NATURAL LAW SOCIETY OF AMERICA
Compiled and written by Allan Richter, (JD) Doctor of Law
Director of Natural Law Society of America NaturalLawAssociaation.org
Judaic and Christian values under-gird American law and political philosophy. http://www.law.nyu.edu/sites/default/files/TikvahWorkingPapersArchive/WP4Leben.pdf The term Judaism does not appear in the Bible or in rabbinical literature. In classical sources the term used for the body of Jewish teachings is Torah. The term Judaism became popular during the Age of Enlightenment. The Torah contains a "Noahide” universal moral and legal code given to Adam & Eve, repeated after the flood to Noah and reiterated within the universal portion of the law of Moses. Torah/Biblical law has enshrined "the rule of law" as a fundamental premise. In Genesis 18:22-33, Abraham argued with God “Far be it from You! Shall not the Judge of all the earth deal justly? Even the Almighty agrees to be bound to follow the demands of fairness and justice. God's own desire was subordinated to the demand of an overriding norm of "natural law". https://www.myjewishlearning.com/article/the-noahide-laws/?fbclid=IwAR0yTYBCSgo9LP3nDBY265xeyYZn2GLP3jV-0Rk0jk4uVijRgZ7-1nMFo9o (Note 5). Stoic philosophy in the writings of Greek and Roman philosophers in the 3rd century B.C.E to 5th century A.C.E also employ a universal moral and legal approach. Cicero was a Roman philosopher and served as counsel in the year 63 B.C.E.. http://www.nlnrac.org/classical/cicero He introduced the Romans to the major schools of Greek philosophy creating an original philosophical vocabulary in Latin. His writings (106 B.C.E. – 43 B.C.E.), introduced the concept that laws must conform with "natural law" to be valid (see note #2). St. Paul, (10 C.E–67 C.E), described a law “written in the hearts” of the Gentiles (Romans 2:14–15). The Apostolic Decree in Acts 15 is a parallel to Noahide Code. https://en.wikipedia.org/wiki/Seven_Laws_of_Noah#Christianity
Moses Maimonides (1135–1204) and Saint Thomas Aquinas (1225–74) are the most important medieval Jewish and Christian theologians. Both wed Greek Aristotelian method and thought to biblical interpretation. Maimonides is the primary Jewish authority on the Noahide code, a universal divine code, found in the Babylonian Talmud. http://www.wikinoah.org/en/index.php/Maimonides%27_Law_of_Noahides Maimonides did not write purely philosophical works. His works considered as philosophical address issues motivated by religious ideas. Maimonides’ understanding of religious texts is rationalistic. He held that reason and revelation both access one body of truth and revelation contains significant philosophical wisdom. He acknowledged the content of the revealed Noahide Code is discoverable through reason by the “wise of the nations”. https://voegelinview.com/noahide-commandments-and-natural-law/ To Maimonides prophecy belongs on the same epistemological spectrum, (theory: what is the nature, limits and validity of knowledge) as other types of rational knowledge such as science and metaphysics. (Metaphysics, the precursor to theoretical physics, is the branch of philosophy that deals with the first principles of things, including abstract concepts such as being, knowing, substance, cause, identity, time, and space.) Maimonides believed that prophets, however, had a greater ability to receive intellectual emanation. Aquinas was the foremost classical proponent of natural philosophy. He argued that reason is found in God. https://www.philosophybasics.com/philosophers_aquinas.html
Rabbi Jacob Emden (1697 - 1776) a broadly educated scholar, proposed that Jesus and Paul intended to convert gentiles to the Noahide code while Jews were to observe the entire Torah code. https://en.wikipedia.org/wiki/Jacob_Emden#Views_on_the_spread_of_monotheism During the years that the Temple in Jerusalem stood, Gentiles who wanted to dwell in the Land of Israel had to agree to fulfill the Noahide Laws, and had the right to come to the Holy Temple and offer sacrifices to G-d (Zech. 14:17-18). Jesus spoke to the multitude, and to his disciples, saying, the scribes and the Pharisees https://www.britannica.com/topic/Pharisee sit in Moses’ seat: All therefore whatsoever they bid you observe, that observe and do.” (Matthew 23:2 and 5:18-19). During the years that the Temple in Jerusalem stood, Gentiles who wanted to dwell in the Land of Israel had to agree to fulfill the Noahide Laws, and had the right to come to the Holy Temple and offer sacrifices to G-d (Zech. 14:17-18). Paul agreed at a convention with the apostles in Jerusalem that Gentiles could be admitted into the congregation only as proselytes of the gate, i.e., after their acceptance of the Noahide laws (Acts 15:1 -31). https://en.wikipedia.org/wiki/Council_of_Jerusalem The Western tradition of political, legal and moral thought developed in dialogue with and influence of the Hebrew Scriptures and rabbinical exegesis.
Rabbinical Authority is the authority of the halakhic (legal) scholars in maintaining the creativeness and development of Jewish (Torah/Biblical) law by means of its legal sources. http://www.jewishencyclopedia.com/articles/2154-authority-rabbinical The sages of the Midrash (Interpretation) in answer to the question whether Moses learned the whole Torah in forty days while he was on Mt. Sinai, answered that “God taught Moses the principles” (Ex. R. 41:6). The source of the Torah is divine, but its place, its life, development, and formation, is with mankind. Originally the Priests and Levites were the exclusive teachers. Over time the Sages became dominant. It was decided that while it was proper for priests and levites to be members of the bet din (court) their absence would not affect its competence (Sif. Deut. 153). Maimonides assigns to the prophets an honorable place as links in the chain of tradition of halakhic (legal) transmission, stressing however, that this was by virtue of the prophets, functioning as scholars and not in the role of prophets, he explains “the prophet does not come to make law but to command about the precepts of Torah, to warn people that they shall not transgress them.” A prophet who claimed divine instruction as to what was law or the halakhah, was to be branded “a false prophet” (Yad., Yesodei ha-Torah, 9:1-4).
The basics of the Noahide (Universal) law were given to Moses as well as law specific to Israel. In Jewish tradition Gentiles may study the minimum Noahide commandments they are obligated to do (i..e., things that are intellectually obligatory-natural law) as well as the Torah commandments that are permitted but not obligated. https://www.myjewishlearning.com/article/the-noahide-laws/ The Sages teach that Gentiles should not copy the religious ritual of Jews. Much of the Torah however deals with morals, ethics as well as civil and criminal law which is permitted to Gentiles.
The English long identified with the Hebrews. In 730 Bede compared the English to the Jews in his “Ecclesiastical History of the English People”. http://documentacatholicaomnia.eu/03d/0627-0735,_Beda_Venerabilis,_Ecclesiastical_History_Of_England,_EN.pdf John Lyly, ( 1553 - 1606 ), was an English writer and member of Parliament. Tudor England was fighting to maintain independence from Catholic Spain. Lyly’s declaration that England was a “New Israel” was an expression of England’s identification with the Hebrews. http://www.dianamuirappelbaum.com/?p=1401#.XcjhYTNKjIU The political philosophy of English political theorists Tomas Hobbes, James Harrington, and John Locke also include extensive interpretation of the Hebrew Bible. https://www.barnesandnoble.com/w/john-lockes-political-philosophy-and-the-hebrew-bible-yechiel-leiter/1127758314
The 17th century is often called the “Biblical Century”.https://www.lawliberty.org/2013/07/31/reading-the-talmud-in-the-tower-of-london/ Protestants developed a deep respect for the Hebrew Scriptures and interpreted ancient Israel as a constitutional order applicable to their own polity. https://www.jstor.org/stable/pdf/43057875.pdf A focus on rabbinic exegesis by the Protestants accelerated scholarship on the Hebraic Republic. The retrieval of Rabbinic exiguous was a massive undertaking, the effects of which were felt across Europe’s intellectual landscape. The translation of rabbinic sources making them accessible to Christians resulted in publication in Latin of 15 tractates of the Talmud https://en.wikipedia.org/wiki/Talmud , the Mishnah, Midrashic compilations, the Targums of Onkelos and Yonatan, rabbinic works by Maimonides, Yehuda Halevi, Ibn Ezra, David Kimchi (Radak), Levi ben Gershon (Ralbag), Abravanel and others. The Zohar and other kabbalistic texts were also translated. An index of Christian works interpreting these newly translated Jewish sources, compiled in 1694, includes 1,300 titles. https://ndpr.nd.edu/news/john-lockes-political-philosophy-and-the-hebrew-bible/
The Rev. Richard Hooker (1554 - 1600) a Priest in the Church of England wrote ‘The Laws of Ecclesiasticall Politie published in London in 1593. He compared the ‘seven precepts of the sons of Noah’ to the Christian laws in Acts 15: 28-9. Ref: https://www.britannica.com/biography/Richard-Hooker https://en.wikipedia.org/wiki/Richard_Hooker His book ‘Of the laws of ecclesiastical polity’ is online here, see page 398.
John Selden (1584-) was an English lawyer, Member of Parliament and scholar fluent in Hebrew and other languages. https://www.lawliberty.org/book-review/selden-a-legal-and-philosophical-giant/https://www.amazon.com/John-Selden-Western-Political-Tradition/dp/1107011345 wrote a Latin book ‘De jure naturali et gentium, juxta disciplinium ebraorum’ (On natural and Gentile law, compared with Hebrew principles). It was published in 1640 c.e. In chapter 7 he states: ‘Sextum juris Noachidarum...quod de judiciis est, atque enumerationem ex Talmudicis aliquot. Quod igitur in enumeratione illa Septumum est, eber min ha-chai, quo crudelitas immanis in animalia cetera vetatur.’ (Six of the Noachide laws, those of judicial significance, are enumerated first in the Talmud among other sources. The seventh is therefore the prohibition of ‘the limb of a living animal’, which forbids cruelty to animals).
https://www.academia.edu/39851026/The_Integrative_Christian_Jurisprudence_of_John_Selden (Note 7)
Sir William Blackstone’s (1765–69) Commentaries on the Laws of England is the best-known description of the doctrines of English law. He indicated the moral foundation of the English Common Law was Natural Law, however, the law of nature is dictated by God Himself. “These precepts [in Hebrew scripture] when revealed, are found upon comparison to be really a part of the original law of nature. . . But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state since we find that, until they were revealed, they were hid from the wisdom of the ages.” Thomas Jefferson reflected Black-stone's view when he used the phrase "law of nature and of nature's God" in the Declaration. The law of nature refers to the will of God observable in creation while the law of nature's God refers to the divine law which is revealed through the Scriptures. http://www.sullivan-county.com/deism/blackstone.htmhttps://www.allaboutphilosophy.org/natural-law-and-sir-william-blackstone-faq.htm
‘The Constitutions of the Freemasons’, by Rev. Bro. James Anderson, D.D. was published by the Grand Lodge of England in 1738. Anderson wrote in The Old Charges of the Free and Accepted Masons: Charge 1 - Concerning G-d and Religion: “A Mason is obliged by his tenure to observe the Moral Law, as a true Noachida (Noachidae or Sons of Noah was the first name of Masons according to old traditions); and if he rightly understands the Craft, he will never be a stupid Atheist, nor an irreligious Libertine, nor act against conscience......They are generally charged to adhere to that religion in which all men agree (leaving each brother to his own particular opinion); that is, to be good men and true, men of honor and honesty, by whatever names, religions, or persuasions they may be distinguished; for they all agree in the...great Articles of Noah, enough to preserve the cement of the Lodge......Thus Masonry is the center of their union, and the happy means of conciliating persons that otherwise must have remained at a perpetual distance.” http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1028&context=libraryscience ---- http://www.noachide.org.uk/html/history.html
In 1717, four lodges in London formed the first Grand Lodge of England. Within thirty years the fraternity spread throughout Europe and became very popular in colonial America. https://www.msana.com/historyfm.asp George Washington was a Mason. Benjamin Franklin served as the head of the fraternity in Pennsylvania. Paul Revere and Joseph Warren served as the head of the fraternity in Massachusetts. John Hancock, John Sullivan, Lafayette, Baron Fredrick von Stuben, Nathanael Greene, and John Paul Jones were also well-known Masons involved with the founding of America. Chief Justice John Marshall was a Mason. Prince Hall https://en.wikipedia.org/wiki/Prince_Hall established the first lodge of African American Masons in North America in 1775. Hall was an abolitionist and a minister with a Methodist Church in Cambridge, Massachusetts.
Pastor Samuel Langdon was an influential clergyman in colonial America. He gave an election sermon while president of Harvard College titled, The Republic of the Israelites an Example to the American States. He referred to Deuteronomy as a constitution saying "...As to every thing excellent in their constitution of government , except what was peculiar to them as a nation separated to God from the rest of mankind, the Israelites may be considered as a pattern to the world in all ages; and from them we may learn what will exalt our character, and what will depress and bring us to ruin. Let us therefore look over their constitution and laws, inquire into their practice, and observe how their prosperity and fame depended on their strict observance of the divine commands both as to their government and religion “ https://finance.townhall.com/columnists/jimhuntzinger/2018/12/27/how-the-american-republic-was-based-on-the-ancient-hebrew-republic-n2538137
The substance of the Noahide Law is the historic source of the norms of “natural law”. “Throughout the ages, scholars have viewed the Noahide Laws as universal norms of ethical conduct, as a basic concept in international law, or as a guarantee of fundamental human rights for all.” (Encyclopedia Britanica – 1991 – “Noahide Laws.”) https://www.britannica.com/topic/Noahide-Laws Early modern writers such as Grotius, Selden, Milton and Locke are the basis of the modern state. They made extensive reference to the Hebrew Scriptures in their political writings. http://www.law.nyu.edu/sites/default/files/TikvahWorkingPapersArchive/WP4Leben.pdf In 1574, the famous Swiss Hebraist Cornelius Bertram published a treatise based on study of Hebrew scriptures, Talmud, the books of the Maccabees, and Maimonides titled “De Politia Judaeorum” (“The Jewish State”). For 150 years the Hebrew scripture and later Rabbinic exegesis became the focus in the search for political wisdom in laying the foundations of a new political order in Protestant Europe. https://folgerpedia.folger.edu/Inter-Faith_Encounters:_English_Protestants_and_the_Hebrew_Bible Bertram’s book was followed by dozens of works, including the Dutch political theorist Petrus Cunaeus’ influential work, The Hebrew Republic (1617). https://en.wikipedia.org/wiki/Petrus_Cunaeus This work made reference to the Talmud, Midrash Rabba, Maimonides, Abraham Ibn Ezra, Moses ben Ezra, David Kimche, Joseph Karo, Abraham ben David, and others expounding republican government according to Jewish political thought. Parts of this work were translated into English in time to become a handbook for republican revolutionaries in the period of Cromwell. http://azure.org.il/download/magazine/193az21_Hazony_Yoram.pdf
Grotius' concept of natural law had a strong impact on theological debates and political developments of the 17th and 18th centuries. https://academic.oup.com/ejil/article/27/1/79/2756317 He influenced Samuel Pufendorf and John Locke. By way of these philosophers Grotius’ thinking became part of the cultural background of the Glorious Revolution in England as well as the American Revolution. https://www.history.com/topics/british-history/glorious-revolution Grotius' understood nature as God's creation. His concept of natural law thus had a theological foundation. The Hebrew Scriptures contained moral precepts which Jesus confirmed as valid. Hebrew scripture was used in interpreting the content of natural law. Both biblical revelation and natural law originated in God and could therefore not contradict each other. De jure belli ac pacis was an effort to restrain conflicts on the basis of a broad moral consensus. "On the Law of War and Peace", published in 1625, advances a system of principles of natural law, which are binding on all people and nations regardless of local custom. https://www.encyclopedia.com/religion/encyclopedias-almanacs-transcripts-and-maps/grotius-hugodeg
Samuel Pufendorf (1632 – 1694) was a German jurist, political philosopher, economist and historian. He argues that the will of the state is nothing more than the sum of the individual wills that are associated within it. Therefore the state needs to submit to a discipline essential for human safety. This 'submission', is understood the sense of the individual wills that compose the state must be obedient to discipline essential for human safety and demonstrate mutual respect toward each other. It is the fundamental law of reason which is the basis of natural law. International law must create a common link between all peoples. All nations are part of humanity . https://lawlibrary.wm.edu/wythepedia/index.php/Of_the_Law_of_Nature_and_Nations
John Selden (1584-1654), was an English jurist and legal historian. Sheldon authored “On Natural Law and the Law of Nations, According to the Teachings of the Jews. He provided “a theoretical justification of customary law, that in no way should be equated with some kind of amoral relativism”. Selden’s writings offer a model of customary national law within a universal framework. He reconcils authoritative customary law with universal moral and legal principles. Selden viewed the Jewish legal tradition as comparable to that of the English common law. Both legal traditions exhibited a relation between fundamental, natural laws and the particular laws of a national tradition. That relation is worked out through a tradition of articulation based upon reflection on experience, not abstract reasoning. Both traditions recognize certain fundamental laws. Selden found these universal laws in the Noahide precepts as laid out in the Babylonian Talmud, Sanhedrin 56-59. http://jcpa.org/wp-content/uploads/2012/11/john-selden.pdf (Note 7)
John Milton, ( 1608 -1674) was an English poet, pamphleteer and historian.
Milton is best known for Paradise Lost, the greatest epic poem in English. Milton advocated the abolition of the Church of England and the execution of Charles I. From the beginning of the English Civil Wars in 1642 past the restoration of Charles II as king in 1660, he espoused a political philosophy that opposed tyranny and state-sanctioned religion. His influence extended to the American and French revolutions. His works on theology valued liberty of conscience, the paramount importance of Scripture as a guide in matters of faith and religious toleration toward dissidents. https://www.britannica.com/biography/John-Milton
John Locke ( 1632 – 1704) was an English philosopher. His arguments concerning liberty and the social contract influenced his natural law theory. Man in a state of nature is characterized by reason and tolerance. In a natural state all people were equal and independent, and everyone had a natural right to defend his "life, health, liberty, or possessions". The sole right to defend in the state of nature was not enough, so people established a civil society by social contract to resolve conflicts in a civil way with help from government in a state of society. Locke knew Hebrew and the first of his Two Treatises on Government is devoted to biblical interpretation. Locke was convinced that the entire content of the Bible was in agreement with human reason. https://www.barnesandnoble.com/w/john-lockes-political-philosophy-and-the-hebrew-bible-yechiel-leiter/1127758314https://ndpr.nd.edu/news/john-lockes-political-philosophy-and-the-hebrew-bible/ (Note 3).
Montesqumieu ( 1689 – 1755) was a French judge, man of letters, and political philosopher. He is famous for his articulation of the theory of separation of powers. His anonymously published “The Spirit of the Laws” in 1748, influenced the Founding Fathers in drafting the United States Constitution. He was the most frequently quoted authority on government and politics in colonial pre-revolutionary British America. Montesquieu was cited more by the American founders than any source except for the Bible. https://en.wikipedia.org/wiki/Montesquieu ----- http://candst.tripod.com/tnppage/montesquieu.htm
Sir William Blackstone (1765–69) wrote the most respected commentaries on English common Law. The moral foundation of the English Common Law is Natural Law, however, the law of nature is dictated by God Himself. “These precepts [in Hebrew scripture] when revealed, are found upon comparison to be really a part of the original law of nature. . . But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state since we find that, until they were revealed, they were hid from the wisdom of the ages.” Thomas Jefferson reflected Blackstone when he used the phrase "law of nature and of nature's God" in the Declaration of Independence. The law of nature is the will of God observable in creation. The law of nature's God refers to the divine law which is revealed through the Scriptures. http://www.sullivan-county.com/deism/blackstone.htmhttps://www.allaboutphilosophy.org/natural-law-and-sir-william-blackstone-faq.htm https://www.allaboutphilosophy.org/natural-law-and-sir-william-blackstone-faq.htm In 1776, the English Crown and its representatives were ejected from America but the states retained the English Common law. The first Declaration of Rights was adopted in 1776 by the First Continental Congress. The colonies were “entitled to the common law of England.” in particular the right of trial by jury, Americans were also entitled to the benefit of those English statues which existed at the time of colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.” The tendency was to Americanize the English common law. (Lawrence M. Friedman, “A History of American Law” Simon & Schuster. (Note 7)
Traditionally formal nations and their boundaries were established after the Flood in the Covenant with Noah. Before the Flood the earth was governed by patriarchal family units. The haggadic assumption that there are seventy nations and languages in the world is based upon the ethnological table given in Gen. x., where seventy grandsons of Noah are enumerated, each of whom became the ancestor of a nation. http://www.torahnotes.org/wp-content/uploads/2013/09/List-of-the-70-Nations.pdf Beginning in the sixteenth century, English, Dutch and American Protestants revived the Hebrew Scripture’s emphasis on national independence which lead to the founding of the first modern nation states. Hugo Grotius, the philosopher and legal theorist of the Dutch Renaissance was familiar with the Oral Torah and the Noahide Code. His masterwork, On the Law of War and Peace, is the basis of international law.
Grotius’s faith in the God of Moses, and his belief in a basic God-given universal Law permeates his writings and influenced thinkers like Hobbes, Paine, and Locke which gave birth to the American Revolution. https://academic.oup.com/ejil/article/27/1/79/2756317 Many Americans in the founding generation believed the model of political leadership and civil government, established by God through Moses for the Hebrew nation, was worthy of imitation in their own polities. A growing body of scholarship identifies Hebraic republicanism as among the ideas that informed the founders' political thought. Among the Biblical texts that offered useful guidance on republican government and political leadership were Exodus and Deuteronomy. https://academic.oup.com/ejil/article/27/1/79/2756317
LOCK ESSAY ON THE LAW NATURE: “Is there a Rule of Morals, or Law of Nature given to us? Yes. This law of nature can be described as being the decree of the divine will discernible by the light of nature. It appears to me less correctly termed by some people the dictate of reason, since reason does not so much establish and pronounce this law of nature as search for it and discover it as a law enacted by a superior power and implanted and implanted in our hearts. Neither is reason so much a maker of that law as its interpreter…It is not known or made known in the same way as positive laws … it is ... known to men because it can be perceived in the light of nature itself.” http://www.earlymoderntexts.com/assets/pdfs/locke1689a.pdf
"The 20th century witnessed a renaissance in natural law theory. This is evident in the post-war recognition of human rights and their expression in declarations such as the Charter of the United Nations, and the https://www.un.org/en/sections/un-charter/un-charter-full-text/, and the the European Convention on Human Rights, https://www.echr.coe.int/Pages/home.aspx?p=basictexts&c and the Declaration of Delhi on the Rule of Law of 1959 https://en.wikipedia.org/wiki/Declaration_of_Delhi . Natural law is conceived of not as a 'higher law' in the constitutional sense of invalidating ordinary law but as a benchmark against which to measure positive law." (Raymond Wacks - Philosophy of Law - Oxford Universtiy Press)The Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217 A) as a common standard of achievements for all peoples and all nations. It sets out, for the first time, fundamental human rights to be universally protected and it has been translated into over 500 languages.
Download PDF https://www.un.org/en/universal-declaration-human-rights/index.html
UN treaties dealing with human rights: https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx
ONE NATION UNDER GOD
The Congress of the United States -- H.J.Res.104 One Hundred Second Congress of the United States of America recognized... “the historical tradition of ethical values and principles which are the basis of civilized society and upon which our great Nation was founded ... have been the bedrock of society from the dawn of civilization, when they were known as the Seven Noahide Laws; ...... “ https://www.congress.gov/bill/102nd-congress/house-joint-resolution/104/text The United States Constitution has a broad area reserved to the people upon which neither the Federal or State governments may infringe. The concept has biblical origin in Lev. 25:55 and the Talmud. 'for the children of Israel are My slaves/servants [i.e., whom I took out of the land of Egypt'] – and not slaves/servants to other slaves" / other human beings (BK 116b; BM 10a). This allows us to be ONE NATION UNDER GOD in which individual differences and opinions are respected. All human beings are created in the image of God and are thus of equal value. (Note 9)
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.
AMENDMENT XIII (Note 8)
Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny ta any person within its jurisdiction the equal protection of the laws..
The Civil Rights Act of 1964 (Pub. L. 88-352, 78 Stat. 241, enacted July 2, 1964) is a landmark civil rights and labor law in the United States that outlaws discrimination based on race, color, religion, sex, or national origin. It prohibits unequal application of voter registration requirements, and racial segregation in schools, employment, and public accommodations. https://en.wikipedia.org/wiki/Civil_Rights_Act
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The constitutional rights to petition and to peaceable assembly have found their modern home in the right to “expressive association”. Both rights were crucial in persuading the Supreme Court to hold that the First Amendment implicitly contains a “right to expressive association”, a right to associate to engage in the activities protected by the First Amendment. The right of expressive association protected civil rights protesters from hostile state action in the 1950s and 1960s. After the Court's 2000 decision in Boy Scouts of America v. Dale, it also protects private groups that wish to promote traditional ideals and values. It also protects the peoples rights to form churches and associations which reflect individual ethnic identities while at the same time being ONE NATION UNDER GOD.
The Constitution of the United States has endured for over two centuries. Part of the reason is that it is the complement of the Declaration of Independence. The Declaration provided the philosophical basis for a government that exercises legitimate power by "the consent of the governed". It defined the conditions of a free people, whose rights and liberty are derived from their Creator. “For it is to me that the children of Israel are servants” (Lev.25:55) and not to other men or government. https://ndpr.nd.edu/news/john-lockes-political-philosophy-and-the-hebrew-bible/ The Constitution delineated the structure of government and the rules for its operation, consistent with the creed of human liberty proclaimed in the Declaration. (Note 9)
The "consent of the governed" http://vftonline.org/EndTheWall/consent.htm stands in contrast to "the will of the majority," a view more current in European democracies. The "consent of the governed" describes a situation where the people are self-governing in their communities, religions, and social institutions, and into which the government may intrude only with the people's consent. “For it is to me that the children of Israel are servants” (Lev.25:55) and not “the will of the majority”. There exists between the people and limited government a vast social space in which men and women, in their individual and corporate capacities, may exercise their self-governing liberty. One can not be a servant or slave to any government because it is to God that we are servants. (Lev. 25:55) In Europe, the "will of the majority" signals an idea that all decisions are ultimately political and are routed through the government. The government becomes the master and the people its servants. Under limited government, one nation under God, the people are God’s servants and subject to his rule and are not slaves to any human institution. The success of limited government based on the “consent of the governed” requires the civic virtue demanded by God ie., the cultivation of habits of personal living that are important for the success of the community. The identification of the character traits that constitute civic virtue are a major concern of religious and political philosophy. Truth, justice, respect, civility between persons and groups, concern for the common good, duty, respect for rules of democratic government and minority rights, reward based on merit, lead to peace and prosperity. (Note 9)
A second fundamental element of the Constitution is the concept of checks and balances. Central to the institutional scheme is the principle of separation of powers. This frustrates designs for power. At the same time it creates an incentive to collaborate and cooperate.
Equally important to the constitutional design is the concept of federalism. The institutional design divides sovereignty between two different levels of political entities, the nation and the states. This prevents an unhealthy concentration of power in a single government.
At bottom, in the space left by a limited central government. The people rule themselves by their own religious, moral and social values, and call on local political institutions to assist them. This creates a government wherein the views of the people and their religious and civic associations can be expressed and translated into public law and public policy subjectto the limits established by the Constitution.
The Constitution is our most fundamental law. https://www.heritage.org/constitution/#!/about It is, in its own words, "the supreme Law of the Land." Charles Warren once noted, what is most important to remember is that "however the Court may interpret the provisions of the Constitution, it is still the Constitution which is the law, not the decisions of the Court." Warren did not mean that a constitutional decision by the Supreme Court lacks the character of binding law. He meant that the Constitution remains the Constitution and that observers of the Court may fairly consider whether a particular Supreme Court decision was right or wrong. (note 6)
ONE NATION UNDER GOD VS. GLOBALISM
GLOBALISM: It is the idea of slowly shifting to a fully integrated world where all countries cooperate with each other in politics, cultural values, knowledge, and politics. Of the many criticisms of globalization, the prominent critique is that globalization erodes national sovereignty and takes away the power of governments and the rights of the people. https://mosaicmagazine.com/picks/uncategorized/2016/07/judaisms-contribution-to-english-legal-theory/ With globalization, eventually, every country would run and function the same way. The deep rooted cultures of these countries would be lost due to mass migration. There would be a spread of commodity-based consumer culture as well as subordination to international bureaucratic institutions. It poses the dangers of cultural homogenization and a form of religious tyranny. Cultural barriers are necessary in order to have culture. The functioning of international and supranational organizations is often not “democratic” in terms of representation and accountability and also reduces the power and sovereignty of individual governments as well as the people. There would arise strong bargaining power of multinational companies vis-à-vis local governments. By allowing international corporations and multinational businesses to set the economic (and often, the political agenda), critics argue that the nation state as well as individual cultural and religious values become irrelevant. Capitalism runs on the profit motive. Hence, international businesses cannot be allowed to set the terms of the political and economic discourse for a nation. The nation state is answerable to all its citizens. International corporations are answerable only to a board of directors, the stock holders and the profit motive. The nation states exist for welfare of the citizens and not for making profits alone. By usurping the powers of the people and the nation state, international corporations reduce everything to money and profits which tends to favor the well connected and privileged. This as well as non elected international bureaucratic institutions has a corrosive effect on the welfare of the citizens of the nations in which they operate. https://www.conservapedia.com/Nationalism_vs._globalism
The Lord rebuked globalism at the tower of babel. https://stream.org/the-lord-rebuked-globalism-at-the-tower-of-babel/?fbclid=IwAR1_iJf_T6-pyjgEZjZ0slgs-JpAQrn8gl2ve2aFqDBCKei5Pl6qHUuMd30
NOTES: LAW AS A UNIVERSAL VALUE https://www.worldcat.org/title/law-and-the-noahides-law-as-a-universal-value/oclc/41386366
NOTE 1. From a traditional perspective G-d established the Covenant of the Rainbow with Noah and all of the world’s creatures after the flood. G-d would never again destroy the earth ( Genesis 9:11). This covenant is not dependent on mankind’s observance of these Seven Laws of Noah. The Hebrew root of “emunah” means trust. Emunah is translated as trust or faith. There is however a distinction in meaning. Trust is based on emperical experience and an intelectual conclusion that something is true. When on arives at “faith” through “trust” it is is a rational belief reinforced by emotion. The Hebrew word “halacha” is often translated as law. The Hebrew root of “halacha” means to walk. It means how you walk or conduct yourself in practice of what you believe. “Noah was a righteous man in his generation.” “Noah walked with G-d.” “Noah found grace in the eyes of G-d” (Genesis 5:8, 6:9).
The Noahide (Universal) commandments that were repeated after the Flood were for the benefit of all mankind. These universal commandments could have been challenged at a later time and were thus repeated through Moses. There were two covenants made with Israel. The entire Book of Genesis, and the Book of Exodus up to and including the arrival of the Israelites at Mount Sinai is the first covenant made between G-d and the Israelites, traditionally transmitted by G-d through Moses when Israel arrived at Sinai. It includes their acceptance of the earlier Noahide (Universal) moral code which was intended for all the families of the earth. Thus the universal code was renewed through Moses after it had become neglected by the the nations. Four days latter ten utterances were spoken by G-d openly to all of the Israelites at which point they became the Jewish people. This is a second covenant particular to the nation of Israel. Traditionally Abraham went beyond the minimum requirements of the Noahide code. Abraham’s conduct anticipated much of the second and particular covenant made with the people of Israel at Sinai.
The essentials of all G-d’s instruction given through Moses are called the Oral Torah. The oral Torah includes the details of G-d’s universal directive for all people as well as G-d’s specific instruction to Israel. The details of the universal code as G-d specified them to Moses, are the true foundation of the universal Noahide Code. Through observance of these universal commandments all people and nations have a part in the “Torah of Moses”, which is G-d’s “Tree of Life” (Proverbs 3:18).
One of the seven commandments given to the children of Noah is the commandment to establish a legal system (dinim). The commandment to establish a legal system requires the establishment of a just legal system, one that is applied with fairness and before whom all are equal. Those who follow the dictates of an unjust legal system are held accountable for obeying the law law and not resisting it. It was on this basis that war criminals were tried and convicted at the international tribunal in Nuremberg after World War II. In recent years we are witnessing renewed interest in the Noahide commandments. .
..."The rules of civil law are more ancient and are different from the other commandments of the Torah. When the descendants of Noah were commanded to keep the law (Sanhedrin 56a), the essence of the commandment was that they should establish and maintain a just functioning legal order, since the world depends on law, (Noahide law)....Even after the Torah was given (to the Jews), this continued to be the case ( for Jews) with matters for which Torah did not explicitly provide.... Also relevant to this point is the rule of" dina de-malkhuta dina" ( In the Jewish diaspora "the law of the land is the law" in civil matters).. ...New developments among men are endless, any law adopted by the king ruling in a country is entitled to recognition if it does not conflict with Torah, and should be regarded as obligatory; and judgments should be rendered in accordance with it. ... In conclusion, some of the laws adopted at the time of the Talmudic Sages were (also) formulated...through the use of legal reasoning as to what they thought desirable conduct even when there was no Scriptural support for or against it.... most of these laws were arrived at by legal reasoning and were not derived from the written or oral law...".(Jacob Anatoly, halakhic authority in southern France in the 13th century.)
One of the seven commandments given to the children of Noah is the commandment to establish a legal system (dinim). The commandment to establish a legal system requires the establishment of a just legal system, one that is applied with fairness and before whom all are equal. Those who follow the dictates of an unjust legal system are held accountable for obeying the law and not resisting it. It was on this basis that war criminals were tried and convicted at the international tribunal in Nuremberg after World War II. In recent years we are witnessing renewed interest in the Noahide commandments. . (Prof Nahum Rakover - author of LAW and the NOAHIDES, LAW AS A UNIVERSAL VALUE. )
The ideal world is symbolized by the rabbis by the sacrifice of seventy oxen (Num. 29:13 - 34), corresponding to the proverbial seventy nations of the world for whose welfare. these were offered on the alter of the Temple in Jerusalem (B. Suk. 52b). In this connection the prophet Zechariah invited all the nations of the world to "go up to Jerusalem from year to year to worship the King, the Lord of hosts, and to keep the Feast of Tabernacles" (Zech. 14:16).
NOTE 2: https://en.wikipedia.org/wiki/Stoicism The Stoics conceived of an entirely egalitarian law of nature in conformity with the logos (reason) inherent in the human mind. Cicero’s writings:“ Besides, the Stoics’ ideal is to live consistently with nature I suppose what they mean is this: throughout our lives we ought invariably to aim to morally right courses of action…Indeed this idea- that one must not injure anybody else for one’s own profit- is not only natural law, (but an) international valid principle: the same idea is also incorporated in the statutes which individual communities have framed for their national purposes. ..Once men grab for themselves, human society will completely collapse. But if nature prescribes (as she does) that every human being must help every other human being, whoever he is, just precisely because they are all human beings, then- by the same authority- all men have identical interests...Having identical interests .. we are all subject to one ...law of nature: and, that being so, the very least that such a law enjoins is that we must not wrong one another....there is an ideal of human goodness: nature itself has stored and wrapped this up inside our minds. Unfold this ideal, and you with straightaway identify the good man as the person who helps everyone he can, and unless wrongfully provoked, harms none.”
Under classical Natural Law theory sovereignty resides in God. In many of the Enlightenment natural law theories based on social contract, sovereignty was delegated by individuals via. social contract to the nation. Thus the nation or democratic assembly became the unlimited sovereign. The Founding Fathers were familiar with the natural law writings of Enlightenment-era thinkers, especially John Locke. However, the dominant philosophical influence upon the Founders was that of classical-traditional Natural Law. In this regard, two facts are important: First of all, n distinction the French revolution was based strictly on Enlightenment theory. One principle that arises from French revolutionary constitutionalism is that of national sovereignty. Locke’s writings (unlike those of many others of his time) are sufficiently supportive of classical-traditional Natural Law theory, that there is no necessary conflict between the two. https://ndpr.nd.edu/news/john-lockes-political-philosophy-and-the-hebrew-bible/ In the words of Barthélemy:
“There could be but one sovereign person, who had been the King. Another person had to be found in opposition to him. The men of the Revolution found that sovereign person in a moral person: the Nation. They took the Crown from the King and placed it on the head of the Nation.” (i.e. goverment or democratic majority)
In the United States divine sovereignty limits government. “For it is to me that the children of Israel are servants.” (Lev.25:55) The majority can not make laws that violate divine law.
"American Exceptionalism", is government patterned on the Hebraic Republic in which God is the ultimate King. In this system the individual curates moral law. He is the chief agent in defining what is morally right, i.e. in obedience to God. The reason that this has worked in America is that its people have traditionally believed in the classical natural law in which sovereignty rests in "natures god". The natural law is a common-sense standard to which every individual can help hold government accountable. "We hold these truths to be self evident, that all men are created equal and endowed by their creator with certain inalienable rights ..." ie. we are servants of God not men. Socialism rests complete sovereignty in the nation or the collective. For socialists the , the use of state power is the natural expression of the moral law. The state is not limited by the inalienable rights of the people or citizens. There is no higher divine natural law to which the state is subject. The state controls the means of production as well as all aspects of life. The people become servants of the state. Thus socialism ultimately leads to an amoral totalitarianism
Note #4: The universality of these principles and global import was recognized in 1982 by President Ronald Reagan. He spoke of “the eternal validity of the Seven Noahide Laws as a moral code for all of us regardless of religious faith.” (Proclamation on the National Day of Reflection, April 4, 1982). In 1989, President George H.W. Bush proclaimed that these “Biblical values are the foundation for civilized society... A society that fails to recognize or adhere to them cannot endure. ...(these) principles of moral and ethical conduct that have formed the basis for all civilizations comes to us, in part, from the centuries old Seven Noahide Laws... The Noahide Laws are actually seven commandments given to man by G-d, as recorded in the Old Testament. …” (Proclamation 5956-Education Day, USA 1989 and 1990, 102 Stat. 3016, April 14, 1989) Both the Senate and the House of Representatives in 1991 further recognized how this “historical tradition of ethical values and principles…upon which our great Nation was founded … have been the bedrock of society from the dawn of civilization, when they were known as the Seven Noahide Laws.... the most recent weakening of these principles … has resulted in crises that beleaguer and threaten the fabric of civilized society.... without these ethical values and principles the edifice of civilization stands in serious peril of returning to chaos.” (Public Law 102-14, 102d Congress, 1st session, H.J. Res. 104). Herman Van Rompuy, President of the European Union wrote (in July, 2014) that he seeks greater “dissemination of the universal values known as the Noahide laws.” Major General Michael Jeffery, Governor General of Australia, lamenting family breakdowns and drug and alcohol abuse in modern society in a 2008 letter wrote that he believed that observing the fundamental values of the Noahide Laws can be an antidote to such ills of society. We only need to look at the havoc in which we find ourselves living today in order to recognize the validity of these truthful assertions.
Note 5. Every society in every stage of its life, adheres to certain fundamentals of a legal order. This concept appears in Jewish law/Biblical law in connection with the Noahide laws. The concept of “a legal order” is set forth in the first of the seven Noahide laws. The following comments of Nahmanides are typical. (Nahmanides Commentary on Genesis 34:13) https://www.myjewishlearning.com/article/the-noahide-laws/
“In my opinion , the legal order enjoined upon the descendants of Noah in their seven commandments not only includes the requirement of maintaining judges in every district, but they were also given laws relating to theft, overreaching, extortion, the payment of wages, bailees, rape and seduction, torts and personal injuries, loans and commercial transactions, etc. corresponding to the laws that were given to Israel.”
The halakhic/legal authorities noted the Written law was not given in a vacuum, but was introduced into a particular legal environment. The Talmudic sages saw in the Noahide commandments a kind of universal natural law. Rashi found in the Noahide commandments a basis for acceptance of the doctrine of “dina de-malkhuta dina” meaning that when outside of Israel “the law of the land is the law” . This doctrine applied only to civil law. It does not apply to religious law.
In the patriarchal period the Torah speaks of doing right and justice and observing commandments and laws. With reference to Abraham, it is stated: “For I have singled him out, that he may instruct his children and his posterity to keep the way of the Lord by doing what is just and right, in order that the Lord may bring about for Abraham what He has promised him” (Genesis 18:19).
Thus Biblical law has enshrined "the rule of law" as a fundamental premise. In Genesis 18:22-33, Abraham argued with God that it would be unjust to sweep away the innocent with the guilty, and finally persuaded God to agree that the city would be spared if as few as ten innocent inhabitants could be found in the city. Abraham argued:
"Will you sweep away the innocent along with the guilty? … Far be it from You! Shall not the Judge of all the earth deal justly? “
Abraham's appeal was to a transcendent norm that even the Almighty would not transgress. Even the Almighty bent His will to the requirements of a kind of "natural law" that God could not disregard and still be the God of Abraham. The moral of the story is that even the Almighty agrees to be bound to follow the demands of fairness and justice. God's own desire was subordinated to the demand of an overriding norm of "natural law". The Jewish people accepted and followed many laws even before the Revelation at Sinai, and these were renewed and confirmed by the Torah, whose authority established them as binding.
Note 6: Article III, Section I of the Constitution vests the judicial power in a Supreme Court and other, lower federal courts to be established by Congress. The independent judiciary was a novel institution in America. In England, the judicial power was traditionally part of the executive power. The Bible records that Moses sat as a magistrate among the people(Ex. 18:13) and either on the advice of Jethro, his father in law (Ex.18-17-23) or on the advice of the people (Deut. 1:9-14), he later delegated his judicial powers to appointed chiefs of thousands, hundreds, fifties and tens" (Ex. 18:21; Deut. 1:15) - reserving to himself only the most difficult major disputes (Ex. 18:22 and 26; Deut. 1:17.) In ancient Israel appointment of judges was done by "the laying of hands" by the appointer upon the appointee as Moses laid his hands upon Joshua (Num. 27-23). This practice ended in the mid fourth century and Rabbinic judges exercise their authority only as agents of an implied authority from the ancients (Yad. Sanhedrin 4:11). Some communities particularity in Western Europe had a system of electing judges. The seven fundamental qualities of a judge are wisdom, humility, fear of God, disdain for money, love of truth, love of people, and a good reputation. ...he must have a courageous heart to save the oppressed from the oppressor's hate...and eschew wrong and injustice (Yad, Sanhedrin 2:1-7)
Note 7: Similar to other legal systems, Jewish (Biblical) law was created and developed through “legal sources”. The basic norm for the legal sources of Jewish law is the Written Law given by God at Mt. Sinai. It is from the Written Law as the basic norm that the legal sources derive their legal validity There are six legal sources of Jewish (Biblical) law which are based on the Written Law. Jewish (Biblical) law is a living law that must provide answers to questions that arise from a dynamic, ever-changing reality. The Written Law alone does not furnish all the answers; nor does it pretend to. See Deuteronomy 17:8-11.
The term “Oral Law” has two meanings, one broad and the other restricted. One group of oral laws is “law given to Moses at Mt. Sinai." This is called Tradition (kabbalah). It was transmitted from Moses to Joshua, Joshua transmitted it to the elders, the elders transmitted it to the prophets, and the prophets transmitted it to the men of the Great Assembly.” This legal source is fundamentally different from other legal sources of Jewish law in that is inherently not amenable to development; it does not change. For this reason it can be said to have the same status as a “basic norm” ie the Written Law. The other five legal sources are inherently dynamic, and, in fact, a significant aspect of their function is to continue the creativity and development of Jewish law.
The concept of the Noahide (universal) Law finds it's anchor in the Pentateuch as well as the oral law repeated by God to Moses at Mt. Sinai and handed down through the chain of tradition. Noahide law is, however also a “living law” It is also interpreted using the other five legal sources which are inherently dynamic.
The second sense the term “Oral Law” means the sum total of the halakhah (Law) in all its forms, from all its periods, and in all its parts – except for the Pentateuch. The universal Noahide law is part of the "Oral Law" in the second sense also.
THE SOURCES AND BASIC NORMS OF JEWISH (HALAKIC) LAW
Deuteronomy 17:18-11: If a case is too baffling for you to decide...matters of dispute...you shall appear before the priests the Levites and the judge of that time....you shall carry out the verdict that is announced to you....you shall act in accordance with the instructions...given you ...and in accordance with the ruling handed down to you”...
The Sanhedrin had both judicial and legislative power. Beginning in the 11th century various other bodies in the Jewish community began to exercise legislative power and the court concentrated more and more on its judicial role.
Every legal source in a legal system receives it recognition from an ultimate principle or “basic norm.” The written Torah as well as the laws given orally to Moses at Mount Sinai and handed down from generation to generation are the “basic norm”.
(1) Tradition-Kabbalah transmitted orally from person to person tracing back to their reception by Moses from God is a static source not amendable to development. There are five other sources inherently dynamic that continue creativity and development of Jewish law.
(2) Interpretation. (midrash) – interpretation of scripture and the other Halakkah (law from various periods.
(3) Legislation from both the Halakhic authorities and by competent public bodies. (A) Takkanot are regulations or ordinances by the sages or communal leaders to regulate affairs of the community and to accommodate new situations. (B) Gezerah are Rabbinical prohibitions intended to safeguard observance of Scriptural law “to make a fence around the Torah” (Avot 1.1)–
(4) Custom (minhag) – various forms of custom and usage.
(5) Case or Incident (ma'aseh) – legal decisions and and the personal behavior of halakhic authorities in real life situations.
(6) Legal reasoning (sevarah) – process of legal and practical reasoning by the halakhic authorities
Each of the last five legal sources is a recognized method for solving new legal and social problems, creating new legal rules, and changing existing legal rules where necessitated by changes in mores or in economic and social conditions. Of these the two principal methods by which Jewish law has developed are – not unlike other legal systems – interpretation and legislation.
John Selden (1584-1654), an English jurist and legal historian viewed the Jewish legal tradition as comparable to that of the English common law. Both traditions recognize certain fundamental laws. Selden found these universal laws in the Noahide precepts as laid out in the Babylonian Talmud, Sanhedrin 56-59.
In 1776, the English Crown and its representatives were ejected from America but the states retained the English Common law. The first Declaration of Rights was adopted in 1776 by the First Continental Congress. The colonies were “entitled to the common law of England.” in particular the right of trial by jury, Americans were also entitled to the benefit of those English statutes, which existed at the time of colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.” The tendency was to Americanize the English common law. (Lawrence M. Friedman, “A History of American Law” Simon & Schuster.
Note 8: “The Thirteenth Amendment was intended to complete the destruction of slavery begun by the U.S. government during the Civil War in its policy of military emancipation. The official aim of the war was to preserve the Union and the Constitution against the attempt of eleven Southern states to secede from the Union by armed force. In an attempt to keep the peace and prevent further secession, Congress proposed a constitutional amendment on March 2, 1861, stating that the Constitution should never be amended to give Congress power to abolish or interfere with slavery within any state. Once the South had seceded, the status of slavery in the rebellious states was subject to change. Union policy recognized that emancipation of slaves employed in support of the rebellion was a legitimate war measure. The Emancipation Proclamation, issued by President Abraham Lincoln on January 1, 1863, signaled the transformation of an expedient military strategy into a settled executive policy for maintaining the freedom of slaves, emancipated by military means or through enforcement of confiscation and treason statutes enacted by Congress.
On the assumption that slavery was a state rather than national institution, antislavery advocates at first anticipated that military defeat of the Confederacy would result in its abolition through amendment of state constitutions. The Emancipation Proclamation shifted the focus of antislavery strategy to the national government. Lincoln's proclamation stated that "the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom" of emancipated slaves. The legal effect of the executive order on individual slaves was uncertain, however, and it was generally agreed that the proclamation did not repeal state constitutions and laws establishing slavery. To place slave emancipation on a secure constitutional footing, Congress proposed on January 31, 1865, to abolish slavery by constitutional amendment. Ratification of the Thirteenth Amendment, including approval by reconstructed governments in the former Confederate states, was completed on December 6, 1865.
The text of the Thirteenth Amendment reflects its historic character as the culmination of a movement that began during the American Revolution. Eschewing originality, the authors of the amendment relied on the language of the Northwest Ordinance of 1787, intended to keep slavery from being taken into national territory, to abolish it in lands where it had been established for over two centuries. This demonstration of textual fidelity to historic antislavery purpose expressed the desire of Congress to complete the Founders' system of constitutional liberty by making the personal liberty of individuals the concern of the national government.
The Thirteenth Amendment was intended to establish a positive guarantee of personal liberty, expressed in the negative form of a proscription of slavery or involuntary servitude. Viewed in historical context and in the tradition of American political thought, the amendment is an affirmation of the idea that liberty, in the most fundamental sense, consists in the right of individuals not to be interfered with in the exercise of their natural rights. As a guarantee of personal liberty for all persons in the United States, the amendment established a minimum national standard of equality.
The Thirteenth Amendment is libertarian in its nature and purpose, however, rather than egalitarian. The libertarian characteristic of the amendment was made clear in congressional debate in 1864. Congress rejected a more far-reaching proposal, which stated: "All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have the power to make all laws necessary and proper to carry this declaration into effect everywhere within the United States."
By conferring power on Congress to enforce the prohibition of slavery throughout the United States, the Thirteenth Amendment altered the relationship between the states and the federal government. State power to recognize or establish slavery as a legal institution was withdrawn; to that extent, at least, state authority to regulate the personal liberty and civil rights of individuals within their jurisdiction was restricted beyond the limits imposed by the original Constitution. Unlike most other parts of the Constitution, which are designed only to limit governmental action, enforcement of the Thirteenth Amendment is not limited by the requirement that it apply only to actions by states or state officials. The amendment establishes a rule of action for private individuals as well as for state governments. In the language of constitutional law, enforcement of the amendment is not limited by the requirement that the amendment's prohibitions apply only to state action. The U.S. Constitution, for the most part, does not apply to individuals except when they act under color of law (e.g., the policeman who searches your house). The Thirteenth Amendment is different because it applies to private individuals acting in their private capacities. A person violates the Thirteenth Amendment if he keeps a slave. Where the fundamental right of personal liberty is concerned, the distinction between public and private spheres, which otherwise serves as a limitation on government power in the United States, is not recognized under the Thirteenth Amendment.
In the view of its congressional framers, the comprehensive sweep of the abolition amendment was balanced by its libertarian purpose. The scope of the enforcement power delegated to Congress thus depends on the meaning of slavery and involuntary servitude. Explicit definition of these terms in the text of the Thirteenth Amendment was considered unnecessary because slavery was universally understood, and legally defined, as the right of a person to hold another human being as chattel. Slavery was appropriating the work of another person by irresistible power and not by his consent.
In legislative debate there was disagreement over the anticipated force and effect of the prohibition of slavery. The most narrow interpretation of the amendment viewed it as conferring only an individual right not to be held as the property of another. Except for this limitation, states otherwise retained authority to regulate the civil rights of persons within their jurisdiction, and private individuals enjoyed freedom of association, including the right to discriminate as they pleased in commercial and social interactions. This ultra-restrictive view of the abolition amendment was challenged by its congressional authors. They believed that prohibition of slavery and involuntary servitude necessarily implied the conferral of basic civil rights reasonably required to exercise the right of personal liberty guaranteed by the Thirteenth Amendment. Preeminent in their view were the rights to labor and enjoy the fruits thereof; to enter into marriage and establish family relationships; to make and enforce contracts; to bring suit and testify in court; and generally to receive the benefit of common-law protections of person and property. Content to rely on the Northwest Ordinance and reluctant further to engage the contentious issue of the effect of the abolition of slavery on the federal system, congressional authors refrained from writing specific civil rights guarantees into the text of the Thirteenth Amendment.
A year later, faced with restrictive laws (the "Black Codes") enacted by reconstructed state governments regulating the status and rights of blacks within their jurisdictions, Congress enacted civil rights protections that it believed necessary to vindicate the right of personal liberty conferred by the Thirteenth Amendment. This legislative response forms an important part of the framing of the Amendment because it can be viewed as an authoritative congressional construction of the national government's enforcement power.
The Civil Rights Act of 1866 declared that all persons born in the United States, except Indians not taxed, were citizens of the United States. Regardless of race, color, or previous condition of servitude, citizens had the same right to make and enforce contracts; to sue, be parties, and give evidence in court; to inherit, lease, or own property; and to have the full and equal benefit of all laws for the security of person and property as was enjoyed by white persons. The Civil Rights Act authorized the courts to protect persons denied the enumerated rights because of their race against anyone acting under color of state authority.
The constitutional basis for national civil rights legislation of this magnitude was a matter of dispute. Many Members of Congress were convinced that the classification and unequal treatment of black citizens under state laws in the reconstructed South were an infringement of liberty and a badge of servitude subject to legislative correction by Congress under Section 2 of the Thirteenth Amendment. Other lawmakers, objecting to the "Black Codes," doubted that the abolition amendment gave Congress power to displace the states in civil rights matters and impose criminal sanctions on their officers in the manner of the Civil Rights Act. To supply any supposed defect in constitutional authority to legislate on civil rights under the Thirteenth Amendment, Congress therefore proposed a constitutional amendment that expressly authorized national legislation against state civil rights infringement. Affirming the rule of citizenship adopted by the Civil Rights Act, the Fourteenth Amendment prohibited states from abridging the privileges and immunities of citizens of the United States, depriving persons of life, liberty, and property without due process of law, or denying persons equal protection of the laws.
Judicial and legislative construction has, in substantial measure, conformed to the original understanding of the Thirteenth Amendment. Slavery and involuntary servitude have been defined in personal libertarian terms with respect to conditions of enforced compulsory service, rather than in social egalitarian terms based on a subjective and metaphorical view of slavery that focuses on social and cultural systems of dominance and subordination.
The most serious challenge to the Thirteenth Amendment was presented by labor arrangements in the post-Reconstruction South intended to restrict the mobility of black citizens. In the first half of the twentieth century, the Supreme Court invalidated as forms of involuntary servitude state laws restricting employment and contract liberty and authorizing compulsory labor for indebtedness. Bailey v. State of Alabama (1911), United States v. Reynolds (1914), Taylor v. State of Georgia (1942), Pollock v. Williams (1944). In a wide variety of cases concerning, among other things, military conscription, public work laws, discrimination in contracts, social security benefits, deportation of aliens, treatment of the criminally insane, labor union activities, and duties required of public school students, courts generally rejected claims of involuntary servitude in violation of the Thirteenth Amendment.
In these cases the judiciary addressed the question of the meaning and unaided force and effect of the prohibitions in Section 1 of the amendment. In a second line of cases, dealing with the enforcement power of Congress under Section 2, a broader interpretation appears that suggests a more social egalitarian view of the Thirteenth Amendment.
In the Civil Rights Cases (1883), the Supreme Court stated that Congress's enforcement authority under Section 2 extended to the "badges and incidents of slavery." However, the Court adopted a narrow view of this concept, rejecting a claim that exclusion of black citizens from privately operated places of public accommodation was a badge of slavery. The Court declared that "compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities, were the inseparable incidents of slavery."
Through most of the twentieth century, the Thirteenth Amendment was not utilized to try to dismantle state-sponsored racial discrimination. Federal civil rights enforcement policy in the 1950s and 1960s was principally based on the Fourteenth and Fifteenth Amendments. In 1968, however, the Supreme Court approved a dramatic expansion of the meaning of the "badges and incidents" of slavery in Jones v. Alfred H. Mayer, Co. The Supreme Court decided that racial discrimination in the sale of housing, in the form of a property owner's refusal to sell to a Negro buyer, was a "relic of slavery" prohibited under the Civil Rights Act of 1866. Avoiding the requirements of the state-action doctrine under the Fourteenth Amendment, which made prohibition of private discrimination problematic, the Court relied on the antislavery amendment and permitted Congress to define for itself what the "badges and incidents" of slavery were. The Court declared: "Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation." The Court did not describe what limits Congress must observe in enforcing the amendment by "appropriate" legislation as required in Section 2. Again in Runyon v. McCrary (1976), the Court avoided the public/private distinction requirement of the Fourteenth Amendment legislation and held that exclusion of a black student from a private school was a denial of the right to make and enforce contracts guaranteed by the Civil Rights Act of 1866 and prohibited by the Thirteenth Amendment.
On the other hand, in cases outside of Congress's Section 2 enforcement power, the Court was more careful to limit the "badges and incident of slavery" doctrine to its historical context. For example, the Supreme Court found that a city's closing of its swimming pools, rather than operating them on a desegregated basis, was not a badge of slavery. Palmer v. Thompson (1971). In City of Memphis v. Greene (1981), the Court decided that the closing of a street in a white neighborhood, even if it had a disparate impact on blacks outside the neighborhood, was not a badge or incident of slavery in violation of the Thirteenth Amendment. These cases indicate that Section 1 of the Thirteenth Amendment, unaided by legislation, does not reach the badges and incidents of slavery not directly associated with involuntary servitude.
The most significant recent judicial exploration of the meaning of the Thirteenth Amendment reaffirms a narrow definition of involuntary servitude under federal statutes. In United States v. Kozminski (1988), the Supreme Court unanimously decided that private employers of two mentally retarded men, forced to labor in squalid conditions, violated statutes based on the Thirteenth Amendment. Controversy in the Court focused on the criteria used to determine the existence of involuntary servitude. The opinion of the Court stated that involuntary servitude is compulsory servitude by the use of physical restraint or injury, or by the use or threat of coercion through legal process. Disputing a concurring opinion, the majority declared that compulsion by psychological coercion is not involuntary servitude under the Thirteenth Amendment.
Slavery and involuntary servitude in constitutional law retain the essential meaning intended by the framers of the Thirteenth Amendment, and congressional legislation under its enforcement clause remains limited. Since the reappearance of the Thirteenth Amendment in civil rights litigation in 1968, Congress has chosen not to enact any further legislation identifying and proscribing "badges and incidents of slavery." (Herman Belz, Professor Emeritus of History University of Maryland. )
The Civil Rights Act of 1964 (Pub. L 88-352, 78 Stat. 241, enacted July 2, 1964) is a landmark civil rights and labor law in the United States that outlaws discrimination based on race, color, religion, sex, or national origin. It prohibits unequal application of voter registration requirements, and racial segregation in schools, employment, and public accommodations. It is based on Congresses right to regulate interstate commerce. https://en.wikipedia.org/wiki/Civil_Rights_Act
Note 9: THE BIBLE, A RELIGIOUS LAW; THE AMERICAN CONSTITUTION, A PEOPLE’S LAW? The Founding Fathers were familiar with the natural law writings of Enlightenment-era thinkers, especially John Locke. However, the dominant philosophical influence upon the Founders was that of classical-traditional Natural Law which was supplemental to scripture and consistent with it. In this regard, two facts are important: First of all, Locke’s writings (unlike those of many others of his time) are sufficiently supportive of classical-traditional Natural Law theory, that there is no necessary conflict between the two. Locke knew Hebrew and the first of his Two Treatises on Government is devoted to biblical interpretation. Locke was convinced that the entire content of the Bible was in agreement with human reason.
The Noahide (Universal) commandments that were repeated after the Flood were for the benefit of all mankind. These universal commandments could have been challenged at a later time and were thus repeated through Moses. Israel also accepted a covenant particular to the nation of Israel. For this reason we say that both the Noahide commandments as well as the commandments specific to Israel are both religious law. In contrast the constitution is an agreement made by “We the People” as a civil covenant among people. The Declaration, however, provided the philosophical basis for a government that exercises legitimate power by "the consent of the governed". It defined the conditions of a free people, whose rights and liberty are derived from their Creator.
It is noted that it was a decree from God as recorded in the Torah/Hebrew Scripture to establish a covenant (Ex. 19-24). A Covenant requires the consent of at least two parties. The Torah’s instruction was received from God, however “the people” accepted God’s instruction as a norm of conduct for the nation. In other words there had to be an agreement among the people themselves as a nation, for the nation to enter a covenant with God. Israel is God’s servant i.e. a nation of Priests (teachers).
Maimonides Mishneh Torah Kings:
1. When the new king is seated on his royal throne, he must have a Sefer Torah written for himself, in addition to the one he has inherited from his parents. He must have the new copy proofread by the Supreme Court of seventy-one .... “It shall remain with him, and he shall read it all the days of his life.” (Deuteronomy 17:19).....
9. If a person disregards a royal decree because he happens to be busy with religious duties, even one light precept, he is not punished: where the words of the Master and the words of the servant are in conflict, those of the Master have precedence. It is needless to say that if the king decreed to abolish a religious precept, he should be disobeyed.
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