On July 4, 1776, the United States of America, in declaring their independence, invoked “the Laws of Nature and of Nature’s God,” proclaimed that men are “endowed by their Creator” with unalienable rights, appealed to “the Supreme Judge of the world,” and concluded by expressing their reliance on “Divine Providence.”1 There can be no doubt that those delegates in Philadelphia who adopted that Declaration believed in, and, based the nation’s independence on, the Natural Law; that is, that God, in creating the universe, implanted in the nature of man a body of Law to which all human beings are subject, which is superior to all manmade law, and which is knowable by human reason.2 The classical-traditional thinkers (Sophocles, Aristotle, Cicero, St. Thomas Aquinas, and Francisco de Vitoria) knew and declared that God is the author and source of the Natural Law, and that human reason is the faculty by which the Law established by God is made accessible to man.
Eleven years later, another group of delegates, representatives of the States, assembled in the same hall in Philadelphia, this time with the eminently practical task of creating a new structure of government for the United States, one that would establish “a more perfect union.”[3] That document, written in 1787, was ratified by the several States; [4] and entered into effect in 1789 as the Constitution of the United States of America.
Since the Constitution was designed to be a practical-juridical document for the operation of a more effective government, one should not expect to find there the ringing statements of principle that characterize the Declaration of Independence,[5] and, indeed, no such philosophical statements are present. But several important characteristics of the Constitution—indeed its most important characteristics—are clear and admirable applications of the Natural Law.
Before examining those characteristics of the Constitution, it is important to emphasize that the Natural Law as understood by the Founding Fathers of the Constitution was the Natural Law that for two millennia had been a traditional and essential element of Western Civilization; that is, Natural law as understood and explained by, for example, Sophocles, Aristotle, Cicero, St. Thomas Aquinas, and Francisco de Vitoria.[6] It was the Founders’ traditional understanding of Natural Law, rather than the various “Enlightenment” versions, that was most influential in the thinking that characterizes the United States Constitution.
The fundamental difference between the classical-traditional understanding of the Natural Law and that of the Enlightenment is that the classical-traditional thinkers knew and declared that God is the author and source of the Natural Law, and that human reason is the faculty by which the Law established by God is made accessible to man, while the philosophers of the Enlightenment (who inspired the French Revolution) rejected God as the author of the Natural Law, or diminished His significance, and elevated human reason, or its variants, such as the general will or a legislative majority, to the position of supremacy. In the words of one historian, the Enlightenment philosophers “deified nature and denatured God.”[7] These differences can produce, and in fact have produced dramatic differences in the activities of the governments of the nations of the world.[8]
The most influential Founders of the United States Constitution saw God as the source of the supreme rules of law and government, and applied the Natural Law in their work in the 1787 Constitutional Convention. Let us examine the thinking of the four most influential delegates at the Convention.
James Madison, of Virginia, considered the “Father of the Constitution,” wrote, two years before the Philadelphia Convention, of the duty that man owes to God:
This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor the Universe.[9]
Alexander Hamilton, of New York, wrote in 1775 that God:
has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever. This is what is called the law of nature…. Upon this law depend the natural rights of mankind. The sacred lights of mankind … are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself, and can never be erased or obscured by mortal power…. No tribunal, no codes, no systems, can repeal or impair this law of God, for by his eternal law, it is inherent in the nature of things.[10]
James Wilson, of Pennsylvania, considered by everyone to have been the second or third most influential delegate at the Constitutional Convention, not only affirmed the traditional, Divinely based understanding of the Natural Law, but indeed, refuted and rejected the Enlightenment ideas that utilized that same name. He wrote:
That our Creator has a supreme right to prescribe a law for our conduct, and that we are under the most perfect obligation to obey that law, are truths established on the clearest and most solid principles…. There is only one source of superiority and obligation. God is our creator: in him we live, and move, and have our being; from him we have received our intellectual and our moral powers: he, as master of his own work, can prescribe to it whatever rules to him shall seem meet. Hence our dependence on our Creator: hence his absolute power over us. This is the true source of all authority…. The law of nature is universal. For it is true, not only that all men are equally subject to the command of their Maker; but it is true also, that the law of nature, having the foundation in the constitution and state of man, has an essential fitness for all mankind, and binds them without distinction.
This law, or right reason, as Cicero calls it, … is, indeed, … a true law, conformable to nature, diffused among all men, unchangeable, eternal.[11]
George Washington, delegate from Virginia, President of the Constitutional Convention, and the most respected man in the country, said very little during the debates in Philadelphia, but did express himself on other occasions. In his first year as President of the United States, he issued a Thanksgiving Proclamation that began this way:
… it is the duty of all Nations to acknowledge the providence of Almighty God, to be grateful for his benefits, and humbly to implore his protection and favor …. [12]
John Adams, another Founding Father of great importance, did not attend the Constitutional Convention, as he was at that time the United States Minister to the Court of St. James. However, as a coauthor of the Declaration of Independence, the drafter of the Massachusetts Constitution of 1780, and the leading American political thinker of the day, his prompt and unwavering support for the proposed new national Constitution was a significant factor in its ratification.[13] Adams, who regarded Cicero as the greatest of philosophers,[14] demonstrated an understanding of God, human nature, and government that is unmistakably that of a Natural Law thinker:
The moral government of God, and his vice regent, Conscience, ought to be sufficient to restrain men to obedience, to justice, and benevolence at all times and in all places; we must therefore descend from the dignity of our nature when we think of civil government at all. But the nature of mankind is one thing, and the reason of mankind another; and the first has the same relation to the last as the whole to a part. The passions and appetites are parts of human nature as well as [are] reason and the moral sense. In the institution of government it must be remembered that, although reason ought always to govern individuals, it certainly never did since the Fall, and never will till the Millennium; and human nature must be taken as it is, as it has been, and will be.[15]
Many lesser-known delegates at the Philadelphia Convention, such as John Dickinson[16] of Delaware, George Mason of Virginia, and Daniel Carroll[17] of Maryland, also expressed their adherence to the traditional concept of Natural Law.
It should be remembered that a large number of the delegates to the Constitutional Convention were educated in the law, and that most of those were in fact practicing lawyers.[18] At that time the most widely used lawbook, for students and practitioners in the United States as in England, was Blackstone’s Commentaries. In that most influential work, Blackstone says the following:
This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.
But in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason, whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life….[19]
Indeed, the relationship between traditional Natural Law and the English Common Law was so close and profound that the latter was understood to be but the practical application of the former. This relationship is evident in the opinion of one of England’s most renowned jurists, Lord Edward Coke, in the famous Dr. Bonham’s Case in 1610:
And it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void …. Because … [such statutes] would be against common right and reason, the common law adjudges the said Act of Parliament as to that point void …. [20]
Similarly, another of England’s most respected judges, Lord William Mansfield, asserted in 1744 that a statute “can seldom take in all cases, therefore the common law that works itself pure by rules drawn from the fountain of justice is for that reason superior to an Act of Parliament.”[21]
This understanding of the Common Law as applied Natural Law was shared by lawyers in the United States before and after independence. The Twentieth Century Harvard historian Henry Steele Commager begins his chapter on “The Evolution of American Law” by stating (disapprovingly) that:
Americans inherited their law as they inherited their language and their political institutions…. Resourceful and ingenious in politics, Americans were content in the legal field to abide by familiar formulas…. In the realm of private law Americans took over the common law, and in the realm of public law the natural law…. This strength and persistence of natural law is one of the most arresting phenomena in American intellectual history.[22]
A more friendly Harvard scholar, United States Supreme Court Justice Joseph Story, whose Commentaries on the Constitution of the United States, first published in 1833, has long been a classic, says:
The common law is our birthright, and inheritance, and … our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation. The whole structure of our present jurisprudence stands upon the original foundations of the common law.[23]
In the words of the historian Gordon Wood:
what is truly extraordinary about the [American] Revolution is that few Americans ever felt the need to repudiate their English heritage for the sake of nature or of what ought to be. In their minds natural law and English history were allied. Whatever the universality with which they clothed their rights, those rights remained the common-law rights embedded in the English past, justified not simply by their having existed from time immemorial but by their being as well, “the acknowledged rights of human nature.”[24]
Most of the Founding Fathers were, of course, familiar with the natural law writings of Enlightenment-era thinkers, especially John Locke; however, this familiarity does not undermine the fact that the dominant philosophical influence upon the Founders was that of classical-traditional Natural Law. In this regard, two facts are important: First of all, Locke’s writings (unlike those of many others of his time) are sufficiently supportive of classical-traditional Natural Law theory, that there is no necessary conflict between the two. Consider, for example, the following:
the law of Nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions must…be comformable to the law of Nature—i.e., to the will of God, of which that is a declaration, and the fundamental law of Nature being the preservation of mankind, no human sanction can be good or valid against it.[25]
Second, even if one concludes that the totality of Locke’s writings on “natural law” bring him closer to his Enlightenment contemporaries than to his classical-traditional predecessors, it is the consensus of historians that in the United States, Enlightenment thought, including that of Locke, was so tempered by its immersion in the older and larger classical tradition, that it did not operate in opposition to traditional Natural Law. In the words of the historian Sidney Ahlstrom, in the United States “the wines of the Enlightenment were sipped with cautious moderation.”[26]
How, then, are the Natural Law understandings of the Founders reflected in the Constitution? Most importantly, in three interrelated ways:
First, in the establishment of limited government;
Second, in the establishment and recognition of subsidiarity; and
Third, in the guaranteeing of traditional rights, and only as against government.
I
Limited Government. The Natural Law tradition, as enunciated by its leading exponents and affirmed by Hamilton, Wilson, Madison, and other American founders, holds that the state, and human law, are by nature limited; that is to say, there are things that government may not do. St. Thomas Aquinas’s distinction between just and unjust laws is a clear theoretical exposition of this principle,[27] and Francisco de Vitoria’s discussion of the limits of Spanish imperial authority in the New World is a forceful, practical application of the same principle.[28]
The Enlightenment thinkers, either by rejecting God, or by excluding Him from any continuing role in the governance of creation, eliminated any principled limitation on the state and government. Human reason ceased to be the faculty by which the law of nature was made known to humans; reason became instead—almost always in some collectivized form, such as “the General Will” or “the Nation”—the ultimate source of law itself. The difference between the Enlightenment view, which prevailed in much of Continental Europe, and the American understanding is well described by James Bryce, jurist, historian, and British ambassador to Washington:
the Americans had no theory of the state, and felt no need for one, being content, like the English, to base their constitutional ideas upon law and history. . . . To those nations [of the European continent] the state is a great moral power, the totality of the wisdom and conscience and force of the people, yet greater far than the sum of the individuals who compose the people…. [For the Americans] … [t]he state is nothing but a name for the legislative and administrative machinery whereby certain business of the inhabitants is dispatched. It has no more conscience, or moral mission, or title to awe and respect, than a commercial company….
There are laws of nature governing mankind as well as the material world; and man will thrive better under these laws than under those which he makes for himself through the organization we call government.[29]
With equal perception, Professor Randolph Adams says:
the natural rights school, to which our Revolutionary thinkers belong, could not think in terms of absolute, unlimited power anywhere outside of the deity, because the natural rights, themselves, were things which limited the powers of governments and states.[30]
The Constitution drafted in Philadelphia reflects this principle by establishing a national government of enumerated powers. The powers of each branch of the national government are specified, with the necessary implication that all powers not thereby granted, are denied. Article I begins by stating:
All legislative powers herein granted shall be vested in a Congress of the United States…. [31]
It does not say that “all legislative powers shall be vested” in the Congress, but only those legislative powers granted by the Constitution shall be so vested.
Article II begins with the words, “The executive Power shall be vested in a President of the United States of America,” but Article II then proceeds to specify the President’s powers, thereby limiting executive authority.[32]
Article III, establishing the national judiciary, states that “The Judicial Power [of the United States] shall extend to” certain specified categories of “cases and controversies,”[33] thereby limiting that branch of government as well.
Another manifestation of the principle of limited government is found in the separation of powers and system of checks and balances within the national government. Either Hamilton or Madison—it is not known for certain which of them—advocating the ratification of the Constitution, said:
the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others…. Ambition must be made to counteract ambition … the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.[34]
Thus, for example, the national government is divided into three branches: legislative, executive, and judicial;[35] the legislative branch is, in turn, divided into two chambers;[36] the President has a qualified veto of bills passed by Congress;[37] and the President and the Senate both participate in the appointment of federal judges, cabinet members, and other principal officers of the federal government, and in the making of treaties.[38]
II
Subsidiarity. The second Natural Law principle embedded in the Constitution is the principle of subsidiarity; that is, the principle that government should perform only those tasks not better performed by the family or by private associations;[39] and that, when it is appropriate for government to intervene, governmental authority should be exercised by the smallest, most local unit of government capable of effectively performing the task in question.[40] The Natural Law basis of this principle is explained by Professor John Finnis in his treatise on the moral, political, and legal theory of St. Thomas Aquinas:
Prior to or independently of any politically organized community, there can exist individuals and families and indeed groups of neighboring families. . . . The family, essentially husband, wife, and children, is antecedent to, and more necessary than, political society…. What is it that solitary individuals, families, and groups of families, inevitably cannot do well? … [I]ndividuals and families cannot well secure and maintain the elements which make up the public good of justice and peace … And so their instantiation of basic goods is less secure and full than it can be if public justice and peace are maintained by law and other specifically political institutions and activities, in a way that no individual or private group can appropriately undertake or match.[41]
The American understanding of subsidiarity in political affairs is succinctly stated by that perceptive British observer, Lord Bryce:
Where any function can be equally well discharged by a central or by a local body, it ought by preference to be entrusted to the local body, for a central administration is more likely to be tyrannical, inefficient, and impure than one which, being on a small scale, is more fully within the knowledge of the citizens and more sensitive to their opinions.[42]
The early constitutional history of the United States was indeed a series of exercises in applied subsidiarity. The colonial period was characterized by the proliferation of local government units throughout the colonies, and by their increasing importance and autonomy.
The Cornell historian and political scientist Clinton Rossiter, in his masterful study of America before 1776, concludes:
In general, the central governments of the colonies exercised even less control over local institutions than did the mother country over the colonies. Self-government was doubly the rule in colonial America….
Although colonial assemblies passed many laws dealing with the organization and powers of the towns, these units were in fact quite independent of central control. More important, they were self- governing in the most obvious sense—through the famous town meeting, the selectmen, and a host of unpaid minor officials: constables, tithing men, surveyors, fence-viewers, field-drivers, haywards, notice-givers, assessors, pound-keepers, corders of wood, leather-sealers, overseers of the poor, “hog constables,” cutters of fish, and “comities” for almost every conceivable purpose, all chosen from and by the citizenry.[43]
When the United States declared independence in 1776, their sole organ of national government, the Continental Congress, promptly began work on a constitutional document for the nation. That document, the Articles of Confederation, was approved by the Congress in 1777, and entered into effect four years later, when Maryland became the last state to ratify them. The Articles established subsidiarity in the following terms:
Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.[44]
It soon became apparent that the limitations imposed by the Articles on the national government were too severe, particularly in that it lacked power to regulate interstate commerce or to impose direct taxes. At the behest of several States and prominent individuals, the Congress called on the States to send delegates to a convention to be held in Philadelphia, the purpose of which would be to recommend amendments to the Articles of Confederation, amendments that would, it was hoped, enable the national government to deal effectively with the interstate commercial rivalries and economic discrimination that then plagued the nation. As is well known, the delegates in Philadelphia did not propose (or even discuss) amendment of the Articles, but rather drafted an entirely new document, the Constitution.
While the Constitution did create a national government more powerful than that under the Articles of Confederation, the new arrangement continued to be based on the principle of subsidiarity. The debates in Philadelphia demonstrate that the overriding concern of the delegates was the proper allocation of governmental authority between the national government and the States, and the debates that followed in the States over ratification almost always centered on whether the proposed new government would have too much power (leaving the States and the people too little). Almost no one argued that the national government should be given more power than the proposed Constitution allowed.[45]
The Constitution, by enumerating the powers of the various branches of the national government (see discussion hereinabove), established by clear implication the principle that all governmental powers not given to the national (or federal) government by the Constitution, belonged to the respective States.
In arguing for the ratification of the Constitution, James Madison emphasized this principle:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.[46]
To remove any doubt, the principle of subsidiarity, as implied in the original constitutional text, was made explicit in the Tenth Amendment, adopted in 1791:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.[47]
The Tenth Amendment thus acknowledges both political subsidiarity—by recognizing that powers are reserved to the States—and subsidiarity in its larger sense—by recognizing that there are powers that do not belong to government at all, but rather are reserved to the people, individually or in voluntary association.[48]
III
Guarantees of Rights. The original text of the Constitution contains few explicit declarations of rights.[49] At the Philadelphia Convention, several delegates had proposed that the document include a charter of rights, but the proposal was unanimously rejected.[50] The principal reason for the rejection was the belief, explained by Hamilton in The Federalist, that the new national government under the Constitution, although it would be more powerful than the government under the Articles, would nevertheless still lack authority to engage in activities that could threaten traditional rights and that, indeed, an enumeration of rights would be counterproductive in that it would support an inference that the national government had more authority than was actually given to it by the Constitution.[51] During the ratification debates in the States, however, it became evident that much of the opposition to the Constitution was based on fear that the new national government would indeed possess the wherewithal to become oppressive, and that a bill of rights was therefore necessary. As a result, a tacit compromise was reached whereby, if the Constitution were to be ratified, it would be amended to include guarantees of traditional rights.[52]
The Constitution was ratified by the States, and entered into effect in 1789. The Congress, in its first session, proposed a series of twelve amendments, ten of which were promptly ratified, and have long been known collectively as the Bill of Rights.[53]
The First Amendment reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[54]
It is significant that the First Amendment does not pretend to create the freedoms and rights referred to; quite the contrary. The language of the Amendment clearly implies that these freedoms and rights have existed prior to and independent of their mention in the Constitution, and that the reason—the only reason—for including them in the Constitution is to make certain that the new national government will not violate them. Contrast the phrasing of the First Amendment—and the other Bill of Rights guarantees which read like it—with declarations of rights framed in the Enlightenment style and proclaimed in the wake of the French Revolution.
The French Declaration of the Rights of Man and of the Citizen, adopted in 1789, includes the following provisions:
The principle of sovereignty resides essentially in the Nation. No body and no individual may exercise authority which does not derive expressly therefrom….[55]
The law is an expression of the general will….[56]
. . . Those who solicit, promote, execute or cause to be executed arbitrary orders must be punished; but every citizen summoned or apprehended by virtue of the law must obey instantly; he renders himself culpable by resistance.[57]
The first Latin American constitution, the Venezuelan Constitution of 1811, was strongly influenced by Enlightenment and French Revolutionary ideas. Its chapter on the “Rights of Man …” begins:
Men, after being constituted in society, have renounced that unlimited liberty and license, appropriate only to a state of savagery, to which their passions had so easily led them. The establishment of society presupposes the renunciation of those doleful rights, the acquisition of others more sweet and pacific, and subjection to certain mutual duties ….[58]
The social contract assures to each individual the enjoyment and possession of his goods, without injury of the right of others with respect to theirs….[59]
A society of men meeting under the same laws, customs, and Governments forms a sovereignty…. [60]
The sovereignty of a country, or the supreme power to regulate or direct equitably the interests of the community, resides, thus, essentially and originally in the general mass of its inhabitants and is exercised through their agents or representatives ….[61]
Law is the free expression of the general will of the majority of the citizens, made by the organ of their legally constituted representatives….[62]
The Venezuelan Constitution specifies that the basic rights of man are liberty, equality, property and security, and proceeds to define each.[63]
This same state-centered approach to rights is reflected in the supraconstitutional European Convention on Human Rights, which was concluded in 1950 and remains in effect today:
Everyone has the right to freedom of thought, conscience and religion; this right includes….[64]
Everyone has the right to freedom of expression. This right shall include….[65]
All of these declarations of rights—and there are many others like them throughout the world—despite their sweeping (not to say grandiose) language, contain a telling, indeed ominous, qualification: expressly or by implication, they cast the State as the dispenser, regulator, and indeed, the source of the rights proclaimed. In the U. S. Bill of Rights, on the other hand, the freedoms are treated as having their immediate source in the Common Law tradition, and their ultimate origin in the nature of man, that is, in the Natural Law. The role of government is but to respect and protect those freedoms.
This acknowledgement of the nature, origin, and practical significance of constitutional rights, exemplified importantly by the First Amendment, is confirmed by the last two articles of the Bill of Rights, the Ninth and Tenth Amendments. The Ninth Amendment states:
The enumeration in the Constitution, of certain rights, shall not be construed to disparage others retained by the people.[66]
The Tenth Amendment, set forth hereinabove, merits repetition:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.[67]
There continues to be debate over the substantive content of the Ninth Amendment,[68] and some would deny to the Tenth Amendment any juridically significant substance at all.[69] However, these Amendments acknowledge and mean, at least, that fundamental rights do not owe their existence or exercise to the state or to any government; rather, they are derived immediately from the Common Law tradition, and ultimately from the Natural Law.
The language of the Bill of Rights places its guarantees in an historical context, a Common Law-traditional Natural Law context that gives content and definition to the rights referred to. What has already been said herein about the First Amendment is true of the rest of the Bill of Rights as well.
The juridical relevance of the fact that our Bill of Rights is grounded in the Natural Law is explained by United States Court of Appeals Judge Diarmuid O’Scannlain in his brilliant article, “The Natural Law in the American Tradition.”[70] Judge O’Scannlain, after explaining his position (with which this writer agrees) that judges have no freestanding authority to enforce the Natural Law,[71] refers to the Second Amendment to the Constitution and to the United States Supreme Court’s 2008 decision in District of Columbia v. Heller,[72] interpreting that Amendment.
The Second Amendment says:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.[73]
The Heller case involved a challenge by a resident of the District of Columbia to a District ordinance that prohibited the possession of usable handguns, even in the possessor’s own home. The District of Columbia argued that the Second Amendment did not protect the litigant Heller, or any other individual, but guaranteed only the right of governments to maintain “militias” (or their modern-day equivalents, the state National Guards), and perhaps the rights of militiamen when in such service. As O’Scannlain notes, the Supreme Court “launched into an extended discussion of the natural right to bear arms, as it was understood during the one hundred years leading up to the enactment of the Constitution.”[74] The Court, utilizing historical, natural rights analysis, concluded, inter alia, that the Second Amendment’s “right to keep and bear arms” referred to a natural right of the individual to bear arms for self-defense, and not just to a collective right connected to militia service. The analytical approach utilized in Heller and praised by O’Scannlain is, or should be, applicable to our many other constitutional rights that are rooted in traditional Natural Law.[75]
The Natural Law has long recognized explicitly that “the social nature of man is not completely fulfilled [by or] in the state, but is realized by various intermediary groups, beginning with the family and including economic, social, political, and cultural groups which stem from human nature itself and have their own autonomy.”[76] This principle, discussed hereinabove with respect to subsidiarity, deserves mention again with respect to the structure of rights guarantees in the United States Constitution. With a single exception, the rights protected by the Constitution are guarantees only as against government, federal or state.[77] In other words, the United States Constitution (unlike many other constitutions) does not purport to regulate purely private conduct. Recall, for example, that the First Amendment states that “Congress shall make no law … abridging” the rights referred to therein.[78] The remainder of the Bill of Rights prohibits conduct that is, by its nature, necessarily governmental. This commonsense (and Natural Law) approach to rights is continued in that other great repository of constitutional rights, the Fourteenth Amendment, which was adopted in the aftermath of the Civil War. Its protection of the “privileges and immunities” of citizens, and its guarantees of “due process of law” and “the equal protection of the laws,” are framed as limitations upon the States of the Union. The relevant language is:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[79]
These rights guarantees confirm that the Constitution is not meant to regulate all of society, neither does it attempt to guarantee everything that might be considered desirable. The classical and medieval exponents of the Natural Law understood that, given the limitations and imperfections of human nature, “the [human] law should not try to prescribe every virtue and forbid every vice,”[80] and the Founding Fathers and their nineteenth century successors understood that as well.[81] Thus, the Constitution, in protecting rights, does not seek to deprive the family and private intermediate institutions of their natural, legitimate freedom of action; rather, the Constitution recognizes that the state should not attempt to control all of society, or try to meet all societal needs, or subordinate all other groups to governmental domination. The family, churches, labor unions, political parties, business enterprises, and schools and universities have a right to exist and to operate independent of government.
In drafting and promoting a Constitution of limited government, of subsidiarity both in governmental and in larger societal matters, and of restraint in the imposition of obligations, the Founders did not explicitly declare that they were applying classical Natural Law principles.[82] Such a declaration would have been both inappropriate and unnecessary.[83] But anyone who doubts the overwhelming influence of the Natural Law should read the best known of the Federalist Papers No. 10, written in 1787 by James Madison, “The Father of the Constitution,” in urging the ratification of the Constitution by the State of New York.
Federalist No. 10 reveals a classical Natural Law understanding of the nature of man and of government. Man is neither depraved nor angelic, but fallen-capable of good but subject to temptation. The state and government are natural institutions, not artificial creations. Government exists neither to perfect man (which it cannot do) nor to repress him (which it should not do), but rather to pursue the limited goal of promoting the common good by acting or refraining from acting, as the situation may require, always in accordance with its own nature and the nature of man.[84]
In juridical circles, the Natural Law has been under attack for more than a century, not just in the United States, but throughout the Western World. Those attacks have made it easier for activist courts and weak or misguided legislators and administrators to reject or ignore the Natural Law foundations of Western Civilization and of the United States Constitution,[85] and to adopt programs that deny the inherent dignity and essential equality of every human being, that weaken the family,[86] that distort education,[87] that seek to make all groups and organizations in society subservient to the state,[88] and that even deny legal protection to the weakest and most innocent among us.[89] There is considerable irony in the fact that as government seeks to control more and more of society, it simultaneously abdicates its original and most important duty: to protect the most basic right—the right to life—of innocent people. On the other hand, it should not be surprising that when a human legal system loses sight of its proper place in the eternal order of things, disastrous disorder is the result.
With respect to many of these excesses, then-Justice Byron White of the United States Supreme Court, in an opinion written in 1986, observed:
The Court is most vulnerable and comes closest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.[90]
Justice White was correct. It should be added that a renewed awareness of the Natural Law and of its foundational role in the making of the United States Constitution would be of enormous benefit to the United States and to the world.
Footnotes
Source: https://www.visionandvalues.org/barker/
See also:
Chronological History of Events Related to Natural Law
Jefferson Passed the Virginia Statute of Religious Freedom ending the State-Established Church in Virginia and Placing All Religions on Equal Footing
The Declaration of Independence Approved by Congress as 56 Courageous Signers “Pledge… Our Lives, Our Fortunes, and Our Sacred Honor.”
Thomas Paine’s ‘Common Sense’ is Published
Alexander Hamilton: The sacred rights of mankind…are written, as with a sun beam… by the hand of the divinity itself; and can never be erased or obscured by mortal power.”
Rev. Jonathan Mayhew gives his Famous Sermon titled, “A Discourse Concerning Unlimited Submission and Non-Resistance to the Higher Powers”
“The Selling of Joseph: A Memorial” is Published by Judge Samuel Sewall (One of Jefferson’s Sources for an Early Draft of the Constitution)
John Winthrop gave his ‘Little Speech On Liberty’
