The Religious Basis of our Law: "Consent of the Governed"

Atheists and secularists support the myth of "separation of church and state" (which really means the separation of God and government) by appealing to the idea of "the consent of the governed," or the line in the preamble of the Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The claim is that government is autonomous, created by the people and not God, and not accountable to God, but only to "the people."

It doesn't take more than a few seconds of thought, to say nothing of a few minutes of history, to show how foolish this secularist idea is. Not a single person who signed the Constitution would agree with it.

If we all "consent" to make Jews our slaves, or to kill them outright, will such a law be "just?"

The Founding Fathers, and all of Anglo-American law before them, believed that just laws were those that conformed to Divine Law.

John Locke was a Christian Theocrat who said all human laws must conform to Divine Laws:

[T]he Law of Nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men's actions must . . . be conformable to the Law of Nature, i.e., to the will of God. [L]aws human must be made according to the general laws of Nature, and without contradiction to any positive law of Scripture, otherwise they are ill made.
[Two Treatises on Government, Bk II sec 135. {quoting Hooker's Ecclesiastical Polity {shows Puritan influence}]

The two phrases, "the Laws of Nature" and the laws "of Nature's God," had received significant attention in Blackstone's works. Notice his definition of "the law of nature," and the laws "of Nature's God" -- or what was termed "the law of revelation":

Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. . . . And consequently, as man depends absolutely upon his Maker for every thing, it is necessary that he should in all points conform to his Maker's will. This will of his Maker is called the law of nature. . . . This law of nature, being coeval [coexistent] with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. . . . The doctrines thus delivered we call the revealed or divine law and they are to be found only in the holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature. . . . Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.

Sir William Blackstone, Commentaries on the Laws of England (Philadelphia: Robert Bell, Union Library, 1771) vol. I, pp. 39,41-42.

This thinking was behind all legislation, which was based on the Ten Commandments, and was certainly not repudiated by the U.S. Constitution.

For example, Blackstone's Commentaries explained:

To instance in the case of murder: this is expressly forbidden by the Divine. . . . If any human law should allow or enjoin us to commit it, we are bound to transgress that human law. . . . But, with regard to matters that are . . . not commanded or forbidden by those superior laws such, for instance, as exporting of wool into foreign countries; here the . . . legislature has scope and opportunity to interpose.
Ibid, p. 42-43.

The Founders echoed that theme:

All [laws], however, may be arranged in two different classes. 1) Divine. 2) Human. . . . But it should always be remembered that this law, natural or revealed, made for men or for nations, flows from the same Divine source: it is the law of God . . . . Human law must rest its authority ultimately upon the authority of that law which is Divine.
The Works of the Honourable James Wilson, Bird Wilson, ed., (Phila: Lorenzo Press, 1804) vol. I, pp. 103-105, "Of the General Principles of Law and Obligation."

[T]he law . . . dictated by God Himself is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity if contrary to this.
The Papers of Alexander Hamilton, Harold C. Syrett, ed. (NY: Columbia Univ. Press, 1961), vol. I. p. 87, Feb. 23, 1775, quoting William Blackstone, Commentaries on the Laws of England (Phila: Robert Bell, 1771), vol. I, p, 41.

[T]he . . . law established by the Creator . . . extends over the whole globe, is everywhere and at all times binding upon mankind. . . . [This] is the law of God by which he makes his way known to man and is paramount to all human control.
The Life and Correspondence of Rufus King, Charles R. King, ed., (NY: G.P. Putnam's Sons, 1900), vol. VI, p. 276, to C. Gore on Feb. 17, 1820.

This proves that the modern myth of "Separation of Church and State" is false. How can you separate religion and law when all laws must be in accord with divine law? How can you separate God and government when the government must be "under God" ?

"Consent of the governed" is a Christian concept, not a secular one. It did not originate with Jefferson.

When Harold Berman delivered the Lowell Lectures at Boston Univ in 1971, he was the Joseph Story Professor of Law at Harvard Law School. He noted:

As the early Christian martyrs founded the church by their disobedience to Roman Law, so the seventeenth-century Puritans, including men like Hampden, Lilburne, Udall, William Penn, and others, by their open disobedience to English law laid the foundations for the English and American law of civil rights and civil liberties as expressed in our respective Constitutions: freedom of speech and press, free exercise of religion, the privilege against self-incrimination, the independence of the jury from judicial dictation, the right not to be imprisoned without cause, and many other such rights and freedoms. We also owe to Calvinist congregationalism the religious basis of our concepts of social contract and government by the consent of the governed. This point is usually overlooked; instead, the theory of social contract is generally traced to seventeenth-century philosophers such as John Locke and Thomas Hobbes. But a century earlier, Calvin had asked the entire people of Geneva to accept the confession of faith and to take an oath to obey the Ten Commandments as well as to swear loyalty to the city. People were summoned in groups by the police to participate in the covenant.
(Interaction of Law and Religion, pp. 66-67)
"Consent of the governed" is seen throughout Calvinist politics, as for example, in Ponet (1556), Goodman, (1558), Beza (1574), Vindiciae Contra Tyrannos (1579), The Dutch Declaration of Independence (1581); Rutherford's Lex Rex (1644), and others who were credited by John Adams with laying the foundation for the American Revolution. See:

Links to the above documents are here:

Calvinists brought this concept of "consent of the governed" over on the Mayflower

IN THE name of God, Amen. We whose names are underwritten, the loyal subjects of our dread sovereign Lord, King James, by the grace of God, of Great Britain, France and Ireland king, defender of the faith, etc., having undertaken, for the glory of God, and advancement of the Christian faith, and honor of our king and country, a voyage to plant the first colony in the Northern parts of Virginia, do by these presents solemnly and mutually in the presence of God, and one of another, covenant and combine ourselves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions, and offices, from time to time, as shall be thought most meet and convenient for the general good of the colony, unto which we promise all due submission and obedience.

Governor Bradford makes this reference to the circumstances under which the Compact was drawn up and signed:

"This day, before we came to harbour, observing some not well affected to unity and concord, but gave some appearance of faction, it was thought good there should be an association and agreement, that we should combine together in one body, and to submit to such government and governors as we should by common consent agree to make and choose, and set our hands to this that follows, word for word…."]

George Bancroft, History of the United States, Vol.1, p.236
"The worke wee have in hand," these are Winthrop's words on board the Arbella during the passage, "is by a mutuall consent, through a speciall overruling Providence, and a more than ordinary approbation of the churches of Christ, to seeke out a place of cohabitation and consorteshipp under a due forme of government both civill and ecclesiastical. For this wee are entered into covenant with God; for this wee must be knitt together as one man, allways having before our eyes our commission as members of the same body. Soe shall wee keepe the unitie of the spirit in the bond of peace. The Lord will be our God, and delight to dwell among us, as his owne people; wee shall see much more of his wisdome, power, goodness, and truthe, than formerly wee have been acquainted with; hee shall make us a prayse and glory, that men shall say of succeeding plantations, 'The Lord make it likely that of New England.'"

George Bancroft, History of the United States, Vol.1, p.268 - p.269
The [Connecticut] constitution which, on the fourteenth of January, 1639, was adopted, was of unexampled liberality. In two successive years, a general court had been held in May; at the time of the election the committees from the towns came in and chose their magistrates, installed them, and engaged themselves to submit to their government and dispensation of justice. "The foundation of authority," said Hooker, in an election sermon preached before the general court, on the last day of May, 1638, "is laid in the free consent of the people, to whom the choice of public magistrates belongs by God's own allowance." "They who have power to appoint officers and magistrates, it is in their power, also, to set the bounds and limitations of the power and place into which they call them."

In 1644, John Winthrop, Then Deputy-Governor of the Commonwealth, wrote Arbitrary Government Described And The Government of the Massachusetts Vindicated From That Aspersion. In 1644, a dispute arose in Massachusetts between the magistrates and the deputies as to the respective powers of the two branches of the legislature, the deputies claiming judicial authority. Winthrop's opposition to this claim brought upon him and other magistrates the charge of arbitrary government; and in order to clear up the situation he drew up the following document. It is important not only for its presentation of Winthrop's personal views, but for the light it throws upon the origins of the political institutions of the Commonwealth.

ARBITRARY Government is where a people have men set over them, without their choice or allowance; who have power to govern them, and judge their causes without a rule.

God only hath this prerogative; whose sovereignty is absolute, and whose will is a perfect rule, and reason itself; so as for man to usurp such authority, is tyranny, and impiety.

Where the people have liberty to admit or reject their governors, and to require the rule by which they shall be governed and judged, this is not an arbitrary government.

The parties or members of this body politic are reduced under two kinds, Governor and Company, or Freemen: to the Governor it adds a Deputy, and eighteen Assistants: in these is the power of authority placed, under the name of the Governor (not as a person, but as a State) and in the other (which is named the Company) is placed the power of liberty:—which is not a bare passive capacity of freedom, or immunity, but such a liberty as hath power to act upon the chiefest means of its own welfare (yet in a way of liberty, not of authority) and that under two general heads, election and counsel: (I) they have liberty to elect yearly (or oftener if occasion require) all their Governors and other their general officers, viz., such as should have influence (either judicial or ministerial) into all parts of the jurisdiction; (2) they have liberty of counsel in all the General Assemblies, so as without their counsel and consent no laws, decrees, or orders, of any public nature or concernment, not any taxes, impositions, impresses, or other burdens of what kind soever, can be imposed upon them, their families or estates, by any authority in the Government: which notwithstanding remains still a distinct member, even in those General Assemblies: otherwise our state should be a mere Democratie, if all were Governors or magistrates, and none left to be an object of government, which cannot fall out in any kind of Aristocratie.
Harvard Classics (1910) Vol.43, Pg.90

[The Massachusetts "Body of Liberties," the first code of laws established in New England, was compiled by Nathaniel Ward (c. 1578-1652) a leading English Puritan minister, who had been trained as a lawyer. He came to the colony in 1634, and was for a time pastor at Ipswich. The "Liberties" were established by the Massachusetts General Court in December, 1641.]

THE free fruition of such liberties, Immunities, and priveledges as humanitie, Civilitie, and Christianitie call for as due to every man in his place and proportion, without impeachment, and infringement, hath ever bene and ever will be the tranquillitie and Stabilitie of Churches and Commonwealths. And the deniall or deprivall thereof, the disturbance if not the ruine of both.

We hould it therefore our dutie and safetie whilst we are about the further establishing of this Government to collect and expresse all such freedomes as for present we foresee may concerne us, and our posteritie after us, And to ratify them with our sollemne consent.

Wee doe therefore this day religiously and unanimously decree and confirme these following Rites, liberties, and priveledges concerneing our Churches, and Civill State to be respectively, impartiallie, and inviolably enjoyed and observed throughout our Jurisdiction for ever.

Nathaniel Ward, Body Of Liberties, Harvard Classics (1910), Vol.43, p.70

George Bancroft, History of the United States, Vol.1, p.581 - p.582 - p.583
[I]n January, 1653, the newly appointed governor, Thomas Dongan, nephew of Tyrconnell, a Roman Catholic, was instructed to call a general assembly of all the freeholders by the persons whom they should choose to represent them. Accordingly, on the seventeenth of the following October, about seventy years after Manhattan was first occupied, about thirty years after the demand of the popular convention by the Dutch, the people of New York met in assembly, and by their first act claimed the rights of Englishmen. "Supreme legislative power," such was their further declaration, "shall for ever be and reside in the governor, council, and people, met in general assembly. Every freeholder and freeman shall vote for representation without restraint. No freeman shall suffer but by judgment of his peers; and all trials shall be by a jury of twelve men. No tax shall be assessed, on any pretence whatever, but by the consent of the assembly. No seaman or soldier shall be quartered on the inhabitants against their will. No martial law shall exist. No person, professing faith in God by Jesus Christ, shall at any time be any ways disquieted or questioned for any difference of opinion."

Henry Vane, Governor of Massachusetts, 1656.
Which convention is not properly to exercise the legislative power, but only to debate freely, and agree upon the particulars that by way of fundamental constitutions shall be laid and inviolably observed as the conditions upon which the whole body so represented doth consent to cast itself into a civil and politic incorporation, and under the visible form and administration of government therein declared, and to be by each individual member of the body subscribed in testimony of his or their particular consent given thereunto: which conditions so agreed (and among them an Act of Oblivion for one) will be without danger of being broken or departed from, considering of what it is they are the conditions, and the nature of the convention wherein they are made, which is of the people represented in their highest state of sovereignty, as they have the sword in their hands unsubjected unto the rules of civil government, but what themselves orderly assembled for that purpose do think fit to make. And the sword, upon these conditions, subjecting itself to the supreme judicature thus to be set up, how suddenly might harmony, righteousness, love, peace, and safety unto the whole body follow hereupon, as the happy fruit of such a settlement, if the Lord have any delight to be among us!
Henry Vane, A Healing Question, Harvard Classics (1910), Vol.43, p.142

Jim Powell, "William Penn—America's First Great Champion for Liberty and Peace"
The Freeman: Ideas on Liberty, October 1995, Vol. 45, No. 10

Penn was most concerned about developing a legal basis for a free society. In his First Frame of Government, which Penn and initial land purchasers had adopted on April 25, 1682, he expressed ideals anticipating the Declaration of Independence: "Men being born with a title to perfect freedom and uncontrolled enjoyment of all the rights and privileges of the law of nature…no one can be put out of his estate and subjected to the political view of another, without his consent."

Massachusetts had lent her aid to the annihilation of the tribe, but the Connecticut towns had begun the deadly work unaided. Until then Massachusetts had maintained a formal oversight, an unbroken assumption of authority among them; but now (1637), being clearly outside the Massachusetts grant, they took leave to hold a General Court of their own and assume independent powers. They had, indeed, no grant themselves, either of land or of authority, from the crown; but there were no King's officers there in the quiet wilderness, and they would not, for the present at any rate, be molested. For two years (1637-1639) they acted without even formal agreement among themselves regarding the method or organization of their government, choosing and obeying their magistrates, electing and holding their assemblies, according to their habit before they came. But in 1639 they adopted a formal constitution, which they called their "Fundamental Orders." Mr. Hooker's liberal temper showed itself very plainly in the principles by which they resolved to be governed. "The foundation of authority is laid in the free consent of the people," he had said, preaching to them from Deuteronomy, 1.13 ("Take you wise men,—and understanding, and known among your tribes, and I will make them rulers over you"); and it is best that it should be so, for "by a free choice the hearts of the people will be more ready to yield" obedience. This was the principle of the Fundamental Orders. Their governor was always to be a member of some approved congregation; but any man might be a freeman and voter and fill any other magistracy whose town admitted him to be a resident, without test of doctrine or church membership; and the freemen were to elect the deputies by whom the laws of the colony were to be made in General Court.
Woodrow Wilson, History of the American People, Vol.1, p.154 - p.155

William Penn's charter, like all early American charters, was explicitly Christian.

Founding Father James Otis (a leader of the Sons of Liberty and the mentor of Samuel Adams) in a 1766 work argued that the only king who had any Divine right was God Himself; beyond that, God had ordained power to rest with the people:

Has it [government] any solid foundation? any chief cornerstone. . . ? I think it has an everlasting foundation in the unchangeable will of God, the Author of Nature whose laws never vary. . . . Government. . . . is by no means an arbitrary thing depending merely on compact or human will for its existence. . . . The power of God Almighty is the only power that can properly and strictly be called supreme and absolute. In the order of nature immediately under Him comes the power of a simple democracy, or the power of the whole over the whole. . . . [God is] the only monarch in the universe who has a clear and indisputable right to absolute power because He is the only one who is omniscient as well as omnipotent. . . . The sum of my argument is that civil government is of God, that the administrators of it were originally the whole people. [1]

[1] James Otis, The Rights of the British Colonies Asserted and Proved (Boston: J. Williams 1766), pp. 11, 12, 13, 98.

The concept of government, said Otis, came from God; but God commands the people to choose their rulers.

And they should be Christian rulers, of course. Atheists were not allowed to hold office until 1961.

So the idea that "the People" are the new God is a myth.

Sam Adams, reflecting on the long tradition of self-government throughout the Christian history of America:

There are instances of, I would say, an almost astonishing Providence in our favor; our success has staggered our enemies, and almost given faith to infidels; so we may truly say it is not our own arm which has saved us.

Other nations have received their laws from conquerors; some are indebted for a constitution to the suffering of their ancestors through revolving centuries. The people of this country, alone,
have formally and deliberately chosen a government for themselves, and with open and uninfluenced consent bound themselves into a social compact. Here no man proclaims his birth or wealth as a title to honorable distinction, or to sanctify ignorance and vice with the name of hereditary authority. He who has most zeal and ability to promote public felicity, let him be the servant of the public. This is the only line of distinction drawn by nature. Leave the bird of night to the obscurity for which nature intended him, and expect only from the eagle to brush the clouds with his wings and look boldly in the face of the sun.

An impressive display of historical scholarship in this area is displayed by Gary Amos, in his book Defending the Declaration, chapter 5, "Government by the 'Consent of the Governed.'"