U.S. Constitution ‘Ordered’ Our Freedom
Good morning. I’m delighted to have the opportunity to talk to you today, and I’ve been given as my assigned topic one of my favorite topics. I address it in my classes at the University of Utah; I’ve talked about it in political settings; I’ve spent some time studying it, and I think it’s something very much worth your while as you gather on this particular occasion. The topic is the U.S. Constitution, how it has influenced the Church and American citizens and others throughout the world. There is only one problem with this assignment—it has been given before to other people who are more qualified to address it than I. And I’m glad that you all have a notebook on which you can write things down, because I am about to give you a homework assignment stemming from this. The most significant, from my point of view, the most significant discussion of the Constitution in a spiritual setting occurred in 1991 as we were celebrating the 200th anniversary of the passage of the Bill of Rights, at a devotional held at a Church school. It was a devotional at BYU, and the speaker was the president of BYU, Rex E. Lee.
Rex Lee had been the solicitor general in the Reagan administration; he was widely acknowledged as the finest advocate ever to appear before the Supreme Court among the then-sitting members of that court. They were all, regardless of their ideological stripe, disappointed and sorrowful when he left the position as solicitor general. They said, “You’re the best advocate we have ever seen.”
And he gave a devotional entitled “The Constitution and the Restoration.” Now I could with profit simply take the 35 minutes, 40 minutes assigned to me, and read it to you. But since you are college students, I assume you can read, and therefore I tell you that if you go to your IPad or whatever it might be—and I know all of you have two or three "whatever it might be’s"—Google “BYU speeches,” and then when you get into BYU speeches, in the search section, put “the Constitution and the Restoration.” You will find Rex Lee’s masterful sermon—and it is that, in a devotional—a masterful sermon on the meaning of the Constitution, the structure of the Constitution, and most importantly, the impact of the Constitution on the restoration of the gospel.
I will quote from it later on in some length, but if you get nothing else out of this, that tag or that direction of where you can go to get Rex Lee’s view on the Constitution will have been worth your having me come here.
Let me put it in a context for you. I tell my students at the University, “You cannot separate political science”—that’s what my degree was in—“You cannot separate political science from history. The two of them are inextricably intertwined.” And so if we’re going to talk about the political theory behind the Constitution, we’re going to have to spend some time on the history.
The history of this country and its freedom goes back to Europe, and particularly Great Britain and particularly Scotland. I have a bias for Scotland—your president went to East High; I went to Scotland on my mission. So all things good come from Scotland.
It was in the 1700s, as the dominant European doctrine about humans and their relationship to each other that found its ultimate expression in what they called “the divine right of kings” was breaking down. The whole idea behind the divine right of kings was that it was God who determined who the king should be, by virtue of who was born into the king’s family. That was God’s decision, therefore the king was the king because God had made him the king, which meant that the earls and the barons and the other nobles were earls and barons and nobles because God had determined they should be. And the peasants or surfs were peasants or surfs because God had determined that that was their place. And that was the binding view of society that kept feudalism together for a long period of time. That’s a bit of an oversimplification; we could get into the economics, but that’s enough to give you the flavor of what was going on in philosophical circles as the British began to think about human relationships in a different way.
Adam Smith, Scotsman, wrote in 1776—a good year for literary compositions—The Wealth of Nations, as he talked about how human beings react with each other economically. John Locke, a Scotsman, wrote about the concept of inherent rights, natural rights—that human beings had rights simply because they were human beings, conferred upon them by nature and therefore God, rather than by governments. And Locke talked about three particular rights that human beings had. Human beings had a right to life. No one could take that away from them, unless of course they had committed some sort of crime that violated law that was legitimate law. Then they could be put to death. But they had an inherent right to life and liberty. They had a right to control their lives, that went into the face of this doctrine of everybody should know his place in society and stay in his place. You were endowed with liberty. And the third was property. You had a right to own things. And Locke wrote extensively about life, liberty, and property.
And across the Atlantic, in America, those who were studying law and philosophy and other things in universities—and there were very few of them, statistically—read these philosophies coming out of Great Britain and embraced them. And they were living, of course, in a monarchy. The English king, the British king, was in charge and he had the right to make the law, he had the right to enforce the law, and he had the right to judge under the law.
The British were beginning to edge away from absolute monarchy. King George the 3rd was not as strong and dominant a king as King Henry the 8th had been. And there was a Parliament, and there was some legislation, and a prime minister and debate and all of that, but the lingering doctrine that led to the concept of divine right of kings was still very much there.
It was still very much there when I was on my mission in the 1950s. If you want to catch a complete and fascinating demonstration of how it was very much there, watch “Downton Abbey,” as you see his lordship and you see the footmen, and each one firmly in his place.
I won’t go into the French and Indian War and the economic problems that came out of that and the decision of the British Parliament, obviously endorsed and supported by the king, that war had been fought primarily for the benefit of the American colonists, so it made sense for the American colonists to pay the costs of the war, and let’s have some new taxes in America. And these taxes are only fair because it’s the Americans, as I say, that benefitted from the war that ran up the bills that the taxes will pay off.
Most Americans didn’t know or care about those taxes. We must remember that America at that time consisted of thirteen separate colonies, each one with a separate charter from the Crown, each one with its own form of colonial government, usually a governor appointed by a king. And they really didn’t have all that much to do with them. But they had one thing in common. They were old enough that they felt their roots were more in America than they were in England, most of them. But they made their livings living on farms and working in ways where the stamp tax and the other taxes that came as a result after the end of the French and Indian War didn’t apply to them at all. They scraped by at subsistence living standards. By our standards, we would say all of them were at sub-subsistence level. They lived in log cabins; they scraped their living out of the ground. They didn’t know or care very much about John Locke or Adam Smith or, for that matter, King George.
But the elites among them cared—the lawyers, the bankers, the merchants, the ship owners, the people who were doing business across colonial lines and indeed, across international lines, not only partook of the British economy and British attitudes of law, they partook of the British philosophies and they read John Locke. And they said, “This is an intrusion on our liberty, and we have inherent rights. This is an intrusion on our property.” And they began to petition the Parliament and said, “It isn’t fair for you to put these taxes on us when we don’t even have a seat in Parliament.”
Well, of course you don’t have a seat in Parliament; you don’t live in England. You’re colonials, and in the pecking order of the king at the top and then the aristocracy and so on, the colonials came in at the bottom. And we know what’s best for you and we will tell you what’s best for you, and you will pay these taxes. And so the fight began, and the dispute got worse and worse. And the most famous American in the world, well-known in Great Britain for his accomplishments, who considered himself an absolute Englishman to his core, went to England to see what he could do to try to smooth all this out. He was a man named Benjamin Franklin. And he got humiliated by the English Parliament and the English government. He was forced to stand while they told him just how insignificant he was—wouldn’t let him sit down. He stood there at attention while they told him this and told him that and told him the other thing, and then dismissed him. And he got on a ship and came home, and his best biographer—the subtitle of his biography, he calls him “The First American.” He went there an Englishman, he came home an American.
And he and others in the colonies who had partaken of this same philosophy began to get together, and they created a gathering which they called the Continental Congress. And they began to talk about this. And one thing led to another, and then the British decided they were going to put down this rebellion with force and they sent Redcoats into Massachusetts to enforce the collection of the taxes and they were fired on by the farmers and it started to get really ugly. And ultimately the Continental Congress, made up of the elites, decided they were going to revolt and declare their independence.
Now there was one delegate at the Continental Congress who really shouldn’t have been there. He was not elected as a delegate from his colony, but the fellow who was couldn’t go because he was too busy, and so this young man who was an alternate delegate was sent in his place. He got to Philadelphia; he didn’t know anybody and he didn’t have anything to do, because he wasn’t part of the ferment that was going on. The driving force in that whole thing was a delegate from Massachusetts named John Adams. But John Adams had heard of the young Virginian. His name was Thomas Jefferson, and he knew that Jefferson, among other things, was a superb wordsmith.
And so Adams assigned to Jefferson the responsibility of writing all of the colonies’ grievances down in a formal declaration as to why they were going to become independent. And Jefferson did. He too had read John Locke. Now he edited him a little bit. When it got to the Declaration of Independence, it became “life, liberty, and the pursuit of happiness.” There were other things in the original draft of the Declaration which were dear to Jefferson’s heart, which John Adams and Benjamin Franklin didn’t like. And so they took them out. They left that phrase as it was. But Jefferson originally circulated his version of the Declaration of Independence to show everybody how much better it was than the official Declaration. Later on, as a politician, when people began to revere the Declaration of Independence as secular scripture, Jefferson very humbly and politically wise, said he had written it all. Nothing ever changes among politicians. That still happens. Anyway.
So they declared their independence, they fought the war, they won the war. And they had achieved the first of three vital ingredients to freedom. They had won their freedom. That’s not enough for you to be free. You have to win the freedom, and then you have to order the freedom, and then you have to keep the freedom.
Winning the freedom is the easiest part. That’s what we’re discovering in the Middle East today, as people rise up against what they consider to be their tyrannical governments, they overthrow them, they have won the freedom, and now what do we do? And many times, the answer to that is we lose our freedom again to a new group, a new force, a new strong man. The French, not long after the American Revolution, won their freedom, killed their king, and weren’t able to order the freedom in any cohesive way. I don’t know whether this is an actual statement—it’s out of a movie, but it’s a great line, a movie about Napoleon, who in the movie at least, said to his mistress, “The crown of France is lying in the gutter, waiting to be picked up on the end of the sword.” And that’s what he did, and the French got a dictator more brutal than Louis the 16th. And Napoleon was determined to conquer all of Europe, not just France. They couldn’t order their freedom, and they went into disorder, and they’ve had all kinds of problems ever since. They keep amending their constitution. It’s the first republic and then it’s the second republic and then it’s the third republic.
So the extraordinary thing about the Constitution, and the reason I’ve given you the background I have, is that you must understand how important it was. It was the ordering of the freedom that had been won at the Revolutionary War. Without it, the country could very easily have drifted off into anarchy and ultimately splintered and become a group of unconnected, weak, individual countries scattered along the eastern seaboard, waiting to be picked off at the end of a sword, as others came back up and they would conquer this one and that one.
They tried to make it work on the same basis that it had worked during the war, but without a common enemy the Continental Congress was of no use to them. Now the interesting point, and Dr. Kissinger has made this point—he said, “The American Revolution was led by the elites, not by the common people rising up.” And it was the elites who got together in Philadelphia and ordered the freedom that their movement had created. The father of the Constitution was James Madison. The midwife was Alexander Hamilton. But the pivotal figure, without whom it would not have come into being, was George Washington. He was the only figure of enough stature in all thirteen colonies to be respected enough that when he presided over the Constitutional Convention, and when he allowed himself to be made available to be the first president, all could agree we will have this new kind of government.
The Constitution was under no circumstances widely approved. The ratification fight was very, very bitter, and as Rex Lee points out, opposed by some of the leading elites in the country, including people like Patrick Henry and George Mason, who fought against its ratification as hard as they possibly could, because they said it’s going to create a strong central government and we don’t want that. We want to keep it all among the states. And Madison cajoled and bargained and compromised and stitched together a document that most of the delegates to the Constitutional Convention could sign. Not all.
Edmund Randolph, who offered the Virginia Plan at the opening of the Convention, walked out and refused to sign it. The delegates from New York went home. They said, “We have more important things to do; you’re wasting your time.” All except one, and that was Alexander Hamilton. He had no authority whatsoever to stay behind, but he did and he signed it on behalf of New York.
You look at the Constitution and here are the names of the delegates listed by states, you get to New York and there is only one name and it was Alexander Hamilton. And he didn’t care whether he had any authority to do it. He signed it.
Well, it got ratified, but the core tactic of the fight against ratification was a fight over the Bill of Rights. Now you may think that the fight over the Bill of Rights, whether it should have or should not have a Bill of Rights in it, the “Bill” being an 18th century word for “list.” You might think that was a philosophical fight. As Rex Lee points out, it was a tactical fight. Patrick Henry was saying, “You can’t ratify the Constitution without a Bill of Rights.” So the thing to do is to go back into convention and insert a bill of rights. Have a further meeting and write a bill of rights, and then resubmit it to the states. The fact is, that will kill it. They were lucky to get out of the first convention with a document they could agree on. They go back into convention and, with all of the opposition building up in the country, no, it won’t survive. We’ll say we’re doing it because we love a bill of rights, but what we’re really doing is coming up with an excuse to kill it. Does that sound familiar? I won’t go any farther than that, but read this morning’s newspapers about what people are saying, what they really believe and then ask, “What’s the real tactic going on here?”
Okay. The political process hasn’t changed in 300 years. Interestingly enough, Madison, who said—and ratification in Virginia was a very near thing. If Virginia had not ratified, it didn’t matter if every other colony ratified, because Virginia was the biggest state of the thirteen, and without Virginia you wouldn’t have a country. And Madison barely got it ratified in Virginia by promising to put in a bill of rights after it was ratified. And New York was prepared to defeat it, and without New York you weren’t going to have a country. You had to have Virginia, and you had to have New York, and you had to have Massachusetts. And Massachusetts was the only one that had ratified it.
Well, Madison finally got it ratified in Virginia, whereupon Hamilton said, “Okay, if New York doesn’t ratify, I will go to New York City where there is support for the Constitution, and New York City will secede from New York State and we will ratify it. And New York City will be part of the country and you won’t.” And the threat was strong enough that, by a two-vote margin, the New York convention ratified, and you had a country.
Rhode Island didn’t; North Carolina didn’t. George Washington was sworn in as president of a country with eleven states. The other two came later. And then James Madison did put forward a Bill of Rights, and it was adopted, and the Constitution was amended. And we had ordered our freedom. Now there was more to it than that; I won’t take the time to go into all of that. The Washington administration had to set a whole series of precedents essential to ordering our freedom. We still have things that go all the way back to Washington that are not in the Constitution, but that are just part of the way we do things because Washington did it that way. And gradually, things emerged.
The role of the Supreme Court emerged, because John Adams appointed John Marshall chief justice. Thomas Jefferson won the election, became president—Jefferson and Marshall were cousins, both from the Virginia elite. They hated each other, and Jefferson spent all of his life as president doing everything he could to change the Supreme Court, because Marshall kept handing down rulings that Jefferson didn’t like. And Jefferson thought, okay, I’ll appoint a different justice and he’ll vote against Marshall, and Marshall kept getting Jefferson’s justices and then convincing them that he, Marshall, was right and the decisions kept being unanimous against Jefferson over and over again.
All right. George Washington, James Madison, Benjamin Franklin, Alexander Hamilton, John Marshall, Thomas Jefferson—where did they come from? Extraordinary group of talented men, coming from a tiny little country whose population was less than the current population of the state of Utah, who had that kind of vision and that kind of capacity.
Well, it’s time to turn to Rex Lee, and he talked about that, and we Latter-day Saints have a view about that. And this is what Rex Lee has to say:
“We know that in fact the events whose two-hundredth birthday we observe did not come about just by chance. The descriptive phrase most commonly used by many members of the Church is that our Constitution was ‘divinely inspired.’ Unfortunately, some Church members have deduced from that general, non-scriptural description more than the scriptures or the Constitution or common sense will sustain.
“That is, from the general label ‘divinely inspired,’ some assume that the Constitution is tantamount to scripture, and therefore perfect in every respect, reflecting in every provision and every sentence the will of our Heavenly Father, just as is true of the Book of Mormon or the Doctrine and Covenants. That view cannot withstand analysis. Our Constitution has some provisions that are not only not divine, they are positively repulsive. The classic example is contained in Article V, which guaranteed as a matter of constitutional right that the slave trade would continue through at least the year 1808. There are other provisions that are not as offensive as the slavery guarantee, but they were quite clearly bad policy, and certainly were not divinely inspired in the same sense as are the scriptures. Moreover, regarding the Constitution as tantamount to scripture is difficult to square with the fact that our republic has functioned very well, probably even better, after at least one of its original provisions (requiring United States senators to be elected by their respective state legislatures rather than by the people at large) was amended out of existence by the Seventeenth Amendment.
“In my own view, this whole issue is resolved simply by examining what the scriptures say, rather than resorting to the generality ‘divinely inspired,’ which you will not find anywhere in the standard works. Probably the most helpful statement is contained in section 101, verse 80 of the Doctrine and Covenants: “And for this purpose have I established the Constitution of this land, by the hands of wise men I raised up unto this very purpose.’ ” (“The Constitution and the Restoration,” BYU Devotional, January 15, 1991, http://speeches.byu.edu/?act=viewitem&id=687.)
I’ve spent all this time giving you the background of the wise men whom the Lord raised up to this very purpose. But I hope you understand that they were still men. They still had their free agency. They were still capable of making mistakes. Go back to President Uchtdorf’s magnificent sermon at the opening of General Conference on Saturday, a week ago, when he talked about even the prophets who have led this Church have been men, capable of making mistakes. Stop and think about it for just a moment. If they weren’t, it would mean the Lord had taken away their free agency and made them nothing but puppets. Instead, He called them, ordained them, blessed them, revealed things to them. But they remained human beings, struggling to work out their own salvation. The same can be true, in a slightly different context, of Madison, Hamilton, Washington, Jefferson, Marshall, Franklin, the others who ordered our freedom.
Yes, the Lord raised them up, and they did a magnificent job. The Constitution has been described as the finest document ever struck off by the hand of man. But we must understand that it had human things in it, like the political compromise over slavery, which eventually—talking about keeping the freedom—led us into a war where we almost saw—well, we did see—the country break apart over that issue.
And that’s what I want to close with, because Rex Lee has talked about the Seventeenth Amendment and how it changed the Constitution for the better. Frankly, I don’t think it made much difference when Americans all lived on farms, how senators were elected. But let’s go to the Civil War, when the Constitution fell apart. And after the war was over, the Constitution was rewritten.
And when people say to me, “Read the Constitution, Senator,” I say, “Yes, I do.” I read the Constitution, but I don’t stop at the Tenth Amendment. I read the whole Constitution. The Twelfth Amendment, that partially cleaned up Madison’s mistakes with regard to the Electoral College. The Thirteenth Amendment that freed the slaves. But it did more than free the slaves; in Constitution theory, the Thirteenth Amendment said that states do not have the power to take away individual’s life, liberty, and property by state law. The Fourteenth Amendment says that specifically, and then the Fifteenth Amendment says the states do not have the power to deny citizenship to the people that live within their boundaries. The Sixteenth Amendment says the federal government will have its own source of revenue, as a modern industrial state must have, if it is to survive. And the Seventeenth Amendment says the states must allow the people to elect their senators.
Later on, there were states that allowed women to vote; Utah was one of them. But the Constitution said no, the states don’t have the power to determine who gets to vote; every woman in every state gets to vote. Later, it did the same thing with 18-year-olds. We have amended the Constitution to bring it into the 21st century, but we have kept all of its important doctrines intact. And we have made it better.
When Joseph Smith went to Washington to plead for redress of the grievances of the Mormons, for the abuses they had sustained in Missouri, he was told, “Your cause is just, but I can do nothing for you. Go back to Missouri and petition before the courts in Missouri.” These were crimes in Missouri; they must be dealt with in Missouri. And constitutionally, that was correct. Today, after the passage of the 14th Amendment, Joseph Smith could go to the Congress and say, “The federal government has the right to interfere in the affairs of the state of Missouri, and give the Mormons redress for what happened there.”
How did it happen that the Constitution was ordered to preserve our freedom in a modern industrial state? Back to the words of the 101st section. This is my belief. When the Lord said “the hands of wise men whom I have raised up,” I hold Abraham Lincoln to be as much of a constitutional scholar and founder of our freedoms and one who ordered our freedoms as Benjamin Franklin or George Washington. And what that say to me is, the Lord didn’t just wind them up in the days of the Revolutionary time and then say “Good luck.” The Lord has had His hand on this nation all the way through. And when the time came, from the flaws of the original draft of the Constitution exploded in our face in the form of the most horrible war we’ve ever had, the Lord raised up another wise and good man.
That’s why I’m optimistic about the future. With the help of the Lord, we won our freedom. With the help of the Lord we have ordered our freedom. And with the help of the Lord for 200 years, we have kept our freedom. Why should we fear that He’s going to abandon us now? His track record is better than that.
I close with this quote from a man named Paul Martin Wolf, who is quoted by Rex Lee. He closed his devotional with this quote, that is a cautionary tale to all of us as we think about the Constitution, particularly as it’s being booted about in today’s political atmosphere:
“The Constitution has been too often misused for personal gain. Individual desires have been palmed off as scholarship. Politicians have pandered to the public by compounding misunderstandings of Supreme Court decisions, not correcting them. Constitutional pronouncements appear everywhere, from bumper stickers to talk shows. Too many people appear in classrooms, pulpits, campaign platforms, and mass circulation magazines, telling us not what they believe the Constitution means, but what they insist it says, giving appearance that they are the sole heirs of James Madison’s wisdom.”
There are lots of disagreements about the Constitution, lots of disagreement of what it should be, and there always has been, all the way back to the Founding Father. Alexander Hamilton, as secretary of the Treasury, wanted a national bank. James Madison was appalled—the Constitution does not allow the creation of a national bank; this whole proposal is unconstitutional. It passed the Senate by a wide margin, passed the House narrowly. In the House, there were seven members of the Constitutional Convention. Four of them voted for it; three of them voted against it. One of the three was Madison himself.
It got to Washington. Should he sign it? With Madison insisting it was unconstitutional, Washington asked his Cabinet for opinions. Thomas Jefferson, secretary of State—clearly unconstitutional; you cannot sign this bill. Edmond Randall, attorney general—clearly unconstitutional; you cannot sign this bill. Alexander Hamilton, the secretary of the Treasury—oh, this is a really great idea. Sign this bill. Washington signed the bill, and America’s finances were put on a sound basis at the very beginning.
We should all revere, honor, and study the Constitution, but we should all—myself included—be a little careful about how firmly we tell everybody else what it really means. May we be true to the great heritage we have received at the hands of the Lord by being dedicated American citizens is a prayer I offer for all of us, in the name of Jesus Christ, amen.