Sunday, September 23, 2012

"Getting Back to the Constitution": The Truth Part 3

Laws of Nature and Nature's God

In my last post on this topic I continued with the thoughts of Gary Amos on the history of the idea of "laws of nature and nature's God" as used by Thomas Jefferson and company in the creation of the Declaration of Independence. Amos uses this discussion to support his overall case that the Declaration of Independence was a document heavily influenced by historically Christian thought. Especially in the arena of Interposition or what some call the disposing of tyrants. A legal case that found a home in Christian thought for more than a thousand years before Jefferson and company used it. All this is part of my larger argument that those that want to "get back" to the Constitution have to first understand the Declaration of Independence. Here is more from Amos on "laws of nature and nature's God":

Five reasons are usually given to prove that the phrase "laws of nature and nature's God" is against the Bible and Christian teaching. First, some say that Jefferson invented the phrase "law of nature and nature's God" as a way to reject Christian law heritage in the colonies. This means that the Declaration represented not only a break with England but a break with America's Christian past. By using the phrase, the founders in 1776 intended to give birth to America as a secular, non-Christian nation.
Second, some say that the phrase is the product of deism and eighteenth-century Enlightenment rationalism, intellectual movements in Europe and America that rejected the Bible and Christianity. 
Third, many writers charge that Jefferson took his ideas about the "laws of nature" from John Locke and that Locke was a deist. By copying Locke, Jefferson for the Declaration around deistic beliefs.
Fourth, some claim that the "law's of nature" idea, though not with Jefferson, was still a reaction against Calvinism and the Puritan colonial legal tradition.
Fifth, some admit that Christians used the idea of the "laws of nature" long before Jefferson wrote, but insist that Christians borrowed it from the Greeks and Stoics. Even if the founders thought they were using Christian ideas, they were not. Today's Christians, then, must reject and use of the "laws of nature" either by Christianity or by Jefferson because we know better.
The common core of all these arguments is that Jefferson and the founders rejected a Christian view of law and intentionally embraced a pagan view of law. This chapter will show that all five reasons are flawed. The founders did not "invent" the idea of "laws of nature and of nature's God." The did not borrow it from deists or Enlightenment rationalists as a way to make America a secular, non-Christian nation. Instead, they relied on a Christian theory of law that had been part of common law centuries before the enlightenment and deism arose. It is true that Jefferson and the colonists were influenced by the writings of John Locke, but Locke was not a deist in his view of God nor in his views of politics and law. To say that Jefferson argued from the "laws of nature" as a way to reject a Calvinist view of law is indefensible since the term was always central to Calvinist legal theory. Finally, the intellectual heritage of the Declaration of Independence cannot be traced to a pagan source, because it is impossible to equate the use of "nature" in the Declaration with the way "nature" was used by the Greeks or Romans.
As a whole, this chapter will demonstrate that much of conventional wisdom is wrong about the legal theory of the Declaration of Independence. It is a mistake to trace that legal theory to deism, the rationalistic Enlightenment, the Renaissance, and ancient Rome and Greece while excluding the direct influence of the Bible and Judeo-Christian intellectual tradition. The legal theory of the Declaration of Independence stands clearly inside the mainstream of Christian tradition of legal theory.  

The above excerpt is from the book Defending the Declaration.


Tom Van Dyke said...

This is fine as preface, Joe, but it's painfully redundant.

Instead, they relied on a Christian theory of law that had been part of common law centuries before the enlightenment and deism arose.


To say that Jefferson argued from the "laws of nature" as a way to reject a Calvinist view of law is indefensible since the term was always central to Calvinist legal theory.

OK, Let's see his proof, let's get to it!

Jonathan Rowe said...

This is the part of Amos' line I find most disagreeable:

"Finally, the intellectual heritage of the Declaration of Independence cannot be traced to a pagan source, because it is impossible to equate the use of 'nature' in the Declaration with the way 'nature' was used by the Greeks or Romans."

The term "nature" means discoverable by "reason." And the lineage as articulated by Jefferson's -- the DOI's author -- does indeed trace back to Aristotle and Cicero, the "Greeks and the Romans." See his letter to Richard Henry Lee, May 8, 1825.

Yes, I know about Aquinas and the incorporation of Aristotle, and the idea that the God of the Bible is the author of both nature as discovered by reason and revealed truth in the Bible. But still this concept of nature is something that is universal and that transcends Christianity.

Tom Van Dyke said...

I agree with Jon's main point here, what is called "natural theology."

However, I do not trust Jefferson and his revisionism of 1825, almost 50 years later! Further, the Congress added "Supreme Judge of the world" and "the protection of Divine Providence," both of which subsume the meaning of the entire text for a more Judeo-Christian understanding of The Deity.

It is the Declaration's text as modified and signed by the Founders that represents "the American mind," not Jefferson's first draft of it.

JMS said...

I find Amos to be not only "redundant," but lacking evidence to support his thesis.

As a rebuttal, I would point to this from John Fea:

“Many Christian nationalists have claimed that the Declaration was a Christian document written to establish a uniquely Christian nation. They appeal to the idea that the right to declare independence from England comes directly from the "Law of Nature and Nature's God"; the notion that the "unalienable rights" of "life, liberty, and the pursuit of happiness" are endowed by the "Creator"; the appeal to the "Supreme Judge of the world for the rectitude of our intentions"; and the closing references to the "firm reliance on the protection of divine Providence."

“Focusing too heavily on these passages, however, neglects the 18th-century motivation behind the writing of the Declaration. In other words, it misses the "original intent" of the document. For all the effort that Christian conservatives place on discerning and interpreting the "original intent" of the U.S. Constitution, there has been little effort to understand the meaning and purpose of the Declaration of Independence as the founders intended it.”

“Most would agree that the Declaration of Independence was not a theological or religious document, but neither was it designed primarily to teach Americans and the world about human rights. Americans have become so taken by the second paragraph of the document that they miss the purpose of the Declaration as understood by the Continental Congress, its team of authors, and its chief writer, Thomas Jefferson. In the context of the American Revolution, the Declaration of Independence was just what it claimed to be—a "declaration of independence" from England and an assertion of American sovereignty in the world.” John Fea March 09, 2011

Tom Van Dyke said...

JMS, I think we should at least hear Gary Amos' argument before we award the debate to our friend Dr. Fea--if John's even saying what you represent him to be saying re this context.

Regardless, for the moment, Counsel for the Defense [or is it prosecution?] Winispringer hath the floor. The court merely asks him to speed the proceedings up a little.


secularsquare said...

Hi Jon-

A short elaboration on your points.

First, Amos might be able to make a case that about the way Jefferson employs the word "nature" vs Aristotle and Cicero. But if the DOI reflects Jefferson's interpretation or even misreading of Aristotle and Cicero, Amos' point becomes irrelevant.

Second, your observation on the connection between reason and nature is important. That is why theologian/philosopher distinguish between "sacred theology" (based upon divine scriptures) and "natural theology" (based upon reason). I guess a good example of the former would be Summa Theologica by Aquinas; a good example of the latter would be his Summa Contra Gentiles.

Phil Johnson said...

I believe attempts to draw a narrow line to either Christian thought, the Greeks, Locke, or any other specific point are what is redundant.
The Founding of the United States is the coming together of every current and strain in Western Civilization coming together in the minds of the people during the Founding Era and not limited to the thoughts of a handful of men or ideas.

JMS said...

Phil - very well said. Your statement should appear on every Western Civ. syllabus

Tom Van Dyke said...

Why not let Joe make his case first? That would be the point of all this, that maybe what we think we know ain't exactly so.

jimmiraybob said...

Especially in the arena of Interposition or what some call the disposing of tyrants. A legal case that found a home in Christian thought for more than a thousand years before Jefferson and company used it.

That would be about the 8th century. What was happening with interposition, deposing of tyrants, at that time?

Joe Winpisinger said...

I am sorry for missing all the comments here... I have to subscribe so they are sent to me via email..


Evidence is coming...


Great point and one of his weaker arguments IMO... With that stated, I do think he still makes some good points...


Fea makes a good point but I would retort that what they used to make their arguments is just as telling as why?

JMS said...

This is my reply to Tom's comment of Sept 25h.

Tom - AC commenters have been courteous to KoI. But, as far as "making his case" goes, why is a book from 1996 so ground-breaking? Who is Gary Amos, and what is Regent Law School (University)? Does he/it have any connection with Pat Robertson, or the defunct Oral Roberts U? Talk about a school (with a fairly poor reputation regarding the quality of its law graduates) and a scholarship niche that has a biased agenda. What is the “purposefulness behind the Creation nation myth”? Should we start discussing Reconstructionism or Dominionism?

As Steven Green (whose work Jon Rowe knows about) concluded in his article, “Understanding the ‘Christian Nation’ Myth”: “The idea of America’s Christian founding persists because it is one of our chief founding myths. It declares that we are a special people and nation, that we have received God’s blessings but are also subject to his judgment when we fail in our endeavors. It sanctifies our origins, informs our national identity, and reminds us of our responsibilities. It is a powerful narrative, and it is particularly appealing to people who desire a greater religious presence in the public life of our nation. The myth also persists because it is sufficiently indefinite in its detail and finds plausible, though not convincing, support in the historical record. That is why this debate is unwinnable on a level that simply compares contrasting historical texts. The religious discourse of the founding period needs to be examined in its larger context, including an appreciation of the purposefulness behind the creation of the Christian nation myth.”

Tom Van Dyke said...

Let the man speak.

jimmiraybob said...


It's easier if you just accept that the history of ideas resulting in the founding start with Aquinas (via the miracle of subsumation*) and are then shaped into final form by the Reformation. The founders/framers merely provided dictation (especially, that lowly Jefferson).

The history of ideas prior to Aquinas? See the Book. No, not Amos' book, THE Book.

Review: Bible -> Aquinas -> angry, heretical, protesting Christians (Reformation)** -> DOI -> Constitution -> America -> today.

*take that subsumed Cicero.

**Birthplace of you're-not-the-boss-of-meism, freedom and democracy.

Tom Van Dyke said...

Ugh. What cannot be won by principled argument cannot be won by mockery.

jimmiraybob said...

I was hoping that reasoned argument would get back to me regarding what was happening in the 8th century with respect to interposition and the deposing of tyrants. Reasoned argument was busy so I took another tack.

Besides, the idea that all ideas get filtered through Aquinas and the Church has already abandoned reason. And history.

Of course, ridicule, mockery and satire have a long and honorable tradition so I take no offense at the slings and arrows and ughs of outrageous indignations.

On a non-ridiculing note, I thought that Steven Green's essay was very well done and balanced and certainly touches on the point made by Jon regarding the founder/framer's unequivocal and direct use of classical Greek and Roman philosophy and political theory.

Tom Van Dyke said...

You'll win the 8th century point, I reckon. But that's a yawn, the adversarial approach to truth. Proving someone wrong doesn't make you right.

Your own argument is mere assertion as well. Regardless of your Argument from Authority [Steven Green], we don't play dueling scholars hereabouts.

Point is that the classical-pagan tradition can't get your argument to unalienable natural rights and fundamental human equality, which are the foundation of the American way.

Doug Indeap said...

To the extent that one is interested in the legal, rather than historical or philosophical, import of the Declaration of Independence, it bears recognizing that lawyers and judges go at this somewhat differently than do historians and philosophers.

While some draw meaning from the references to "Nature's God" and "Creator" in the Declaration of Independence (references that could mean any number of things, as the comments here suggest) and try to connect that meaning to the Constitution and thus constitutional law, the effort is largely baseless. Important as the Declaration is in our history, it did not operate to bring about independence (that required winning a war), nor did it found a government, nor did it even create any law, and it certainly did not say or do anything that somehow dictated or limited or established the meaning of a Constitution adopted twelve years later. The colonists issued the Declaration not to do any of that, but rather to politically explain and justify the move to independence that was already well underway. Nothing in the Constitution depends on anything said in the Declaration. Nor does anything said in the Declaration purport to limit or define the government later formed by the free people of the former colonies. Nor could it even if it purported to do so. Once independent, the people of the former colonies were free to choose whether to form a collective government at all and, if so, whatever form of government they deemed appropriate. They were not somehow limited by anything said in the Declaration. Sure, they could take its words as inspiration and guidance if, and to the extent, they chose--or they could not. They could have formed a theocracy if they wished--or, as they ultimately chose, a government founded on the power of the people (not a deity) and separated, in some measure at least, from religion.

From a legal standpoint, the import of the Declaration is basically that it is a part of the historical context or background that serves to inform our understanding of what was intended by those who twelve years later drafted, adopted, and ratified the Constitution and Bill of Rights. That is much different than supposing that one can assign meanings to parts of the Declaration and then transport that meaning to the Constitution and thereby give it the effect of law.

Tom Van Dyke said...

I agree there's disagreement--Justice Scalia agrees with you:

Justice Scalia, very much the legal realist, does have quite a different view of this matter (Blackacre, April 22, 1997, p. 2):

I don’t think the Declaration of Independence is part of our law. It was drafted before the federal government even existed. The Declaration of Independence, unlike the Constitution, unlike the Bill of Rights, is an aspirational document! That’s where you hear such wonderful stuff [about] life, liberty, and the pursuit of happiness . . .

The Declaration of Independence is aspirational. That’s something you inspire people with, it’s not something you go to a law court with.

However, a) I reply that the 10th Amendment reserves ALL rights to the people and states respectively, including the rights to life liberty and the pursuit of happiness in the Declaration.

Further, as Anastaplo writes [follow the link!], that the Declaration was made part of the "organic laws" of the Unkted States.

And further, my own point---that a nation, in this case America, is more than just its form of government. America was America from 1776, not 1787---just as France was France whether under King Louis, Robespierre, Napoleon or deGaulle.

Phil Johnson said...

"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."
If we're going to dig into this question deeply, we should understand that TVD has made it quite clear that his bias is toward and in favor of the Christian Nation movement however subtle.
I think D.I. simplified the matter quite nicely.

Doug Indeap said...


While there is disagreement among academicians, commentators, etc., about natural law and positive law and the Declaration's place in all that, the law (i.e., statutes, cases, and such) is largely settled about whether the Declaration does or does not have the force of law. It does not.

To be sure, Congress did have the text of the Declaration reprinted in Volume 1 of the U.S. Code along with the Articles of Confederation, Northwest Ordinance, and Constitution and honored them collectively with the label "organic laws," but that hardly affords the Declaration the force of law or otherwise renders it a "law" in the sense applied and enforced by courts. The Constitution carefully prescribes the process by which Congress, along with the President, can make a law, and simply placing text between the covers of a book is not how it is done.

The Declaration certainly provides some context for interpreting the Constitution--as do the Revolutionary War, the Virginia Statute for Religious Freedom, the Great Awakening, the disestablishment movement, the slave trade, the political rivalry between large and small states, and the like. The Supreme Court has (on a few occasions where the opportunity or need arose) referred to the Declaration for just that purpose. In all our history, the Court has never, though, applied the Declaration as a "law," "organic" or otherwise.

There is a well established legal principle that a legislature cannot by law bind future legislatures to act or not act in particular ways. (This is not to say that a legislature may not, as a practical matter, put future legislatures in a bind by spending lots of money, starting wars, etc.) An analogous concept applies here. The people of the colonies in declaring their independence on July 4, 1776, did not and, indeed, could not bind the people of the future independent states, 12 years hence, to form a government conforming to any particular prescription. The independent people of 1787 were free to form any sort of government they chose, and they were not in the least bound to any idea expressed in the Declaration.

I am intrigued by your appeal to a conception of "America" as a "nation" and not just a government that came into being sometime during the Revolution, perhaps with the Declaration of Independence, and thereafter existed as a distinct entity. Certainly there is something to this idea, but as I suggested before it is more of a philosophical or historical concept than a legal one. The law is more focused on the government of the "United States" and has more to say about that than it does about how to characterize the society or nation known as "America" at various points in history.

Underlying your view of the Declaration's role appears to be the idea that it and the Constitution written twelve years later were drafted and adopted by one and the same people or entity (perhaps that unitary America you have in mind). That, of course, is simply not the case, at least not in the sense pertinent to law. While the documents and their preparers plainly are related as a matter of history, the people and institutions that prepared the two documents differed. Of the 56 or so delegates who participated in the Second Continental Congress, convened by the thirteen colonies, that drafted and adopted the Declaration of Independence, seven later participated in the Constitutional Convention, convened by the Confederation Congress representing the by then thirteen independent states, that drafted and adopted the Constitution. In this sense, it was the colonists and thirteen separate colonies that took up arms and cooperated to fight for their independence and issued a declaration in the process, and years later, after independence had been won, it was the free people of the thirteen independent states that formed a government of the United States.

Tom Van Dyke said...

but as I suggested before it is more of a philosophical or historical concept than a legal one.

Nothing wrong with that.

Doug, you're the one--and the "Godless Constitution" crowd---thumping "law" as the only definition of The United States of America. I have no problem with the USA as a philosophical a an historical entity beyond just the Constitution.

When Mr. Lincoln says "fourscore and seven years ago." that indeed dates to 1776, not 1787. That concept of America is [or at least was] a reality.

Further, when it comes to religion and the Founding, federalism rules: the Constitution does not abolish the laws of the states, the First Amendment does not require Massachusetts to dis-establish Congregationalism as its legal and office state church. Religion was left to the states, not abolished!

Doug Indeap said...


I too have no problem with envisioning America in a philosophical or historical sense. Such concepts have their place and utility in discourse of various sorts. Certainly, "we" as a people can discuss and feel good (or not) about "our" "nation" "America" from the time of the Revolution or perhaps from the founding of one or more of the several colonies.

That said, if and when one inquires what the Constitution means and thus what the law is, though, there is a need to focus on what law is about. In that inquiry, the rather free form historical or philosophical concepts are less pertinent or useful.

With respect to the First Amendment constraining only the federal government and not the states, that is hardly in doubt. The Supreme Court has uniformly confirmed as much. Then came the 14th Amendment, which is another subject.

Tom Van Dyke said...

Again, we hamstring ourselves with Scalia's "legal realism" approach, the irony being that liberal-left "living constitutionalism" also claims to read into the Constitution its philosophical and historical context.

That the current state of 14th Amendment jurisprudence is a dishonest muddle doesn't mean we're stuck with it forever. ;-)

[But look at us, speaking solely of the law yet again. When all you've got is hammer, everything looks like a nail. We watch so much Law & Order that "forescore and seven years ago" no longer holds any meaning.]

Doug Indeap said...

I recognize that I have focused our discussion (or mine anyway) on the law. I do not claim that that is the only or the only important way to envision America or usefully discuss America.

Lincoln was quite right, for instance, in speaking of "our fathers" bringing forth "a new nation" four score and seven years earlier, i.e., 1776 when the Declaration was signed. In important respects, that marked the beginning or, at least, a major turning point of a widespread and increasing (though hardly universal) sense of community and common cause then sweeping through the people of the colonies. In that sense, a new nation was born about that time. That idea, of course, is an entirely different thing than suggesting that a government was thereby formed as a legal entity.

I gather that you see the latter as a smaller, perhaps less interesting or important matter. To my lawyer's mind, though, if the inquiry is what the Constitution means and what the law is, it is indeed an important matter, and the soft speak about birthing a new nation is less so. That does not mean that I only have a hammer, so everything looks like a nail. Rather, it means that when I'm actually looking at a nail, I use a hammer rather than a pillow.

Tom Van Dyke said...

A very enjoyable exchange, Doug, and thank you--your visits to the blog are always welcome and do feel free to submit a guest post anytime you've something relevant to religion and the Founding. Although I win every argument around here, losing viewpoints are always encouraged so I can kick them to the curb.


To your point, I think the Constitution permits both a religious nation and an unreligious one, a conclusion my erstwhile blogbrother comes to in his excellent

In the end, I do argue the social utility of religion [and am obliged to since the existence of God can't be proved empirically, let alone "endowing" us with certain rights]: John Adams, a papist-hater and generally hostile to organized religion and its dogma, wrote that as bad as religion is, the world would be even worse without it. On that very modest premise I too proceed.

And I do think we watch too much Law & Order. One can love the law, but without a vision, the people perish.

"The law no passion can disturb. 'Tis void of desire and fear, lust and anger. 'Tis mens sine affectu, written reason, retaining some measure of the divine perfection. It does not enjoin that which pleases a weak, frail man, but, without any regard to persons, commands that which is good and punishes evil in all, whether rich or poor, high or low. 'Tis deaf, inexorable, inflexible.

On the one hand it is inexorable to the cries and lamentations of the prisoners; on the other it is deaf, deaf as an adder, to the clamors of the populace."
---Adams, Argument in Defense of the British Soldiers in the Boston Massacre Trials (4 December 1770).

Doug Indeap said...

I much enjoyed our discussion as well, and I appreciate the invitation.

I usually browse the posts and comments here and check the associated links to satisfy my interest and further my education. You've collected some smart, knowledgeable, interesting folks here--who know lots more about history than I do--so I seldom comment. Coals to Newcastle and all. Somewhere along the line, I came to realize that I generally learn more when listening to someone other than myself.

When the subject turns to law, I figure I may have more to contribute.

JMS said...

Tom and Doug – great exchange! My own view of the relationship between the DoI and the USC comes from political scientist Donald Lutz’s article, The Declaration of Independence as Part of a National Compact.

Lutz takes the “long view” of 150 years of constitution-making in the American colonies before 1776 or 1787, and concludes that:

"The Declaration of Independence is an efficient, abstracted summary of the eighteenth-century American mind. Viewed in this context, the Declaration is not only an efficient summary of American political thought, but also a careful rhetorical balancing of contending views. The document could be read with approval by students of Whig political thought, or the Enlightenment; rationalists, or the deeply religious; those jealous of state power, or nationalists. Indeed, the manner in which state and national perspectives are balanced make this the first national document to lay out federalism as a central aspect of American political thought. The document also turns out to be part of a political covenant of the kind long used in America, and originally derived from covenant theology. Political covenants, called compacts in their secular form, would have had the Declaration serve as a preamble and bill of rights to a constitution. As it turns out, the Declaration of Independence serves precisely such a role with respect to the United States Constitution, and is thus part of a national covenant/compact."

Phil Johnson said...

JMS, That's the kind of talk that encourages me to think.

jimmiraybob said...

TVD - But that's a yawn, the adversarial approach to truth. Proving someone wrong doesn't make you right.

You call for principled argument. I asked for clarification not in an effort to win the culture wars but to bring about some clarity. If there was nothing happening in the 8th century regarding the point being made then we should get to that. Hyperbole does not lead to clarification or principled argumentation. If there was something of substance occurring then there was something new we could all learn.

Do you agree?

Tom Van Dyke said...

It's not key to his overall thesis. Note the punted factoid, move on to the big picture. Otherwise the main discussion is derailed with quibbles.

It's been my observation that when the reviewer is congenial to the thesis, errors are noted in passing; when the reviewer is hostile, errors become grounds to impeach the entire thesis.

You may find this interesting, lefty reviews lefty. There hardly seems a brick left standing by the time he's done, but you wouldn't know it by the tone.

jimmiraybob said...

...grounds to impeach the entire thesis.

I've made no attempt to comment on the thesis" to this point other than at the first posting of the series at which point I pointed out the author's obvious bias. A bias acknowledged by Joe and highlighted in the review of Amos' work that was brought up in an earlier post comments by yourself ("debater's manual" for fellow Christians. See here:

What I emphasize above, in my starting with Aquinas comment, is not a direct comment on the thesis but does point out what I feel is a critical consideration; the preferential selection of a starting point and exclusion of other competing early and contemporaneous sources and hypotheses not supportive of Amos' thesis.

These considerations are not quibbles.

I'll read the link that you've put up and probably will find it interesting. Of course, I find Amos' thesis interesting but flawed. I'll follow what's presented and, like you suggest, let the man speak, and at some point I'll offer a comment or two on the substance if I have anything to add.

Tom Van Dyke said...

Cool. After all this, Joe better get to work.