The Notion of an Inspired Constitution

- Transcript of a talk delivered to an LDS congregation; by Thomas McAffee

In a document regarded by modern Latter day Saints as revelation, even scripture, it was confirmed to Joseph Smith, the Mormon Prophet, that “laws of the land which [are] constitutional,” laws designed to support “that principle of freedom in maintaining rights and privileges,” not only belong “to all mankind,” but are also “justifiable before me.”  (D&C 98:  5-6.)  And elsewhere the Lord stated emphatically that He had “suffered to be established”  “the laws and constitution of the people,” and therefore they “should be maintained for the rights and protection of all flesh, according to just and holy principles.”  (D&C 101: 77.)   The laws and constitution should be maintained, “[t]hat every man may act in doctrine and principle pertaining to futurity, according to the moral agency which I have given unto him, that every man may be accountable for his own sins in the day of judgment.”  (Id. at v. 78.)

My purpose today is to contribute some insight in to what it means–and what it doesn’t mean–to accept the idea of, an inspired Constitution.  Without question the idea that the rights guaranteed us by the Constitution come ultimately from God has become part of the basis for our loyalty to, and commitment to, this nation.  Joseph Smith said:

I am the greatest advocate of the Constitution of the United States there is on the earth.  We say that the Constitution is a glorious standard; it is founded in the wisdom of God.  It is a heavenly banner; it is up to all those who are privileged with the sweets of liberty, like the cooling shades and refreshing waters of a great rock in this thirsty and weary land.  It is like a great tree under whose branches men from every clime can be shielded from the burning rays of the sun.

My oldest son, Bryan, once told me that he had named his first child, Madison, because he knew that James Madison was perhaps my favorite of the Constitution’s “founding fathers.”   Often referred to as the father of the Constitution, it was Madison who suggested that “[i]t is impossible for a man of pious reflection not to perceive in it a finger of that Almighty hand which has so frequently and signally extended to our relief in the critical stages of the revolution.”

God works with us where we are, always encouraging us to become better people, but equally always building on what we have already achieved.  Sometimes this means that we start somewhere well short of where He would ideally like us to be, and therefore short of where it is that we should be heading.  In exactly the same revelation in which the Lord confirmed that the Constitution had been “suffered to be established” for “the rights and protection of all flesh” (101: 77) – which clearly identifies the Lord’s purpose to supply, as Joseph suggests, the “refreshing waters of a great rock in this thirsty and weary land”  – he also reiterated the assumption that underlies the sentiment expressed in the Declaration of Independence, where it says that all men are “created equal.”  The Lord confirmed not only the positive principle that all men are created equal, but also its negative corollary – that “it is not right that any man should be in bondage one to another.”  (D&C 101: 79)

The irony, of course, is that the very Constitution that was “established” for the “rights and protection” of “all flesh,” at the same time implicitly recognized the legal authority of the states to recognize and establish human slavery.   It was Thomas Jefferson himself who frankly acknowledged the terrible dilemma that slavery presented to the nation:   “Indeed,” he said, “I tremble for my country when I reflect that God is just; that his justice cannot sleep forever.”  A well-known historian, Clinton Rossiter, has suggested that

the intense popularity of natural law and rights accelerated the movement toward abolition of slavery, or at least suppression of the slave trade. . . .  The petitions, letters, and pamphlets that demanded emancipation labeled slavery ‘the most shocking violation of the law of nature’ and called for blunt attention to the moral inconsistency of legislatures that proclaimed natural rights yet failed to repeal their slave codes.

Clinton Rossiter, Seedtime of the Republic: The Origin of the American Tradition of Political Liberty 438 (1953).

Some have contended – and it seems impossible to disagree – that slavery constituted America’s “original sin,” and we have paid a steep price nationally as we have struggled first to end it, and then eventually, and with only partial success, to eradicate its effects.  I go out on no limb, then, in suggesting that the so-called 3/5 Clause – the provision that counted slaves as 3/5 of a person for the purpose of determining a state’s representation in the House of Representatives – is not within the portion of the Constitution identified as “inspired.”  Rather than protecting “all flesh” in accordance with “just and holy principles,” this clause effectively denied the humanity of those who had been enslaved.

It is one of the grim realities of human history that the same state, the state of Virginia, that gave us the individual (Thomas Jefferson) who told us that people have “inalienable” rights, and in fact are “created equal” – ideas expressed in his justly famous Declaration of Independence – is the same state that in its own state constitution unjustly limited the implications of language expressing the same ideas.  In Virginia’s Declaration of Rights, authored by patriot, George Mason, § 1 provided that all men are “by nature free and independent, and have certain inherent rights, of which, when they enter into society, they cannot, by any compact, deprive or divest their posterity.”   These rights are so “inherent” that the people as a whole cannot legitimately concede them to government.

Yet in §1 it also asserts that these “inherent rights” belong to men only “when they enter into society.”  And that language was added to Mason’s proposed language for the purpose of clarifying that these “inherent” (or “inalienable,” in Jefferson’s words) rights did not apply to the Black race because its members came to Virginia as slaves and hence had never left nature and “entered into” the state of society.

It would be nice, if it were only true, that the clash between what was provided for in positively enacted law, and these “inherent and inalienable rights,” (134:5), was resolved in this unsatisfactory way only when it came to human slavery.  But in reality the clash between human rights and states’ rights became an important sub-theme throughout American history.  Perhaps in part because of the “slavery compromise” that permitted slavery to continue in various states, those who had been most adamant about including a Bill of Rights in the proposed federal Constitution, as it was ratified in 1787 and 1788, were just about as emphatic that the limits on federal power – designed to secure basic human rights – included in the Constitution’s Bill of Rights, would not act as limits on the powers of the state governments.   One of the most nationalistic justices to ever sit on the Supreme Court – Justice John Marshall – thus wrote the opinion in Barron v. Baltimore, the 1833 decision holding that the guarantee that property would not be taken for public purposes, unless its owner was paid a “just compensation,” acted to limit the powers of the federal government, but did not apply at all to the states.

It was precisely for this reason that when Joseph Smith visited President Buchanan and told him of the treatment of the Mormons in Missouri, it made a certain amount of sense for President Buchanan to respond, “Your cause is just, but I can do nothing for you.”  (There is much to be said for the idea that – given the Supreme Court’s ruling in Barron v. Baltimore – the President here stood on pretty firm constitutional ground, and many have taken President Buchanan as simply re-stating the American principle of federalism.   It is not entirely clear that the federal government was empowered to interfere with states, even to secure the personal rights of some of its citizens.   It is true, of course, that in the report supplied by other Mormon leaders who were present, Buchanan is quoted as also saying that, “If I were to do anything about what was done to the Mormons, I would lose the vote of Missouri.”)

This is almost certainly why when, in the last year of his life, someone asked Joseph about his teachings concerning the Constitution, he clarified that the only problem he could see with it, is that the Constitution’s Bill of Rights did nothing to protect American citizens against unjust and unequal treatment at the hands of state government.  When I was still a young man, in the early 1970's, I once heard Arvo Van Alstyne, who taught constitutional law professor at the University of  Utah College of Law, relate this story of Joseph’s attitude about the Constitution – and his meeting with President Buchanan – to the Mormon experience in Missouri.  He underscored that Joseph’s response to this inquiry about the Constitution almost certainly reflected the 1830's era legal responses to the Haun’s Mill massacre, where innocent men, women, and children were slain by enemies of the church – and the state did nothing at all.    But then Arvo drew a dramatic contrast between this government response to the Haun’s Mill massacre, on the one hand; and, on the other, the reaction of the federal government, in the modern era, to the slayings of students protesting the Vietnam War at Kent State University in 1968.

In 1968, civil law suits were brought based on federal legislation enacted to implement post-Civil War constitutional amendments – laws enacted to prevent (and answer) actions by states that violated federal constitutional rights.  The Fourteenth Amendment provides that no state shall “make or enforce” any law “denying the privileges or immunities of citizens of the United States.”  This is the provision that was written for the purpose of extending the “rights” of national citizenship – including the protections included in the federal Bill of Rights – as limits on the powers of the states.

So if there were some ways in which the United States Constitution originally failed to protect just and holy principles, there were also ways, in the long run, by which it came to protect all Americans against the deprivations of rights by all levels of American government.   In the First Amendment, it declares that everyone is entitled to the “free exercise” of religion, and freedom of conscience has always stood high on the list of fundamental rights protected by the Constitution.  Despite some failures along the way, the modern Supreme Court has done much to preserve and protect the freedom of religion of members of a variety of religious faiths.   In 1835, a conference of the LDS Church adopted a “declaration of belief” that stated:

We believe that no government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience, the right and control of property, and the protection of life.

D&C 134: 2.

Despite its occasional failings, the Constitution has by and large succeeded in ensuring that the people have legally secured fundamental rights.  President Ezra Taft Benson once suggested that “only in this foreordained land, under its inspired Constitution, and the resulting environment of freedom, was it possible to have established the restored church.  It is our responsibility to see that this freedom is perpetuated so that the Church may flourish in the future.”

I would contend that among the Constitution’s greatest successes have been its efforts at confronting one of the central tensions in the thinking of its founders.  On the one hand, though the Constitution does not specifically refer to rights as “inherent” or “inalienable” – the terms of the Declaration of Independence and the 1776 Virginia Declaration of Rights – there is almost no doubt that some of the fundamental rights protected in the Bill of Rights were conceived of in those very terms.  At the same time, the Virginia state constitution listed as among the “inherent” or “inalienable” rights of the people was their power to “alter and reform their governments to better serve their needs.”   This was the right (or power) of popular sovereignty.

Those who framed the federal Constitution were advantaged because they held no illusions about the basic nature of mankind.  In one of The Federalist Papers, James Madison observed that “the great security against a gradual concentration of the several powers in the same department, consists in giving those who administer each department, the necessary constitutional means, and the personal motives, to resist encroachments of the others.”   (Federalist No. 51, at 349 (Jacob E. Cooke ed., 1961).)   He went on to assert that “[t]he interest of the [person] must be connected with the constitutional rights of the place.”  He then concluded:

It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government.  But what is government itself but the greatest of all reflections on human nature?  If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controuls on government would be necessary.  In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself.

The remarkable thing is that American history does a good deal to confirm the wisdom and insight of these constitutional framers.  In the 2000 Harvard Law Review, a Yale law school professor, Akhil Amar, published an article entitled, The Document and the Doctrine. His central thesis was that the ideas adopted and inserted into the Constitution as a document have actually excelled the doctrines set forth by the Supreme Court–in securing valuable rights and preventing the development of government that could lead to tyranny.  The Constitution is not perfect, but we are a freer people, and a much better off one, if we remain faithful to the principles that the founders inserted into the written Constitution to secure freedom and rights.  As it has developed, especially in the years since the Civil War, the Constitution has demonstrated that it “should be maintained for the rights and protection of all flesh, according to just and holy principles.”

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