Faithandthelaw's Blog

The law as it relates to Christians and their free exercise of religion

Acknowledging the Almighty: The Foundation of American Law

Posted by faithandthelaw on February 12, 2010

Building a wall of separation between law and morality, between God and government, severs the Constitution of the United States from its transcendent roots: the moral law origin of natural rights embodied in the Constitution as the basis for civil and religious liberties.

    This is a secular wall of division.

    Not recognizing government officials’ expression of their Christian values in the public arena as a constitutionally-protected activity under the First Amendment to the United States Constitution’s Free Exercise Clause, in effect allows discrimination against Christianity in the name of the Establishment Clause, while at the same time denying that any such discrimination is occurring.

    Such privatization of Christian belief–saying that a public official can believe, yet cannot act on his thoughts in his public actions (a sort of “faith without works”)–is grounded on a two-fold legal, historical, and philosophical assumption:

    (1)    It assumes that only one jurisprudential philosophy is valid: legal positivism.

    And (2)    It assumes that the United States’ judicial system was founded on this legal positivism.

    Both statements 1) and 2) are demonstrably false.

     The United States was founded on the other legal philosophy: moral law.  And an opinion denying (explicitly or implicitly) the existence or validity of that moral law, is of course contrary to the moral law itself.

    God’s Biblical moral law is the source for American morality-based codes (the societal codes that undergird and legitimize secular law).  Thus in theory, such a code cannot deny its own source.

Crucified on the Three-Prong Test

    A 21st-century problem is: Religion is not being judged by the standard of the United States Constitution’s First Amendment; it is instead being judged by the “three-prong test” standard laid out in a judicial opinion, Lemon v. Kurtzman (Supreme Court of the United States) (1971).

    This is subjecting the Constitution itself to a rigorous judicial “religious test”–like a tripartite “cross” on the back of Christianity that burdens religious liberty.  Numerous products of the Christian worldview (including Christian values that give rise to motives for legislation and other acts of public officials) sometimes are judicially “condemned” on the basis of one or more of Lemon‘s three prongs.  What some secularists claim to be “encouragement” or “favoritism” toward a religion, may be just acts upholding the validity of the moral law which verifies secular law.

    Thus the Lemon test can be used to “expand” the Establishment Clause to encompass more than religious denomination(s) in its net: Such use also envelopes the jurisprudential philosophy upon which judging itself is based.  Any deviation from the legal positivism favored by secularists is labeled “theocracy”, and that legal philosophy of secularism (the philosophy prevailing in secular nations’ legal systems) is dubbed with the exclusive label of “the law”.  Judges who adhere to the legal philosophy upon which the United States’ Constitution was based, are said by secularists to be “establishing religion”.  That’s what is meant by the assertion in Pretexts and Commandments that the issue is really historical, not religious.  The Establishment Clause is being used to stray outside the religious realm.  And “rewriting” Early American legal history in the process.

    Really, the doctrine of separating law and morality is but a “reinvented” form of the political philosophy that American Revolutionaries Samuel West (1776) and Samuel Stillman (1779) defined as unlimited passive obedience to the higher (secular) powers–which in seventeenth-century European history undergirded the doctrine of the “divine right of kings”.

    The view that judges can “make” the Constitution say things against its inherent principles, to say whatever they want it to evolve to be–this is not democratic or republican.

Stuck with a Lemon

    The contrast between a European government in the early modern era suppressing religious liberty by placing restrictions on religious worship–even to the extent of forbidding ministers to preach–and government acknowledging, “We are going to follow God’s standard of justice, and to make that clear, we are going to recognize God as the ultimate Sovereign authority, by saying ‘One Nation Under God’ or its equivalent,” provides one reason why the Lemon test should be abandoned in constitutional jurisprudence.

    United States Supreme Court Justice Antonin Scalia, joined by Chief Justice William Rehnquist, said in Part III of their dissent in Edwards v. Aguillard (1987):

    Our cases interpreting and applying the [Lemon] purpose test have made such a maze of the Establishment Clause that even the most conscientious governmental officials can only guess what motives will be held unconstitutional.

[* * * * *]

I think it time that we sacrifice some “flexibility” for “clarity and predictability.”  Abandoning Lemon‘s purpose test–a test which exacerbates the tension between the Free Exercise and Establishment Clauses, has no basis in the language or history of the [First] Amendment, and, as today’s decision shows, has wonderfully flexible consequences–would be a good place to start.


Right of Conscience vs. Divine Right of Kings

   Public officials should be protected from suffering their consciences to be impinged–because they, of all people, are entrusted with upholding the true foundations of American ordered liberty, its Constitutional Republic based on moral law values.

    Before the American Revolution, in 17th and 18th-century Anglo-American history, a non-Anglican (“dissenting”) governor had to be resolute, strong, and firm, in order to walk the fine line between placating his English (and often, Church of England) superiors while at the same time trying to safeguard the liberties of the American people.  (Many governors were Anglicans (members of the Church of England).)

    One governor who was not Anglican was Governor Jonathan Belcher (January 8, 1682-August 31, 1757).  When he became governor of the twin colonies of Massachusetts and New Hampshire (at that time joined under one governorship) in 1730, the English Test Act of 1672, which affirmed the establishment of the Church of England, required such a royal governor to submit to a religious test in order to attain the gubernatorial office (held from 1730 to 1741)–even though Governor Belcher was a Puritan.  He attended a variety of church services during his lifetime: mostly Puritan congregational, but occasionally he attended Presbyterian, Anglican, and Quaker services from time to time.  (Non-Anglicans–Puritan congregationalists, Baptists, Presbyterians, Quakers, etc.–were classified as Dissenters from the Established Church of England.)

    Though Puritan Governor Belcher tolerated the Church of England, his heart literally belonged to dissenters persecuted for conscience’ sake: Both Governor Belcher’s beloved first wife (Mary Partridge) and his beloved second wife (Mary Louisa Emilia Teale) were Quakers.  Such a marriage between a Puritan and a Quaker showed uncommon tolerance of religious views for that time period, since Quakers (members of the Society of Friends) had been among the most persecuted of Christian groups.  Quakers’ main political strongholds in the colonies, where they were particularly numerous, were Pennsylvania and New Jersey–perhaps one reason why Jonathan Belcher was selected to be governor of New Jersey in 1746.

    New Jersey’s Governor Belcher showed friendly respect to Quaker ministers like Samuel Fothergill.  Governor Belcher helped arrange and attended a meeting that Fothergill held in a Presbyterian church in the New Jersey capital.  Following this meeting, the two gentlemen enjoyed a cordial dinner together.  In his prior governorship of Massachusetts, Jonathan Belcher had promoted a bill (which he signed into law) giving greater tolerance to Quakers for the sake of liberty of conscience.  Such an act was simply amazing, considering that era of Anglo-American history.

    In sharp contrast was the treatment dissenters received at the hands of New York’s Governor Cornbury, who favored the Established Church.  In New York, Francis Makemie (c.1658-1708) of Virginia, the “Father of American Presbyterianism”, defied Cornbury when that governor refused to give him a license to preach in the Dutch Reformed Church in 1707.  Makemie preached, anyway, in a private home.  Irate Governor Cornbury arrested Makemie for preaching without his permission, jailed him for over six weeks, and put him on trial.  Rather than focusing on the applicable statute (under which Makemie was not subject to punishment), Cornbury asserted the authority of the governor’s royal instructions (the executive prerogative).  (Cornbury claimed the English Toleration Act of 1689 didn’t apply to his colony, thus depriving Makemie of his defense.)  Cornbury’s exercise of power did not prevail over the rule of law (either English or colonial) because Makemie was acquitted by the jury.  His acquittal proved to be a great victory for religious liberty (synonymous with liberty of conscience), as his case put a stop to the coercive suppression of dissenting Christian preaching in New York.  Religious liberty, by the way, was a totally different concept than 21st-century secularists’ concept of “separation of church and state”.

    Religious liberty actually has been stood on its head in 21st-century America: Liberty of conscience previously meant equal participation in the public square, in terms of dissenters receiving fair and non-arbitrary treatment through legislation or other government acts.  Arbitrariness like Cornbury’s was real coercion–which was not equivalent to “mere offense” at the sight of seeing, for instance, a Ten Commandments monument.  In no way can voluntarily saying “under God” or placing the moral law in the public square be equated with coercing anyone to worship a certain religion in the same manner as persecuted dissenters were once excluded from preaching.   To suggest equivalence between the two is to redefine the dictionary definition of “coercion”.

    As United States Supreme Court Justice Joseph Story (1779-1845) said in 1833, when read in context:

    […] [T]he duty of [government] supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner, which, they believe, their accountability to him requires.  It has been truly said, that “religion, or the duty we owe to our Creator, and the manner of discharging it, can be dictated only by reason and conviction, not by force or violence.”  Mr. [John] Locke himself, who did not doubt the right of government to interfere in matters of religion, and especially to encourage Christianity, has at the same time expressed his opinion of the right of private judgment, and liberty of conscience, in a manner becoming his character, as a sincere friend of civil and religious liberty.  [***]

    It was religious tests like the English Test Act of 1672 that were establishments of religion.  It was tests like these that the United States Constitution’s Article VI and the First Amendment’s Establishment Clause sought to prevent.  The goal of the Constitution was not to forbid a public official from upholding public morality as defined by moral law.  (Moral law philosophy is implicit in the Constitution itself–and the Constitution should not go against itself or its moral law source.)

    A beautiful statement of the moral law basis for natural rights (i.e., acknowledging the Almighty) was said in pre-Revolutionary America by Benjamin Stevens of Kittery (then in Massachusetts), who married Mary Remington (1718-1763), a descendant of Governor Jonathan Belcher’s aunt Martha Belcher Remington.  Echoing a view that the governor also shared, “nephew Stevens” (as the governor called him) wrote in 1761:

    All power is originally from God, and civil government [is] His institution [….]  Civil power ought therefore ever to be employed agreeable to the nature and will of the Supreme Sovereign and Guardian of all our rights.

    Interestingly, the jurisprudence of moral law was an issue Jonathan Belcher had to face as he assumed his new governorship of New Jersey in 1747.  By promising fairness (a Christian principle) to a New Jersey group asserting the “principles of natural justice”, Governor Belcher restored peace to New Jersey and maintained the rule of law.  (Governor Belcher wrote: “[…] in answer I told them that it was my duty and my peremptory resolution to support the King’s authority and that offenders and breakers of the public peace would bring themselves under the lash of the law–and withal I spoke kindly and assured them they should have my countenance and protection in all things consistent with reason and justice–soft words turn away wrath but the wringing of the nose brings forth blood–and I think this sore is at present in a likely way to be healed.”)  In so doing, Governor Belcher acted on the basis of his Christian principles; he actually quoted a Bible verse (Proverbs 30:33) (he knew the Bible so well that he could spontaneously quote it by heart and did so quite frequently–a practice noticed by some secular-minded historians).

    Governor Belcher told the New Jersey legislature, regarding the justice-seeking New Jersey group:  “I am persuaded, Gentlemen, that to keep this matter at a distance or as the trite saying is to put far off the evil day cannot consist with the ends of good government,” and then went on to propose that when people are “yet unsatisfied they have a dernier [appeal] to his Majesty in Council where they will find freedom of access, their case heard with great patience and finally closed according to the strictest rules of reason, law and equity.”

    The New Jersey advocates of natural equity praised Governor Belcher for his adherence to the principles of “God’s Law”:

And as Your Excellency hath had among us the name and character of a good ruler; with all thankfulness we accept it as a mark of his Majesty’s royal favor to us, in sending Your Excellency to preside among, and over us; for whose accession, we humbly offer our congratulations; trusting God is favouring us with such a blessing viz. one acquainted with the rules of righteousness; and who will act in concert therewith in all administrations relating to causes, without respect of persons; a student in God’s Law and who will consult a good conscience, and what may be pleasing to God, in making and establishing laws, (being far from framing mischief thereby, as too many do,) and who in executing the laws of men will not give judgement for such as cross the Commandments of God; one who can never take comfort in the misery of the subjects, but contrarywise; eyeing them as children, and accordingly endeavouring they may have and lead their lives in quietness and peace; and who will (to this end) see to, that men enjoy their rights, liberties and properties without oppression or molestation; […]   [***]  We declare we have acted only (as we thought our duty) in defense of our own, and poor (yet we believe honest) neighbor’s rights, liberties and properties who together with many both their and our families (by what we call unjust molestation and even virulent oppression) were like to suffer ruin.  We humbly take leave to hope and pray your Excellency may be the blessed and happy instrument, under God and our King for the repairing of our breaches and restoring of our paths to dwell and walk in, that righteousness and equity may be done unto, and for men; [….]

    Governor Belcher’s belief in fair and impartial justice was a masterful exercise–a shining example–of Christian principles in government.

    It is unfortunate that public officials are discouraged from explicitly acting on that basis in the 21st century.  During the 18th century, dissenters whose consciences did not permit them to take the church sacrament required by the English Test Act were effectively excluded (self-prohibited by their own consciences) from attaining public office.  And likewise, one’s values can in effect subject one to a type of religious test if the explicit or implicit prohibition works the same effect as a religious test.   The same is true whenever, in order to attain or hold a public office, a public official is required to deny the sovereignty of God–to reject the idea that he should be subject to God’s higher law.  He is being asked, in essence, to submit to a denial of the exercise of his Christian worldview.

Double Standard

   United States Supreme Court Justice Hugo Black had this to say in a case involving a public appointee who “was refused a commission to serve because he would not declare his belief in God”:

    When our Constitution was adopted, the desire to put the people “securely beyond the reach” of religious test oaths brought about the inclusion in Article VI of that document of a provision that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  Article VI supports the accuracy of our observation in Girouard v. United States, 328 U.S. 61, 69, that “[t]he test oath is abhorrent to our tradition.”  Not satisfied, however, with Article VI and other guarantees in the original Constitution, the First Congress proposed and the States very shortly thereafter adopted our Bill of Rights, including the First Amendment.  [***]

[* * * * *]

The fact […] that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution.  This was settled by our holding in Wieman v. Updegraff, 344 U.S. 183.  We there pointed out that whether or not “an abstract right to public employment exists,” Congress could not pass a law providing “‘… that no federal employee shall attend Mass or take any active part in missionary work.'”  [***]

Torcaso v. Watkins, 367 U.S. 488, 489, 491-492, 495-496 (1961) (BLACK, J.) (emphasis added).

    Even in situations not involving the issues of pro-life, creation science, theological studies, prayer by public officials, crosses on government seals, inclusion of “under God” in the Pledge of Allegiance, or displays of the Decalogue, the religious test situation can come up.

    What is the difference between a public official verbally or symbolically acknowledging the moral foundation of law, and him or her applying that moral foundation as a basis for official decisions?  The answer is: None!

    Christian officials have a worldview, like everyone else–liberal, secular judges included.  And everyone’s actions and decisions are based on their beliefs, which determine their workstyle.  Liberal secularists act according to their worldview all the time; that’s why their decisions read the way they do.  Secularism’s tenets are materialism and naturalism (the philosophical bases for evolutionary philosophy (it’s not a true science)–moral relativism (not seeking absolute truth as the objective standard)–and subjectivism (deciding things according to one’s personal feelings about them).  Yet they, in turn, expect Christians to not apply the Biblical worldview in making decisions.   That is a double standard.

Moral Law Verifies Secular Law:

American Jurisprudence Historically

Protects and Upholds Moral Law Definitions

    “[…] Congress could not pass a law providing ‘”… that no federal employee shall attend Mass or take any active part in missionary work.”‘ “

   Note the words of Justice Black.  And the implication: Christians cannot be forbidden the practice of their faith.  And for sincere Christians, lifetime practice of the Christian worldview is very much a part of–indeed, is the total expression of–their Christian faith.

    The concept of the religious test has been stood on its head in 21st-century America.  In the days of “divine right of kings”, the oath was to the established government denomination (i.e., the Church of England).  However, in these 21st-century days of the “divine right of secularism”, there is an increasing trend to apply a disguised religious test–excluding sincere Christians of Biblical conviction from public positions if they won’t pass the secular “litmus tests” that intersect with and impinge upon Christian values and principles–thus requiring public officials to go against their consciences in order to keep their jobs.

    Included within this trend is an objection to legislation simply because the statute’s promoter(s) are enacting Christian values through it.  A case in point was Edwards v. Aguillard (Supreme Court of the United States) (1987), in which a Louisiana legislator sponsored what became a statute to allow equal time for teaching creation science whenever evolution was taught in the public schools.  The statute was struck down by the United States Supreme Court on the basis of the legislature’s Christian motive in enacting the statute.  (See Justice Scalia’s dissent.)  Really, the statute was about the balanced presentation of scientific evidence (evidence for Intelligent Design has been shown to be the most scientifically logical view, whereas the roots of Darwinism are progressively being discredited–on the basis of scientific evidence).

    The Christian motive behind the balanced treatment statute was fairness.  Creation science didn’t have to be taught if the school didn’t teach evolution; it was only when evolution was taught that equal opportunity for countervailing scientific evidence was sought.

    The Bible is filled with life and happiness-giving equality before the law (the following is the true definition of it):

“‘Do not pervert justice; do not show partiality to the poor or favoritism to the great, but judge your neighbor fairly.'” (Leviticus 19:15)

    Note that Jesus’ famous summation of God’s law was actually written in the law itself:

“‘Do not seek revenge or bear a grudge against one of your people, but love your neighbor as yourself.  I am the LORD.'”  (Leviticus 19:18)

    Therefore, the figure that holds the impartial scales of justice, representing impartiality and equal justice under the law, is not the “goddess” Themis; it is the One True God.  The impartial scales are His, and His alone.

    He gives the people the power to consent to join together in a social compact, make a constitution, and transfer the power of the people to elected officials.  But ultimately, one has to recognize the power originally came from God and thus is subject to His higher law (“one nation under God“).   It is only to be exercised in accordance with His purposes and definitions.

    So actually, all our democratic Constitutional rights flow from this source.  Impartiality, fairness, equality, humanity bearing the image of the Creator: these are the fundamental bases for our civil and religious liberties–within the moral law’s definitions for natural rights.  (True “civil rights” are natural rights–as in moral law rights–not whatever people decide they want them to be.  Thus, people’s consciences are constrained by moral law definitions: this is ordered liberty within the constitutional system.)

    Government is the pillar of the earth, and God is the pillar of government.

    In 1779, Dr. Samuel Stillman (a supporter, as was Samuel West, of both the Massachusetts Constitution and the Constitution of the United States) wrote in The Duty of Magistrates (excerpted from the longer text):

    Some of those principles which, I apprehend, may be called fundamental, have been mentioned; to which I beg leave to subjoin:

    That the great end for which men enter into a state of civil society is their own advantage.

    That civil rulers, as they derive their authority from the people, so they are accountable to them for the use they make of it.

    That elections ought to be free and frequent.

    That representation should be as equal as possible.

    That as all men are equal by nature, so, when they enter into a state of civil government, they are entitled precisely to the same rights and privileges, or to an equal degree of political happiness.

    That some of the natural rights of mankind are unalienable, and subject to no control but that of the Deity.  Such are the SACRED RIGHTS OF CONSCIENCE; which, in a state of nature and of civil society, are exactly the same.  They can neither be parted with nor controlled by any human authority whatever.

    Subjecting legislators, governors, presidents, judges, and other public officials to implicit religious tests through an absolutist view of legal positivism, exclusively (a “divine right of secularism”), would effectively sever law from its moral base.

    Indeed, such a separation is not required by the Federal Constitution.  Davis v. Beason, 133 U.S. 333, 341-342 (1890) (Field, J., writing for the Supreme Court of the United States), said the following (with emphasis added):

The term “religion” has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.  It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter.  The first amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect.  The oppressive measures adopted, and the cruelties and punishments inflicted by the governments of Europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of the amendment in question.  It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society.  With man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with.  [* * *]

    Included within “the obligations [a person] may think [man’s relations to his Maker] impose” is the maintenance of Christian principles, in all arenas of life, including the public square.  Religion simply cannot be “privatized” in the way that secularists wish it to be.

    Note that Justice Field, writing in 1890, does not advocate a separation between law and morality: rather, “the laws of society” should “secure […] the morals of its people”.

    The same was said in 1776, in 1779, and in 1833.

    The Bible was the Founders’ “political textbook”.   

    In 1860, historian John Wingate Thornton wrote (emphasis has been added) regarding the Massachusetts constitution adopted in 1780:

Their [the constitutional framers’] political ideas were happily expressed by the device on the bills of public credit, of August 18, 1775, which was the figure of an American, with a sword in his right hand, bearing Algernon Sydney’s celebrated line, “Ense petit placidam sub libertate quietem,” and in his left hand Magna Charta; around the figure, “Issued in Defence of American Liberty.”  This, modified, is emblazoned on the shield of the “Commonwealth;” the motto is still retained; and thus Massachusetts displays in her state arms a memento of the cost of her liberty, and in the legend a perpetual memorial of her historical and political fellowship with that eminent school of republican statesmen of which Sydney, with Russell, was the glory, and whose “Discourses on Government” was, next after the Bible, the political text-book of the fathers of the Republic.

    The shared Anglo-American Christian and constitutional heritage was stated directly in a work titled God Arising and Pleading His People’s Cause; Or the American War in Favor of Liberty, Against the Measures and Arms of Great Britain, Shown to Be the Cause of God (1777), by American patriot Abraham Keteltas (1732-1798) of New York City, who ministered in Elizabethtown, New Jersey from 1757-1760–the town where Governor Belcher lived from November 1751-1757.  (Incidentally, Keteltas was married to Sarah Smith, a cousin of William Peartree Smith (1723-1801), one of Governor Belcher’s best friends.)  Keteltas said that “the cause of this American continent” was also the cause of “the rights of mankind”.   The principles animating the American Revolution were liberty, truth, and righteousness.  Indeed, they were the same “excellent” constitutional principles upon which Great Britain herself had fought for liberty in the past–especially during the Glorious Revolution that brought William III, Prince of Orange-Nassau, to the British throne, through the “votes of a free Parliament”.   (This was one reason why Governor Belcher named Princeton College’s building “Nassau Hall” (originally to have been named Belcher Hall). 

    Keteltas directly stated that the “rule” of the “universal righteousness” for which America stood was the “moral law, or the ten commandments”.  He identified the principles of those commandments as including, among other things, “universal love, benevolence, compassion, humanity, peace, and righteousness” together with the impartial administration of justice.  The moral law “commands magistrates to be a terror to evil doers and a praise to them that do well”.

    Another American patriot who thought much the same was Dr. Samuel Cooper (1725-1783), friend of Governor Belcher.   When Cooper visited the governor’s house in Burlington, New Jersey, Governor Belcher wrote on his birthday, January 8, 1751, about conversing with Samuel and forming a high opinion of him.  Praising Samuel’s sermon that was preached to a large church gathering at Perth Amboy, the governor declared Samuel to be a valuable asset to his country–as indeed he later proved to be, during the American Revolution.

    In A Sermon on the Day of the Commencement of the [Massachusetts] Constitution (1780) (preached before Governor John Hancock, first signer of the Declaration of Independence), Dr. Samuel Cooper, like the Massachusetts motto itself, quoted English political philosopher Algernon Sidney.  Sidney thought ancient Israel’s constitution was established by God and “‘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'”.  In Cooper’s eyes, also, the American political philosophy was “to be found in the immortal writings of Sidney and Locke” and other liberty-loving (predominantly English) writers.  They were “the principles” of William III’s Glorious Revolution of 1688 (which had produced the English Toleration Act of 1689)–principles upheld by “reason and Scripture” (moral law and revealed law).

“Powers Only to Do Good”

   However, as Dr. Cooper noted, the Massachusetts Constitution embodied “powers only to do good”:

How effectually it makes the people the keepers of their own liberties, with whom they are certainly safest.  How nicely it poises the powers of government in order to render them, as far as human foresight can, what God ever designed they should be, powers only to do good.  How happily it guards on the one hand against anarchy and confusion, and on the other against tyranny and oppression [….] [***] [W]hat a broad foundation for the exercise of the rights of conscience is laid in this constitution!

    But the good is contained in the Divine Source of the human rule of law built into the constitutional system of government.  Cooper said, of the Massachusetts Constitution: “It considers, indeed, morality and the public worship of God as important to the happiness of society.  [***]  […] [T]he public worship of God has a tendency to inculcate the principles thereof, as well as to preserve a people from forsaking civilization and falling into a state of savage barbarity.”

    There is indeed an inseparable connection between morality and good government.  Forget that, said Cooper, and the nation returns to barbarism:

    Our civil rulers will remember: that as piety and virtue support the honor and happiness of every community, they are peculiarly requisite in a free government.  Virtue is the spirit of a republic–for where all power is derived from the people, all depends on their good disposition.  If they […] are lost to the fear of God […], all is lost.   Having got beyond the restraints of a Divine authority, they will not brook the control of laws enacted by rulers of their own creating.

(Emphasis added).

    Cooper warned: “We have a government free indeed–but, after all, it remains with the people, under God, to make it an honorable and happy one.”

    A nation based on pre-existing natural rights is under God.  That is why “under God” is in the Pledge of Allegiance, and why the United States has “In God We Trust” on its money.  As Dr. Cooper stated, the public worship of God”–not the private worship, but the public worship–is what “inculcate[s] the principles” so necessary for a right ordering of society.

    As Justice Joseph Story said in 1833:  “It yet remains a problem to be solved in human affairs, whether any free government can be permanent, where the public worship of God, and the support of religion, constitute no part of the policy or duty of the state in any assignable shape.”

    Dr. Samuel Cooper’s sermon implied grounds for displaying a “monumental stone” acknowledging the Almighty:

    Cooper saw “a striking resemblance” between the “circumstances” of the Early American republic and the circumstances of the “ancient Israelites, a nation chosen by God”.  This resemblance largely consisted of a direct parallel between the American constitutional system and “[t]he form of government originally established in the Hebrew nation by a charter from Heaven, [which] was that of a free republic, over which God Himself, in peculiar favor to the people, was pleased to preside.”   The Ten Commandments were this ancient “constitution”.  This ancient Israelite government was tripartite, consisting of a “chief magistrate”, a council, and “general assemblies of the people”.  These legislative assemblies selected by the people were “considered as the fountain of civil power”.  The moral law “was not imposed” upon the people of ancient Israel; rather, “they freely adopted it, and it became their law, not only by divine appointment, but by their own voluntary and express consent”.  That’s why, said Cooper, the Scripture called the Divine Law a “compact”.  (Here Cooper was saying nothing different than what West and Stillman had previously said.)  Obviously, what the American Revolutionaries thought they were forming by entering into the social compact based upon the will of the people was an American government based upon the Divine moral law, a direct parallel of the ancient government of Israel.

    Cooper said the Massachusetts Constitution was “granted to us by Heaven”, and Cooper called it the “sacred compact”.  In this context, Cooper recounted the story of Joshua, the chief magistrate of Israel, who made a compact with his people, and, after recording the compact, he “at the same time erected a monumental stone” as a “memorial of these sacred stipulations and as a perpetual testimony that the Supreme Ruler Himself had not established their polity without their own free concurrence”.   This compact, Cooper called a “civil and religious constitution” established by the consent of the people, who were “governed by laws” enacted by the people’s will–in other words, a republic governed by the rule of law.   

Acknowledging the Almighty:

Moral Law Definitions Validate Constitutional Liberties

   From the definition of religion given in Davis v. Beason: “one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will”–one can infer a reason why the Establishment Clause and the Lemon test (and its companion, the “endorsement” test) should not be invoked–for instance–to strike down a Ten Commandments monument in a government building: The monument represents not each individual’s views of spiritual obligations, but rather of government’s acknowledgment that the laws of that nation or state (as a government entity) are based on the supremacy of the moral law over the political and legal system.  (Thus, a government building is actually the proper place for such a monument or display; placing it in a private museum, for instance, doesn’t serve the same purpose, and actually sends the message that the moral law is “privatized”.)  It’s government’s obligations to the Creator that are represented by the monument: government’s “obedience to his will” as the source and legitimacy of the will of the people in a democracy (the social compact).

    As Justice Joseph Story said in 1833:

The promulgation of the great doctrines of religion; the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues;–these never can be a matter of indifference in any well ordered community.  It is, indeed, difficult to conceive, how any civilized society can well exist without them.  And at all events, it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects.  This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one’s own conscience.

    “We the people” founded our government on the Biblical concepts of justice, fairness, equality, and God-given right to life.  Since these Biblical values form the basis of Christianity, historic crosses, for a similar reason, should be allowed to remain on government symbols or displays.  Christian values give the political legitimacy to form the social compact that forms the basis of rights in American constitutional society.

    In that way, God is in the United States Constitution.  We can recognize His principles–if only we live up to them.

ONE NATION UNDER GOD

Courtesy of Belcher foundationa at http://www.belcherfoundation.og/acknowledging_the_almighty.htm

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