Part 1: What is a Constitution?
Woven throughout Latter-day Saint doctrine is a tapestry of beliefs concerning the United States Constitution and the destiny of the Elders of Israel who will step forward to save it from its seemingly imminent destruction. There appears little consistency and homogeneity among the membership of the Church of Jesus Christ of Latter-day Saints, however, concerning exactly how the Constitution will “hang by a thread,” and how the Elders of Israel will step forward to save it. This article, to best address these issues, is written in three segments: (1) What is a Constitution?, (2) How will the Constitution “hang by a thread?,” and (3) How will the Elders of Israel save it from its destruction?
What is a Constitution?
In its most basic form, a constitution is a declaration or decree of a sovereign individual delegating certain duties, forms, and functions in creating a limited government. In the case of a Constitutional Republic, the people are the individual sovereigns that stand as the principal and natural agents to constitute a government that reflects certain natural rights.
Is it possible for a people to recognize the transition from the state of nature to a constitutional system that defines, forms, and structures a specifically limited government? Using the United States of America as an example, Thomas Paine explains in chapter 4, “Of Constitutions,” of The Rights of Man that America was given a unique opportunity to cognitively see this transition. He wrote,
“In viewing this subject, the case and circumstances of America present themselves as in the beginning of a world; and our inquiry into the origin of government is shortened, by referring to the facts that have arisen in our own day. We have no occasion to roam for information into the obscure field of antiquity, nor hazard ourselves upon conjecture. We are brought at once to the point of seeing government begin, as if we had lived in the beginning of time. The real volume, not of history, but of facts, is directly before us, unmutilated by contrivance, or the errors of tradition.” (Paine 285)
There was no error or misguided notion in the Founders’ minds concerning what they were creating, for the Founders knew,
“That men mean distinct and separate things when they speak of constitutions and of governments, is evident; or, why are those terms distinctly and separately used? A constitution is not the act of a government, but of a people constituting a government; and government without a constitution, is power without a right.
All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are no other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.” (Paine 285)
A constitution is not the government or an act of the government, but is the declaration or decree of the people in constituting a specifically limited government. In other words, all delegated power to government comes as a reflection from the natural rights of the people. A constitution delegates (never abdicates) certain “duties” for government to perform, and the people may retain these duties to themselves at their will; however, “sedition and rebellion are unbecoming every citizen thus protected” in “their inherent and inalienable rights” (D&C 134:5). Any action by said government outside these specific enumerated duties constitutes usurpation and tyranny. In short, a constitution is a declaration of the people telling the government what it can do; it is not a declaration of the government telling the people what they can do.
“There is no such thing as the idea of a compact between the people on one side, and the government on the other. The compact was that of the people with each other, to produce and constitute a government. To suppose that any government can be a party in a compact with the whole people, is to suppose it to have existence before it can have a right to exist. The only instance in which a compact can take place between the people and those who exercise the government, is, that the people shall pay them, while they choose to employ them.
Government is not a trade which any man or body of men has a right to set up and exercise for his own emolument, but is altogether a trust, in right of those by whom that trust is delegated, and by whom it is always resumable. It has of itself no rights, they are altogether duties.” (Paine 288-289)
A government is a fabricated entity and has no inherent rights, for government only has enumerated duties that reflect the natural rights of the individual and principal sovereign. A constitutional government can only act in those specifically enumerated duties as explicitly granted to it in the constitution. Whatever duty is not delegated to government is reserved to the people individually or to their respective states. To solidify this principle, the Founders included the 9th and 10th Amendments in the Constitution to fully clarify the issue:
(9) The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
(10) The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
A government cannot contract with the people, because this presupposes that a government is an entity separate from the people and not a reflection of the natural rights of the individual. All duties granted to a government are delegated and are always resumable. Bruce R. McConkie spoke of this principle of constitutional government when he wrote,
“The government has no rights; it has duties only. It is ordained to serve the people. The Constitution contains the written instructions of the sovereign people to their chosen servants.” (McConkie 159)
Samuel Adams spoke of this same principle when he declared in The Rights of the Colonists that man can stay within the state of nature – in absolute liberty and freedom – for as long as he wills, and that he can – according to his will – depart from the state of nature into organized government. Many argue that a departure from the state of nature necessarily presupposes that man “gives up” certain liberties and freedom to maximize other interests, but this concept is fundamentally flawed. The reason for coming out of a state of nature is for the stated purpose of securing the individual in his natural rights. Samuel Adams declared,
“It is the greatest absurdity to suppose it in the power of one, or any number of men, at the entering into society, to renounce their essential natural rights, or the means of preserving those rights; when the grand end of civil government, from the very nature of its institution, is for the support, protection, and defense of those very rights; the principal of which, as is before observed, are Life, Liberty, and Property.”
By constituting a government, the individual principal and sovereign never “gives up” his natural rights. Man only enters society for the purpose of securing these rights. What then is the individual seeking protection from? The answer is three-fold: (1) from other individuals or minorities, (2) from the onslaught of the majority (majoritarianism), and (3) from the government itself. A Constitutional Republic, in this case, must use natural law and natural rights as its basic foundation whereupon it secures the individual from the encroachment of these three dangers. Otherwise, if positive law – as established solely by the majority’s consent, and having no connection to a natural principle – is used as the basic foundation, then the individual is at the mercy of the majority and the second threat expressed here is left unaddressed.
It is the ultimate premise of a Constitutional Republic – as built on natural law – to declare that all natural rights come from our Creator. The Declaration of Independence declares,
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
In a Constitutional Republic built on natural law, it is impossible to renounce one’s natural rights, because these rights are endowed by the Creator and not through the individual, the majority, the government, or through any other source. As such, according to Samuel Adams,
“If men, through fear, fraud, or mistake, should in terms renounce or give up any essential natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of God Almighty, it is not in the power of man to alienate this gift and voluntarily become a slave.”
A constitution is the manner in which a sovereign man establishes a system of government in reflection of his natural rights, for by creating government, man establishes an arbiter to judge in certain matters pertaining to life, liberty, and property. Samuel Adams concluded,
“In the state of nature every man is, under God, judge and sole judge of his own rights and of the injuries done him. By entering into society he agrees to an arbiter or indifferent judge between him and his neighbors; but he no more renounces his original right than by taking a cause out of the ordinary course of law, and leaving the decision to referees or indifferent arbitrators.”
Given the above, a bill or law is “unconstitutional” if it violates the natural rights of the individual, because when a man-made law (i.e. a positive law) no longer reflects a natural principle, law, or right, it is, as Thomas Paine stated, usurpatory and tyrannical. It matters not what process, vote count, or signature is placed to the law, if the positive law violates the individual’s natural rights then it is – by definition – unconstitutional.
Limits to a Constitutional Government
The government’s only tool to accomplish its duty is the use of coercion upon the criminal who violates a principal’s natural rights. While a constitutional government reflects the natural rights of the individual, a good and just government – because it can only fulfill its duty through force and coercion – is restricted to matters concerning the actual infringement of life, liberty, and property. Coercion can only be used against those who have proven themselves incapable of self-government, through violating the natural rights of another.
However, even within the infringement of life, liberty, and property, government does not have full reign to secure these rights through coercion. This is because coercion alone is inadequate to solve certain issues pertaining to the infringement of life, liberty, and property, for some violations of natural rights must be left to the moral self-government of the individual to maintain equal justice for all.
A constitution is a document or declaration of an individual constituting a government that can only reflect the natural rights of the individual. Any laws, rules, regulations, or statutes enacted by a constitutional government that violate the principal’s natural rights and “the Laws of Nature and of Nature’s God” are, by definition, unconstitutional, usurpatory, and tyrannical.
Two principles of sound constitutional governments are addressed by Thomas Paine and Samuel Adams. While Thomas Paine points out that a constitutional government is an entity and a tool of the people and can never be separated from or made a master over them, Samuel Adams explains that no individual can – whether through “fear, fraud, or mistake” – give up his natural rights. These rights are a gift from God and are not within the power of man to renounce, vacate, or abandon. When Samuel Adams’ principle is applied to a constitutional government, then no enacted law, rule, regulation, statute, or amendment of the constitution or government can violate the rights of an individual through a majority’s consent – even if the individual is consciously willing to give up his own rights.
While it is government’s duty to secure life, liberty, and property, it does this through the establishment of justice by punishing the active infringement of life, liberty, and property. However, if by securing justice and one person’s natural rights the government necessarily infringes on another’s natural rights, then the government – as an arbiter – is powerless to act and the issue is left to the moral self-government of the parties involved, and their Creator.
Special thanks to my friend and colleague Christopher Hurtado for his editing prowess.
- MacConkie, Bruce R. Mormon Doctrine. Salt Lake City, UT: Bookcraft, 1979. Print.
- Paine, Thomas, Michael Foot, and Isaac Kramnick. Thomas Paine Reader. Harmondsworth, Middlesex, England: Penguin, 1987. Print.