In the first case that elicited a set of opinions from the Supreme Court, Chisholm v. Georgia (1793), James Wilson insisted that the law in America would not begin, as it did in England, with the notion of a superior, a sovereign, issuing commands. “The sovereign, when traced to its source,” he said, “would be found in the man,” a person giving his consent to the terms on which he was governed. And yet, as Wilson said, supreme authority would be eminently fitting in the case of “Him who is supreme.” But among human beings, he said, there could be “neither superiority nor dependence.”
Wilson, a Scot émigré, settled in Philadelphia and became one of the premier minds in that circle of the Founders. And he caught here the understanding of natural rights: No man is by nature the ruler of other men in the way that God is by nature the ruler of men, and men are by nature the rulers of horses and cows. If we find now some men exercising power over others, that state of affairs could not arise from nature. It had to arise from convention or consent.
In this understanding, it would be as wrong 100 or 1,000 years from now for human beings to be ruled in the way that humans are compelled to rule horses and cows. That right to government “by the consent of the governed” would endure as long as those differences in nature endured. The rights involved here, as Lincoln said, were “applicable to all men and all times.”
But if we are the bearers of natural rights, when do those rights begin? As Wilson explained, those rights would begin as soon as we began to be: The law would cast its protection over human life “when the infant is first able to stir in the womb.” That child in the womb would be “protected not only from immediate destruction, but. . .in some cases from every degree of danger.”
It does not come as news to readers of these columns that I have been part of a project for many years to preserve and, in many cases, restore this understanding of natural law/natural rights that prevailed in that founding generation. Many of our friends raise an old issue of natural law versus natural right. Along with Thomas Hobbes they will say that “right, consisteth in liberty to do or to forbear; whereas Law, determinith and bindeth to one of them.”
Prof. Arkes speaks on behalf of the
James Wilson Institute on Natural Rights & the American Founding
In other words, “rights” are about liberties, but “laws” are about duties. But whether the founders and ordinary people spoke of natural law or natural right, they understood themselves to be speaking of objective moral truths, grounded in any enduring nature. And so, if we have a duty “not to hold people blameworthy for acts they were powerless to affect,” there would be a correlative “right” not to be held blameworthy in that way. But it is ever important to get past the names to the moral substance of the principles that are being taught.
Over the past two years, I’ve been at work in putting in place a new project on natural law, which we have named after Wilson, who has not been given the credit or attention he deserved as a teacher. And so we have now the James Wilson Institute on Natural Rights & the American Founding, based in Washington, D.C. We have been sponsoring lectures and seminars, and plan to do more.
Twice a year in recent years, we have brought together some gifted teachers of philosophy and law to consider how the principles of natural law can be applied to the cases that arise in our law. Several friends who are federal judges have sat in with us. They have taken the problem seriously because they know there is a serious question here, and they know that natural law has been rejected by both liberals and conservatives among lawyers and judges. Among liberals, because they reject moral truths, and among conservatives, because they fear what liberal judges do when they appeal to a law running deeper than the Constitution. They fear it because, in their own way, they too fail to see that natural law finds its ground in the canons of reason and truth.
As I’ve been speaking in different parts of the country, we have found a striking new interest among lawyers, who say they had never actually heard the case for natural law. Our claim is that every attempt to apply the Constitution will compel judges to move beyond the text, to those principles that were there before the text – the principles that would be there even if there were no Constitution.
We’re currently announcing on this website the first seminar that we’ll be holding for about fifteen young lawyers, newly sprung from law school or clerkships. We’ll be meeting in Naples, Florida, in the second week of July, in partnership, this time, with the Alliance Defending Freedom.
There will be stipends for those chosen to become James Wilson Fellows, along with other provisions for their support. We’ve been encouraged by the applications we’ve received so far, but in response to people who have asked for more time to apply, we have extended the deadline, in the hope of keeping the program open to the people most strongly drawn to it. We’re looking forward to the group we’ll be assembling as the first James Wilson Fellows.
It is no small task to run against the current, and teach anew what lawyers and judges used to know. But if we are to teach anew, we should start now.
