Five Great Fundamentals Of The Constitution

Called Unto Liberty, 20th Century Sermons, Dallin H. Oaks

On my list [of fundamentals of the Constitution] there are five great fundamentals.

1. Separation of powers. The idea of separation of powers was at least a century old. The English Parliament achieved an initial separation of legislative and executive authority when they wrested certain powers from the king in the revolution of 1688. The concept of separation of powers became well established in the American colonies. State constitutions adopted during the Revolution distinguished between the executive, legislative, and judicial functions. Thus, a document commenting on the proposed Massachusetts Constitution of 1778, speaks familiarly of the principle “that the legislative, judicial, and executive powers are to be lodged in different hands, that each branch is to be independent, and further, to be so balanced, and be able to exert such checks upon the others, as will preserve it from dependence on, or a union with them (Quoted in Gerhard Casper, “Constitutionalism,” Occasional Papers from the Law School, The University of Chicago, no. 22, 1987).”

Thus, we see that the inspiration on the idea of separation of powers came long before the U.S. Constitutional Convention. The inspiration in the convention was in its original and remarkably successful adaptation of the idea of separation of powers to the practical needs of a national government. The delegates found just the right combination to assure the integrity of each branch, appropriately checked and balanced with the others. As President Clark said:

“It is this union of independence and dependence of these branches—legislative, executive and judicial—and of the governmental functions possessed by each of them, that constitutes the marvelous genius of this unrivalled document. … As I see it, it was here that the divine inspiration came. It was truly a miracle (Church News, 29 Nov. 1952, p. 12, quoted in Hillam, “By the Hands of Wise Men,” p. 48.).”

2. A written bill of rights. This second great fundamental came by amendment, but I think Americans all look upon the Bill of Rights as part of the inspired work of the Founding Fathers. The idea of a bill of rights was not new. Once again, the inspiration was in the brilliant, practical implementation of preexisting principles. Almost six hundred years earlier, King John had subscribed the Magna Charta, which contained a written guarantee of some rights for certain of his subjects. The English Parliament had guaranteed individual rights against royal power in the English Bill of Rights of 1689. Even more recently, some of the charters used in the establishment of the American colonies had written guarantees of liberties and privileges, with which the delegates were familiar.

I have always felt that the United States Constitution’s closest approach to scriptural stature is in the phrasing of our Bill of Rights. Without the free exercise of religion, America could not have served as the host nation for the restoration of the gospel, which began just three decades after the Bill of Rights was ratified. I also see scriptural stature in the concept and wording of the freedoms of speech and press, the right to be secure against unreasonable searches and seizures, the requirements that there must be probable cause for an arrest and that accused persons must have a speedy and public trial by an impartial jury, and the guarantee that a person will not be deprived of life, liberty, or property without due process of law. President Ezra Taft Benson has said, “Reason, necessity, tradition, and religious conviction all lead me to accept the divine origin of these rights (Ezra Taft Benson, The Constitution, a Heavenly Banner, Salt Lake City: Deseret Book Co., 1986, p. 6.).”

The Declaration of Independence had posited these truths to be “self-evident,” that all men “are endowed by their Creator with certain inalienable Rights,” and that governments are instituted “to secure these Rights.” This inspired Constitution was established to provide a practical guarantee of these God-given rights (see D&C 101:77), and the language implementing that godly objective is scriptural to me.

3. Division of powers. Another inspired fundamental of the U.S. Constitution is its federal system, which divides government powers between the nation and the various states. Unlike the inspired adaptations mentioned earlier, this division of sovereignty was unprecedented in theory or practice. In a day when it is fashionable to assume that the government has the power and means to right every wrong, we should remember that the U.S. Constitution limits the national government to the exercise of powers expressly granted to it. The Tenth Amendment provides:

“The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively or to the people.”

This principle of limited national powers, with all residuary powers reserved to the people or to the state and local governments, which are most responsive to the people, is one of the great fundamentals of the U.S. Constitution.

The particular powers that are reserved to the states are part of the inspiration. For example, the power to make laws on personal relationships is reserved to the states. Thus, laws of marriage and family rights and duties are state laws. This would have been changed by the proposed Equal Rights Amendment (E.R.A.). When the First Presidency opposed the E.R.A., they cited the way it would have changed various legal rules having to do with the family, a result they characterized as “a moral rather than a legal issue (First Presidency letter of 12 Oct. 1978.).” I would add my belief that the most fundamental legal and political objection to the proposed E.R.A. was that it would effect a significant reallocation of law-making power from the states to the federal government.

4. Popular sovereignty. Perhaps the most important of the great fundamentals of the inspired Constitution is the principle of popular sovereignty: The people are the source of government power. Along with many religious people, Latter-day Saints affirm that God gave the power to the people, and the people consented to a constitution that delegated certain powers to the government. Sovereignty is not inherent in a state or nation just because it has the power that comes from force of arms. Sovereignty does not come from the divine right of a king, who grants his subjects such power as he pleases or is forced to concede, as in Magna Charta. The sovereign power is in the people. I believe this is one of the great meanings in the revelation which tells us that God established the Constitution of the United States,

“That every man may act … according to the moral agency which I have given unto him, that every man may be accountable for his own sins in the day of judgment.

“Therefore, it is not right that any man should be in bondage one to another.

“And for this purpose have I established the Constitution of this land.” (D&C 101:78–80.)

In other words, the most desirable condition for the effective exercise of God-given moral agency is a condition of maximum freedom and responsibility. In this condition men are accountable for their own sins and cannot blame their political conditions on their bondage to a king or a tyrant. This condition is achieved when the people are sovereign, as they are under the Constitution God established in the United States. From this it follows that the most important words in the United States Constitution are the words in the preamble: “We, the people of the United States … do ordain and establish this Constitution.”

President Ezra Taft Benson expressed the fundamental principle of popular sovereignty when he said, “We [the people] are superior to government and should remain master over it, not the other way around (Benson, The Constitution, a Heavenly Banner, p. 7.).” The Book of Mormon explains that principle in these words:

“An unrighteous king doth pervert the ways of all righteousness. …

“Therefore, choose you by the voice of this people, judges, that ye may be judged according to the laws. …

“Now it is not common that the voice of the people desireth anything contrary to that which is right; but it is common for the lesser part of the people to desire that which is not right; therefore this shall ye observe and make it your law—to do your business by the voice of the people.” (Mosiah 29:23–26.)

Popular sovereignty necessarily implies popular responsibility. Instead of blaming their troubles on a king or other sovereign, all citizens must share the burdens and responsibilities of governing. As the Book of Mormon teaches, “The burden should come upon all the people, that every man might bear his part.” (Mosiah 29:34.)

President Clark’s third great fundamental was the equality of all men before the law. I believe that to be a corollary of popular sovereignty. When power comes from the people, there is no legitimacy in legal castes or classes or in failing to provide all citizens the equal protection of the laws.

The delegates to the Constitutional Convention did not originate the idea of popular sovereignty, since they lived in a century when many philosophers had argued that political power originated in a social contract. But the United States Constitution provided the first implementation of this principle. After two centuries in which Americans may have taken popular sovereignty for granted, it is helpful to be reminded of the difficulties in that pioneering effort.

To begin with, a direct democracy was impractical for a country of four million people and about a half million square miles. As a result, the delegates had to design the structure of a constitutional, representative democracy, what they called “a Republican Form of Government (U.S. Constitution, Art. IV, Sec. 4.).”

The delegates also had to resolve whether a constitution adopted by popular sovereignty could be amended, and if so, how.

Finally, the delegates had to decide how minority rights could be protected when the government was, by definition, controlled by the majority of the sovereign people.

A government based on popular sovereignty must be responsive to the people, but it must also be stable or it cannot govern. A constitution must therefore give government the power to withstand the cries of a majority of the people in the short run, though it must obviously be subject to their direction in the long run.

Without some government stability against an outraged majority, government could not protect minority rights. As President Clark declared:

“The Constitution was framed in order to protect minorities. That is the purpose of written constitutions. In order that the minorities might be protected in the matter of amendments under our Constitution, the Lord required that the amendments should be made only through the operation of very large majorities—two-thirds for action in the Senate, and three-fourths as among the states. This is the inspired, prescribed order (. Reuben Clark: Selected Papers on Religion, Education, and Youth,ed. David H. Yarn, Jr., Provo, Utah: Brigham Young University Press, 1984, p. 165.).”

The delegates to the Constitutional Convention achieved the required balance between popular sovereignty and stability through a power of amendment that was ultimately available but deliberately slow. Only in this way could the government have the certainty of stability, the protection of minority rights, and the potential of change, all at the same time.

To summarize, I see divine inspiration in these four great fundamentals of the U.S. Constitution:

• the separation of powers in the three branches of government;
• the Bill of Rights;
• the division of powers between the states and the federal government; and
• the application of popular sovereignty.

5. The rule of law and not of men. Further, there is divine inspiration in the fundamental underlying premise of this whole constitutional order. All the blessings enjoyed under the United States Constitution are dependent upon the rule of law. That is why President J. Reuben Clark said, “Our allegiance run[s] to the Constitution and to the principles which it embodies, and not to individuals.” 16 The rule of law is the basis of liberty.

As the Lord declared in modern revelation, constitutional laws are justifiable before him, “and the law also maketh you free.” (D&C 98:5–8.) The self-control by which citizens subject themselves to law strengthens the freedom of all citizens and honors the divinely inspired Constitution.

Source: Dallin H. Oaks, The Divinely Inspired Constitution, February 1992 Ensign magazine. Dallin Harris Oaks (born August 12, 1932) is an American attorney, jurist, author, professor, public speaker, and religious leader. Since 1984, he has been a member of the Quorum of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints (LDS Church). He is a former professor of law at the University of Chicago Law School, a former president of Brigham Young University, and a former justice of the Utah Supreme Court.

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Self-Educated American recommends Ezra Taft Benson’s: The Constitution: A Heavenly Banner