The Home of American Intellectual Conservatism — First Principles

February 21, 2019

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The Rule of Law and the Law of Nature
Russell Hittinger - 08/26/10

The rule of law is essential to a free society. But is the rule of law self-standing, independent from any other standard or source? If not, upon what does it depend?

Russell Hittinger addresses these very questions in the following piece, which examines the influence of a “higher law” in the American experience, beyond the immediate civil society and its discourse.

The prominence of higher law thinking at the time of the American founding is too well known to warrant more than a brief comment. Whatever may have been Thomas Jefferson’s theological convictions, he understood well enough that the “Laws of Nature” needed to be situated in reference to “Nature’s God.” Similarly, Alexander Hamilton asserted that the “Sacred Rights of Mankind are . . . written, as with a sunbeam, in the whole volume of human nature, by the hand of the Divinity itself, and can never be erased or obscured by mortal power.” From every American pulpit, and in every legislative assembly, the higher law was a familiar coin of discourse. Within a generation of the American founding, the higher law doctrine was prominent in the debate over slavery, especially after the Fugitive Slave Act (1850). Interestingly, most of the federal judges who believed that slavery violates natural law did not use the higher law doctrine as an excuse for usurping constitutional authority.

In his dissenting opinion in Scott v. Sandford (1857), Justice McLean reminded the majority that the much-vexed jurisdictional question of congressional authority over the territories did not entitle the Court to claim interpretive authority over the natural law. Chief Justice Taney had contended in the majority opinion that the appeal of the Declaration of Independence to “Nature’s God” should be interpreted in light of public opinion, thereby rendering the natural law inferior to human judgment. To the contrary, McLean responded, the slave “bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence.” Although the Constitution gives the Court no authority to change the positive law of the Constitution, by the same token it does not hand over the higher law to the Court’s estimation of public opinion.

Writing shortly after the Civil War, Orestes Brownson could say that it was a remarkable achievement of the American polity to bring into existence a modern state that recognizes a “higher law” above itself. “This is our American boast”—one that is especially justified in contrast to the European states of that era. These states followed the Rousseauvian principle that society is un droit sacré, a holy right. Americans, Brownson argued, refused to submit higher principles to lower powers. They resisted, then, the one extreme of making government an instrument of private interests, as well as the other extreme of making the state the exemplar and judge of moral and spiritual order. He was convinced that Americans had properly located the position of ruling powers because natural law had not been reduced either to order in nature or order in the mind. The natural law “is not a law founded or prescribed by nature, but the law for the moral government of nature, under which all moral natures are placed by the Author of nature as supreme law-giver. The law of nature is God’s law; and whatever rights it founds or are held from it are his rights, and ours only because they are his.”

Orestes Brownson

At the beginning of Memorial and Remonstrance (1785), before he undertakes any public policy arguments about religion, government, and the rule of law, James Madison maintained:

It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. 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 Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority. Because Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents.

Madison’s circular letter was a polemic meant to sharpen a legislative debate rather than an exercise in philosophy or theology. Even so, it summarizes an important insight about the rule of law. We notice first that he makes no appeal to a state of nature bereft of authority. Men are under an order of law and duty distinct from that of civil society. The priority of this order does not imply a historical priority nor a hypothetical condition of what men might look like if left to themselves. In the second place, what is prior is not simply the innate natural power of human reason and its acts of conscience. This is not a Hobbesian picture of human nature in which human powers generate pre-moral or amoral claims of rights. Neither is it an anticipation of a Kantian notion of autonomy, of practical reason binding itself to unconditioned laws that have no ground in an extrinsic authority. The claim that society lacks by nature a jurisdiction over the higher law does not suggest that the jurisdiction falls by default to the individual. Quite the opposite. The individual’s rightful liberty vis-à-vis society derives from the proposition that the individual is already under another jurisdiction. Madison, of course, argued elsewhere (e.g., Federalist 10) that the art of human constitutions must consider the scheme of power checking power.

Yet here in Memorial and Remonstrance he is interested in presenting another order to which the power-checking-power artifice is subordinate. In other words, the rule of law, the artful assignment of ruling powers, is not a freestanding art. We must first understand the order of things that does not fall under human political authority, and, for that reason, is not a matter of human prudence and art. Elsewhere, I point out a potential problem with Madison’s phrase “wholly exempt from its cognizance.” The Supreme Court’s post-Everson (1947) jurisprudence of the establishment clause appealed to Madison’s Memorial for evidence of original intent on the part of the framers and ratifiers. In opinion after opinion, justices of the Court either suppressed or denied the full import of the passage we quoted above. The phrase “wholly exempt” was interpreted to be an independent proposition rather than the conclusion of an argument. It came to mean that human government is prohibited from taking any position on theological ideas as such. This construal makes no sense of Madison’s own argument, which was meant to persuade the legislature of Virginia on the basis of an argument about divine jurisdiction vis-à-vis human conscience. It is one thing to say that human government cannot stand in judgment of the higher law, but it is quite another thing to prohibit government from recognizing the ground of its own inferior authority.

This essay is adapted from Russell Hittinger’s acclaimed book The First Grace: Rediscovering the Natural Law in a Post-Christian World (ISI Books).

To learn more about the natural law, visit the ISI short course on Western Civilization.

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