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.

America, Quo Vadis?

President Obama announced to the world--to the Turks no less--that the United States is no longer a Christian Nation. "We do not consider ourselves a Christian nation or a Jewish nation or a Muslim nation; we consider ourselves a nation of citizens who are bound by ideals and a set of values." This echoes his statement in June 2006: "Whatever we once were, we are no longer a Christian nation--at least, not just. We are also a Jewish nation, a Muslim nation, a Buddhist nation, and a Hindu nation, and a nation of nobelievers."
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One could take Obama to task for the obvious contradictions and confusions in the speech. How can one nation have other nations in it? Are we a "nation of citizens bound by ideals and a set of values," and also a "Christian nation," a "Jewish nation," a "Hindu nation," and a "nation of nonbelievers"? Is ours a nation of nations within nations? If so, is America also a "Wikkan nation," a "Satanist nation," and a "who-knows-what-else nation"? Regardless of the confusion, there is no reason to doubt Obama's sincere belief that our nation is no longer Christian, and, from the appearance of it (as well as our practice), most of the pundits would probably agree with him. A country which finds abortion to be a fundamental human and constitutional right is not a Christian nation. A country where more than 50% of its marriages end in State-sanctioned divorce is not a Christian nation. A country where same-sex "marriage" appears to be gaining ground is not a Christian nation. We have traversed across some boundary, and it is probably accurate to say that we are in a post-Christian America. But there was a time, not so very long time ago, where the majority view was against President Obama's. Our country's "Non serviam" is of fairly recent origin.

One can easily scour the public records of our nation and select evidence of the fact that we conscientiously styled ourselves as a "Christian nation" not so very long ago. Several examples may be culled from our nation's records. Most ironically, perhaps, may be the example of Justice Brewer (1937-1910), an Associate Justice of the United States Supreme Court. In his book The United States: A Christian Nation, published in 1904, Justice Brewer stated "This republic is classified among the Christian nations of the world." The irony? Justice Brewer was born of American parents in Turkey. I'm sure, had he the chance, he would have informed the Turks in 1900 something different that did President Obama did in 2009.

On may also point to the case of Holy Trinity Church v. United States, 143 U.S. 471, 12 S.Ct. 511, 36 L.Ed. 226 (1892). After reciting a barrage of proof and historial justifications as prolegomena, a unanimous Supreme Court concluded as if it was a truism that "this is a Christian nation."Id. at 471. Chief Justice Melville Fuller, and Associate Justices Stephen J. Field, Joseph P. Bradley, John M. Harlan, Horace Gray, Samuel Blatchford, Lucius Q. C. Lamar II, and Henry B. Brown joined the opinion of Associate Justice Brewer. There was no dissent. Things have obviously changed. It is doubtful that even Justices Scalia and Thomas would, in a dissent given the opportunity, describe America as a "Christian nation." (Though no doubt they would recognize the role of Christianity in the formulation of the American organic, fundamental documents.) Clearly, something has changed.

(To see the Trinity Church opinion, click here.)

If Justice Brewer is accused of being a lightweight justice, and the Trinity Church is pointed to as an aberrant decisions or merely dicta, one may turn to the venerable Justice Story (1779-1845), who in Section 1867 of his third volume of his great commentary on the United States Constitution stated:

"§ 1867. Now, there will probably be found few persons in this, or any other Christian country, who would deliberately contend, that it was unreasonable, or unjust to foster and encourage the Christian religion generally, as a matter of sound policy, as well as of revealed truth. In fact, every American colony, from its foundation down to the revolution, with the exception of Rhode Island, (if, indeed, that state be an exception,) did openly, by the whole course of its laws and institutions, support and sustain, in some form, the Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines. And this has continued to be the case in some of the states down to the present period, without the slightest suspicion, that it was against the principles of public law, or republican liberty. Indeed, in a republic, there would seem to be a peculiar propriety in viewing the Christian religion, as the great basis, on which it must rest for its support and permanence, if it be, what it has ever been deemed by its truest friends to be, the religion of liberty. Montesquieu has remarked, that the Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the gospel is incompatible with the despotic rage, with which a prince punishes his subjects, and exercises himself in cruelty. He has gone even further, and affirmed, that the Protestant religion is far more congenial with the spirit of political freedom, than the Catholic. "When," says he, "the Christian religion, two centuries ago, became unhappily, divided into Catholic and Protestant, the people of the north embraced the Protestant, and those of the south still adhered to the Catholic. The reason is plain. The people of the north have, and will ever have, a spirit of liberty and independence, which the people of the south have not. And, therefore, a religion, which has no visible head, is more agreeable to the independency of climate, than that, which has one." Without stopping to inquire, whether this remark be well founded, it is certainly true, that the parent country has acted upon it with a severe and vigilant zeal; and in most of the colonies the same rigid jealousy has been maintained almost down to our own times. Massachusetts, while she has promulgated in her BILL OF RIGHTS the importance and necessity of the public support of religion, and the worship of God, has authorized the legislature to require it only for Protestantism. The language of that bill of rights is remarkable for its pointed affirmation of the duty of government to support Christianity, and the reasons for it. "As," says the third article, "the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and as these cannot be generally diffused through the community, but by the institution of the public worship of God, and of public instructions in piety, religion, and morality; therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this Commonwealth have a right to invest their legislature with power to authorize, and require, and the legislature shall from time to time authorize and require, the several towns, parishes, &c. &c. to make suitable provision at their own expense for the institution of the public worship of God, and for the support and maintenance of public protestant teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily." Afterwards there follow provisions, prohibiting any superiority of one sect over another, and securing to all citizens the free exercise of religion."

(To see Justice Story's Commentary, click here.)

There is no doubt that the public "Christianity" mentioned by Justices Brewer and Story and by the Supreme Court in the Trinity Church case was a far cry from the rugged, confident, ebullient albeit primitive Christianity that Charlemagne, Alfred the Great, or St. Aethelbert tried to promote in their respect lands. Not only was this "Christianity" of a protestant varietal, it was, by this time, already quite watered down. And every generation until its eventual demise as a public religion it grew more insipid and brackish. At some point in time--not with a bang, but with a whimper--it was replaced by another public religion, that of secular humanism, that "civil religion" of which Robert Bellah has written. George M. Marsden has referred to this process as the "second disestablishment," the first being found in the Establishment Clause of the First Amendment. (See The Outrageous Idea of Christian Scholarship (New York: Oxford University Press, 1997), 32). This secular regime is the regime under which we operate today. It is a cultural regime that (in the words of Peter Berger) operates on the principle of "methodological atheism." That practical atheism prevails in our public schools, our academies and universities, and in our arts, politics, government, and law.

One will find a similar transformation with that particular philosophy of law or jurisprudence known as the Natural Law. One can easily show--as I will in the next blog post--how natural law jurisprudence had the field at the founding of our nation. In the middle of the 19th century, however, things began visibly to change, and the natural law jurisprudence was jettisoned in fits and starts, until the 20th century where it virtually disappeared from the teaching of our laws chools and the language of our opinions and our law. There is, however, a remnant bastion of professors and philosophers that still intelligently advance natural law jurisprudence. Though the history of the natural law is a bit checkered in the Protestant traditions, there is modernly a recognition of the wisdom of a natural law jurisprudence by Protestant scholars. The Catholic Church has never wavered from its advocacy of a natural moral law, based upon right reason, that universally binds all men irrespective of creed or condition.

So what happened the last 100 years or so that has brought us to this juncture, where Christianity and the Natural Law are no longer part of our public conversations (except perhaps to be exposed to ridicule), will be part of the discussions of this blog. But what happened the last 100 years also depends upon what happened almost 500 years before that.

There will be plenty to talk about.

Bully for Burke

On May 8, 2009, the Most Reverend Raymond Leo Burke, Archbishop-Emeritus of St. Louis, and the current Prefect of the Supreme Tribunal of the Apostolic Signatura, gave the Keynote Address at the National Catholic Prayer Breakfast in Washington, D.C. We must give thanks when our shepherds challenge those who wield the secular sword. Some of Archbishop Burke's comments bear repeating, and repeating, and repeating.

Under Obama's administration, the few hard-fought restrictions against abortion have unraveled. The Obama administration has exercised a moral choice, and it is against the Natural Law. It has according to Archbishop Burke chosen "a path which more completely denies any legal guarantee of the most fundamental human right, the right to life, to the innocent and defenseless unborn. Our nation, which had its beginning in the commitment to safeguard and promote the inalienable right to 'Life, Liberty and the Pursuit of Happiness' for all, without boundary, is more and more setting arbitrary limits to her commitment .... Those in power now determine who will or will not be accorded the legal protection of the most fundamental right to life." The right to life, a fundamental natural right, is trumped by a fictitious "right" to privacy which is construed in such a manner as to prevent the state from interfering with a woman's right to kill a fetus. But recent events show an even more ominous turn. "With unparalleled arrogance," Archbishop Burke notes, "our nation is choosing to renounce its foundation upon the faithful, indissoluble, and inherently procreative love of a man and a woman in marriage, and, in violation of what nature itself teaches us, to replace it with a so-called marital relationship, according to the definition of those who exercise the greatest power in our society." It is the arrogance of believing that it can define fundamental human institutions that pre-date it, and are more fundamental than it. In trying to re-define the family, the state acts with as much hubris as if it were going to re-define God, or re-define the law of gravity.

The Archbishop gives specific examples or recent events, and, in his mind, these betray "a consistent pattern of decisions ... which is taking our nation down a path which denies the fundamental right to life to the innocent and defenseless unborn and violates the fundamental integrity of the marital union and the family."

Archbishop Burke reminds us of "the most serious responsibility of Catholics to uphold the natural moral law." It is part of our duty as Catholic citizens, and demanded as part of the virtue of patriotism. The natural law "is the irreplaceable foundation of just relationships among the citizens of our nation." If the Natural Law is ignored or contradicted by our politics or our positive law, our politics and our positive law must be denounced.

President Obama speaks a lot about hope, and it was perhaps this to which Archbishop was alluding when he stated: "Let us say once again: we need the greater and lesser hopes that keep us going day by day." But the hope that Obama offers is of limited value with the "great hope." "This great hope can only be God, who encompasses the whole of reality and who can bestow upon us what we, by ourselves, cannot attain. The fact that it comes to us as a gift is actually part of hope. God is the foundation of hope: not any god, but the God who has a human face and who has loved us to the end, each one of us and humanity in its entirety. His Kingdom is not an imaginary hereafter, situated in a future that will never arrive; his Kingdom is present wherever he is loved and wherever his love reaches us."

The Archbishop continues: "The change which brings hope can only be the renewal of our nation in the divine love which respects the inviolable dignity of every human life, from the moment of its inception to the moment of natural death, and which creates and gives growth to new human life through the love of man and woman in marriage. Any hope which is incoherent with the great hope is truly illusory and can never bring forth justice and its fruit, peace, for our nation and world."

Archbishop Burke is well aware that we must dialogue with those who do not share our faith, and we must respect those different than we are. However, "[d]ialogue and respect for differences are not promoted by the compromise and even violation of the natural moral law." We need not accede to the validity of a murder's crime to speak with him, nor can we consent to any group that promotes abortion or un-natural unions. Opposing the current culture is burdensome; it is not always pleasant for those with peaceful dispositions not prone to being belligerent. "If we as individuals or our Catholic institutions are not willing to accept the burdens and the suffering necessarily involved in calling our culture to reform, then we are not worthy of the name Catholic."

"In a nation set so firmly on a path of violation of the most fundamental moral norms, Catholics and others who adhere to the natural moral law are pressured to think that their religious commitment to the moral law as the way of seeking the good of all is a merely confessional matter which cannot have any application in public life. ... On the contrary, the common good depends upon the active engagement of religious faith in the public forum."

As patriotic Catholics, must be "simply to help purify reason and to contribute, here and now, to the acknowledgment and attainment of what is just." It is our duty, in "addressing the critical issues of our nation," that both "the Church and we, as her faithful sons and daughters, intervene on the basis of reason and natural law, namely, on the basis of what is in accord with the nature of every human being." This is what the God of Love commands. And it is not a matter of promoting a confessional state, or of violating the establishment clause. Archbishop Burke explains:

"Our uncompromising commitment to protect the inviolable dignity of innocent human life and to safeguard the integrity of marriage and the family are not based on peculiar confessional beliefs or practices but on the natural moral law, written on every heart and, therefore, a fundamental part of the Church's moral teaching. At the same time, what is always and everywhere evil cannot be called good for the sake of accomplishing some other good end. All of us must be concerned about a wide range of goods which are important to the life of our nation, but the concern for those goods can never justify the betrayal of the fundamental goods of life itself and the family. We must take care to uproot from our moral thinking any form of relativism, consequentialism and proportionalism, which would lead us into the error of thinking that it is sometimes right to do what is always and everywhere evil."

Though there are many issues which confront us, and with which we must take sides, there are some that are clearly preeminent. With respect to these, which are the right to life and the right to the integrity of marriage and the family, "there is no element of the common good, no morally good practice, which a candidate may promote and to which a voter may be dedicated, which could justify voting for a candidate who also endorses and supports the deliberate killing of the unborn, euthanasia or the recognition of a same-sex relationship as a legal marriage. The respect for the inviolable dignity of innocent human life and for the integrity of marriage and the family are so fundamental to the common good that they cannot be subordinated to any other cause, no matter how good it may be."

"As Catholics, we can never cease to work for the correction of gravely unjust laws. Law is a fundamental expression of our culture and implicitly teaches citizens what is morally acceptable. Our efforts to assist those who are tempted to do what is always and everywhere wrong or are suffering from the effects of having committed a gravely immoral act, which are essential expressions of the charity which unites us as citizens of the nation, ultimately make little sense, if we remain idle regarding unjust laws and decisions of the courts regarding the same intrinsic evils. We are never justified in abandoning the work of changing legislation and of reversing decisions of the courts which are anti-life and anti-family."

"The most treasured gift which we as citizens of the United States of America can offer to our country is a faithful Catholic life." If that is so, then any watering down of the Catholic life, and any refusal to shoulder the burden of confronting a culture of death and family attack, is an act that betrays God, the Church, and our country.

The speech is worth a read:

http://blog.beliefnet.com/pontifications/2009/05/full-text-archbishop-raymond-b.html