The Rule of Law and the Law of Nature

by Russell Hittinger

First Principles
August 26, 2010

The rule of law is essential to a free society. But is the rule of law self-standing, independent from any other standard or source? If not, upon what does it depend?

Russell Hittinger addresses these very questions in the following piece, which examines the influence of a “higher law” in the American experience, beyond the immediate civil society and its discourse.

The prominence of higher law thinking at the time of the American founding is too well known to warrant more than a brief comment. Whatever may have been Thomas Jefferson’s theological convictions, he understood well enough that the “Laws of Nature” needed to be situated in reference to “Nature’s God.” Similarly, Alexander Hamilton asserted that the “Sacred Rights of Mankind 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.” From every American pulpit, and in every legislative assembly, the higher law was a familiar coin of discourse. Within a generation of the American founding, the higher law doctrine was prominent in the debate over slavery, especially after the Fugitive Slave Act (1850). Interestingly, most of the federal judges who believed that slavery violates natural law did not use the higher law doctrine as an excuse for usurping constitutional authority.

n his dissenting opinion in Scott v. Sandford (1857), Justice McLean reminded the majority that the much-vexed jurisdictional question of congressional authority over the territories did not entitle the Court to claim interpretive authority over the natural law. Chief Justice Taney had contended in the majority opinion that the appeal of the Declaration of Independence to “Nature’s God” should be interpreted in light of public opinion, thereby rendering the natural law inferior to human judgment. To the contrary, McLean responded, the slave “bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence.” Although the Constitution gives the Court no authority to change the positive law of the Constitution, by the same token it does not hand over the higher law to the Court’s estimation of public opinion.

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