Site menu:


February 2017 Policy Study, Number 17-2


A Commentary on the American Founding


Part 3



At this point, a distinction may be drawn.  It is a distinction that is almost universally overlooked today, that being the distinction between “legal” and “lawful.”  For an act to be truly lawful, it must comport to the Natural Law, which is unchanging.  For an act to be legal, it need only comport to “man’s law,” which is that code we promulgate in Washington and our state capitals.  It can be, and is, changed at whim.  And it may or may not comport to the Natural Law.  Why on earth is all of this of any importance today?  For the same reason it was of such great importance to our Founders.  If you remember back a few pages, you will recall that Thomas Paine referred to “the glorious object of our contest.”  The glorious object of which he spoke was liberty.


It is altogether appropriate to envision our never-ending quest for freedom as a contest.  On one side, we have big government, or even tyranny.  On the other, we have “we the people.”  Imagine a present day sporting contest — football, for example.  Football is “sort of” played by the rule of law, in as much as the rules are predetermined and they don’t change while the game is being played.  The rules are immutable for the immediate contest.  What a different contest it would be if one side were unilaterally empowered to change the rules and to do so at their own discretion.  What chance for success would the team without control of the rules have?  This is exactly the situation at present.  “We the people” are still in a contest to preserve our liberties, and the other team (government) gets to set and change the rules at its discretion.  What chance of success have we for maintaining our liberty if the rules of the contest can change?


There is another source handed down to our own times with which you may be familiar:  “My Country, ’Tis of Thee.” It was written by Samuel Francis Smith circa 1831 or 1832.  (There seems to be some confusion on that point.)  It clearly expresses the sentiment of our Founders and “we the people’s” understanding of the basis of our government at that time.  We sing it from time to time to this very day.  Unfortunately, we don’t sing all of it.  You are undoubtedly familiar with the first verse.  It is:


My country, ’tis of thee,
Sweet land of liberty,
Of thee I sing;
Land where my fathers died,
Land of the pilgrims’ pride,
From every mountain-side
Let freedom ring.


You probably aren’t familiar with the fourth verse. (With author’s interpretation)  It is:


Our fathers’ God, to Thee,                  Our Creator — Nature’s God, It is to You
Author of liberty,                                Source of the gift of liberty
To Thee we sing;                                It is You we acknowledge for this gift
Long may our land be bright              May this land be blessed well into the future
With freedom’s holy light,                  Freedom itself is a blessing from our Creator
Protect us by Thy might,                     It is You on whom we rely
Great God, our King.                          You are God and King — Not government


When you contemplate its meaning, it’s hard to miss the conclusion that the people back then understood whence came their liberty; and consequently they understood the basis on which their government was formed.  While you may think an inordinate amount of time has been spent on this matter of natural law and it source — our Creator — the fact remains that it is the bedrock upon which our Founding Fathers established our form of government.  Without a firm understanding of the underlying basis, it is incongruous to think we can begin to fathom our form of government.


The duty and obligation to scrutinize the laws of nature and the laws contained herein which flowed from them for the knowledge requisite for preserving our legacy of freedom and liberty is not merely optional on our part, it is absolutely necessary to preserve the blessings of liberty, and keep government free. (Emphasis added)  (Algernon Sydney).


If this is the case, and I firmly believe that it is, we can never understand it too deeply or appreciate it too much.  John Adams stated the case most unequivocally when he said, “This is a government designed for the governance of a moral people, it is wholly unfit for the governance of any other.”


Without the bedrock of the natural law and its source — Nature’s God — there is no base of support for this instrument.  What can it be?  The instrument itself doesn’t readily yield any other candidate.  Without reliance on the natural law, this instrument is without power to affect its stated purpose or act on its stated principles, for then its implementation is reliant upon mere men.  What were the guiding principles of this new government to be?  Our Founding Fathers were entirely clear in their declaration:  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”


It was seemingly their opinion that “these truths” were so apparent that they were unarguable; that all men were “created equal,” not born equal or equal in any other sense (nor did they at any time ever intimate that it was government’s duty to make them equal, except under “the law”); that our “unalienable rights” not just were, but “are” (meaning, in effect, at all times) a gift from our Creator, government not having the power to either create new rights or abridge those with which we have been endowed by birthright.  The man who wrote those immortal words of the Declaration was Thomas Jefferson.  It is important to know what was on his mind when he wrote them.  The following quote should help.  It can be found in his Notes on the State of Virginia, Query XVIII.  They are important enough to also be found inscribed on the Jefferson Memorial.


The God, who gave us life, gave us liberty at the same time.  And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the Gift of God?  That they are not to be violated but with His wrath?


That the listing of rights is only partial is indicated by the phrase “that among these.”  Our rights being innumerable, they made no attempt to list them all.  But this short list contains all others, and the three rights listed comprise the cornerstone to first be placed on the bedrock.  It should be allowed as prudent to assume that they listed those rights most important in their eyes and also that they listed them in the order of what they must have considered the most important.  (It is of some interest and importance to know that the phrase “pursuit of Happiness,” as found in some earlier writings of the period, includes “the right to private property.”  Further, some early reference books in this country included the definition, “the right to the moral good” in their explanation of “the pursuit of Happiness.”  It is the author’s contention that our Founders did indeed view this phrase as expressing the incontrovertible right of the sovereign individual to the uncontested fruit of his own labor.  That is, it is the sovereign individual’s right to retain one hundred percent of his own production, ergo the right to private property.  You may think too much is being made of the word “sovereign.”  But this is not so.  For if the individual doesn’t have the uncontested right to the fruit of his labor, then he is not sovereign.  (This subject will be developed more fully later.)




Click here for pdf copy of this Policy Study


All of our publications are available for sponsorship.  Sponsoring a publication is an excellent way for you to show your support of our efforts to defend liberty and define the proper role of government.  For more information, please contact Public Interest Institute at