Principles of Constitutionalism: The Moral Basis for the Constitution in Natural Law

It was to the compact of the Constitution that our people originally acceded out of a desire to safeguard their liberties before God, and no subsidiary law or office can overturn that primal accession

Principles of Constitutionalism: The Moral Basis for the Constitution in Natural Law



In the previous installment of this series, we saw that the Constitution, as the foundational law of the land, is to enjoy a position of primacy over and above any and all other laws, offices, and authorities in our nation. Yet, the question may be asked, why is this so? The question may be answered by looking to founding ideas about natural law, from which then flows the idea of natural rights which our Constitution enshrines and affirms (but does not “give”).

From Cicero to Blackstone, natural law theory was perhaps THE key concept in the thinking of the generation which fought the Revolution against Britain and then established our constitutional republican form of government. But what is natural law? Essentially, natural law theory embodies a set of related ideas about the fundamental origination of “law” as an ordering principle in the universe. This law is universal—it applies everywhere and at all times, explicitly rejecting the concept of “moral relativism”—because it originated from the God who created the universe. For Cicero and other pre-Christian pagan thinkers, this god was pantheistic or panentheistic in nature, but the concept easily transferred over into Christian thinking from earliest times due to the compatibility with the Christian conception of a monotheistic, all-powerful, all-knowing, and over-archingly sovereign God who created the universe and continues to overrule and superintend it.

For the colonists, natural law was considered to be completely compatible, and in many cases coeval, with God’s law as given by revelation. In his Commentaries on the Laws of England (which were extremely popular and influential in American intellectual circles both before and after the Revolution), the jurist William Blackstone identified God as the Author of both natural law and special revelation, essentially arguing that they came from the same Source,

“..This has given manifold occasion for the benign interposition of divine Providence, which, in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man’s felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state since we find that, until they were revealed, they were hid from the wisdom of the ages.”

What Blackstone is arguing is that there is an essential unity between natural law and special revelation—they come from the same God, and therefore cannot contradict each other. Natural law was believed by these later theorists to be the unspoken, yet immutably true, outflowing of God’s purposes and benevolence toward man. Further, however, natural law was understood to be applicable to all men, in all nations, at all times. Blackstone again wrote,

“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 over all the globe, in all countries, and at all times: no human laws are of any validity if contrary to this;... upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.”

Elsewhere, Rufus King, a signer of the Declaration of Independence, said,

“The…law established by the Creator…extends over the whole globe, is everywhere and at all times binding upon mankind…This is the law of God by which he makes his way known to man and is paramount to all human control.”

Because natural law was understood to be universal, it was therefore understood to exist outside of and before any human governments. From the time of Hobbes onward, a commonly used picture (treated more as a logical hypothesis than as an actual chronological fact) to describe man in his primal position was that of the “state of nature,” in which mankind exists apart from government. In this state of nature, man was in full possession of all of his natural rights - those rights such as property, self-assertion, self-defense, etc. which were the common property of all, as a result of their creation at the hand of God. However, in the state of nature, there was no limit to what a man might do or take, apart from his inability to force himself onto someone else through raw power. As the Rev. John Hurt stated in 1777,

“The miseries of the state of nature are so evident, that there is no occasion to display them; every man is sensible that violence, rapine, and slaughter must be continually practiced where no restraints are provided to curb the inordinancy of self-affection.”

In other words, in the state of nature apart from some sort of regulation of his behavior, mankind will always tend towards the assertion of his own rights, even to the harm and death of other men. This commonly understood proposition rested on the fact that even though man is created in the image of God, and enjoys from his Creator the inalienable rights that God granted through His own natural law, man nevertheless has a sin nature that leads him to abuse this power and to seek to tyrannize over other men. The denial of the rights of others were those things especially that were forbidden by Scripture—murdering, rape, theft, extortion, etc. A “tyrant” in both the thinking of the ancients as well as modern liberty philosophers, was a man who stepped outside the boundaries of his own rights and infringed on those of another.

Hence, even within the hypothetical state of nature, a man’s rights should not extend such that they deny the rights of another, although absent constraints, they often did. As Alexander Hamilton observed,

“In a state of nature, no man had any moral power to deprive another of his life, limbs, property, or liberty; nor the least authority to command or exact obedience from him.”

According to Locke and other liberty theorists, government was instituted for the purpose of protecting the rights of all, even though it was understood that in doing so, in establishing the “commonwealth,” each member was giving up some of their own rights, as far as it pertained to imposing on others maliciously. Man gave up the right to kill, steal, and otherwise harm other men, to receive the benefit of having these same things forbidden to be done to him.

Thus, the foundation of good government was viewed as having a moral basis founded upon the principle of natural rights originating from natural law. We were made by God, who ordered and established the universe, whether through physical laws (discovered through what we call “science”) or through moral laws. These moral laws reflected God’s own character and desires, and were then reflected, in however marred a form, in man who, though fallen, was still created in the image of God. From these moral principles derive the fact that each individual person has rights to life, liberty, property, etc. that are granted to them as intelligent moral agents made in God’s image. Because man tends to abuse these rights, government among men was instituted to restrain man from harmful actions and to instead encourage and reward good use of his natural rights. Or, as Theophilus Parsons wrote,

“As in a state of nature much happiness cannot be enjoyed by individuals, so it has been conformable to the inclinations of almost all men, to enter into a political society so constituted, as to remove the inconveniences they were obliged to submit to in their former state, and, at the same time, to retain all those natural rights, the enjoyment of which would be consistent with the nature of a free government, and the necessary subordination to the supreme power of the state.”

The Constitution was intended to be an instrument for securing the maintenance and continuance of these rights under a free government. As such, the Constitution is a moral, as much as it is a political, document. The Constitution was meant to be a framework through which a free, republican government would operate to secure the rights of the people (and this is done not just through the Bill of Rights, but throughout the whole document) while yet providing for a governing authority that relied upon the voluntary compliance of the people in giving up those aspects of their rights that were used detrimentally to the life, liberty, and property of others.

Thus, we see the basis for the primacy of the Constitution. Because, as seen above, natural law overrules all merely earthly laws and authority, that document which explicitly seeks to affirm and safeguard the natural rights which result from the application of natural law must overrule any earthly law or authority which would counter or seek to nullify that natural law. It was to the compact of the Constitution that our people originally acceded out of a desire to safeguard their liberties before God, and no subsidiary law or office can overturn that primal accession.




Tim Dunkin is a pharmaceutical chemist by day, and a freelance author by night, writing about a wide range of topics on religion and politics. He is the author of an online book about Islam entitled Ten Myths About Islam, and is the founder and editor of Conservative Underground, a bi-weekly email newsletter focusing on foundational conservative worldview and philosophy.

He is a born-again Christian, and a member of a local, New Testament Baptist church in North Carolina. He can be contacted at: patriot_tim@yahoo.com

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