Constitutional Corner – Our Organic Law and Natural Rights

By Gary Porter, Executive Director, Constitution Leadership Initiative, Inc.

Any law library will contain a collection of the many volumes which constitute the United States Code. Go to your closest law library and locate Volume One, entitled “United States Code, Volume One, Organic Laws, Title 1, General Provisions to Title 5, Government Organization and Employees.” (you can also reference it online at http://www.loc.gov/law/help/guide/federal/uscode.php) The first section of Volume One, coming even before Title 1, is a section called “Organic Laws of the United States.” In this section you will find four documents: The Declaration of Independence, the Articles of Confederation, the Northwest Ordinance of 1787 and, finally, the Constitution.

Most citizens today, when asked “what is our fundamental or organic law,” would only think of the Constitution (if they had any answer at all), yet sitting here in the U.S. Code, with visibly equal stature, lay these three other documents. How many American know that these three other documents have the status of law? I submit, very few (and I would have to count myself among them until not long ago).

Webster’s 1828 Dictionary describes “law” as “A rule, particularly an established or permanent rule, prescribed by the supreme power of a state to its subjects, for regulating their actions…” These three other documents were indeed promulgated by the “supreme power of the state” at that time, i.e., the Continental Congress; so any “rules” they contain would seem to fit Webster’s definition of law.

Black's Law dictionary (1979) defines Organic Law as “The fundamental law, or constitution, of a state or nation, written or unwritten. That law or system of laws or principles which defines and establishes the organization of its government. All inferior political behavior—statutes, adjudications, contracts, and so forth—within a nation must be an accordance with the Organic Law of the nation.” (emphasis added)

If we are to trust Mr. Black (Wikipedia states that Black’s dictionary is “the reference of choice for definitions in legal briefs and court opinions and [it] has been cited as a secondary legal authority in many U.S. Supreme Court cases.”), any U.S. statute which is not in accordance with our Organic Laws should be considered an improper or illegal law. So, not only must our laws comply with the Constitution, they must also comply with the precepts contained in the three other documents which make up our Organic Law.

While the Declaration of Independence contains no “rules of conduct,” per se, it certainly contains many principles or precepts; chief among them being that our natural rights have been provided (endowed) by a Creator; that these rights are unalienable, and, at a minimum, consist of a right to life, liberty and a right to pursue “happiness;” that the purpose of government is to secure (not provide) our rights; that government obtains its powers from the consent of the people governed; and that the people retain a right to establish new government when the former becomes oppressive or tyrannical.

The Northwest Ordinance contains many rules and regulations for governing the territory that would eventually become the states of Ohio, Indiana,

Illinois, Michigan and Wisconsin. It guarantees the inhabitants trial by jury, the writ of habeas corpus, etc. But it also contains some general principles: among these are that schools (it doesn’t say whether public or private, so we will assume both) will “forever be encouraged.” Why? Because, in the words of the Ordinance, “Religion, morality, and knowledge [are] necessary to good government and the happiness of mankind.” Said another way, schools should convey to their students not only knowledge, but also religion and morality. Egads! Schools teaching religion and morality? Blasphamy, they say!

As to the Articles of Confederation, it is generally (though not universally) accepted that the Constitution replaced them, in toto. In any case, there are principles contained in the Articles that I think should remain binding today. One of them is found in Article 2, which proclaims that: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” Basically this is a prestatement of the Constitution’s 10th Amendment (or vice versa).

Let’s turn once again to the Declaration of Independence; according to one authority, there are more than 100 Supreme Court opinions that mention the Declaration (I’ve not counted them). One of the most significant was Re Slaughter-House Cases (1872). There the Court had this to say: “The right of a State to regulate the conduct of its citizens is undoubtedly a very broad and extensive one, and not to be lightly restricted. But there are certain fundamental rights which this right of regulation cannot infringe. It may prescribe the manner of their exercise, but it cannot subvert the rights themselves…. [T]he Declaration of Independence, which … was the first political act of the American people in their independent sovereign capacity, lays the foundation of our National existence upon this broad proposition: ‘That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness…’ These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government.” Although the preceding sentiment is in the dissenting opinion of Associate Justice Joseph Bradley, he clearly believed the Declaration established fundamental legal rights that cannot be infringed except by due process of law – a pretty strong statement (in a later case, Allgeyer v. Louisana, the majority thought well enough of Bradley’s statement to quote it and use it to support their position).

It took a short twenty-five years to transform the Declaration of Independence (at least in the eyes of the Supreme Court) from vital organic law to mere principle. In Gulf, C. & S. F. R. CO. v. Ellis (1897), the Court said: “While such declaration of principles (referring to the life, liberty and pursuit of happiness clause of the Declaration) may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter (i.e., the Constitution) is but the body and the letter of which the former (i.e., the Declaration) is the thought and the spirit, and it is always safe to read the letter of the constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government.”

The 1872 Court saw the Declaration as organic law even before the document was listed in the U.S. Code as such; while the 1897 Court, after 20 years of the Declaration being listed as organic law, did not. Why the change? It is impossible to know for sure without additional research, but the answer may

simply be that the 1897 Court was a completely different group of judges, and by then sea changes in the American legal theory were beginning to take effect.

By the late 1800’s, “progressives” were assuming positions of great influence in the fabric of American life. Many of them were beginning to look askance at the whole concept of “natural rights” sourced in an omniscient God. They preferred instead to vest government with the role of creating and granting rights. This was (and is) the idea behind “Legal Positivism,” the theory that all law, including rights-based law, is a human construct and originates nowhere else; certainly not in an unseen, faith-based God.

Nearly all U.S. law schools since the early 1900’s have taught Legal Positivism, thanks to the work of H.L.A. Hart, its main theorist. Adding Hart’s efforts to those of Dean Christopher Columbus Langdell of Harvard Law School (who originated the Case Method of legal study) we find our situation today where the whole concept of natural law (which Jefferson relied on) has been nearly completely extinguished from legal theory.

Certainly some today would not want to view the Declaration as Organic Law. They are offended by the Declaration’s blatant references to God as the origin of our rights, preferring instead to invest government with that role. But there is one important thing we must remember about legal positivism: what government grants it also has the power to take away, including our rights. So fine, if you prefer to believe your rights come from your government, run with it. Clearly you see a government you think you can trust, right? I prefer to view my rights as unalienable and originating in an all-powerful, transcendent and immutable Creator God.

I say we restore the Declaration, the Articles of Confederation and the Northwest Ordinance to their rightful place in the minds of Americans as part of the Organic Law of the United States. The documents already have that legal status, we need to restore them culturally. Let’s study these documents with the same diligence and give them the same respect we do the Constitution. And maybe, j ust maybe, we will see a resurgence of people insisting on their rights, their unalienable rights, once again.

Those who would like more information on this subject should read: “Four Pillars of Constitutionalism – the Organic Laws of the United States,” by Richard H. Cox

© 2013 The Constitution Leadership Initiative, Inc. This essay first appeared in the Yorktown Crier-

Poquoson Post on 15 and 22 August 2013. Reproduction for non-profit purposes is hereby given.