, are known to have their rise in the facility of illicit intercourse between the sexes, on one hand, and the difficulty of maintaining a family, on the other. Provide an outlet for the surplus of population, and marriages will be increased in proportion. Every four or five emigrants will be the fruit of a legitimate union which would not otherwise have taken place.”
Over and over again throughout the writings of the founding fathers, we find them praising what Madison termed “the character of liberality” which formed the foundation of our immigration system. They realized that “America was indebted to emigration for her settlement and prosperity,” and they recognized that the “part of America which had encouraged [immigrants] the most had advanced most rapidly in population, agriculture, and the arts.” At the same time, the founders were also very careful to ensure that immigrants did not become citizens until after they had been properly assimilated into the American culture. We would be wise to remember both the founders’ desire for open immigration and their caution against rapid naturalization.
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One of the most fascinating things that I discovered in writing my book Franklin on Faith was a short discourse between Benjamin Franklin and Samuel Cooper. Cooper was a Congregational minister who served as pastor of Battle Street Church in Boston, Massachusetts, and on May 15, 1781, Franklin penned a letter to Cooper with this somewhat cryptic paragraph:
“Your excellent Sermon gave me abundance of Pleasure, and is much admired by several of my Friends who understand English. I purpose to get it translated & printed at Geneva at the End of a Translation of your new Constitution. Nothing could be happier than your Choice of a Text, & your Application of it. It was not necessary in New England where every body reads the Bible, and is acquainted with Scripture Phrases, that you should note the Texts from which you took them; but I have observed in England as well as in France, that Verses and Expressions taken from the sacred Writings, and not known to be such, appear very strange and awkward to some Readers; and I shall therefore in my Edition take the Liberty of marking the quoted Texts in the Margin.”
The sermon that Franklin references here was a sermon preached by Samuel Cooper to which he gave the very lengthy and descriptive title of:
“A Sermon Preached Before His Excellency John Hancock, Esq; Governor, The Honourable Senate, and House of Representatives of the Commonwealth of Massachusetts, October 25th, 1780. Being the day of the Commencement of the Constitution and Inauguration of the New Government.”
This was one of the most widely read sermons in America, and it presented a theme that was commonly acknowledged in our nation at that time. Cooper preached that:
“The form of government originally established in the Hebrew nation by a charter from heaven, was that of a free republic, over which God himself, in peculiar favour to that people, was pleased to preside. It consisted of three parts; a chief magistrate who was called judge or leader, such as Joshua and others, a council of seventy chosen men, and the general assemblies of the people. Of these the two last were the most essential and permanent, and the first more occasional, according to the particular circumstances of the nation. Their council or Sanhedrim, remained with but little suspension, through all the vicissitudes they experienced, till after the commencement of the christian æra. And as to the assemblies of the people, that they were frequently held by divine appointment, and considered as the fountain of civil power, which they exerted by their own decrees, or distributed into various channels as they judged most conducive to their own security, order, and happiness, is evident beyond contradiction from the sacred history. Even the law of Moses, though framed by God himself, was not imposed upon that people against their will; it was laid open before the whole congregation of Israel; they freely adopted it, and it became their law, not only by divine appointment, but by their own voluntary and express consent. Upon this account it is called in the sacred writings a covenant, compact, or mutual stipulation...
“To mention all the passages in sacred writ which prove that the Hebrew government, tho’ a theocracy, was yet as to the outward part of it, a free republic, and that the sovereignty resided in the people, would be to recite a large part of its history...
“Such a constitution, twice established by the hand of heaven in that nation, so far as it respects civil and religious liberty in general, ought to be regarded as a solemn recognition from the Supreme Ruler himself of the rights of human nature. Abstracted from those appendages and formalities which were peculiar to the Jews, and designed to answer some particular purposes of divine Providence, it points out in general what kind of government infinite wisdom and goodness would establish among mankind.”
Franklin heartily agreed with Cooper’s claim that God had established a republican form of government in ancient Israel, and that the Americans should model their government after the government of the Old Testament. In fact, Franklin was so convinced of the supremacy of government patterned after the doctrines of the Bible that he sought to have Cooper’s sermon published throughout Europe as well as in America.
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In the current debate over the Second Amendment, neither side has correctly understood the original purpose of the Second Amendment. The conservatives have incorrectly claimed that this guarantee of the right to keep and bear arms was established to give the people a means of resisting tyranny from our own government. Progressives have generally taken the opposite view, that the purpose was to establish state level militias which could be used to suppress rebellions and uprisings of the people. Both of these views are partially correct, but neither the conservatives nor the progressives are focusing on the primary purpose of the Second Amendment.
When James Madison introduced the Second Amendment in Congress, he did so at the request of the state level committees which had originally ratified the Constitution. As part of their ratification of the Constitution, the states of Virginia, New York, Rhode Island, and North Carolina all included a request for an amendment protecting the right to keep and bear arms. Virginia, for example, requested an amendment declaring: "That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State."
The language proposed by the other three states was nearly identical, and this request gives us our first clue as to the reason that the Second Amendment was added to the Constitution. There is no mention in these requests of either tyranny or rebellion. Both of those threats were occasionally referenced in other discussions of the right to keep and bear arms, but neither one was even mentioned in the actual request for an amendment protecting that right. Tyranny and rebellion are both internal dangers, but the states that requested the Second Amendment were focused on the far greater danger of foreign invasion. They wanted the people to retain the right to keep and bear arms so that the entire populace could be called upon to defend the new nation in a time of war.
This purpose for the Second Amendment can also be seen in all the state level guarantees of the right to keep and bear arms. There were four states that included this right as part of their own Constitutions prior to the drafting of the Second Amendment. Massachusetts, Virginia, North Carolina, and Pennsylvania had already established a constitutional right to keep and bear arms even before the Revolutionary War had ended. None of them mentioned tyranny or rebellion, but all four of them echoed the declaration from North Carolina that "the people have a right to bear arms, for the defence of the State."
The defense of the state was the stated goal in every single instance of a state level guarantee for the right to keep and bear arms, and it was the common thread of every single request from the ratifying committees that this right be added to the federal Constitution. The defense of the nation was the primary purpose of the Second Amendment, and the benefits of allowing the people to keep and bear their own arms became evident less than 25 years after the amendment was ratified.
When the British invaded America during the War of 1812, the American government called upon privately owned warships to fight in defense of the nation. The people responded, and hundreds of citizen warships joined the fight against the British. This civilian navy captured more than 1200 enemy ships and is often recognized as the most effective use of a privateer force in history. America was victorious in the War of 1812 because she allowed her citizens to keep and bear military grade weaponry. When America's vastly outgunned navy of 15 ships needed help defending the nation, there was a large pool of experienced citizens ready and willing to join the fight. These privateers were a perfect picture of the purpose of the Second Amendment.
The next time that you engage in a debate over the Second Amendment, point out the use of the phrase "defence of the state" and draw your opponent's attention to the example of the War of 1812. I can guarantee that the ensuing conversation will be much more productive than the typical squabbles about tyranny and rebellion.
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In the wake of the school shooting in Parkland, Florida, America has once again turned her collective attention to the Second Amendment. Our nation is split between two competing views of this small portion of our Bill of Rights. On the one hand, there are those like Jeffrey Toobin, a contributor at CNN and the New Yorker, who claims that “the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.”
And on the other hand, there are those who take the position advanced by Dana Loesch of the National Rifle Association in CNN’s town hall on gun policy. When asked how the Second Amendment applied to the gun policy debate, Loesch answered that, “In the context of the time, a ‘well-regulated militia’ meant an American man, an American woman, a citizen of the United States of America who could operate and service their firearm.”
These two competing statements offer a nearly complete overview of the current gun control debate. Those in favor of gun control claim that the Second Amendment only applies to militias, and those opposed to gun control respond by claiming that every American citizen is part of the militia. Both sides claim to have the support of the founders, and they’re both right on that account since the founding fathers were somewhat divided on the issue of state and local militias.
However, I think that both sides are missing the mark on their interpretation of the Second Amendment. In fact, neither of them is even aiming at the right target. The real key to understanding the Second Amendment has absolutely nothing to do with the militia.
The single most important part of the Second Amendment is not its reference to a “well-regulated militia,” nor is it the question of what is meant by “keep and bear arms.” No, the most important part of the entire Second Amendment is the small and often overlooked phrase: “the people.”
The right to keep and bear arms in the Second Amendment is not a right that belongs to the federal government, for that right existed before the federal government was formed. It is not a right that belongs to the state governments, for it preceded them as well and was present in each territory long before it became a state. It is not a right that belongs to the militia, for it still exists even when militias are no longer needed. The right to keep and bear arms is specifically designated as a right of “the people.”
So who exactly are “the people” to whom this right belongs? That question is answered repeatedly throughout the Constitution.
According to the Preamble, “the people” are the collective body of individuals who authorized the Constitution itself. Our constitutional form of government was ordained and established by “We the People” – i.e. the entire citizenry of the United States.
According to Article I Section 2, “the People” are the ones who vote for the members of the House of Representatives – i.e. the entire citizenry of the United States.
According to the First Amendment, “the people” cannot be a reference to a governing body since “the people” are the ones who have the right to peaceably assemble and petition their government for a redress of grievances – i.e. the entire citizenry of the United States.
According to the Fourth Amendment, “the people” are those who have a right to be secure against warrantless search and seizure by the government – i.e. the entire citizenry of the United States.
In the Ninth Amendment, “the people” are recognized as those who retain rights not granted to the federal government – i.e. the entire citizenry of the United States.
And in the Tenth Amendment, “the people” are contrasted with both the federal and the state governments as those to whom rights are reserved by default if not delegated to a government by the Constitution – i.e. the entire citizenry of the United States.
As you can see, the meaning of the phrase “the people” in the Constitution is fairly easy to ascertain. “The people” are the ones from whom our government was established, by whom our government was established, and for whom our government was established. This body must necessarily include every single citizen of the United States.
There is much that could be said about why the need for a well-regulated militia justifies the right to keep and bear arms. And we could spend a great deal of time discussing the extent of the arms which were intended to be including in this right. But all of that is of no benefit to us at all if we do not have a firm grasp of the most important part of the Second Amendment. In order to discuss the scope of this amendment, we must first understand that the right being discussed is a right of “the people” – a right which belongs to every single citizen of the United States of America.
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Ever since the Constitution was first submitted for ratification, the final clause in Article VI has been a matter of strong contention among Americans. That clause, known as the religious test clause, simply states that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” It is frequently claimed that this clause represents the desire of the founding fathers to keep religion out of the government and to establish a secular nation. But is that really how this phrase was intended to be used?
To understand the true purpose of the religious test clause, we must look back to the Corporation Act of 1661. This was the first of three Test Acts which were implemented in England and which remained in effect until 1828. Under these acts, no one could hold office in England unless he swore an oath of fealty not to God but rather to the doctrines of the Church of England. This was the kind of religious test which the founders prohibited. They had no objection to biblical qualifications. What they objected to was the requirement that all government officials be forced to swear allegiance to the codified doctrines of an established church.
The wisdom of this objection can be illustrated by an examination of the different doctrines of the Christian churches on baptism. Some churches teach that baptism is necessary in order for one to become a Christian, while others teach that baptism is not necessary but merely symbolic. There is no reconciliation between these two views. Those holding to the first view often deny the Christianity of those holding to the second and vice versa. Therefore, if the founding fathers had permitted religious tests by saying that only Christians could hold office under the new Constitution, they would have placed us in the difficult position of allowing our government to determine which of these two views on baptism is correct. The churches would immediately have recognized that whichever church managed to obtain a majority representation in the new government would have the power to define all other denominations as non-Christians and force them out of the political arena entirely. This is exactly how the Test Acts were used in England, and it was one of the reasons that so many Christians had fled to America in the first place. Our founding fathers realized that the only way to prevent this abuse of the power of government is to eliminate the religious test requirements altogether.
That this is the view which the founders had in mind can be seen in the statement on this clause by Oliver Ellsworth. Mr. Ellsworth was one of the pivotal drafters of the Constitution, and he later became the third Chief Justice of the Supreme Court. In his defense of the religious test clause, Mr. Ellsworth first explained what was meant by the term “religious test”:
“A religious test is an act to be done, or profession to be made, relating to religion (such as partaking of the sacrament according to certain rites and forms, or declaring one’s belief of certain doctrines,) for the purpose of determining whether his religious opinions are such, that he is admissible to a public office.”
He then proceeded to examine the most basic religious test possible and to demonstrate that it would be wrong for us to have such a test in America.
“If any test-act were to be made, perhaps the least exceptionable would be one, requiring all persons appointed to office to declare at the time of their admission, their belief in the being of a God, and in the divine authority of the scriptures … But I answer: His making a declaration of such a belief is no security at all. For suppose him to be an unprincipled man, who believes neither the word nor the being of God; and to be governed merely by selfish motives; how easy is it for him to dissemble! how easy is it for him to make a public declaration of his belief in the creed which the law prescribes; and excuse himself by calling it a mere formality. This is the case with the test-laws and creeds in England … In short, test-laws are utterly ineffectual: they are no security at all … If they exclude any persons, it will be honest men, men of principle, who will rather suffer an injury, than act contrary to the dictates of their consciences. If we mean to have those appointed to public offices, who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters; and not rely upon such cob-web barriers as test-laws are.”
The final sentence of Mr. Ellsworth’s statement brings us back to our original question. Did the founders include the religious test clause in order to establish a secular government? Not at all. They simply placed the responsibility for the religious character of our government on the shoulders of the people themselves. In the words of John Jay, our nation’s first Chief Justice:
“Providence has given to our people the choice of their rulers, and it is the duty as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers.”
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One of the most important books on the American form of government is a book by John Adams that is very seldom read in our day. While Adams was serving our nation as a diplomat in London, he noticed that the political elites in Europe frequently scoffed at the form of government which had been implemented in the United States. Adams chose to meet these scoffers head on by publishing a massive, three volume Defence of the Constitutions of Government of the United States of America.
In this Defence, Adams presented one of the most essential studies of the history of the philosophy of government ever written. He pointed out the pros and cons of dozens of different forms of government that had been proposed by the leading political philosophers throughout history. He included lengthy quotations and analyses of these philosophers, and he contrasted their systems with the governments established by the various states in America. In doing this, he came to the conclusion that the American form of government was successful because it was “grounded on reason, morality, and the Christian religion.”
One of the most significant aspects of American government that Adams presented in his Defence is the principle of the separation of powers. Adams pointed out that the absence of this principle in ancient republics often led to their downfall. He wrote of them that:
“A single assembly thus constituted, without any counterpoise, balance, or equilibrium, is to have all authority, legislative, executive, and judicial, concentered in it. It is to make a constitution and laws by its own will, execute those laws at its pleasure, and adjudge all controversies, that arise concerning the meaning and application of them, at discretion. What is there to restrain them from making tyrannical laws, in order to execute them in a tyrannical manner?”
Adams pointed out that the underlying reason for corruption within republican governments was readily explained in the Bible. He wrote that:
“To expect self-denial from men, when they have a majority in their favour, and consequently power to gratify themselves, is to disbelieve all history and universal experience; it is to disbelieve Revelation and the Word of God, which informs us, the heart is deceitful above all things, and desperately wicked.”
In giving the solution to this corruption, Adams explained in one place that the ancient republics of Greece and Rome were attempts to implement the same principles of government which were “first discovered to mankind by God himself in the fabric of the commonwealth of Israel.” And in another place Adams proposed that the specific solution to this tendency of republics to dissolve into tyranny was to be found in the Biblical principle of the separation of powers. Adams noted “that the government of the Hebrews instituted by God, had a judge, the great Sanhedrim, and general assemblies of the people.”
Another foundational principle of American government that Adams explained in his Defence was the principle of private property. Europe, at this time, was still struggling under the remnants of feudalism. Most of the land was owned by the ruling nobility with the members of the working classes having little to no property of their own. Adams recognized the dangers of this system and endorsed the private property system proposed by James Harrington in the 17th century. Adams agreed with Harrington’s claim that the greater balance of property should be owned by the working classes, with the government only retaining ownership of a small portion of land. And Adams noted with Harrington that this concept “was first introduced by God himself, who divided the land of Canaan to his people by lot.”
On the question of personal liberty, Adams argued in his Defence that all forms of slavery should be abolished. Adams praised the actions of the ancient republic of Bologna in freeing all of their slaves, and he specifically quoted their decree against slavery as claiming:
“God, however, beholding that the whole world had perished, had compassion on the human race, and sent his only begotten son, born of the virgin Mary, who, co-operating with the grace of the Holy Ghost, to the glory of his own dignity, breaking the bonds with which we were held captive, restored us to our primitive liberty: and therefore it is very justly questioned, whether men, whom nature from the beginning produced and created free, and the law of nations only subjected to the yoke servitude, ought not to be restored to the blessing of manumission.”
After quoting the reason for the abolition of slavery in Bologna, Adams wrote that he wished to see this same principle to be applied “in each of the United States of America.”
Toward the end of his life, Adams wrote a letter to Thomas Jefferson in which he claimed “that the Bible is the best book in the World.” He praised the Word of God as the source of his own “little Phylosophy,” and we can see from his Defence of the Constitutions of the United States of America, that Adams derived the principles of American government directly from the pages of Holy Scripture. Adams recognized that the Christian religion was the foundation of America’s greatness, and it is imperative that our nation return to that foundation if we are ever to see that greatness restored.
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In my previous blog post, I pointed out how the Mosaic Covenant confirms the concept of popular sovereignty. In this post, I’d like to draw your attention to a fact in Scripture that absolutely blew my mind when I first came across it. Did you know that the concept of popular sovereignty was so ingrained in ancient Israel that their leaders were almost always chosen through public elections? Let me show you how I discovered this amazing fact.
1. The Israelites voted on whether to accept the Mosaic Covenant.
Yes, you read that correctly. The Israelites voted on whether or not to be under the Mosaic Covenant. In fact, they voted twice just to make sure that there wasn’t any sort of miscount or other error in the vote. The account of this vote is found in Exodus 24:3-7.
In that passage, we see that after God delivered all of the terms of the covenant to Moses, Moses came and told the people what the Lord had said, and all the people gave unanimous assent to the terms. Moses then committed the entire covenant to writing and read what he had written before all the people. Then the people voiced unanimous consent a second time to confirm that they were agreeing to the covenant exactly as it had been written. The Mosaic Covenant did not go into effect until after the people of Israel publicly voted to accept it.
2. The Israelites voted to have Moses as their leader.
No, your eyes are not playing tricks on you. The Bible actually records that the Children of Israel chose to have Moses lead them and represent them before the face of God. In Deuteronomy 5, we find that God originally wanted to give His Law directly to the whole congregation of the people. The Bible tells us that God began speaking to the people “face to face,” not just to Moses.
According to this passage, God descended upon the mountain in the sight of all the people, and began presenting the terms of the covenant directly to the body of the people. The people heard the ten commandments that formed the foundation of the covenant, and then they became afraid. When God stopped speaking in order to record the Ten Commandments in writing, the people took advantage of the pause to approach Moses and ask him to be their representative before the Lord. According to the parallel passage in Exodus, Moses actually pleaded with the people that they not succumb to their fears, but they refused his pleas. Then, the Bible records for us that God heard the decision of the people to elect Moses to be their representative and that He not only approved of their decision but also that He wished for them to always display such wisdom.
Here we have a record of the God of the universe rejoicing because the nation of Israel decided on their own to elect a representative to stand before Him in their place.
3. The Israelites voted to have Saul as their king.
When the nation of Israel convinced Samuel to give them a second king (yes, Saul was the second king, not the first), Samuel eventually consented to their request. However, the ensuing coronation of King Saul was far from the simple, straightforward process that most people think that it was. The first part of the biblical record corresponds well with the standard “Sunday school” account. The people asked for a king. God told Samuel to anoint Saul. Samuel showed the people that God had chosen Saul. The people rejoiced and shouted, “God save the king.”
At this point, however, the Biblical account differs greatly from the conception that the average Christian has of this event. Immediately after the people shouted “God save the king,” the Bible tells us in 1 Samuel 10 that Samuel sent all the people away and Saul returned to his home in Gibeah. There is no mention of any coronation. Samuel sent the people home without crowning Saul as the king, and chapter 10 ends with people doubting whether Saul was fit to lead.
We don’t read of Saul being crowned king until verse 15 of the next chapter. In the first 14 verses of chapter 11, we find Saul forcing the people to follow him in a victorious battle against the Ammonites. After Saul had proven his military expertise to the people, they came to Samuel with the charge that anyone who doubted Saul’s ability to lead should be put to death. It was only at this point, when the people were firmly and perhaps even unanimously in favor of Saul, that Samuel gathered them together at Gilgal and crowned Saul king of Israel.
(See my new book “Unsung Heroes and Obscure Villains of the Bible” to find out which man was the first king of Israel.)
4. Israel voted to make David their king.
The coronation account of King David also gives testimony to the prevalence of popular sovereignty in the political ideology of ancient Israel. The transition from Saul to David was not an easy transition. Saul was killed in battle while David was in exile, and the Biblical account tells us that when David learned of the death of Saul, he returned to Hebron where he was met by the men of the tribe of Judah. The men of Judah decided to crown David as king, not over all of Israel but rather over just the tribe of Judah. The rest of the nation chose to crown Saul’s son Ishbosheth as their king (2 Samuel 2). It is only after the account of the death of Ishbosheth that we read:
“So all the elders of Israel came to the king to Hebron; and king David made a league with them in Hebron before the LORD: and they anointed David king over Israel.” (2 Samuel 5:3)
Thus we see that David’s coronation was just as much an act of popular sovereignty as that of Saul. He was not crowned king over all Israel until all the elders of the nation had agreed to be under his rule.
The idea that the people should be free to elect their own rulers is an integral component of the government established by God in the Old Testament, and it was such a natural part of Israel’s political ideology that it was adopted by the leaders of the early church as the proper way to fill positions in that body as well (Acts 6:2-6). The early church had the same casual familiarity with popular elections as is found among the various societies, businesses, and other organizations of America, and such a familiarity only makes sense in a culture with a long history of freely choosing their own leaders.
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Modern accounts of the philosophical underpinnings of the American Revolution often attribute the concept of popular sovereignty to men such as Thomas Hobbes, John Locke, and Jean-Jacques Rousseau with Locke being the one most often praised as the source of the American ideal of a government of the people, by the people, and for the people. To make this attribution, however, modern scholarship has had to ignore, or perhaps forget, the previously held view that the notion of popular sovereignty can be traced to the government of ancient Israel as recorded in the pages of the Bible.
To develop a proper understanding of the theory of popular sovereignty advocated in the Bible, it is necessary to begin with the initial formation of the nation of Israel after their exodus from Egypt. The first account of this formation begins in the nineteenth chapter of the book of Exodus. It is in this chapter that we find God telling the Israelites:
“‘You yourselves have seen what I did to Egypt, and how I carried you on eagles’ wings and brought you to myself. Now if you obey me fully and keep my covenant, then out of all nations you will be my treasured possession. Although the whole earth is mine, you will be for me a kingdom of priests and a holy nation.’ These are the words you are to speak to the Israelites” (Exodus 19:4-6).
This passage is the preamble to what is known as the Mosaic Covenant. The full covenant is recorded in Exodus chapters 19-24, and it contains the famous Ten Commandments as well as several other foundational laws of the nation of Israel. These five chapters of the book of Exodus can be viewed as being equivalent in nature to the Constitution of America. They form the foundation upon which all the other laws of the nation were established.
The concept of popular sovereignty is present throughout the entirety of the Mosaic Covenant, and it is obvious even in the preamble itself. God did not simply tell the Israelites that they would be a holy nation unto Him. Instead, He presented them with an “if … then” proposition and left it up to the people themselves to decide whether or not to become the kind of nation that He wanted them to be. The response of the people to this proposition is found in verse 8 where we read that they gave unanimous consent to do everything that the Lord commanded them to do. From this, it is plainly obvious that government of the nation of Israel was established on the concept of popular sovereignty. The people were granted the sovereignty to either accept or reject God’s offer, and they willingly chose to accept it.
But the preamble is not the only recognition of popular sovereignty to be found in this covenant. When the covenant is examined in its entirety, it becomes evident that it is in the form of a suzerainty treaty. This has often been recognized by biblical scholars, and the International Standard Bible Encyclopedia records that, “Form-critical and other studies have shown the striking parallels in structure between second-millennium-B.C. suzerainty treaties and the records of the covenant in Exodus and Deuteronomy.”
Suzerainty treaties were common in the region of Palestine during the time of the exodus, and they consisted of agreements between a greater king and a lesser king in which the lesser king would agree to serve the greater in all areas expressly stated in the treaty. This means that the Mosaic Covenant is a recognizable treaty of submission between two sovereigns. The identity of the greater sovereign in this treaty is immediately recognized as God, and the lesser sovereign can only be the audience of the people who “responded with one voice, ‘Everything the Lord has said we will do’” (Exodus 24:3).
This kind of treaty relationship was recognized by philosophers like Grotius, Pufendorf, and Vattel to be one in which “the inferior Power remains a Sovereign State” and in which “the weaker Power may exercise the rights of sovereignty so long as by so doing no detriment is caused to the interests or influence of the Suzeraine Power.” Grotius, for example, described a suzerainty treaty when he spoke of a league between sovereigns “where by the express Articles of the League some lasting Preference is given from one to the other; that is, where one is obliged to maintain the Dominion and Honour of another.” He explained that people bound by this type of treaty are still free and then concluded that, “If then a Nation bound by such a Covenant, remains yet free, and not subjected to the Power of another, it follows, that it yet retains its Sovereignty.”
Thus, the fact that the Mosaic Covenant is in the form of a suzerainty treaty establishes two facts about the popular sovereignty of the Israelites. First, this form of treaty was a recognition by God of the sovereignty of the people at the time that the covenant was offered. Second, this treaty between a sovereign people and the sovereign Lord did not remove sovereignty from either. By accepting the terms of this treaty, the people of Israel agreed to submit to the terms of the covenant while still retaining their own sovereignty.
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I don’t know about you, but whenever I make the claim that America was founded as a Christian nation, I invariably receive responses from individuals accusing me of wanting to establish a theocracy. Now, I know what these people mean when they make this accusation. They are accusing me of desiring to have the government administered by a state church. That’s why they always quote the First Amendment as proof that the founders did not want a theocracy. The question that I always have, however, is: Does the word “theocracy” really mean “a government administered by a state church”?
The answer to that question is, quite simply, no. The claim that a theocracy is a government administered by a state church betrays an ignorance of the history of the word “theocracy.”
The word theocracy was coined by the famous Jewish historian Flavius Josephus as a means of distinguishing the government of the Jewish people from the three forms of government recognized by the Greek philosophers – monarchy, aristocracy, and democracy. Josephus wrote that the Hebrew government contained elements of all three of these forms, but he also noted that their government had an extra quality which prevented it from being properly described in the same manner as the governments of the Greeks and Romans. That extra quality was the recognition that all authority and power is ultimately derived from God and not from men.
Here is an excerpt from Josephus’ book Against Apion, in which he coined the word theocracy:
Some peoples have entrusted the supreme political power to monarchies, others to oligarchies, yet others to the masses. Our lawgiver, however, was attracted by none of these forms of polity, but gave to his constitution the form of what -- if a forced expression be permitted -- may be termed a "theocracy," placing all sovereignty and authority in the hands God. To Him he persuaded all to look, as the author of all blessings, both those which are common to all mankind, and those which they had won for themselves by prayer in the crises of their history. He convinced them that no single action, no secret thought, could be hid from Him. He represented Him as One, uncreated and immutable to all eternity; in beauty surpassing all mortal thought, made known to us by His power, although the nature of His real being passes knowledge.
Thus, according to the man who actually created the word theocracy, it is a reference to a form of government in which “the supreme political power” is placed in God Himself. In a theocracy, “all sovereignty and authority” is recognized as coming from the hand of God, and He is seen to be “the author of all blessings.” Is this the form of government under which America was founded? Did America at that time recognize God as the ultimate source of all power and authority?
To answer this question, let us consider that when America declared herself to be independent of the British government, she did so by claiming “the separate and equal station to which the Laws of Nature and of Nature's God” entitled her. She recognized that the rights of her citizens were not derived from the good will of their government, but rather were blessings endowed upon them by their Creator. And she submitted her actions not to the judgment of her peers, but rather to the approval of the “Supreme Judge of the world.”
This recognition that God is the ultimate source of all power and authority was admitted by nearly all our nation’s founders. James Wilson, who served as one of our first Supreme Court Justices and was one of only six men to sign both the Declaration of Independence and the Constitution, wrote the following about the relationship between the laws of America and those of her God:
What we do, indeed, must be founded on what he has done; and the deficiencies of our laws must be supplied by the perfection of his. Human law must rest its authority, ultimately, upon the authority of that law, which is divine.
James Madison, often referred to as the Father of the Constitution, likewise wrote:
The belief in a God, all powerful, wise, and good, is so essential to the moral order of the world, and to the happiness of man, that arguments which enforce it cannot be drawn from too many sources, nor adapted with too much solicitude to the different characters and capacities to be impressed with it.
Benjamin Franklin resolved a heated and lengthy debate during the Constitutional Convention by reminding the delegates of their responsibility to conform the laws of America to the Law of God. On the question of whether we should have a property requirement for those seeking political office, Franklin said:
We should remember the character which the Scripture requires in rulers, that they should be men hating covetousness.
Gouverneur Morris, the penman of the Constitution, cautioned the young men of his day with these words of wisdom:
This hour of distress will come. It comes to all, and the moment of affliction is known to Him alone, whose divine providence exalts or depresses states and kingdoms. Not by the blind dictates of arbitrary will. Not by a tyrannous and despotic mandate. But in proportion to their obedience or disobedience of his just and holy laws. It is he who commands us that we abstain from wrong. It is he who tells us, ‘do unto others as ye would that they should do unto you.'
This submission to the authority of God and the Bible was the general opinion of the nation at our founding, and it has been the constant thread of truth to which our nation has returned many times throughout her history. Was America founded as a theocracy? Yes. Yes indeed she was, and it is high time that we return to that great principle by once again submitting our laws to the authority of that Law which is divine.
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Conservatives are often fond of pointing out that America is a republic and not a democracy, but do we really understand what it means to be a republic?
Since the beginning of time, men have been experimenting with various systems of government. Some of those governments produced great safety and prosperity for the people, and others led the people into danger and poverty. Some of them were successful for varying lengths of time until a weakness in the system was exploited to rob the people of their safety and prosperity. There have been thousands, if not tens of thousands, of these experimental attempts to produce a government that benefits the people and that eliminates the weaknesses that lead to poverty and destruction.
Over time, human philosophers began to create catalogues of these experiments with various governments and to organize them into distinct classes and categories. As they did this, they found that there were three basic species or classes of governments. The most common form of government was the monarchy, a system in which a single individual determined what laws were to be followed and how those laws were to be implemented. The second most common form of government was the aristocracy, a system in which a small group of individuals determined what laws were to be followed and how those laws were to be implemented. The third form of government was the democracy, in which all the people of a given society voted to determine what laws were to be followed and how those laws were to be implemented.
These are the three basic classifications of government that were recognized by the Greek philosophers in the third and fourth centuries before Christ, but the philosophers also recognized a fourth type of government that was better than either of the three but that didn’t fit within their system of classification. This fourth type of government was a hybrid government, which sought to combine the best elements of all three of the basic classes of governments.
Societies implementing this class of government had a single ruler who was the final authority on which laws were implemented, but he did not create the laws himself. That task fell upon a small group of individuals who would debate among themselves as to which laws should be sent to the ruler for his approval and implementation. Additionally, the larger body of the people was given a say in this form of government by choosing which men among them should be their ruler and their law makers. This fourth type of government was given the name “republic.”
As the philosophers extolled the virtues of this hybrid government, a small but influential group of people began laughing. This small group of people were the Jews, who saw in the works of the Greek philosophers nothing more than an attempt by the Greeks to claim the wisdom of the Old Testament as their own. Aristobulus was one of the first Jews to make this claim public in the second century BC. He was followed by Philo in the next century and Josephus in the first century AD.
But the Jews weren’t the only ones who recognized this fact. Several Greeks made the same claim. Hermippus, for example, claimed that Pythagorus “transferred many things out of the Jewish institutions into his own philosophy.” Numenius once wrote, “What is Plato, but Moses atticizing?” (Atticizing means being fit into the culture of Athens, Greece.) The Christian philosophers came to the same conclusion with early writers of the church such as Tertullian, Justin Martyr, and Augustine, being in nearly universal agreement that the Greek philosophers had taken their ideas from the Hebrew Scriptures.
Why did such a diverse group of people claim that the Greek philosophers took their ideas from the Bible? So much of the writings from those philosophers lines up with what had already been written in the Bible. When we compare the republican form of government that was so highly praised by the philosophers with the government established by God in Israel, we find that the two are nearly identical. The Greek philosophers took God’s model of government, gave it the name of a republic, and claimed it as their own invention. The Christian philosopher Thomas Aquinas recognized this explicitly when he wrote in the thirteenth century:
“Accordingly, the best form of government is in a state or kingdom, where one is given the power to preside over all; while under him are others having governing powers: and yet a government of this kind is shared by all, both because all are eligible to govern, and because the rulers are chosen by all. For this is the best form of polity, being partly kingdom, since there is one at the head of all; partly aristocracy, in so far as a number of persons are set in authority; partly democracy, i.e. government by the people, in so far as the rulers can be chosen from the people, and the people have the right to choose their rulers.
“Such was the form of government established by the Divine Law. For Moses and his successors governed the people in such a way that each of them was ruler over all; so that there was a kind of kingdom. Moreover, seventy-two men were chosen, who were elders in virtue: for it is written (Deut. i. 15): I took out of your tribes men wise and honorable, and appointed them rulers: so that there was an element of aristocracy. But it was a democratical government in so far as the rulers were chosen from all the people; for it is written (Exod. xviii. 21): Provide out of all the people wise men, etc.; and, again, in so far as they were chosen by the people; wherefore it is written (Deut. i. 13): Let me have from among you wise men, etc. Consequently it is evident that the ordering of the rulers was well provided for by the Law.”
From Aristobulus to Josephus, from the church fathers to Aquinas, and all the way down to the writings of Locke, Harrington, and Sydney which so heavily influenced our founding fathers – throughout all this time there has been a consistent and persistent witness that the form of government which the Greek philosophers called a republic was nothing more than the form of government that God established for the nation of Israel.
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July 4th, 1776, has long been celebrated as the birth of our nation, but is that really the day that America became independent of Britain?
The first recorded celebration of the 4th of July occurred on the first anniversary of that date in 1777 in the city of Philadelphia, where the Declaration of Independence had been signed. A reporter in Philadelphia wrote of the event:
“Yesterday the 4th of July, being the Anniversary of the Independence of the United States of America, was celebrated in this city with demonstration of joy and festivity … Thus may the 4th of July, that glorious and ever memorable day, be celebrated through America, by the sons of freedom, from age to age till time shall be no more. Amen, and amen.”
This reporter’s wish has come true, with the 4th being celebrated every year from that day forward for the past 240 years. But was this really the day on which the thirteen colonies ceased being colonies of England and became independent states? An important letter from John Adams to Horatio Gates gives us a hint to the answer.
On March 23, 1776, more than two months before the Declaration of Independence was adopted, John Adams wrote:
“I know not whether you have seen the Act of Parliament call’d the restraining Act, or prohibitory Act, or piratical Act, or plundering Act, or Act of Independency, for by all these Titles is it call’d. I think the most apposite is the Act of Independency, for King Lords and Commons have united in Sundering this Country and that I think forever. It is a compleat Dismemberment of the British Empire. It throws thirteen Colonies out of the Royal Protection, levels all Distinctions and makes us independent in Spight of all our supplications and Entreaties.”
The act of parliament to which Adams was referring was the American Prohibitory Act, approved by King George on December 22, 1775. This act declared:
“That all manner of trade and commerce is and shall be prohibited with the colonies … and that all ships and vessels of or belonging to the inhabitants of the said colonies … shall become forfeited to his Majesty, as if the same were the ships and effects of open enemies.”
The Prohibitory Act included authorization for British privateers to fire upon and capture any American ship and claim its cargo as their own. This was, in essence, a declaration of war against America. It was a removal of the king’s hand of protection from the colonies and an authorization for his military to treat the Americans as enemies at war.
Most modern Americans have forgotten about the Prohibitory Act, but it was one of the primary motivations for the Declaration of Independence. When the Continental Congress met on June 7, 1776, to debate the resolution for declaring independence, one of the arguments presented was:
“That as to the king, we had been bound to him by allegiance, but that this bond was now dissolved by his assent to the late act of parliament, by which he declares us out of his protection, and by his levying war on us, a fact which had long away proved us out of his protection; it being a certain position in law that allegiance and protection are reciprocal, the one ceasing when the other is withdrawn.”
This argument was eventually included in the Declaration itself in the line stating:
“He has abdicated Government here, by declaring us out of his Protection and waging War against us.”
The “certain position in law” that the colonists mentioned is a reference to a very prominent case in British history known simply as “Calvin’s Case.” In Calvin’s Case, the British Court ruled that:
“As the subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his Subjects, to rule and protect the subjects: so as between the Sovereign and subject there is a dual and reciprocal tie, because just as the subject is bound in obedience to the king, so the king is bound to the protection of the subject.”
Thus, according to British law, the moment that King George affixed his signature to the American Prohibitory Act, the thirteen colonies ceased to be colonies of England and became thirteen independent states in America. The adoption of the Declaration of Independence on July 4th, 1776, was not the birth of our nation. It was an announcement, a declaration to the rest of the world that a new birth had taken place. Where once had been thirteen colonies of England there now stood thirteen independent states joined together in unison as the United States of America.
Happy Independence (Announcement) Day!
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America’s founding fathers claimed repeatedly to have found the principles of republican government in the Bible, but what did they mean by that? Modern theologians claim that the Bible promotes either monarchy or theocracy as the ideal form of government. What did the founders see differently? Are there really republican principles in the Bible?
The first principle of republican government is that of the rule of law. John Adams once wrote that “the very definition of a Republic is ‘an Empire of Laws and not of men.’” This idea that a republican government is founded on the rule of law has been discussed by philosophers for millennia. One of the earliest references to it is found in Plato’s writings where he claimed that:
"Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state."
Plato envisioned a state in which the law was supreme and all men, both rulers and citizens, were subject to the written law of the land. But this idea of the rule of law did not originate with Plato.
Long before Plato was ever born, God Himself established a government on the principle of the rule of law. God gave Israel a written Law that all the people, both rulers and citizens were subject to. As we read in Deuteronomy 4:1-2:
“Now, Israel, hear the decrees and laws I am about to teach you. Follow them so that you may live and may go in and take possession of the land the Lord, the God of your ancestors, is giving you. Do not add to what I command you and do not subtract from it, but keep the commands of the Lord your God that I give you.”
In Israel, not even the king was above the Law. In fact, God specifically commanded of the king that:
“When he takes the throne of his kingdom, he is to write for himself on a scroll a copy of this law, taken from that of the Levitical priests. It is to be with him, and he is to read it all the days of his life so that he may learn to revere the Lord his God and follow carefully all the words of this law and these decrees and not consider himself better than his fellow Israelites and turn from the law to the right or to the left. Then he and his descendants will reign a long time over his kingdom in Israel.” (Deuteronomy 17:18-20)
Thus, when John Adams spoke of the rule of law being the foundation of a true republic, he was not just echoing the writings of ancient philosophers, but the Bible as well.
Ronald Reagan once famously claimed that, “Freedom prospers when religion is vibrant and the rule of law under God is acknowledged.” This sentiment is the key to republican government, and it is exactly what we find in Scripture. As long as Israel was submissive to the rule of the Law of God, they lived in freedom and prosperity. But every time one of their rulers sought to exalt himself above the Law, the nation suffered. This has been pointed out by theologians for thousands of years, and it was just as widely known among the theologians of the revolutionary period as it is today. The rule of law – that concept which forms the cornerstone of republican government – is taught clearly and emphatically in the Bible.
This forum is meant to foster discussion and allow for differing viewpoints to be explored with equal and respectful consideration. All comments are moderated and any foul language or threatening/abusive comments will not be approved. Users who engage in threatening or abusive comments which are physically harmful in nature will be reported to the authorities.
This forum is meant to foster discussion and allow for differing viewpoints to be explored with equal and respectful consideration. All comments are moderated and any foul language or threatening/abusive comments will not be approved. Users who engage in threatening or abusive comments which are physically harmful in nature will be reported to the authorities.
