titled to enjoy, not with natural laws which they must obey or which determine the character of new institutions. Not only did the radical Jefferson and Paine assert that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights,"21 and that "natural rights are those which appertain to man in right fo his existence...every civil right has for its foundation some natural right...all men are born equal and with equal natural rights,"22 but also the more conservative leaders of the type of John Adams contended, at least during the Revolutionary period, that the rights of men are founded "in the frame of human nature" and derived from "the Great Legislator of the Universe," and that "the sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written as with a sunbeam in the whole volume of human nature, by the hand of the Divinity itself and can never be erased or obscured by mortal power.' A half century or so later we find Seward in his eleventh of March speech appealing to a higher law than the Constitution.24 Chase in his argument in the Van Zandt case against the validity of the fugitive slave law, and Lincoln in his interpretation of the Fathers' idea of equality and equal rights25 deal with the same conception: the existence of certain fundamental rights of all men (even the negroes) which are derived not from the laws of any state but from the laws of nature and nature's God and which are consequently superior to any law of man's making. 9923 To re-emphasize this negative aspect is to belabor it, for the destructive use of natural law has passed into our traditions. But what does need attention is that natural law 21 With this extract from the Declaration of Independence, compare Article I of the Virginia Declaration of Rights. 22 The Rights of Man. 23 Merriam, American Political Theories, p. 48. 24See Hosmer, The Higher Law (1852), and Thoreau, Civil Disobedience (1849). 25 Speech at Springfield, June 26, 1857. has meant more than a destructive theory of natural rights.26 It is to be expected that in a period such as the Middle Ages when there is no theory of progress, when even their ideals are static ones, natural law would be made to serve a conservative purpose, that is, to uphold the existing order in all its phases.27 But that natural law has also served this purpose in America, where we take progress for granted28 just as we do prosperity or the greatness of our nation, can easily be proved. There has been a considerable amount of this sort of theorizing in all the periods of our thought, even in those where old institutions are being attacked or new ones are being constructed with the aid of natural law, but the principal conserving use of the concept has come in periods following those which are primarily constructive or destructive in their nature. Then comes the time when natural law ceases to be the companion of the religious devotee, the crude frontiersman, or the unsparing revolutionist, and associates upon the most friendly terms with the political and legal mouthpieces of a well established, hence respectable, order. Revolutionary natural rights once gained, the transition to legal rights is easy to make. Furthermore the natural rights in question are ordinarily conceived of as having a static content; once realized noth 26 American writers have always tended to identify natural rights and natural law. Thus Lieber states that "natural law is the body of rights which we deduce from the essential nature of man." Political Ethics, I, pp. 68, 177. Cf. Williams, The Foundations of Social Science, ch. xiii. This confusion is due to the most conspicuous use of the concept in the seventeenth and eighteenth centuries in the English, American and French Revolutions and to the theory in the slavery controversy in this country in the nineteenth century. That the theory of natural law has included far more than theories of natural rights is hardly open to question. During the ancient and medieval periods there was much talk of natural law but natural rights were practically unknown. Cf. Bryce, Studies in History and Jurisprudence, II, ch. xi. Carlyle, History of Medieval Political Theory in the West. 27 Carlyle, op. cit. 28Cf. Hoover, American Individualism. ing more in the field of individual liberty remains to be secured. Thus the framers of the early state constitutions were at the same time revolting against certain laws of England 29 and inserting in their own fundamental laws provisions guaranteeing the continued existence of the natural rights for which they were fighting.30 The best illustration of the conservative use of the concept of natural law in this country has been in connection with the development and extension of the practice of judicial review of legislation.31 The schools of jurists that have held sway during the period in which we may be said to have had any jurists at all have been historical and analytical. They have, with rare exceptions, 32 contended that it is no part of the judge's work to consider factors of utility or social advantage. Rather have they, when they could discover no accepted rule of law upon which to base a decision, relied upon, notions of justice or reason, that is they have employed the concept of a law of nature although another name has usually been employed.33 A few examples will serve to make this clear. In Loan Association v. Topeka3 the Supreme Court of the United States held that "It must be conceded that there are rights in every free government beyond the control of the state," and in Holden v. Hardy, 35 "It is sufficient to say that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard." The ancient common law term 'reason' has been used extensively in certain kinds of 29Cf. McIlwain, The American Revolution. 30 Holcombe, State Government in the United States, ch. ii. 31 Haines, op. cit. Most of the cases here cited or referred to are discussed in this valuable article. 32 For a very exceptional statement of the part played by economic interest in the growth of the common law, see Holmes, The Common Law, pp. 35-36. 33 On the use of the term reason and others of a similar nature, see Haines, op. cit., especially pp. 621, 652. 3420 Wallace, 655, 662 (1874). 35169 U. S. 366, 389 (1897). Thus cases, particularly with regard to the police power.36 as early as 1819 the Court held that arbitrary legislation is clearly contrary to all standards of reasonableness, and hence is not the law of the land.37 Plessy v. Ferguson 38 determined that "every exercise of the police power must be reasonable." That there is no clearly defined or universally accepted standard of reasonableness deters the courts not at all. Nor have the state courts been at all hesitant in taking the same attitude toward the constitutionality of legislation. In Barbour v. Louisville Board of Trade39 the Supreme Court of Kentucky held that it is possible for the court to declare unconstitutional an act of the legislature contrary to natural justice, as, for example, an act making a man a judge in his own case. The Supreme Court of Massachusetts has held that a statute which violates the fundamental rights of man may be unconstitutional, although it violates no specific provision of the constitution.40 In a Georgia case justice under natural law is referred to as the basis for holding a statute unconstitutional, although the court also brought in the doctrine of due process of law as a support.41 Justice Brewer, in a Kansas decision, declared that in determining the limitations upon the legislature the court must look first to "essential truths, those axioms of civil and political liberty." The concepts of due process of law and liberty of contract as developed and applied by the courts have made possible many judicial vetoes on the grounds of justice, reason or natural right.2 In fact, if not in legal theory, the func 36 See Freund, The Police Power, especially Sec. 63. 37 Bank of Columbia v. Okey, 4 Wheaton 235, 244 (1819). 38163 U. S., 537. 3982 Kentucky, 645, 648 (1884). 40Commonwealth v. Perry, 155 Mass. 117 (1871). Cf. Spann v. City of Dallas, 235 S. W. 513. 41 Pavesich v. Insurance Company, 122 Georgia, 190 (1904). 42 See Pound, "Liberty of Contract," 18 Yale Law Journal, p. 454; Hand, "Due Process of Law and the Eight Hour Day," 21 Harvard Law Review, p. 495; Hough, "Due Process of Law Today," 32 Harvard Law Review, p. 218; McGehee, Due Process of Law. tion of applying such doctrines has given to the courts a very influential sort of political criticism. As Professor Corwin has put it, "the modern concept of due process of law is not a legal concept at all; it comprises nothing more or less than a roving commission to judges to sink whatever legislative craft may appear to them to be, from the standpoint of vested interests, of a piratical tendency."43 The theory upon which such cases has been decided has little reference to the solution of the present problems of an industrial democracy. It is a theory of right, not of utility. Principles which were put in the early constitutions to serve as protection against what were considered autocratic rulers have not only been applied as against the representatives of the people but have been given an even wider meaning than they formerly enjoyed. If a law would have been contrary to the prevailing conception of the natural liberties of individuals a century or a century and a half ago, in a period of revolutionary or frontier democracy, it seems entirely reasonable to the judicial mind that the law would be dangerous today, and if dangerous, unconstitutional. Wherever possible the grounds of unconstitutionality are asserted to be a provision or provisions of the constitution, even where, as in the case of due process, this involves a decidedly strained interpretation of the meaning of that provision; where no such provision is available the law of nature or of reason is appealed to. Nothing is more certain about the nature of this concept as it has been used in our political thought than that it belies its name and its reputation. The law of nature is not an infallible guide; it is a flexible instrument. The service of many masters and the playing of many parts has been its lot. It has been employed to bolster up claims for new rights and to strengthen old standards of right. It has been used to help in building certain institutions, only to have them torn down by a new generation who assert that they are contrary to their ideas of natural law, and still later has 43 American Political Science Review, May, 1912. |