Locke said that like Aristotle, man is different from other forms of life because, among other things, he has the unique ability to reason. As such, men can discover natural law and distinguish it from man-made law—between that which is naturally just and legally just. Indeed, the late scholar and philosopher Shirley Robin Letwin, author of On the History of the Idea of Law (2005), observed that Aristotle described “the twofold character of law . . . which he calls ‘particular’ and ‘universal.’ Particular law ‘is that which each community lays down and applies to its own members’; universal law ‘is the law of nature.’ Because ‘everyone to some extent divines’ this ‘law of nature,’ we can know that it ‘really is.’ And because of this divine element in human nature, there is a ‘natural justice and injustice common to all, even to those who have no association or covenant with each other.’ ”14
Why is this important? Remember the key language from the Declaration of Independence about “the Laws of Nature and of Nature’s God”—divine and eternal law as distinguished from the rule of man, or in the Founders’ case, the rule of one man—a monarch.
Let us break down the Declaration’s terminology further. “We hold these truths to be self-evident” (knowable through right reason), “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights” (the divine law of nature obtains everywhere and applies to all), “that among these are Life, Liberty and the pursuit of Happiness” (the right to live freely and happily).
Also referenced in Jefferson’s letter is Cicero (106–43 BC), an iconic Roman scholar, philosopher, and statesman. As Cicero explained, justice—that is, truth and virtue—is intrinsic to the state of nature: “If the principles of Justice were founded on the decrees of peoples, the edicts of princes, or the decisions of judges, then Justice would sanction robbery and adultery and forgery of wills, in case these acts were approved by the votes or decrees of the populace. But if so great a power belongs to the decisions and decrees of fools that the laws of Nature can be changed by their votes, then why do they not ordain that what is bad and baneful shall be considered good and salutary? Or, if a law can make Justice out of Injustice, can it not also make good out of bad? But in fact we can perceive the difference between good laws and bad by referring them to no other standard than Nature: indeed, it is not merely Justice and Injustice which are distinguished by Nature, but also and without exception things which are honorable and dishonorable. For since an intelligence common to us all makes things known to us and formulates them in our minds, honorable actions are ascribed by us to virtue, and dishonorable actions are matters of opinion, and not fixed by Nature.”15
Therefore, Cicero argues that the source of justice, truth, virtue, etc.—in a word, morality—is natural law. It is permanent and supreme, unalterable by man or his institutions. Cicero wrote: “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. . . . It is a sin to try to alter this law, nor is it allowable to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and at all times, and there will be one master and ruler, that is God, over us all, for he is the author of this law, its promulgator and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst punishment.”16
For contemporary readers, no doubt the least-known philosopher among those mentioned by Jefferson is Algernon Sidney (1623–1683). However, to Jefferson, John Adams, and numerous others during the American Revolutionary period, Sidney’s treatise, Discourses Concerning Government (1680), was an essential work for which Sidney, among other reasons, was executed by King Charles II. Sidney wrote Discourses as a response to the proposition that the absolute rule of monarchs is by divine right.17 A contemporary of Locke, Sidney wrote: “The common Notions of Liberty are not from School Divines, but from Nature. . . .” He added: “Tis hard to comprehend how one man can come to be master of many, equal to himself in right, unless it be by consent or by force. . . . No right can come by conquest, unless there were a right of making that conquest. . . .” In the end, he explained, “[t]o depend upon the Will of a Man is Slavery.”18
Like others before him, Sidney believed that man uncovers the state of nature and natural law through reason. “Man’s natural love to Liberty is temper’d by Reason, which originally is his Nature.” “The truth is, man is hereunto led by reason which is his nature. Everyone sees they cannot well live asunder, nor many together, without some rule to which all must submit. This submission is a restraint of liberty, but could be of no effect as to the good intended, unless it were general; nor general, unless it were natural.”19
It is important to emphasize that natural law provides a moral compass or order—justice, virtue, truth, prudence, etc.—a fundamental, universal, everlasting harmony of mores that transcend human law. Through natural law discovered by right reason, man knows right from wrong and good from bad. Moreover, that which is naturally just may not be legally just. Again, we turn to Locke, given his stature during the American founding. He wrote that “without showing a law that commands or forbids [. . .], moral goodness will be but an empty sound, and those actions which the schools here call virtues or vices, may by the same authority be called by contrary names in another country; and if these be nothing more than their decisions and determinations in the case, they will be still nevertheless indifferent as to any man’s practice, which will by such kind of determinations be under no obligation to observe them.”20
Locke said, as have others, that natural law is forever and enduring, and man-made law, which may vary from place to place and time to time, clearly is not. That which is just and virtuous is just and virtuous regardless of the passage of laws or time. Indeed, as Cicero explained earlier, even just man-made laws and just republics are just because they spring from the principle of or reflect the essence of natural law. Natural law is superior to, and precedes, political and governmental institutions. For example, the Golden Rule—“Do unto others as you would have them do unto you”—is a universally recognized moral ethic. It is the Golden Rule because it is true and just.
Again, and importantly, this was the view of practically all of America’s Founders. For example, in February 1775, Alexander Hamilton, later Jefferson’s rival and frequent nemesis, wrote a lengthy and significant pamphlet, which was turned into a newspaper essay—The Farmer Refuted, &c—excoriating a particularly nasty objector to the growing American rebellion against the British Crown. Among other things, Hamilton stressed the natural rights of the individual: “Upon this [natural] law, depend the natural rights of mankind, the supreme being gave existence to man, together with the means of preserving and beatifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty, and personal safety. Hence, 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; except that which arose from the ties of consanguinity. Hence also, the origin of all civil government, justly established, must be a voluntary compact, between the rulers and the ruled; and must be liable to such limitations, as are necessary for the security of the absolute rights of the latter; for what original title can any man or set of men have, to govern others, except their own consent? To usurp dominion over a people, in their own despite, or to grasp at a more extensive power than they are willing to entrust, is to violate that law of nature, which gi
ves every man a right to his personal liberty; and can, therefore, confer no obligation to obedience.”21
Throughout the discussion of natural law, there are obviously repeated references by philosophers, thinkers, and the Founders to God, divine providence, an eternal norm, etc. Turning again to the language of the Declaration of Independence, it states, in part, that all men are “endowed by their Creator with certain unalienable rights . . .” There is an appeal to “the Supreme Judge of the world” and “a firm reliance on the protection of Divine Providence.”22
In Liberty and Tyranny, I ask and answer the question that is also relevant here: “Is it possible that there is no Natural Law and man can know moral and unalienable rights from his own reasoning, unaided by the supernatural or God? There are, of course, those who argue this case—including the Atheist and others who attempt to distinguish Natural Law from Divine Providence. It is not the view adopted by the Founders. This position would, it seems, lead man to arbitrarily create his own morality and rights, or create his own arbitrary morality and rights—right and wrong, just and unjust, good and bad, would be relative concepts susceptible to circumstantial applications. Moreover, by what justification would “Life, Liberty, and the pursuit of Happiness” be “unalienable Rights” if there is no Natural Law, since reason alone cannot make them inviolable? What then is Natural Law if its origin is unknown or rejected? It is nothing more than a human construct. An individual may benefit from the moral order and unalienable rights around which society functions while rejecting their Divine origin. But the civil society cannot organize itself that way. It would become unstable and vulnerable to anarchy and tyranny, imperiling all within it, especially the individual. The abandonment of Natural Law is the adoption of tyranny in one form or another, because there is no humane or benevolent alternative to Natural Law.”23
“Some resist the idea of Natural Law’s relationship to Divine Providence, for they fear it leads to intolerance or even theocracy. They have that backwards. If man is ‘endowed by the Creator with certain unalienable rights,’ he is endowed with these rights no matter his religion or whether he has allegiance to any religion.”24 Nonetheless, although America has deep religious roots, and the Founders were overwhelming religious men—albeit of varying religious intensity and Christian denominations—the Declaration of Independence and most of the arguments undergirding it were not per se expositions or assertions of a particular theological fidelity.
Many decades after America’s founding, Abraham Lincoln relied heavily on the Declaration of Independence and the principles embedded in it to provide the essential moral justifications for liberty, equality, and, of course, ending slavery—the natural and equal rights of the individual. Lincoln revered the Declaration and repeatedly quoted and referenced it in his speeches, debates, and writings before and after he became president. He used it again and again as a cudgel against the proslavery forces and slavery accommodationists. For example, on August 17, 1858, in Lewistown, Illinois, Lincoln delivered a powerful speech during his campaign for the U.S. Senate against Stephen A. Douglas, in which he verbally brandished the Declaration in his condemnation of slavery. Lincoln declared:
Now, if slavery had been a good thing, would the Fathers of the Republic have taken a step calculated to diminish its beneficent influences among themselves, and snatch the boon wholly from their posterity? These communities [the colonies], by their representatives in old Independence Hall, said to the whole world of men: “We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness.” This was their majestic interpretation of the economy of the Universe. This was their lofty, and wise, and noble understanding of the justice of the Creator to His creatures. Yes, gentlemen, to all His creatures, to the whole great family of man.
In their enlightened belief, nothing stamped with the Divine image and likeness was sent into the world to be trodden on, and degraded, and imbruted by its fellows. They grasped not only the whole race of man then living, but they reached forward and seized upon the farthest posterity. They erected a beacon to guide their children and their children’s children, and the countless myriads who should inhabit the earth in other ages. Wise statesmen as they were, they knew the tendency of prosperity to breed tyrants, and so they established these great self-evident truths, that when in the distant future some man, some faction, some interest should set up the doctrine that none but rich men, or none but white men, were entitled to life, liberty and the pursuit of happiness, their posterity might look up again to the Declaration of Independence and take course to renew the battle which their fathers began—so that truth, and justice, and mercy, and all the humane and Christian virtues might not be extinguished from the land; so that no man would hereafter dare to limit and circumscribe the great principles on which the temple of liberty was built.
Now, my countrymen, if you have been taught doctrines conflicting with the great landmarks of the Declaration of Independence; if you have listened to the suggestions which would take away from it grandeur, and mutilate the fair symmetry of its proportions; if you have been inclined to believe that all men are not created equal in those inalienable rights enumerated by our chart of liberty, let me entreat you to come back. Return to the fountain whose waters spring close by the blood of the Revolution. Think nothing of me—take no thought for the political fate of any man whomsoever—but come back to the truths that are in the Declaration of Independence.
You may do anything with me you choose, if you will but heed these sacred principles. You may not only defeat me for the Senate, but you may take me and put me to death. While pretending no indifference to earthly honors, I do claim to be actuated in this contest by something higher than an anxiety for office. I charge you to drop every paltry and insignificant thought for any man’s success. It is nothing; I am nothing; Judge Douglas is nothing. But do not destroy that immortal emblem of Humanity, the Declaration of American Independence.25
For Lincoln, the Declaration was a definitive statement about the spirit of the individual, morality, and humanity. Moreover, he considered it the essence of America’s exceptionalism and extraordinary political system.
This brings us to the next step in understanding the American heritage—that is, natural rights in the context of natural law and the resulting civil society. Sir William Blackstone (1723–1780), among the most widely admired legal scholars often referred to by the Founders, wrote of natural law as “the foundation of what we call ethics . . . demonstrating that this or that action tends to man’s real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destruction of man’s real happiness, and therefore that the law of nature forbids it.”26 He added: “The principal aim of society is to protect individuals, in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved, in peace, without that mutual assistance, and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws, is to maintain and regulate these absolute rights of individuals.”27
The late constitutional scholar and professor Chester James Antieau explained that Thomas Jefferson and his contemporaries also understood that in a civil society there are, by reason and necessity, natural law limitations on the exercise of natural rights. Jefferson said: “No man has a natural right to commit aggression on the equal rights of another.” He added that “this is all from which the law ought to restrain him.”28 Jefferson also wrote: “Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others.”29 Again, man has the ability, through right reason, to discern what is just, true, virtuous, and moral. But man is imperfect, and if he rejects reason for passion, irrationality, or worse,
he is not free to harm or thwart the natural rights of another. Thus, as Antieau observed, “Natural law limitations upon the exercise of natural rights embrace in principle (1) consideration for the common good, (2) respect for the equal rights of others, and (3) realization that when the basis of the right is absent, the exercise of the claimed right can properly be denied.”30
Therefore, natural law and the civil society or social order are not at odds with the individual’s liberty but in harmony with it—each requiring the other.
The prominent British statesman and scholar Edmund Burke (1729–1797) emphasized another fundamental characteristic of the civil society—valuing human experience, tradition, and custom. Burke was outspoken in his sympathy for the American colonists and condemned the oppressions of the British monarchy that led to the American Revolution. However, he was also repulsed by the French Revolution. Burke saw the latter as a revolt led by elites and anarchists who had as their purpose not only redress against French rule but the utter destruction of French society, traditions, and customs. Burke explained: “There is a manifest, marked distinction, which ill men with ill designs, or weak men incapable of any design, will constantly be confounding,—that is, a marked distinction between change and reformation. The former alters the substance of the objects themselves, and gets rid of all their essential good as well as of all the accidental evil annexed to them. Change is novelty; and whether it is to operate any one of the effects of reformation at all, or whether it may not contradict the very principle upon which reformation is desired, cannot be known beforehand. Reform is not change in substance or in the primary modification of the object, but a direct application of a remedy to the grievance complained of. So far as that is removed, all is sure. It stops there; and if it fails, the substance which underwent the operation, at the very worst, is but where it was.”31 Burke added: “By this unprincipled facility of changing the state as often, and as much, and in as many ways, as there are floating fancies or fashions, the whole chain of continuity of the commonwealth would be broken. No one generation could link with the other. Men would become little better than the flies of a summer.”32