The foolishness of various historical readings of our constitutional tradition as a story of oppression must be combated with truth. As with so much else, we have a great deal of work to do before we can recover the knowledge, let alone the wisdom, of the forebears who built the edifice we have spent generations tearing down.
Before finally agreeing to write The Roots of American Order, Russell Kirk several times remarked that there was no need for a book tracing the historical underpinnings of our civil social order. After all, he said, every child learned the story of America’s ordered liberty and its origins in grammar school. But Kirk relented, and that book became one of the most important of Kirk’s—or anyone else’s written in the twentieth century. Americans as a people had, as Kirk came to realize, forgotten their debts to Jerusalem, Athens, Rome, and London. Indeed, we had forgotten that it was even a good idea to remember one’s debts at all. Thus, Roots is a crucial act of recovery, recapturing an understanding of ordered liberty, its development and its necessarily traditional character for those in our and succeeding generations. Yet, in a better world Kirk would not have had to write the book at all, and might have concentrated on other tasks that assumed the knowledge he imparted therein.
I was reminded of the events leading up to the writing of Roots recently while rereading Edward S. Corwin’s slim, masterful volume The Higher Law Background of American Constitutional Law. This extended essay, made available to contemporary readers by Liberty Fund, originally appeared in the Harvard Law Review in 1928-29, proving, among other things, that rational argument once had a place even at Harvard Law School. Like Roots, The Higher Law Background sums up a great deal of material in an accessible fashion, providing a powerful narrative regarding the nature and growth, in this case, of the natural law tradition and its role in shaping the generation that wrote our Constitution. But, whereas Kirk’s book was itself an act of recovery, Corwin’s, written decades before, still assumed the kind of knowledge Kirk felt constrained to provide. Credit for the act of recovery goes to Liberty Fund, who chose to reprint it in book form.
What struck me more than anything else on rereading The Higher Law Background was how much American academics have forgotten and only recently and imperfectly recovered of the knowledge Corwin so easily summarized and built upon. Corwin’s theme, the nature of America’s constitutional tradition, is essential, and the thrust of his argument relatively simple. He spends most of his opening section discussing Roman law and Cicero in particular. That famous orator and defender of the ancient Roman Republic set forth a lasting vision of human nature and the social order rooted in the divine origin and plan of our existence. The idea, and the reality, of a law above human law have been central to the development of human liberty and the salvation of that liberty from mere license.
Cicero’s ideas, well and lucidly related by Corwin, influenced the development of natural law thought ever after. But that thought has not been only philosophical; it also has been juridical. That is, from at least the time of Cicero, through the Institutes of Justinian which solidified natural law tradition in legal practice during the late Empire, and into the Middle Ages, there developed also a concrete practice of legal decision-making rooted in “common right and reason.” Judges, particularly in England, developed habits and built upon maxims of law set out in the Institutes to protect the reasonable expectations of people who, in their daily lives, sought freedom from injury, injustice, and oppression. Mostly aimed at enforcing customary relations and rights of property and contract, these common law courts also gave rise to legal doctrines and practices protecting people from despotism. Indeed, it was in England, where the common law was strongest and most subject to reasoned analysis, that common right and reason were most effectively marshaled against would-be tyrants.
The greatest and most substantial flowering of this juridical practice was Magna Carta—the “Great Charter” of England whereby King John and his successors were bound by sacred covenant to abide by the existing law of the land and accord to their people their customary rights. Often ignored or violated over ensuing centuries, this document nonetheless was reaffirmed over thirty times and by the seventeenth century had been restored to prominence by the great jurist Edward Coke. Coke’s arguments for the supremacy of law over even kings put his very life at risk, but also, as Corwin relates, played an essential role in making the natural law something more than a vague set of principles to which people might appeal in the face of overwhelming power.
Magna Carta became a declaration of rights for the English people, and also a founding document for the British Constitution in that, over time, it came to support concrete rights of due process and the ascendancy of Parliamentary over royal power. In time Parliament would claim an absolute sovereignty itself dangerous to liberty, and as Corwin notes, in violation of the natural law which sets bounds to all human powers. But by this time the constitutional tradition spawned in England had made its way to the American colonies, where it joined with Calvinist practices of forging covenants by which peoples agreed to live together in peace and good order. Corwin ends his essay with a brief discussion of the development of natural law doctrine and practice in America, particularly through the influence of John Locke and William Blackstone. In Corwin’s eyes, these last English expositors of the natural law brought to America a particular concern with individual rights and, in Blackstone’s case, an unfortunate acceptance of the necessity of absolute sovereignty, or unbridled power, in some one, central place in any government. It was the role of judicial review, according to Corwin, to cabin this power, to tame it through the consistent application of natural law principles in legal practice.
One might quibble with parts of Corwin’s narrative. In particular, he overemphasizes the influence of John Locke in relation to Montesquieu and Scots of the common sense school. Moreover, subsequent scholarship by Philip Hamburger has shown that Corwin’s emphasis on “judicial review” would more accurately be phrased in the humbler terms of a judicial duty to uphold the law of the land. Yet, since Corwin’s work first appeared, shockingly little that is new has been discovered regarding our constitutional origins, while a great deal has been forgotten, and a great deal of nonsense has been propagated in the name of scholarship.
Indeed, much of the revisionist scholarship of the last several decades, which has painstakingly recovered an understanding of the importance of church law and conflicts among various religious and secular jurisdictions to the growth of rights, exists in summary form in Corwin’s essay. And the groundbreaking work of scholars regarding the role of Puritan Church covenants on American constitutionalism also exists, in summary form, in this small book. This is not to say that the later scholarship has been misdirected. Corwin’s summary view required support and expansion. More important, the foolishness of various “historical” readings of our constitutional tradition as a story of oppression by one race, or sex, or class on others must be combated with truth. Yet we have, if anything, fallen behind Corwin in our understanding of the origins and nature of our constitutional tradition and its grounding in the natural law.
Our contemporary culture, with its maniacal commitment to individual choice without consequences rests on a Will to Ignorance regarding the nature of the person and the historical origins of the social order, in the ruins of which we live. As with so much else, we have a great deal of work to do before we can recover the knowledge, let alone the wisdom, of the forebears who built the edifice we have spent generations tearing down. Books like Corwin’s are a necessary means to that recovery.
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The featured image, uploaded by Antony McCallum, is a photograph of the Magna Carta Memorial at Runnymede, designed by Sir Edward Maufe and erected by the American Bar Association in 1957. This file is licensed under the Creative Commons Attribution-Share Alike 4.0 International license, courtesy of Wikimedia Commons.