“The Constitution of the United States is a glorious standard: it is founded in the wisdom of God” (History of the Church, 3:304).
This expression from Joseph Smith in 1839 provides deep insight into the religious basis of this remarkable instrument of government. As set forth in the Doctrine and Covenants: “That law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me” (D&C 98:5; italics added).
Again, the “constitution … which I have suffered to be established, … should be maintained for the rights and protection of all flesh, according to just and holy principles” (D&C 101:77; italics added).
In the great declaration of belief regarding governments and laws in general, members of the Church in 1835 sustained the principle that “we do not believe that human law has a right to interfere in prescribing rules of worship to bind the consciences of men, nor dictate forms for public or private devotion; that the civil magistrate should restrain crime, but never control conscience; should punish guilt, but never suppress the freedom of the soul” (D&C 134:4; italics added).
These quotations express the doctrine of “higher law”—law designed to protect the free agency of man, law toward which religious men should aspire in their civil pursuits.
The doctrine of higher law is an ancient idea. It runs to the most basic considerations in religion. It is found in cultures throughout history. God commanding Adam and Eve in the garden, Moses receiving the Ten Commandments—these constitute outstanding examples. The Constitution of the United States is an outgrowth, in practical terms of man’s desire to protect the principle of free agency. Constitutional, or higher, law undertakes to protect that principle by defining the role and limits of civil authority. Jesus said, “Render … unto Caesar the things which are Caesar’s; and unto God the things that are God’s” (Matt. 22:21).
More than 18 centuries later, the Constitution of the United States incorporated related principles, such as “No person shall … be deprived of life, liberty, or property, without due process of law” (Fifth Amendment), and, “Neither slavery nor involuntary servitude … shall exist within the United States” (Thirteenth Amendment). These are fundamentally a recognition that life and liberty are God’s and not Caesar’s.
Catholic philosophers from St. Augustine to Thomas Aquinas, influenced by the Stoics, discussed the doctrine of “natural law.” The idea of an overruling law of nature, the proposition that there were laws of God, laws of nature, “or other fundamental laws which were not capable of being changed by civil authority,” was, as Professor Charles Grove Haines wrote, “commonly expressed and applied on the continent of Europe, in England, and in the American colonies during the Eighteenth Century.” Aristotle distinguished between written laws, which are man-made, and the “law,” which he felt was in accordance with nature and therefore immutable. In Roman law, distinctions were made between the highest law and the man-made law.
The notion of expressing the higher law in written constitutions, superior to ordinary law, had its American origin with the Fundamental Orders of Connecticut adopted in 1639. Behind it was a rich religious heritage and struggle for freedom. Immediate precedents for this first written constitution in the New World were found in the royal charters granted in some of the English colonies. Colonial governments were based on the provisions of these charters. Such practices led naturally to the adoption of written constitutions by the new states during the American Revolution, particularly from 1776 to 1780. In June 1776 the Second Continental Congress adopted a resolution to draft the Articles of Confederation, the first written constitution of the United States of America. This was ratified and went into effect in March 1781. These movements culminated in the Constitutional Convention of 1787 in Philadelphia and the drafting of the Constitution of the United States as the fundamental law of the land. The expression of the principle of higher law is found in the Constitution itself:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” (Constitution of the United States, article 6, section 2; italics added).
Certain political principles “supporting [the divine] principle of freedom” (D&C 98:5) are incorporated into the Constitution of the United States. Let us look briefly at each of these ideas:
1. Federalism, the division of authority between a central government and local units, is one of the greatest political devices of all time. It limits any single all-powerful force. Caesar was not to become God, as he had in the Roman world. The device has roots in the necessities of administration, in the fact that the people in each locality can largely determine the effectiveness of governmental action for their area. For example, no federal marriage licenses are required in the United States as the basis for family organization. That precious function is retained by the states—delegated by them to the county courthouses. The principle of federalism has deep roots in man’s social needs. It finds clear expression in the Constitution of the United States.
2. The doctrine of separation of powers is the division of authority within the central or federal government into executive, legislative, and judicial branches. It is recognizable in Aristotle’s writings. He was aware of the differences between legislation in the Greek assemblies and the necessity for military leadership and executive authority. The distinctions between executive and judicial power became clear after the Act of Settlement was adopted by the British Parliament in 1701. Then British judges were given tenure independent of the crown. Thus, for nearly a century prior to the adoption of the Constitution of the United States, the idea of an independent judiciary was available in English practice. Many of the men of Philadelphia in 1787 were lawyers. They had studied political history. Some were further stimulated by the writings of Montesquieu who, in his Spirit of the Laws (1751), theorized that the English liberty of the 18th century was explainable because the crown was separate from the legislative branch (Parliament), and from the independent judiciary.
3. The device of “checks and balances” makes the separation of powers workable. The Founding Fathers’ experience with colonial governments convinced them that separation of legislative, judicial, and executive authority, while essential, also had to involve an intricate system of checks and balances. Thereby each of the three great departments could (a) protect its independence or “balance,” but still (b) invade one of the others as necessity arose to “check” it if it went too far. So the president can veto an act of Congress, but Congress can pass the veto over his head—and so on in the 14 or more “checks and balances” built into the system.
4. The doctrine of protection of individual rights (“of all flesh,” as stated in Doctrine and Covenants 101:76–80 [D&C 101:76–80]) stems from the fundamental religious belief that man is an agent, a child of God. This is expressed particularly in the first and subsequent amendments.
5. Peaceful change through amendment and interpretation is clearly related to the ancient and marvelous idea of continuous revelation. As God revealed ways of life and policy to Abraham, Isaac, and Jacob; and especially ways of government to Joseph in Egypt and to Moses, so gifted men through the ages have endeavored to improve toward the fundamental ideal expressed in those revelations.
In summary, as Lord Bryce wrote: “The Constitution of 1789 deserves the veneration with which the Americans … regard it. … After all deductions, it ranks above every other written constitution for the intrinsic excellence of its scheme, its adaptation to the circumstances of the people, the simplicity, brevity, and precision of its language, its judicious mixture of definition in principle with elasticity in details” (James Bryce, The American Commonwealth, New York: G. P. Putnam’s Sons, 1959, 1:16).
And to repeat from the Prophet Joseph Smith, “the Constitution of the United States is a glorious standard; it is founded in the wisdom of God.”