Testimony of John Eidsmoe Kiev, Ukraine 18 June 2015
Mr. President, Mr. Chairman, Distinguished Delegates:
It is my distinct honor to be with you today. For 45 years I have taught Constitutional Law at various law schools, served as an Judge Advocate with the U.S. Air Force, served as a Senior Staff Attorney for the Alabama Supreme Court, and serve currently as Senior Counsel for the Foundation for Moral Law. But my purpose in coming before you today is not to talk about the United States Constitution, but rather to talk about universal principles of law. The United States Constitution is a good way of implementing those principles. But it is not the only way, nor is it necessarily the best way for Ukraine.
Those universal principles are twofold: (1) a high view of God and His Law; and (2) a low view of man and his nature.
As for the first principle, to be valid, human law must be based on and consistent with the Higher Law of God. That Higher Law of God may be found in the Law of Nature, but it is perfectly summarized in the Ten Commandments that God gave to Moses on Mt. Sinai about 3,400 years ago. I would like to discuss six sub-principles that are found in those Ten Commandments:
- Respect for Life. We find respect for life in the commandment “Thou Shalt Not Kill,” and in the laws of every country protecting life and prohibiting murder. One problem that every legal system needs to address is, at what point does that protection of human life begin, and at what point does it end?
- Respect for Property. We find respect for property in the commandments “Thou shalt not steal” and “Thou shalt not covet,” and in the laws and constitutions of almost every country protecting property and prohibiting various forms of theft.
- Respect for Family. The family is the basic unit of society, and the family is recognized and protected by the commandments “Thou shalt not commit adultery” and “Honor thy father and thy mother.” Your Constitution, Article 51, provides that “Marriage is based on the free consent of a woman and a man.” Unfortunately, the United States Constitution contains no such provision, and as a result the definition of marriage has been the subject of much consternation in America.
- Respect for Truth. Respect for truth is promoted by the commandment “Thou shalt not bear false witness” and also by the commandment “Thou shalt not take the Name of the Lord thy God in vain,” which prohibits perjury (lying under oath) as well as blasphemy. Truth and justice must go together; a legal system cannot do justice without knowing the truth: Did the person commit a crime, or didn’t he? If so, are there aggravating or mitigating circumstances that should be considered in determining the punishment? Laws that punish perjury are essential to an effective system of law and justice.
- Respect for God. Respect for God is promoted by the commandments “Thou shalt have no other gods before me, nor worship a graven image.” The First Amendment to the United States Constitution prohibits an establishment of religion, but God is the Source of governmental authority and the Giver of human rights. The U.S. Declaration of Independence based American independence on the “laws of nature and of nature’s God,” recognized that “all men are created equal,” that all are “endowed by their Creator with certain unalienable rights,” and that “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” Government does not grant rights; government only secures the rights that God has granted. If rights come from the state, then the state can take away rights, in which case they are not really rights but only negotiable privileges. Rights can be considered unalienable only if the come from a higher Source than government, and that Source can be none other than God.
The second universal principle of law is a low view of man and his nature. Man is created in the image of God, and he is endowed with the power of reason; but because of the Fall he is stained by original sin, and as Goethe said, man calls it reason and uses it to be more beastly than any beast. Because of the sinfulness of human nature, he cannot live in anarchy. Without law and order, people kill, assault, rob, and enslave one another, and no one’s liberty is secure. Government is therefore necessary to curb the sinful actions of men.
But the universality of sin means that those who run the government have the same sinful nature as everyone else, and therefore they cannot be trusted with absolute power. As Lord Acton said, “Power tends to corrupt; absolute power corrupts absolutely.” In designing a constitution that creates a government by which sinful men rule over other sinful men, we must first give the government enough power to restrain the people, and at the same time we must enable the people to restrain the government, and require the government to constrain itself.
So how do we design a constitution that constrains the government? Let me suggest several means:
- Limited, delegated powers. We delegate to the government certain enumerated powers, and we provide further that all powers that are not delegated to the government are reserved to the people.
- Separation of powers. The powers delegated to government are separated vertically among the national, state, and local levels, and horizontally among the legislative, executive, and judicial branches. That way no one level, no one branch, no one agency, and no one individual is given too much power.
- Checks and balances. We enable the various branches and levels of government to check the others, even if their only motive is to preserve their own power. In this way government remains limited and freedom is preserved.
- Reserved individual rights. In a constitutional republic, not even a majority of the people have absolute power. The majority elect their government and generally determine the nation’s policies, but the minority has rights that even the majority must respect.
- Strict construction. Changing times sometimes require changing applications, and therefore a constitution should set forth the means for its own amendment. But we should guard against the temptation of courts to in effect amend or re-write the constitution by their own judicial interpretations. The role of the judiciary is to interpret the constitution and laws and to apply the constitution and laws to specific situations. It should not be their role to make new laws or new constitutions by substituting their notions of what they wish the constitution said for the plain wording of the constitution as intended by those who framed and adopted it. The same court that can read into a constitution rights and powers that are not stated therein, can also read out of the constitution rights and powers that are stated therein. When this happens, judges cease to be servants and become masters.
It has been my privilege and honor to share these thoughts with you. I hope you will consider them as you go about your task of shaping a constitution for Ukraine. You have been given an awesome responsibility at a critical moment in history. May God guide you as you carry out this noble task.
John A. Eidsmoe,
Colonel(MS), Mississippi State Guard
Senior Counsel, Foundation for Moral Law
Pastor, Association of Free Lutheran Congregations