The Founders centered the American Constitution upon the foundation of a natural law. Professor Daniel N. Robinson—member of the Philosophy faculty at Oxford University and Distinguished Professor, Emeritus, at Georgetown University explains that natural law is the ancient creation of human rationality. Because human beings are rational they are “…fitted out by nature with certain core principles of equity.
All peoples have customs and apply law, which is partly theirs alone and partly shared by all mankind. The law which natural reason makes for all mankind, is called the law of all peoples, ius naturale.[i] [Natural Law].
Americans have realized these principles in practice. Natural law is centered on the preservation of human dignity, in the protection of life, liberty and property, in the impartial administration of justice, in the protection of the weak from the strong, the impoverished from poverty and the citizen from the predator. The natural law celebrates those Aristotelian virtues which make for a prosperous and peaceful country: Courage, Temperance, Justice and Practical Wisdom.
The American Founders established natural law as the first principle of an American Constitution, a law that was ancient when Aristotle taught its principles at Athens’s Lyceum. In a Declaration of Independence they wrote,
We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed—
The Founders, classicists well versed in Western philosophy, studied the principles of natural law in the works of Aristotle and Plato, in the writings of Cicero, Rome’s great advocate of natural law, in the scholarship of classical scholars St. Augustine and St. Thomas Aquinas and in the ideas of an Enlightenment which elevated the powers of reason above rank superstition and autocracy.
The Founders embraced the thesis of the Enlightenment philosopher John Locke. In his monumental work Two Treatises on Civil Government, Locke reversed the order of what used to be known as the Divine Right of Kings and wrote that a natural law vests in the citizen his natural right to life, liberty and property. The citizen is not subject to the rule of kings; it is the king who is subject to a sovereign people.
Sophocles, in his play Antigone, ranked natural law above the rule and whim of despots. Antigone, daughter of Orestes, defied the king of Thebes himself. King Creon on pain of death forbade the virgin maid the rites of burial for her brother Polyneices slain in war. Said the King, let be Polyneices where he fell; leave him to the carrion dogs.
But Antigone answered to a natural law. In the pouring of new wine into the earth, in the telling of ancient prayers; and in the solemn fulfillment of sacred rites her life would be forfeit. In a prayer now ancient, she reveals that same transcendent grief and love Americans express in honor of their dead.
I…will go to heap the earth about the brother whom I love…. I will bury him: well for me to die in dignity that, I shall rest, a loved one with him whom I have loved, sinless in my crime; for I owe a longer allegiance to the dead then to the living: in that world I shall abide in forever…. I washed and dressed you, and poured, drink-offerings at your graves…; and now, Polyneices, ‘tis for tending thy corpse that I win such recompense as this.
And yet I honored thee.…[ii]
In a revolutionary transposition of sovereignty, from the people to the state, the modern academic and legal literati have rejected the idea that natural law is the foundation of constitutional government. The late Supreme Court Chief Justice Rehnquist, in a 1976 speech to Texas law students made it plain that the Supreme Court considers nothing law that is not first legitimized by judicial imprimatur. The law, Chief Justice Rehnquist explained is what the courts say that it is. The law exists neither in custom or tradition, in personal belief or moral judgment. On the contrary,
The ‘value judgments‘ of individuals take on a form or moral goodness because they have been enacted into positive law.
It is the fact of their enactment that gives them whatever moral claim they have upon us as a society… Many of us necessarily feel strongly and deeply about our own moral judgments,
but they remain only personal moral judgments until in the some way given the sanction of law.
And yet, if certain truths are self-evident, if human beings are alike endowed by their Creator with certain unalienable Rights, then by what right are these self evident and unalienable rights now subject to judicial fiat?
Legal philosopher Hadley Arkes writes,
But if there are no moral truths, how do we know that the ‘wrongs’ condemned by the law are really wrong? How can we be sure that they deserve the censure of the community and the proscription of the law? In Rehnquist’s understanding, we cannot know these things, for there is no measure of right and wrong, finally, until a judgment has been consecrated in the law.
Modern day courts, with the cooperation of the Legislature, have transposed the first principle of constitutional government. Rights are natural and unalienable not because they are written in a Constitution but because they are self evident to all rational human beings. The Constitution is not the source of natural law; it is a profoundly eloquent embodiment of its ancient, unalienable power and legitimacy. [iii] Mr. Arkes writes,
We should be aware…that there is a radical separation between the jurisprudence of the Founders, and the jurisprudence offered by conservatives and liberals in our own day. The jurisprudence of the Founders was built on the connection that was traditionally understood between morals and law. The Constitution [the Founders] finally produced…could be understood and justified, only in moral terms, only by an appeal to those standards of natural right that existed antecedent to the Constitution…
In its repudiation of natural law the American legal system has severed its connection from a heritage that assured Rome’s millennium ascendance, that gave the generations Emperor Justinian’s codification of Rome’s natural law and thereby a splendid jurisprudence. Inexorably, the American legal system is abandoning the freedoms once guaranteed by Western Enlightenment.
The Constitution produced by the Founders cannot be understood or defended if it is detached from those moral premises. When we earnestly pledge to ‘preserve’ the Constitution, we cannot pretend to undertake that project unless we can establish the essential character or the ‘meaning’ of the things we would seek to preserve.[iv]
Americans must now wrestle with this question. If judicial power has been severed from the natural law then upon what theory of jurisprudence does the court base its decisions—if not patently upon political ideology and judicial fiat. For example, upon what moral principle of Western jurisprudence did Massachusetts Supreme Court Justices discover in a two hundred year old state constitution the right of homosexuals to marry? And upon what moral principle did a federal judge— in holding that homosexuals have a constitutional right to marry—nullify by judicial fiat, the vote of seven million Americans.
Well, it may be the law applies as well to judges. After all,
No man is above the law and no man is below it: nor do we ask any man's permission when we ask him to obey it.[v]
[i] Daniel N. Robinson, Ph.D., “The Great Ideas of Philosophy, 2nd Edition, Roman Law—Making a City of the Once-Wide World.” (Teaching Company,2004).
[ii] Sophocles, Antigone, (Great Books of the Western World, Encyclopedia Britannica, Inc. William Benton, Publisher), 131-142.
[iii] Hadley Arkes Beyond The Constitution, (Princeton University Press, Princeton, New Jersey,1990) 17.
[v] Theodore Roosevelt.