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). 

Alexander Hamilton & William Blackstone on the nature of government

One of the often overlooked documents leading up to the American Revolution is The Farmer Refuted, written in 1775 by a young Alexander Hamilton. One of a number of critical works that set the stage for American independence, Hamilton's treatise set forth in very clear terms much of the intellectual foundation to justify the colonists' move to defend their rights against incursions by the British government.

While not an explicit call for independence,  The Farmer Refuted is an excellent statement of the principles that would eventually lead the Americans to declare their separation from the British Empire. The core of Hamilton's argument in The Farmer Refuted centers around divinely-given natural law as the core of human obligation to one another. This natural law, since it comes from God, is not dependent on human government or human institutions for its validity, but instead stands as judge over human laws and customs.

Hamilton cites as his authority for this point not the Bible or any of the classical or scholastic writers who discuss natural law, but rather William Blackstone, the great compiler of the principles of English law. He does this, of course, to ground his point in the firm soil of the English Constitution -- to demonstrate that his point is not some radical notion but rather is part of the traditional approach to law and morality that sustained the British Empire itself.

The natural law defends the rights of Americans as much as the rights of Englishmen because, as Hamilton quotes Blackstone, "It is binding over all the globe, in all countries, and at all times." After his citation of Blackstone, young Hamilton then began to build an argument about the nature of government. Since God creates human beings and sustained them, the rights of human beings are dependent upon God's natural law. Understood by reason, which is itself a gift of the Creator, natural law allows human beings to "discern and pursue such things as were consistent with [their] duty and interest." Critically, natural law gives to each person "an inviolable right to personal liberty and personal safety." In the absence of government, no person has the right "to deprive another of his life, limbs, property, or liberty," or to command another person under obedience.

Striking directly at the British claim to be able to govern by right other than consent, Hamilton then applies these principles to the notion of government's origin. "[T]he origin of all civil government, justly established," Hamilton proclaims, "must be a voluntary compact between the rulers and the ruled." In such a compact, the power of government is limited in order to secure the "absolute rights" of the people. No pedigree can substitute for the consent of the governed, "what original title can any man, or set of men, have to govern others, except for their own consent?" To assume such power, "to usurp domination," is to break God's natural law, and thus renders such an assumption invalid. The people have, in Hamilton's words, "no obligation to obedience" in such a situation.

Hamilton concludes this portion of his argument with another quote from Blackstone, book-ending, as it were, his position on the necessity of consent of the governed with the authority of the great expositor of the English legal system. The principal aim of society is to protect individuals in the enjoyment of those absolute rights which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals.

With that, Hamilton expressed in detail the fundamental principles about God, natural law and government by consent that would later be used by Jefferson at the beginning of the Declaration of Independence. While Jefferson's formulation of those principles is well-known, Hamilton's earlier, more precise and grounded formulation of those same principles in The Farmer Refuted deserves greater appreciation by Americans and all those concerned with human liberty and limited government.

Faith, reason and natural law

Often when speaking about natural law, it is common to assume that a belief in the law of nature as a moral force (as opposed to natural physical laws like gravity) goes hand in hand with religious belief.  It is certainly true that religious faith, at least in the West, has served as the foundation for many natural law thinkers -- like Thomas Aquinas, Richard Hooker, and Hugo Grotius -- natural law itself is not grounded on revelation, but rather on reason reflecting on the natural order. The principles of natural law don't violate the moral norms found, for example, in the Bible, but they aren't dependent on the Bible or other religious texts for its authority. Rather, natural law proceeds from a rational reflection on nature and the purpose of human life.

At the risk of Tom chastising me for Catholicizing the blog, I would like to offer as proof of this some of the insights of one of the most profound natural law theorists of the 19th and early 20th centuries, Pope Leo XIII, on private property. His approach is based on an appeal to reason reflecting on natural human relationships both with things and with other people. Leo's approach is a classic example of natural law reasoning:

The fact that God gave the whole human race the earth to use and enjoy cannot indeed in any manner serve as an objection against private possessions. For God is said to have given the earth to mankind in common, not because He intended indiscriminate ownership of it by all, but because He assigned no part to anyone in ownership, leaving the limits of private possessions to be fixed by the industry of men and the institutions of peoples. Yet, however the earth may be apportioned among private owners, it does not cease to serve the common interest of all, inasmuch as no living being is sustained except by what the fields bring forth. Those who lack resources supply labor, so that it can be truly affirmed that the entire scheme of securing a livelihood consists in the labor which a person expends either on his own land or in some working occupation, the compensation for which is drawn ultimately from no other source than from the varied products of the earth and is exchanged for them. For this reason it also follows that private possessions are clearly in accord with nature. The earth indeed produces in great abundance the things to preserve and, especially, to perfect life, but of itself it could not produce them without human cultivation and care. Moreover, since man expends his mental energy and his bodily strength in procuring the goods of nature, by this very act he appropriates that part of physical nature to himself which he has cultivated. On it he leaves impressed, as it were, a kind of image of his person, so that it must be altogether just that he should possess that part as his very own and that no one in any way should be permitted to violate his right.

Pope Leo XIII, Rerum Novarum (1891). The only theological principle that Leo grounds his analysis upon is the role of God as creator. Once that is established, the rest of Leo's argument flows along rational principles based on the the natural of property, labor and the needs of the human person to work and activity. Leo's approach here is one that people of faith would be wise to emulate when venturing in public debate. Not to deny their faith or its importance in their lives, but to appeal to common reason reflecting on nature to make their point, not out of a crass desire to practice political rhetoric, but out of a desire to accurately present not God's revelation alone, but the law of nature.