William Blackstone, that legendary commentator on the laws of England, remarked that the law could not contain a principle of revolution. Laws settle the order of things; revolutions unsettle them. But James Wilson, one of the leading minds among the American Founders, insisted that “a revolution principle certainly is, and certainly should be taught as a principle for the constitution.”
For the law in America would begin with the recognition that there could indeed be an unjust law. But that made sense only if one understood that there was a body of principles by which one could judge the rightness or wrongness, the justice or injustice, of those measure that were enacted into law.
The philosopher John Locke unfolded the logic of the matter in a series of questions. What was the source, he asked, of the positive law, the law that was “posited” or enacted. Answer: the legislature. What was the source of the legislature? Answer: the constitution, for it tells of whether we have a legislature and of how many chambers.
But then what was the source of the constitution? It had to be found, said, Locke in some source “antecedent to all positive laws” and that authority was “depending wholly on the people,” on their natural right to be governed with their own consent.
As Abraham Lincoln understood, the American republic did not begin with the Constitution. What we have come to know as the Constitution is really our second Constitution, coming in 1788. The American regime began with the Declaration of Independence, with the “Laws of Nature and Nature’s God,” with the Creator who “endowed” us with certain natural, “unalienable rights.”
The task of a Constitution was to arrange a practical structure of governance that would be consistent with those underlying principles. And that was why some of the most notable Founders were resistant to adding a “Bill of Rights.” The Constitution was not the source of our rights, and there was a concern that the mention of some rights would imply the lesser importance of those not mentioned.
And that list of rights would foster the mistake we commonly hear when people invoke “those rights we enjoy through the First Amendment” – as though in the absence of the First Amendment and the Constitution we would not have those rights.
That first generation of American lawyers, of the caliber of John Marshall and Alexander Hamilton, persistently traced their judgments back to those axioms of the law that were never set down in the text of the Constitution.
Marshall once pointed out that the Constitution did not give the Congress the power to punish anything but piracies on the high seas. But the mark of a government was the power to make laws, and how could “laws” be laws unless they could be enforced and people could be punished for disobeying them?
I raise this issue now because in the responses last week to Robert Royal’s column, one of our readers fell into a mistake remarkably common even among Catholics. He complained that “natural law folks like Arkes and [Robert] George. . .do believe that judges should at times enforce particular implicit values.”
But that is exactly what lawyers at the Founding did all the time as they drew on those “laws of reason” that underlay the law. As Daniel Robinson has observed, the very project of founding a system of laws on certain underlying principles of right is nothing else than a project of the natural law.
A good friend of mine, a professor at a Catholic law school, wrote me recently that no Article III judge under the Constitution – i.e., a judge with permanent tenure – had the authority to invoke the natural law. But if that was a key principle for him, that principle was nowhere set down in the Constitution. On what ground then did he take it be true – and binding on us?
One way or another he was backing into the notion of a deep principle that did not depend for its truth on being mentioned in the Constitution. Rightly or wrongly, he was backing into some version of natural law.
Catholics have come to know Aquinas’s teaching, that the divine law we know through revelation, but the natural law we know through that reason that is “natural” for human beings. It seems persistently to come as a surprise to Catholics as well as non-Catholics that the Catholic argument on abortion is a weave of embryology and moral reasoning.
One does not have to be Catholic to understand the Catholic argument here. And the other truth, still dimly understood, is that the tradition of natural law and moral truths has found its main sanctuary now in the Church and Catholic circles, while the currents of relativism have eroded the schools of philosophy.
Easter Sunday, April 8, after services with Fr. Scalia at St John the Beloved in McLean, VA: I encounter an appealing young lawyer with his lovely family. When he hears my name, he tells me that my books First Things and Natural Rights & the Right to Choose brought him into the Church.
I had heard the story before, from former students who had been drawn back, or drawn to the Church, before I had come in myself. And once again, in a wondrous way: it was the natural law, bringing us back to home ground.
