Higher Law

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Americans have never been hesitant to argue that if a law is bad it must be unconstitutional. When no written constitutional provision suggests an interpretation that undermines the law under attack, American lawyers have often looked to the ancient tradition of unwritten higher law for support.

It is worth distinguishing two kinds of unwritten higher law. The first is natural law, conceived by the ancient Stoics as, in Cicero's words, "right reason, harmonious, diffused among all, constant, eternal." The Stoic conception was integrated with Christian theology by the medieval scholastics, and later was reformulated in a secular and individualistic direction by the natural rights theorists of the Enlightenment. In this latter form, the natural law tradition provided the intellectual background for the American colonists' assertion of "certain inalienable rights" in the declaration of independence.

The second kind of unwritten higher law, which we may call fundamental law, derives from those conventional and largely unquestioned values and practices that need be neither constant, eternal, nor dictated by reason. The members of a society may see their fundamentals as contingent, peculiar to themselves, and mutable—though, because fundamental, not easily or quickly mutable. On the other hand, those who see their own society's basic conventions as the only possible ones do not accept, perhaps cannot even understand, the distinction between "natural" and "fundamental" law.

In the practice of legal argument either natural or fundamental law can have priority, with the other regarded as ancillary. Thus one can argue that a principle is legally binding because it comports with right reason, as is incidentally confirmed by its acceptance in society; or one can reverse the priorities, leaving reason to confirm what convention and tradition primarily establish. Until about the mid-nineteenth century, American lawyers alternated between these rhetorical strategies, but since the Civil War the fundamental law strand has predominated.

The American idea of fundamental law derived originally from the seventeenth-century English habit of conducting political disputes in terms of an "ancient constitution," unwritten and believed (like the common law itself) to be of "immemorial antiquity." Sir edward coke exemplified this habit when he merged natural with traditional law and both with English common law, and then asserted judicial authority to override legislation in the name of this powerful conglomerate. His declaration in bonham ' scase (1608) that "when an Act of Parliament is against common right and reason … the common law will control it, and adjudge such act to be void" supplied a significant argument in the American colonists' struggle with Parliament between 1761 and 1776.

During the prerevolutionary period, the Americans argued for limitations on Parliament's authority over them on the basis of this same conglomerate of reason, common law, and constitutional tradition. Only when they broke with the English crown altogether in 1776—an avowedly revolutionary step—was their justification purely in terms of natural right.

With independence, the new states enacted popularly ratified written constitutions, a process later repeated in the adoption of the federal Constitution. The question then arose whether the new constitutions subsumed the older idea of unwritten constitutional law based on reason or tradition. The classic debate on this question was the exchange of obiter dicta between Justices james iredell and samuel chase of the Supreme Court in calder v. bull (1798). Iredell argued that a law consistent with the applicable written constitutions was immune from further judicial review; because the "ablest and the purest minds differ" concerning the requirements of natural justice, judges should assume no special authority to enforce so indeterminate a standard. Chase insisted that "certain vital principles in our free Republican governments" would invalidate inconsistent legislation whether the principle were enacted or not; thus a law that took the property of A and gave it to B could not stand, even if the applicable written constitution did not explicitly protect private property.

Chase's dictum followed the tenor of the ninth amendment to the federal Constitution (1791): "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But the Ninth Amendment does not settle the Chase-Iredell dispute, as it might if it said explicitly whether the unenumerated and retained rights have enforceable constitutional status.

During the first years of the republic, a number of state courts, as in Ham v. McClaws (South Carolina, 1789), anticipated Chase by invoking unenacted constitutional law to invalidate legislation. On the other hand, the most influential discussions of judicial review during the early federal period—alexander hamilton ' sthefederalist #78 (1787) and john marshall's opinion in marbury v. madison (1803)—echoed Iredell's view in basing power solely on the judicial authority to construe the written constitution, itself conceived as the expressed will of a fully sovereign people.

On the whole, judicial practice before 1830, particularly in the state courts but in a few federal cases as well, adopted Chase's view while also invoking his natural-law language with its appeal to "general principles of republican government." Marshall himself, in fletcher v. peck (1810), ambiguously justified invalidation of a Georgia statute "either by general principles which are common to our free institutions, or by the particular provisions of the constitution of the United States." The particular provision in question was the contract clause, which Marshall heroically stretched to fit the case, perhaps out of reluctance to rest decision solely on "general principles." In a few later cases, such as terrett v. taylor (1815), the Supreme Court did invalidate state legislation without reference to constitutional text.

Even during their heyday before 1830, the "general principles" of the unwritten constitution were never regarded as federal constitutional law, binding on the states under the supremacy clause. Because they did not count as "the Constitution or laws of the United States," unwritten general principles would not support appeal to the Supreme Court from the decision of a state court; federal courts invoked these principles against state legislatures only when acting as substitute state courts under diversity of citizenship jurisdiction.

In their content, the unwritten "general principles" applied during this period were largely confined to the protection of traditional vested property rights against retroactive infringement. As such, they were equally well supported by common law tradition and by contemporary ideas of natural justice.

From about 1830 on, judicial assertion of pure unwritten constitutional law became less common, perhaps because of its conflict with Jacksonian ideas of popular sovereignty. The process of stretching the language of vague constitutional provisions to encompass notions of natural or traditional justice continued, however, and there began a historic shift in the favored vague provision from the federal contract clause to the clauses of state constitutions guaranteeing the law of the land and due process of law—phrases that began to be construed to mean more than their originally understood sense as guarantees of customary common law procedures. Thus was born the concept bearing the oxymoronic name of substantive due process, which ever since has been the main vehicle for the implementation of higher law notions in American constitutional law.

A leading case in this development was Taylor v. Porter (New York, 1843), which incorporated in "due process" the prohibition, earlier invoked by Chase as an unwritten general principle, against the state's taking the property of the worthy A only to give it to the undeserving B. In these early substantive due process decisions the language of immutable natural law mixed indiscriminately with talk of historically based common law and tradition; there was no felt conflict between the two rhetorical strands.

By contrast, the discourses of natural justice and of customary practice did conflict in the great constitutional debates over slavery that occurred, largely outside the courts, during the period 1830–1860. Proslavery forces occasionally argued that the natural right of property protected the owners of human as of other chattels. Indeed, in the most notorious of constitutional slavery cases, dred scott v. sandford (1857), Chief Justice roger b. taney held that congressional prohibition of slavery in the territories violated slaveholders' property rights guaranteed by the Fifth Amendment's due process clause. But the legal defenders of slavery did not generally have to rely on unwritten higher law; they could point to the positive guarantees the slave states had insisted on inserting in the federal Constitution.

On the other hand, antislavery lawyers had almost no basis for legal argument except the increasingly widespread conviction that slavery was intolerably unjust. With positive law and custom against them, they tried to translate natural law directly into constitutional doctrine. To this end, they invoked the privileges and immunities clause of Article IV; the "liberty" protected by substantive due process; and the proclamation of human equality in the Declaration of Independence, for which they claimed constitutional status. More radical abolitionists opposed these efforts to accommodate the Constitution, the "covenant with Hell," to the antislavery cause; on the other hand, the pre-Civil War courts found the antislavery constitutional arguments unacceptable because too radical. But abolitionist constitutional theory triumphed in larger arenas; it became part of the political program of the Republican party, and thus part of the world view of the politicians who led the war against slavery and afterward framed the Reconstruction amendments.

The language of section 1 of the fourteenth amendment (1868) directly echoes the old triad of antislavery constitutional arguments in its guarantees of due process, equal protection of the law, and the privileges and immunities of national citizenship. These general clauses have ever since provided the main textual basis for the continuation of the higher law tradition in constitutional law.

In the slaughterhouse case (1874) the Supreme Court at first by a 5–4 vote rejected the argument that the new amendment constitutionally bound the states to the whole array of unenumerated rights. But by the end of the century, the courts had accepted the arguments of commentators, chief among whom was thomas m. cooley (Constitutional Limitations, 1868), that due process prohibited all legislative intrusions upon basic liberties and property rights that did not reasonably promote the limited ends of public health, safety, or morals. Of the protected liberties, the dearest to the courts of this period was freedom of contract, and in a series of decisions epitomized by lochner v. new york (1905) the courts invalidated economic regulatory laws on the grounds that they unreasonably constrained the terms on which adults could contract with each other.

In developing this doctrine, courts and commentators sometimes echoed the old language of natural law, but the more characteristic note of this aggressive laissez-faire constitutionalism was struck by Justice rufus peckham, who condemned a price regulation law as a throwback to the past that ignored "the more correct ideas which an increase of civilization and a fuller knowledge of the fundamental laws of political economy … have given us today" (Budd v. State, New York, 1889). The notion of evolution had taken hold, and it not only supported the doctrines of Social Darwinism but also promoted the idea that fundamental legal principles evolved—a progress that the courts should accommodate by developing the law of the due process clause through a "gradual process of judicial inclusion and exclusion" (Davidson v. New Orleans, 1878). Tradition continued to play a role as well; thus the courts invalidated much new legislation regulating the price charged for goods while accepting old usury laws that regulated the price charged for the use of money, and generally tolerating public regulation of those businesses that had traditionally been treated as affected with a public interest.

The legal supporters of Progressive politics fiercely attacked "liberty of contract" and its associated doctrines in the name of popular sovereignty, which they argued required repudiation of the very idea of unwritten constitutional law. When laissez-faire constitutionalism was finally put to rest in the mid-1930s under the combined influence of franklin d. roosevelt's court-packing plan and more long-run historical forces, it appeared that the higher law tradition might finally have come to the end of its long influence on American constitutionalism.

Only if higher law is given its narrower sense derived from classic natural law has this come to pass. The New Deal and post-New Deal courts found a new active role in the program of correcting for legislative failures sketched by the famous footnote four of the opinion in united states v. carolene products (1938). They promoted racial equality and electoral reform while protecting political dissidents, religious deviants, and criminal defendants, a role that reached its peak during the years of the warren court (1953–1969). The doctrinal vehicles for these projects have been the gradual incorporation within due process of the specific guarantees of the bill of rights and above all the evolutionary interpretation of the equal protection clause as a vehicle of fundamental law.

One of the most effective promoters of these developments, Justice hugo l. black (1937–1971), did wholly repudiate any invocation of higher law in their support; his characteristic stance was a rigorously exclusive appeal to constitutional text as a source of doctrine. While Justice Black's colleagues did not share his strict constructionist views, they too generally avoided invoking notions of natural or universal human rights, often resting decision on imaginative readings of original intent. Frequently, however, the Justices have openly construed vague constitutional language in light of an evolving fundamental law specific to American history and culture. During these years the Court has said that "notions of what constitutes equal treatment … do change" (harper v. virginia board of elections, 1966); that due process requires states to institute criminal procedures that are "fundamental" in the sense of "necessary to an Anglo-American regime of ordered liberty" (duncan v. louisiana, 1968); and that the prohibition of cruel and unusual punishment is to be construed in the light of "those evolving standards of decency that mark the progress of a maturing society" (Furman v. Georgia, 1972).

Its association with laissez-faire constitutionalism had discredited substantive due process as a doctrinal tool during the generation following the New Deal, but beginning with griswold v. connecticut (1965) the Court moved toward reviving the use of this old rubric for the protection of substantive liberties. The role once held by "liberty of contract" was now taken by the right of privacy, a misleading name for what was at its core a constitutional protection for freedom of reproductive choice, surrounded by a periphery of other doctrines limiting governmental power to regulate the family. The privacy decisions openly used as precedents substantive due process cases decided before the New Deal. Like those earlier decisions, the privacy cases avoided reference to universal right or natural law in support of their doctrines, with a plurality of Justices stating in moore v. east cleveland (1977) that "the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition."

The natural law strand of argument, though much muted in this century, has never entirely disappeared from American constitutional rhetoric. Justice william o. douglas was at times inclined to argue in this vein; before the Griswold decision he supported constitutional protection for marriage and procreation on the grounds that they were, as he said in skinner v. oklahoma (1945), "basic civil rights of man." Since the 1970s a number of constitutional commentators have argued for the use of "the methods of moral philosophy" in constitutional decision, referring to philosophical theories that claim universality for their results, and in this sense directly descend from classic natural law approaches. Whether there will be a revival of natural law discourse in constitutional doctrine remains an open question. On the other hand, the broader tradition of an unwritten higher law of the Constitution, encompassing both fundamental and natural law, seems by now too firmly entrenched to be dislodged.

Thomas C. Grey


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——1948 Liberty Against Government. Baton Rouge: Louisiana State University Press.

Graham, Howard Jay 1968 Everyman's Constitution. Madison: State Historical Society of Wisconsin.

Haines, Charles Grove 1930 The Revival of Natural Law Concepts. Cambridge, Mass.: Harvard University Press.

Ten Broek, Jacobus (1951) 1965 Equal under Law. New York: Collier Books.

Wright, Benjamin F., Jr. 1931 American Interpretations of Natural Law. Cambridge, Mass.: Harvard University Press.