The Natural Law as the Constitution's Ghost

The pre-existing and unwritten law underlying our political institutions at their founding presupposed a natural moral law, a law based upon reason which transcended the political power of the State. For the American colonists, the natural law justified the Revolution against the established and otherwise legitimate authority of King George III. It justified the foundations of our new government under the Articles of Confederation and, later, the Constitution. For the founders of our republican and democratic form of government, the natural moral law pre-existed the foundation of our Government, was the basis of that Government, and defined both the duties and the limits of that Government.

As a matter of historical record, the Declaration of Independence, the Constitution, the Bill of Rights, and the Fourteenth Amendment were debated and fashioned in the light of natural law principles. (See Russell Hittinger, The First Grace: Rediscovering the Natural Law in a Post-Christian World (Wilmington, DE: Intercollegiate Studies Institute, 2003), 71, 88). It is not by any means hyperbole to say a natural law political philosophy was the “Constitution’s ghost.” It may not only not be a hyperbole, it may, in fact, be an understatement.

The Constitution's framers were virtually unanimous in the belief that the natural law provided both the basis and the limits of government. Documentary evidence shows beyond cavil that a philosophy of natural law was accepted by George Washington, John Adams, Thomas Jefferson, James Madison, Alexander Hamilton, John Jay, James Wilson, James Iredell, Oliver Ellsworth, Benjamin Rush, Gouverneur Morris, Roger Sherman, John Quincy Adams, John Dickinson, James Monroe, Edmund Randolph, George Mason, Patrick Henry, Richard Henry Lee, George Clinton, Elbridge Gerry, Sam Adams, and John Hancock among others. Both Federalists and Anti-Federalists were in absolute agreement that the principles of natural law and natural right provided both the basis and the limit to governmental power. (See Terry Brennan, The Natural Rights and the Constitution: The Original “Original Intent”, 15 HARV. J. L. & PUB. POL. 965, 971-73 (1992)).

Moreover, the same was equally true for the various states that ratified the Constitution:

Of the thirteen states that drafted constitutions or proposed amendments to the federal Constitution before the ratification debates, twelve expressly cited natural rights, and such rights were later recognized in the organic acts of over forty states. This is something more than literary garniture: The texts and debate of the ratification era show that founding generation almost universally accepted natural law . . . .

(Brennan, at 974-75.)

The integration between the natural law and our nation’s organic law is behind the liberal Supreme Court Justice Douglas’s statement, not so long ago, that our institutions of government “are founded on the belief that there is an authority higher than the authority of the State; that there is a moral law which the State is powerless to alter; that the individual possesses rights, conferred by the Creator, which the government must respect.” McGowan v. Maryland, 366 U.S. 420, 562 (1961), 81 S.Ct. 1153, 1219 (1961) (Douglas, J., dissenting) (Justice Douglas further stated that such principles are “enshrined” in the Declaration of Independence, the body of the Constitution, as well as the Bill of Rights.”) So even as late as 1961, the liberal Justice Douglas no-less conceded that “a moral law which the State is powerless to alter” was “enshrined” in the organic law of the United States: the Declaration of Independence, the body of the Constitution, and the Bill of Rights.

Now compare Justice Douglas's words with those of Justice Kennedy in the case of Lee v. Weisman, 505 U.S. 577, 589, 112 S.Ct. 2649, 2656, 120 L.Ed.2d 467 (1992) (holding that public school could not provide for a “nonsectarian” prayer to be given by rabbi selected by school). In Lee v. Weisman, Justice Kennedy had the boldness to say that the First Amendment did not permit the government to act as if "there is an ethic and a morality which transcend human invention."

The statement is, of course, preposterous. It is preposterous historically and legally. But it is more than preposterous. It borders on the idiotic. Taken to its logical conclusion, Justice Kennedy's opinion would mean that the 1st Amendment prevents the government from teaching the Declaration of Independence and the Constitution since those presuppose "that there is an ethic and a morality which transcend human invention."

Something is rotten in both the State of Denmark and the United States.