The first task before the Founders was establishing the foundation on which we derive our basic and most fundamental freedoms. They embraced the "Natural Law" philosophy proposed by Marcus Tullius Cicero of ancient Rome and of later (English) philosophers such as John Locke, Sir William Blackstone, and Thomas Hooker, and even of Jesus himself. It is worth looking at Cicero's concept of "Natural Law." Cicero came to be enlightened one day while he was walking and trying to imagine what an ideal Rome would be like. As the foremost lawyer of his day, he was concerned with law. He wondered where laws came from. He came to conclude that law, that which distinguishes good from bad and which discourages and punishes the latter, did not originate from man alone. That is, law was not a matter of written statutes but was a matter deeply and fundamentally ingrained in the human spirit. Cicero's reasoned as follows:
1). There is an order to the universe: Creator - Universe - People - Governments. There is a Creator who created the universe then created people. People, in turn, form into communities, and in order to keep their communities ordered, they establish local governments. Finally, local governments give rise to central governments.
2). Humans, like the Earth and the universe itself, were created by a higher power (a Creator; a God)
3). This higher power which created the universe also endowed humans with a bit of its own divinity (that is, He gave us the powers of speech, intelligent thought, reason, and wisdom).
4). As a result of this "spark of divinity," humans are and should be (forever) linked to their Creator and should honor this relationship.
5). Because humans share reason with this higher power, and because this higher power is presumed to be benevolent, it follows that humans, when employing reason correctly, will also be benevolent.
6). Reason and benevolence (termed "right reason") is therefore the foundation of law. When this is applied in a society, it is JUSTICE.
7). Natural Law is timeless; It is valid for all nations for all times.
8). It operates best when men are virtuous and honorable. It fails when men are greedy and depraved.
As Cicero explained in his many writings (which were read by our Founders), law is whatever promotes good and forbids evil. What corrupts good law are the age-old human failings of wealth, greed, desire for status, lust, and other inconsequentials outside of virtue and honor.
In short, according to Cicero, the only intelligent approach to government, justice and human relations is in terms of the laws which the Supreme Creator had already established. The Founders took from Cicero an idea that was revolutionary in terms of a governing a body and that idea was that the glue which binds human beings together in any commonwealth of a just society is love - love of God, love of God's great law of justice, and love of one's fellow man - which provides the desire to promote true justice among mankind. In order to eliminate depravity of society it was necessary to respect this natural order and to love God, oneself, and one another. If man could do this, then his ability to reason and rule would be done justly and in a benevolent manner, and he would therefore be guided
"right reason."
In other words, Natural Law, the bedrock principle of our founding documents, states that our rights come from God and not from any government. John Locke took the concept of Natural Law one step further and applied it to government. According to Locke, people (not rulers or governments) are sovereign. Individuals have sovereign rights which no government can take away. As such, government is morally obliged to serve people, namely by protecting life, liberty, and property, and to do so with limited powers and applying the principle of checks and balances so as to be sure to government remained honest and focused or beholden to its goals. This is the bedrock principle of Locke's view of government. He explained that natural law tradition could be observed with the ancient Jews and that rulers, when properly constrained, would legitimately serve justly because there are moral laws that apply to everyone.
As Locke wrote in the two volumes of his Treatise on Government (1689 and 1690), private property is absolutely essential for liberty. He referred not only to real property but also to intellectual property. "Every man has a property in his own person. This no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his," he wrote. Locke believed people legitimately turn common property into private property by mixing their labor with it, their intellect, their personality, their ambition, their business skills (and other intangible human qualities) and improving it. In other words, he believed that property is a series of transformations. Man has a property right in himself and his skills which is then transformed into money or bartering power, which is then eventually transformed into private property (real and chattel).
It is from the thinking of men like Cicero, as well as the teachings of the Bible, and including the teachings of Jesus himself, that the Founders had the vision to ground our fundamental freedoms in Natural Law. It is easy to see how strongly our Founders were influenced by Cicero's writings. Our nation wasn't influenced by atheist principles, but rather by principles grounded in a belief in God. The Declaration of Independence proudly proclaims that we as a nation believe in a Creator who has endowed us with our fundamental rights. Let us note that while our Constitution establishes and defines our government, it is the Declaration of Independence which establishes our nation's value system.
While the concept of Natural Law has clearly been around for a long time, the Declaration of Independence was the first to embody it in a national document. The US Constitution is the first constitution to be based on this principle and to embrace Locke's philosophy that because people have sovereign rights and not rulers or government, government is therefore morally obliged to serve the people by protecting their life, liberty, and property. To the extent that our government protects individual rights, government operates legitimately. However, when it fails to protect such rights or when it imposes upon them, it becomes an illegitimate ruler over what would otherwise be free people. Governments who do not acknowledge this supreme order of rights have no duty to recognize them.
The next task before the Founders was what kind of system to create. They knew what kinds of liberties had to be secured and protected, but what was the best system to protect them ?
The Founders understood that throughout history, people have been ruled by systems that range anywhere from King's Rule (tyranny) at one far end to complete Anarchy at the other far end (which is the absence of law). The Founders recognized the bad in both. Tyranny was oppressive and people alone, without laws, would become a mob and would resort to the lowest forms of human behavior. Consequently, they wanted to establish a system of "People's Law," which is someplace halfway between King's Rule and Anarchy - halfway between tyranny and mob rule. Under "People's Law, the government is kept under the control of the people and political power is maintained at the balanced center with enough government to maintain security, justice and good order, but not enough government to abuse the people and intrude in their lives. "People's Law" is in the middle between "Ruler's Law" (King, or other tyrant is the rules; tyranny) and "Anarchy (where there is no law at all). They embraced the system of "People's Law," which derived from the Israelites and Anglo-Saxon common law and includes the concepts of government by consensus, natural or God-given rights for the people, power dispersed among the people, individual responsibility, rights being unalienable, a system of justice including reparations for wrongs, and a system to solve problems on the level on which they were created. The Founders, especially Thomas Jefferson, admired the institutes of freedom under "People's Law." In fact, our system was strongly influenced after the system of government and the rules established by Moses after the Israelites were freed from their bondage in Egypt.
In the Federalist Papers, No. 9, Alexander Hamilton refers to the "sensations of horror and disgust" which arise when a person studies the histories of those nations that are always "in a state of perpetual vibration between the extremes of tyranny and anarchy." The Founders' task was to somehow solve the enigma of the human tendency to rush headlong from anarchy to tyranny - the very thing which later happened in the French Revolution. How could the American people be constitutionally structured so that they would take a fixed position at the balanced center of the political spectrum and forever maintain a government "of the people, by the people, and for the people," which would not perish from the earth?
