(This is Part 2 of a two-part article on natural law today. Part 1 is available here.)In 1991, when Clarence Thomas was nominated to replace Thurgood Marshall on the Supreme Court, the New York Times noted that Thomas was:
the first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.
His confirmation hearing put natural law back in the spotlight, with Joe Biden calling it a “dangerous” view.
For more recent evidence of this “enlightened” view we can turn to noted “political philosopher” (and lawyer) Chris Cuomo of CNN, who proclaimed recently:
Our rights do not come from God, your honor (he told Alabama Chief Justice Roy Moore), and you know that. They come from man … Our laws come from collective agreement and compromise.
Did you notice Cuomo’s sleight-of-hand there? He begins his statement speaking of rights and ends up talking about laws. At least he sees the connection; but since in Cuomo’s world (and many today join him in so thinking) there is no such thing as natural law, there is no such thing as a natural right. If a civil, man-made law doesn’t create a right, the right simply does not exist. Cuomo’s thinking is a natural outgrowth of the Enlightenment.
Instead of natural rights we have substituted, a là Cuomo, rights created by civil law. The rights mentioned in the Bill of Rights have become a “gift” of the Constitution. As proof: for the last ten years at least, the Whitehouse website proudly proclaims:
The 2nd Amendment gives citizens the right to bear arms.
Now, to be fair, we must admit that civil law can indeed create rights,. I would call these civil rights, although that term is also sometimes used to describe natural rights. But there certainly are rights created by the consent of the governed. If we are honest we will also acknowledge that “what the government giveth, the government can taketh away.” Civil, man-made rights, are clearly alienable; here today and perhaps gone tomorrow. Rights bestowed by those representating the “will of the majority.”
If there is no natural law, as Thomas Aquinas put it in Summa Theologiae, “Whatever the Prince wills, is the law.”
But let’s approach that idea with caution. As James Madison warned:
Madison called the Declarations of Rights of his time, “Parchment Barriers,” which had been violated “by overbearing majorities in every State” whenever they were “opposed to a popular current.”
In Republics, the great danger is, that the majority may not sufficiently respect the rights of the minority.
If our rights are nothing more than an expression of civil law, then one moment it can be: “You have a right to life,” and the following moment it can be “We’ll decide whether life-prolonging medical care will be provided you.” One year it can be “you have a right to property;” the next “you have a right to retain some portion of your property.” Your rights become whatever a majority in Congress deem important at that moment; they are neither enduring nor immutable. This is wonderful as long as your view of what’s important happens to align with that of the majority; but what if you find yourself in the minority? What then?
So where has been the legal profession in all this?
Many, if not most lawyers of the founding period, and there were about 30 of them in the Constitutional Convention, held to Blackstone’s view. They were called “Blackstone Men” if they did so. There were more copies of Blackstone’s Commentaries sold in America than in England.
But I would contend that most lawyers today, if asked, would not subscribe to Blackstone’s view of the law. Our nation’s law schools and a British import, legal positivism, are to blame.
Enter English jurist and philosopher, Jeremy Bentham (1748 – 1832). Bentham, a contemporary of some of the Founders, is generally regarded as the founder of the British legal positivist movement. Bentham’s “fundamental axiom” was:
It is the greatest happiness of the greatest number that is the measure of right and wrong.
In other words, morality, and the rights attendant to it, are determined by majority rule.
The tenets of legal positivism include:
- There are no divine absolutes in law, or if there are, they are irrelevant to a modern legal system.
- Law is constructed—not discovered or revealed.
- Law evolves as man evolves.
- Judges guide the evolution of law through their decisions.
- To study law the scientific way, go to the original sources, i.e., the decisions of judges.
Christopher Columbus Langdell, Dean of Harvard Law School, having studied in England with Bentham’s acolytes, is credited with bringing legal positivism to American law schools. From Harvard, it quickly spread. Today’s law schools, with a few exceptions, teach natural law in their History of Law course. It is certainly not studied as a living, breathing part of contemporary law.A final point: is there a relationship between natural law and civil law. We heard Dr. King insist that:
An unjust law is a human law that is not rooted in eternal law and natural law.
Sounds a lot like Blackstone, who wrote:
This law of nature … is of course superior to any other. … No human laws are of any validity, if contrary to this: and such of them as are valid derive all their force … from this original.
Let that last point sink in: No man-made law is valid unless it comports with natural law. And since natural law and revealed law have the same “adorable source,” it follows that no man-made law is valid if it contradicts revealed law found in the Bible in an any way. What does this imply about “laws” which allow for the killing of the unborn?
Like the rest of God’s creation, natural law and natural rights remain with us, in the background perhaps, waiting to be rediscovered and returned to their rightful place of prominence in our society.
If you are content to have your rights decided by a vote of the majority, to have the majority decide whether you may speak freely, whether or not you can assemble or associate, whether you may follow your conscience, then there is nothing further to do. That is the path our society is on. But if you prefer to have natural rights, as determined by the Creator of the Universe, the One who brought mankind into existence, the One whose image we bear, then there is work to do.
And here are the “marching orders,” not from a Founding Father, but a Founding Mother. In 1805, Mercy Otis Warren, sister of the great patriot James Otis, Jr., wrote:
It is necessary for every American, with becoming energy to endeavor to stop the dissemination of principles evidently destructive of the cause for which they have bled. It must be the combined virtue of the rulers and of the people to do this, and to rescue and save their civil and religious rights from the outstretched arm of tyranny, which may appear under any mode or form of government.
Translated from “Founder-speak,” this means we must stop teaching or otherwise promoting a false view of natural rights and natural law.
That is our charge today, the charge to every freedom-loving American: to stop the dissemination of principles, wherever they are found being promoted, that are destructive of the cause for which the Founders bled, the preservation of their rights as Englishmen.
Does natural law exist today? It’s really a question of rights.
“Constitutional Corner” is a project of the Constitution Leadership Initiative, Inc.
 Bentham died only three years after James Madison.
 Commentaries on the Laws of England, Book 1, Chapter 2
 “The law of nature and the law of revelation are both Divine: they flow, though in different channels, from the same adorable source. It is indeed preposterous to separate them from each other.” Declaration of Independence and Constitution signer James Wilson, Law of Nature, 1804.
 For further reading on this subject I recommend two books: Written on the Heart by J. Budziszewski, and Retrieving the Natural Law by J. Daryl Charles.
Editor’s Note. A superb two-part article on natural law, which should be a must read for anyone making a serious attempt to understand current trends and currents in jurisprudence, America’s government, and our broader culture. Thank you, Mr. Porter, for reorienting us back to the source of rights and law and warning us about the dangers of observing counterfeit sources.