"There is always a philosophy for lack of courage."—Albert Camus

Thursday, October 19, 2017

The link between the Constitution and natural law

"Is the Constitution of the United States, then, a natural law document? No, it is not a philosophical treatise at all, but instead a practical instrument of government. We are safe in saying, nevertheless, that the Framers, with few conceivable exceptions, believed in the reality of natural law and had no intention of contravening natural law by the instrument they drew up at Philadelphia; nor did anyone suggest during the debates over ratification that the Constitution might in any way conflict with the old truths of the natural law."

-- Russell Kirk, Natural Law and the Constitution of the United States, 69 Notre Dame L. Rev. 1035 (1994). 

12 comments:

Tom Van Dyke said...

I think it was Hannah Arendt who spoke of the "right to have rights." The English model of rights was still conventional, that is to say political ["the rights of Englishmen"], not a regime of natural and unalienable rights. This was the American innovation. The Constitution rests on it, but does not establish it--nor could it establish that which already existed.

"Man, says Mr. Burke, cannot enjoy the rights of an uncivil and of a civil state together. By an uncivil contradistinguished from a civil state, he must here mean a state of nature: by the rights of this uncivil state, he must mean the rights of nature: and is it possible that natural and civil rights cannot be enjoyed together? Are they really incompatible? Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke -- Sir William Blackstone."---James Wilson, 1804



Jonathan Rowe said...

But I think Kirk thought that the Declaration of Independence was NOT a traditional natural law document, but rather something more modern.

Jonathan Rowe said...

Yup. Page 7. Kirk asserts the DOI was not a traditional natural law document, but rather an Enlightenment kiss blown to France. And not "law" binding in our system either.

Jonathan Rowe said...
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Evergreen Dissident said...

Kirk thought that the real grounding of the Revolution was "the rights of Englishmen," and that the Declaration was essentially grounded in those traditional rights, while providing some more abstract appeals to the "laws of nature" in order to appeal to some of the intellectual fashions then popular on the Continent. And of course Jon is right that the Declaration is not law in our system -- it simply isn't.

There is a middle position between a pure "rights of Englishmen" approach (popularized by Kirk and Mel Bradford) and a "natural law" approach to to the Revolution -- and it is this. The key rights of Englishmen that the Founders were concerned with vindicating were those positive rights most closely associated with three critical rights under natural law that had been identified in Anglo-Scottish jurisprudence: the right to life, liberty and property. Those rights show up, in modified form (property being replaced by "pursuit of happiness") in the Declaration, and they are on display in the Bill of Rights -- specifically the 5th and 14th Amendments, where they are mentioned in relation to the due process clauses of those amendments. So, the natural law is not directly a part of the Constitution -- on this Kirk is right. But it is there, indirectly, underpinning its formulation of rights and duties, protections against government overreach.

Tom Van Dyke said...

Yup. Page 7. Kirk asserts the DOI was not a traditional natural law document, but rather an Enlightenment kiss blown to France. And not "law" binding in our system either.

Clearly James Wilson, who signed the Declaration and was one of the top 3 or 4 Framers of the Constitution, didn't see it that way [see above]. While it is true the Declaration is not binding law, the 9th Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

that natural rights are the bedrock of our system, not positive law.

Evergreen Dissident said...

Natural law takes shape within a given legal system through the mechanisms of custom, tradition, positive law, and practice. We put too much weight on the positive law when discussing legal norms -- there is an entire system of practice (beyond legal precedent) that forms much of the structure of our legal and political tradition. There is, as Kirk liked to say, an unwritten constitution as well as a written one. We cannot go to natural law or natural rights directly -- that like trying to drink wine without a glass or bottle. Something has to give the wine shape so we can draw it forth to drink. The genius of the 18th century is that, building on the wisdom of those who came before, legal and political philosophy grasped this point. Our Founders certainly did.

Jonathan Rowe said...

"Clearly James Wilson, who signed the Declaration and was one of the top 3 or 4 Framers of the Constitution, didn't see it that way [see above]. While it is true the Declaration is not binding law, the 9th Amendment"

When Wilson gave his "lectures on law" was he discussing the Declaration? I know Wilson's lectures are instructive on the late 18th Century understanding of the common law.

Jonathan Rowe said...
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Jonathan Rowe said...

Yes Randy Barnett argues the 9th Amendment and P or I Clause of the 14th recognize unenumerated natural rights making the argument over whether the DOI is "law" unnecessary.

There is I think a Supreme Court case James Wilson penned where he recognized essences from both reason and revelation as part of constitutional interpretation, but I have to re-familiarize myself with it.

It seems to me the "Brooding Omnipresence in the Sky" is less of a problem if we have to look down for it before we look up. If you are looking for it in the common law, that can be trumped by a state statute.

Language from the New Jersey constitution of 1776: “the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter [or constitution].”

Likewise Jefferson believed in a brooding omnipresence of natural right that was ascertainable through reason alone. Though God had a place in his Virginia Statute on Religious Liberty.

Still look at the language:

"III. And though we well know that this assembly elected by the people for the ordinary purposes of legislation only, have no power to restrain the act of succeeding assemblies, constituted with powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such as would be an infringement of natural right."

He saying legislatures have the positive legal power to repeal the statute; it would be a bad idea because you are infringing natural right. But he doesn't go so far as to say -- what I've heard claimed -- laws that violate natural right are "no laws at all."

Evergreen Dissident said...

I was working on a law review article exploring Washington State's jurisprudence on natural law and natural rights, and found a case that essential proposed a tiers of scrutiny approach to evaluating laws that deviate from natural justice. Didn't mean the legislature couldn't pass it but it would be strictly scrutinized by the courts.

Tom Van Dyke said...

Evergreen Dissident said...
There is, as Kirk liked to say, an unwritten constitution as well as a written one. We cannot go to natural law or natural rights directly -- that like trying to drink wine without a glass or bottle. Something has to give the wine shape so we can draw it forth to drink.


I like this. And Scalia would say he trusts the glass fashioned by 200+ years of positive law [legislation] than new glasses fashioned by 5 Supreme Court justices this morning. [Or common law glasses fashioned in England 400 years ago.]