Essay Read by Constituting America Founder, Actress Janine Turner
“I am an Enemy to Vice, and a Friend to Vertue. I am one of an extensive Charity, and a great Forgiver of private Injuries: A hearty Lover of the Clergy and all good Men, and a mortal Enemy to arbitrary Government and unlimited Power. I am naturally very jealous for the Rights and Liberties of my Country; and the least appearance of an Incroachment on those invaluable Priviledges, is apt to make my Blood boil exceedingly.” Silence Dogood, a pseudonym used by Benjamin Franklin in an opinion editorial, No. 2, published April 16, 1722 in the New-England Courant.
In the 1215 version of Magna Carta, King John acknowledged, “We have granted moreover to all free men of our kingdom…all the liberties below…” “Free men” were the knights, barons, and small class of free tenants of land, not the large majority of the population who were villeins or other serfs. There follows a long list of such “concessions,” some profound, others whose inclusion must have been due to some alarming event, or some quirk of history or contemporary custom or feudal practice. Whatever the reason, even fundamental matters, such as that no tax shall be imposed except by the common council of the kingdom, or that criminal convictions —at least for nobles and free men—must be through trial before a jury of peers, were cast as matters of the king’s grace. Perhaps that formulation was due to the fact that the barons were holding King John hostage until he agreed to their terms, and those barons wished to make the matter look like a voluntary arrangement. But what the king grants, the king can take away, which John promptly did by repudiating the charter once he was released.
By the time of the American drive for independence, the original Magna Carta had little legal effect in England, with only a few provisions remaining in force after the subsequent issuance of differing versions and the enactment of various English statutes that overrode most of those provisions. However, Magna Carta retained a mythical hold on Americans, who argued that they were not rebelling against their constitutional government but preserving their ancient rights as Englishmen against usurpations by the king and Parliament. Americans believed the Whig perspective that Magna Carta protected the right of common Englishmen against arbitrary royal government and placed the king under the ancient common law. The jurist Sir Edward Coke had been the most influential originator of this idealized interpretation during his political clashes with the Stuart kings early in the 17th century. Not everyone agreed, most certainly not James I and Charles I. A bill introduced in Parliament in 1621 to confirm Magna Carta as law failed.
Appealing as Magna Carta was symbolically as a written constitution that represented a contract between king and people, when Americans actually read it, they could not avoid the fact that the language of the charter assumed that the rights involved originally belonged to the king. Moreover, the king had granted the enumerated rights only to a select few. This stood in clear contrast to the dominant theory at the time of the American revolution that every person is endowed by God with certain rights. Those were inherent in such persons by the grace of God, not by that of the king.
The theory of universal natural rights inherent in each person was a distinct derivative of the much older theory of human law and relations controlled by universal higher moral laws or by principles of natural justice. It was distinct because it focused on the sovereignty of each person, independent of all others and connected to the exercise of the person’s own rational self-interest. It placed the individual at the center of social community and required, at least as a general theory, the consent of each to form a political commonwealth. Duties undertaken to others arose out of the free exercise of one’s right to consent to do so.
The more traditional approach of writers on natural law and natural justice had assumed the operation of a universal order external and antecedent to human society. It functioned concretely, as manifested in the physical universe and human society, and morally, through human reason. Each person was a part of both aspects of that order. Moral and, ultimately, legal duties to others could arise only in humans as creatures who have the capacity to participate in the moral structure of that order. From these natural duties arose rights to make it possible to meet those obligations. In Nicomachean Ethics, Aristotle distinguished between natural and conventional justice: “Political Justice is of two kinds, one natural, the other conventional. A rule of justice is natural that has the same validity everywhere, and does not depend on our accepting it or not.”
In a similar manner, the Roman philosopher and political leader Cicero, expressing a Stoic interpretation, repeatedly explored the connection among law, justice, nature, God, and reason. Just a few select passages from his book Laws suffice as examples. “Law is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite…. But in determining what Justice is, let us begin with that Supreme Law which had its origin ages before any written law existed or any State had been established.” Once it was established that there was a superintending structure of natural law commensurate in its essence with reason, Cicero explained how human beings can participate in that order, and can understand the duties created thereunder and exercise the correlative rights. “[T]hat animal which we call man, endowed with foresight and quick intelligence, complex, keen, possessing memory, full of reason and prudence, has been given a certain distinguished status by the supreme God who created him; for he is the only one among so many different kinds and varieties of living beings who has a share in reason and thought, while all the rest are deprived of it.” Such a momentous project is the work of an all-powerful and all-knowing superhuman mind. “[Natural] Law is not product of human thought, nor is it any enactment of peoples, but something eternal which rules the whole universe by its wisdom in command and prohibition. Thus they have been accustomed to say that Law is the primal and ultimate mind of God, whose reason directs all things ….” Finally, a human enactment, no matter the political system which created it, cannot truly be law if it conflicts with the higher natural law. “[N]either in a nation can a statute of any sort be called a law, even though the nation, in spite of its being a ruinous regulation, has accepted it. Therefore Law is the distinction between things just and unjust, made in agreement with that primal and most ancient of all things, Nature; and in conformity to Nature’s standard are framed those human laws which inflict punishment upon the wicked but defend and protect the good.”
Cicero has not been alone in distinguishing between a statute which is not truly law and one which is because of its conformance to justice represented by higher law. The distinction was clearly expressed by, among others, justices of the early Supreme Court. For example, in a colloquy between himself and Justice James Iredell, Justice Samuel Chase declared in 1798 in Calder v. Bull, “An ACT of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.” The “first principles” to which Chase referred are those of natural law and natural rights, as shown by Iredell’s skeptical response: “It is true that some speculative jurists have held that a legislative act against natural justice must in itself be void, but I cannot think that under such a government any court of justice would possess a power to declare it so…. The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject, and all that the court could properly say in such an event would be that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”
St. Paul acknowledged the universality of natural law and its connection to the God of all mankind. In his letter to the Romans, Paul explained that “When Gentiles who do not possess the law do instinctively what the law requires,” it proves that God’s universal law exists outside any particular received commands. Those Gentiles “show that what the law requires is written on their hearts, to which their own conscience also bears witness; and their conflicting thoughts will accuse or perhaps excuse them” on the day of judgment. In that manner, enlightened pagans such as Plato, Aristotle, and Cicero might have keen insight into the moral order created by God, and they would be judged the same as those who had received the declared law. They were accountable for their thoughts, words, and deeds under the natural moral law, although their ignorance of specific aspects of the declared law might not be held against them.
Then why was it necessary to have revealed law at all? Philosophers and theologians have long made clear that not all people possess equal capacity to understand what God has written on their hearts, but also that the reason of all humans is imperfect due to the human condition. Humans lack the omniscience of God and His perfect reason to comprehend the full extent of the natural law. Revelation is necessary both for those matters whose substance is beyond human understanding and, at least for some people, “about those religious and moral truths which of themselves are not beyond the grasp of human reason,” in the words of Thomas Aquinas.
Alexander Hamilton in essay No. 33 and James Madison in essay No. 44 of The Federalist made similar arguments about a rather different matter. In Article I, Section 8, the United States Constitution expressly grants Congress the power to legislate regarding certain substantive matters. The question presented was why the Constitution also gave Congress the power to make all laws “necessary and proper” to carry into effect its other powers, when Congress already had the implied power to make such laws as a means for effectuating the ends specified in the Constitution. As Madison pointed out,
“Had the constitution [sic] been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers, would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it, is included.”
Hamilton concluded that “it could only have been done for greater caution, and to guard against all caviling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the union.” In other words, the implied power to make such laws already existed under universally accepted and applicable principles of government. But the extent of implied powers is ill-defined and subject to considerable debate and uncertainty. The express enumeration, then, provides a more concrete statement less subject to manipulation and deception.
If the immutable laws of nature represent the work of the divine reason, good human laws are the result of human reason applied to concrete conditions and problems. But human laws are sometimes the product of passion, often temporary, rather than of reason, in denigration of the classic definition. Hamilton addressed this problem in essay No. 78 of The Federalist, where he characterized judicial review of legislation as itself an act of reason to control the ill effects of popular passions:
“This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the mean time, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”
As Cicero taught earlier, the fact that these laws, enacted as the result of temporary public passions, may have been approved by the nation does not lessen their incompatibility with the Constitution and with reason.
Mob rule would be another, perhaps even more blatant, triumph of passion over reason than the arbitrary human law hastily produced by the legislature. That body had more of an opportunity to calm those passions or might at least blunt their force in the eventual statute. However, there is another side to be considered. What is mob rule? Does the uncoordinated broad refusal of the people to go along with an arbitrary statute qualify as such, in what has been dubbed “Irish democracy”? Is direct peaceful opposition by large numbers in the form of demonstrations and petitions? Is rioting and violent opposition? Is insurrection by destroying government property, tarring and feathering government officials, and shooting at soldiers? Or is even the last a legitimate form of opposition to allegedly arbitrary government, at least if those opponents eventually win and write the history books? After all, to the British in the 1760s and 1770s, Americans often engaged in mob rule by a violent minority faction, which then escalated to insurrection and, eventually, full rebellion in a civil war.
The Constitution is positive law, proposed by humans in Philadelphia and approved by assemblies of humans in the several states. The charter incorporates what the Supreme Court has accepted as universal principles of natural law, such as prohibitions of ex post facto laws or of laws which interfere retroactively with the obligations and rights in contracts, take property without compensation or as mere redistribution for a private person’s benefit, deny basic protections of due process, burden one’s right of self-defense, or interfere with fundamental rights of conscience by abridging rights of free speech, assembly, press, and religion. If Thomas Paine is correct, and there is a natural right of self-government, the Constitution even protects that right, at least within broad bounds.
Still, even the Constitution is not at one with the immutable, constant laws of nature. What the human lawgiver gives, it can take away, just as King John did with Magna Carta. The Constitution can be amended, and nothing in its text prevents the nullification of the rights mentioned earlier. Nor is the discovery by the Supreme Court of unenumerated rights through flexible and creative interpretation of “liberty” under the due process clauses of the Constitution inherently immutable. Such discoveries can be reversed or neutralized by the Supreme Court itself, as happened recently with the retraction of the right of a woman to obtain an abortion, first discovered rather belatedly in 1973. Or a formal amendment can be adopted which overrides an earlier Supreme Court opinion, as has happened several times.
Nor does the Constitution address all principles of natural law and natural rights. It was not until adoption of the 13th Amendment in 1865 that the Constitution took a clear position against slavery, although Western philosophers of ethics and politics and theologists had wrestled with that issue for millennia and had found slavery to be contrary to nature and natural law at least under many circumstances. Worse, the Constitution itself may conflict with natural law and natural rights. After all, a mere five years earlier, on the eve of the Civil War, President Abraham Lincoln and other Northern politicians had advocated for another, far different 13th Amendment, one that would have expressly protected at the level of constitutional law that very same institution of slavery in the states where it then existed. Only the refusal of Southern radicals to accept the geographical limitation in that proposal and the force of the process already set in motion in the Southern states towards secession prevented its further consideration by Congress.
Another difficulty lies in this. To the extent that the Constitution’s text falls short of manifesting the immutable, constant laws of nature and the extent of natural rights, may the Supreme Court fill in those gaps? The Ninth Amendment does no more than state the obvious, that the enumeration of certain rights in the Constitution does not exhaust the scope of rights each person has. It provides no express license for the Supreme Court to substitute its judgment for that of the people or the people’s representatives. Moreover, as Justice Iredell objected in Calder, the commands of the natural law and natural justice are difficult to discern, especially in application to specific and varied circumstances, and have long been the object of philosophic speculation.
Of course, the people or their representatives should make law only in accordance with natural law. But the problem is precisely that they often are driven by self-interest and passion, not by the requisite reason. Nor are the people generally, or the legislators, inherently qualified as moral philosophers any more than the judges. This quandary requires inquiry into the role of private and public virtue in the promotion of proper self-government and the establishment of a political order and human law consistent with the natural law and the protection of each person’s natural rights.
Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.