Higher Law

Higher Law Throughout the Supreme Court's history, higher‐law concepts have played a role in debate over the limits of governmental power. Higher law, understood as an unwritten law binding government or providing a standard by which to judge positive (i.e., written) law, was a familiar if complex idea for late eighteenth‐century Americans. From their English legal heritage, Americans derived the notion that an idealized “ancient constitution” or tradition of the common law set limits to the sovereign's prerogative and, perhaps, even to the legislative power of Parliament. Especially when taken out of context, Sir Edward Coke's famous remark, in Dr. Bonham's Case, that if a statute were “against common right and reason … the common law will control it and adjudge such act to be void” suggested both the existence of higher law and its paramount authority in courts of law (p. 118a). The most common form of higher‐law argument in the late colonial and Revolutionary periods involved the invocation of unwritten “rights” variously conceived as divinely ordained, derived from English tradition, or “natural.” The Declaration of Independence as well as many of the early state declarations of rights continued this practice of asserting the existence of rights derived from higher‐law sources, and early state judicial opinions referred with some frequency to such sources.

During the Supreme Court's first few decades, the justices referred on occasion to higher‐law ideas. The only extended discussion of the role of higher law occurred in 1798, in Calder v. Bull, where Justice Samuel Chase expressly denied “the omnipotence of a state legislature” even in the absence of express constitutional restrictions. “Vital principles in our free Republican governments” or derived from “the social compact”—in particular those safeguarding personal security and property—would “overrule an apparent and flagrant abuse of legislative power” regardless of the absence of any written provision forbidding that abuse (pp. 387–388). In the same case, though, Justice James Iredell rejected the power of courts to declare a statute void merely because it offended the judges' sense of “natural justice.” Between them, Chase and Iredell foreshadowed the future of higher‐law argument in the Supreme Court. The Court eventually accepted Iredell's strictures against the direct invocation of higher law to overturn legislation. By the time of Chief Justice John Marshall's death in 1835, the Court had abandoned the direct invocation of higher law almost entirely.

The demise of higher‐law rhetoric in the opinions of the Court did not spell the end of higher‐law argument. Politically, higher law flourished: antislavery activists and their foes, the opponents of state regulation of property, and the opponents of state extensions of property rights to women all found the language of higher law useful when the written law seemed unfavorable. Attacking the geographical extension of slavery by the Compromise of 1850, Senator William H. Seward brushed aside the argument that the Constitution sanctioned the compromise with the retort that Congress was subject to a “higher law” than the Constitution, and that this higher law forbade cooperation with slavery. The availability of higher‐law rhetoric to both Seward and the defenders of slavery illustrated the rhetoric's strength and weakness—its lack of any definite meaning.

The sorts of argument associated with higher law in the eighteenth century remain alive, and controversial, in the opinions of the Supreme Court. A century ago, the Court protected property and freedom of contract on implicit higher‐law grounds, but it did so as a matter of legal doctrine by interpreting the Due Process Clauses of the Fifth and Fourteenth Amendments. More recently, the Court's privacy decisions, also interpretations of due process, suggest the claim of early higher‐law exponents that courts should invalidate acts of flagrant injustice regardless of any constitutional provision expressly forbidding them. Substantive due process will no doubt remain controversial; it seems equally clear that its barely concealed inheritance from notions of higher law will continue to influence the decisions of the Court.

See also Judicial Review; Natural Law.

Bibliography

Edward S. Corwin , The “Higher Law” Background of American Constitutional Law (1955).
Leslie F. Goldstein , Popular Sovereignty, the Origins of Judicial Review, and the Revival of Unwritten Law, Journal of Politics 48 (1986): 51–71.

H. Jefferson Powell