Covenant Government and the Sacred Trust of Freedom

By Oliver DeMille

A friend recently told me that he considers family relationships much more important than politics.

He said marriage is a sacred, covenant relationship, and as such it is a higher priority than civil government.

I had two responses to this thought: First, I totally agree.

I think our families are a sacred trust and take a higher priority than pretty much anything—except our personal relationship with, and allegiance to, God.

Second, I wonder if our modern understanding of government has devolved so far from the time of the American founding that we don’t consider government a covenant or holding political office a sacred trust.

In fairness to my friend, he is a lover of freedom who cares deeply about our nation and the decline of liberty.

He is among the most dedicated students of freedom I know.

Lecturing him on anything related to freedom would certainly be preaching to the choir, and he certainly sees political leadership as a sacred trust.

But his words made me think.

Ideal government is a covenant, and was understood as such by the Israelites because of the teachings of Moses.

It was passed down over the generations and eventually became known as “The Divine Right of Kings”.

John Locke’s political treatises addressed the reality that such a divine right of any legitimate king was long lost by the time of the British monarchs.

The American founders discussed this concept at length, and the words “covenant,” “sacred,” and “trust” were widely used in connection with government.

A search for “covenant politics” in various founding writings and modern political journals will yield many interesting articles.

The word “covenant” is still used in our time—based on the legal tradition of Blackstone –in nearly every state and province of the United States and Canada in the common CC&Rs (Covenants, Conditions and Restrictions).

In Anglo-Franco-American law, a “covenant” was originally a specific kind of contract where both parties promise to do something for the other, and the contract is binding on both parties, even if one of the parties fails to perform or defaults.

Thus, there are fundamentally two kinds of contracts in law: Absolute and Conditional.

Conditional arrangements make up over 99% of contracts, where if the other side defaults the contract is void for both parties.

But the oaths of government officials are of the Absolute variety.

The founders made government service a covenant, rather than a simple contractual, arrangement.

Regardless of whether or not the people fulfill their duties, government officials are expected to do theirs—as expressed in their oaths of office.

The law also differentiates between “express” and “implied” covenants—“express” being those that are clearly written out, and “implied” being those that should be assumed by any reasonable standard of duty.

Jefferson used this concept when he sent American troops to protect U.S. citizens against the Barbary Coast pirates without any Congressional declaration of war.

He openly admitted that he had no “express” constitutional authority to take the action, but that the responsibility of presidency gave him an implied duty to protect those he served.

He followed the same line of reasoning when he signed the Louisiana Purchase.

The difference between him and some modern presidents who have taken seemingly similar actions is that he openly admitted that he had no authority, but had acted solely on his sense of duty, and he would not have blamed Congress for impeaching him as a legitimate response.

He acted according to what he considered his implied covenant duty and was willing to accept the consequences for exceeding his constitutional authority.

This clearly established the importance of covenant in governance.

Washington, Adams, Jefferson and Madison all followed the same course at different times when the chief executive had a duty to protect the national security of the U.S., and the Doctrine of National Preservation was a duty to which they were willing to sacrifice themselves on behalf of the nation.

In these cases Congress refused to exercise their check, impeachment, because they believed the leader had lived up to his Constitutional Oath to guard and “protect the Constitution of the United States against all enemies foreign and domestic.”

The law, again based on Blackstone and English legal tradition, also differentiates between “inherent” and “collateral” covenants.

An “inherent” covenant is the cause of any and all fiduciary responsibilities –meaning, a responsibility that a person takes upon himself automatically by entering into a covenant relationship.

In contrast, “collateral” covenants must be clearly stipulated and understood by all parties involved.

There is a lot more of this, but I won’t bore you with all the details, like: Joint versus Several covenants, Principal versus Auxiliary covenants, Continuing versus Dated covenants, Full versus Partial covenants, Restrictive versus Universal covenants, Usual versus Special covenants, and about 10 others that are foundational in Anglo-Franco-American legal traditions.

One that I should mention is Transitive versus Intransitive covenants.

“Transitive” consists of those which pass the duty on to the covenanter’s agents, successors, and in some cases, posterity.

This is important because it shows why some people might argue that the governance covenant may be as important as the marriage covenant.

Obviously, a covenant is a covenant, a supreme promise, so ranking them by importance is a bit ridiculous.

That said, the marriage covenant is intransitive, meaning that my spouse and I are both bound by it, but when I die, my children don’t become her spouse.

If I held a hereditary government position, such as the anointed kings of old, however, upon my death my oath and covenant of good governance would pass with full responsibilities and duties to my heirs.

Government is a covenant, or at least good, free government is.

Under the U.S. constitutional model, positions requiring an oath are transitive; for example, when a president dies or becomes incapacitated, the responsibilities inherent in the oath of vice-president devolve all presidential duties upon him.

He must receive his full authority by collateral covenant and take an official oath; but if there is a gap between when the president dies and when the oath is taken, he has the full responsibility of the office by covenant.

(Note: Responsibilities, but not authority.)

Again, this is repeated in most military and other government positions that require an oath of office.

There are really only 3 types of government:

1) government by fiat, where the strongest take power by force and rule by might;

2) government by contract, where the government serves as a mercenary, responding to the highest bidder in order to obtain a profit for government officials;

and 3) government by covenant, where the constituents delegate authority tied to responsibility and the leaders put their responsibilities above their authority.

I believe that the marriage covenant is the most important agreement in all of society, second only to our promises to God.

And, in fact, the marriage covenant often included promises to a spouse, society and God.

Marriage has huge ramifications on all facets of society, including law and politics but extending much further.

But let’s not forget that good government is also a covenant.

It isn’t a mere contract, where if the people shirk their duties the officials may simply ignore the Constitution, or where if the officials are corrupt the people can just give up and let freedom wane.

We all have a responsibility to maintain freedom, and this obligation is transitive, meaning that it is our solemn duty to pass on as much, or more, freedom to our posterity as we inherited from our ancestors.

This is, in fact, a sacred trust.

Perhaps Calvin Coolidge said it best when he declared, as the President of the United States, that, “The protection of rights is righteous.”

If this is true, and it is, what would we call the act of destroying rights or of allowing them to be lost through distraction or neglect?

Such questions are extremely relevant right now in modern America.

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Oliver DeMille is the chairman of the Center for Social Leadership and co-creator of Thomas Jefferson Education.

He is the author of A Thomas Jefferson Education: Teaching a Generation of Leaders for the 21st Century, and The Coming Aristocracy: Education & the Future of Freedom.

Oliver is dedicated to promoting freedom through leadership education. He and his wife Rachel are raising their eight children in Cedar City, Utah.