The bicentennials of the U.S. Constitution and the Bill of Rights, celebrated from 1987 to 1992, stirred a simmering debate on fundamental law and human rights to a fast boil. The notion of whether higher, or natural, law is implicit in human rights and written law has for centuries been the subject of heated discussion, but a spate of books linked to the bicentennials has expanded the dialogue seemingly by orders of magnitude.

Edward Corwin, himself a disbeliever in immutable higher law, has nevertheless been the most eloquent expositor of the higher law background of the American Constitution. What is affirmed in the doctrine of higher law is that there are, he said, "certain principles of right and justice which are entitled to prevail of their own intrinsic excellence, altogether regardless of the attitude of those who wield the physical resources of the community." Made by no human hands, these principles "are eternal and immutable," while "human laws are, when entitled to obedience save as to matter indifferent, merely a record or transcript, and their enactment an act not of will or power but one of discovery and declaration."1

Corwin further observed that "in the American written Constitution higher law at last attained a form which made possible the attribution to it of an entirely new sort of validity, the validity of a statute emanating from the sovereign people." He added that the Constitution, as an expression of higher law, has served as "a recourse for individuals," a recourse implemented by the exercise of reason on the part of the Supreme Court justices in judicial review.2

Grounded in the will of the people, the Constitution points beyond its source to the still higher law that it strives to emulate. As Paul Weiss has pointed out in his inimitable commentary on the preamble to the Constitution, a list of reasons is offered for why the people ordained and established the Constitution .3 These reasons are introduced by the phrase in order to, and they state the objectives the people intended to promote by means of the Constitution. These objectives are:

The objectives, moreover, are intergenerational. The blessings of liberty, it is declared, are intended to be secured "to ourselves and our Posterity" Consideration of these objectives or goals modifies the interpretation of the Constitution as the mere determination of popular will at a particular time. Instead, the exercise of popular will is now perceived to be situated within the framework of a higher law rooted in eternal, immutable principles extending over generations of the people. The people explicitly acknowledge, in a preamble that introduces the Constitution they established, the ultimate goals they seek to realize as well as the norms by which their achievement may be evaluated.

The normative dimension of the Constitution is reinforced by the Bill of Rights and other amendments expressing rights of due process and equal protection of the laws. Indeed, the very idea of rights conveys a sense of obligation and imperativeness. A right is an ought that no is should defy.

THE INFLUENCE OF JOHN LOCKE'S THEORY OF NATURAL LAW

The very conception of higher law may be traced back to the ancient Stoic conception of natural law in Greek and Roman civilization and to the Judeo-Christian respect for divine law, secularized by the Enlightenment philosophers in conformity with their rationalist and empiricist epistemologies. Scholars have seized the opportunity provided by the bicentennial celebrations to explore the philosophical background of the Constitution, and in doing so, to uncover its normative dimensions.5 Among these studies, the books by David Richards, Morton White, and Graham Walker are noteworthy.

The basic thesis of Richards' Foundations of American Constitutionalism centers on John Locke's political theory.6 Richards views the Constitution as essentially a contract among the people to establish a government primarily for the protection of their natural rights, both enumerated and reserved (unenumerated). Accordingly, the framers, in establishing this Lockean contract, drew upon philosophy, the interpretations of the histories of republics, studies of comparative government, and theories of political psychology treated in the writings of Machiavelli, Harrington, Montesquieu, and Hume.

Richards' return to the work of Locke, who occupied the center of discussion about the American Revolution and the Constitution a half-century ago, stands apart from the recent work that has drifted away from the English philosopher to a long line of other thinkers-Hutcheson, Burlamaqui, Hume, and those of the Scottish Enlightenment.

The return to Locke should be tempered by the recognition that the Constitution is not simply a compact among the American people to establish a government to secure liberty and property. Viewed as a contract, the Constitution consists of three layers. First is the compact between the people of each state in order to form a state. Next is the compact between the states, originally embodied in the Articles of Confederation and ultimately assimilated or replaced in the federal Constitution. Third is the compact between the people establishing the federal Constitution. The American political situation, therefore, markedly deviates from the simple Lockean model of a political compact, however useful such a model may be in understanding the moral bases for claims of individual rights against governmental intrusions at the local, state, and federal levels.

Further, the Lockean model is wholly inadequate in regard to all the objectives for which the people established the Constitution, objectives stated in the preamble. Although securing the blessings of liberty is mentioned, it is qualified by the phrase "to ourselves and our Posterity." Aims equal in value are forming "a more perfect union," insuring "domestic tranquillity," providing for "the common defense," and "promoting the general welfare."

A strict Lockean should be disappointed that the preamble does not explicitly mention property, although he might console himself by reflecting that surely "the blessings of liberty' encompass property. The normative import of the Constitution transcends the boundaries of the Lockean realm of natural rights.

The framers read widely and pondered deeply in philosophy. Richards correctly portrays them as humanists par excellence. This is not to say that they were devoid of faults, nor that as students of history and philosophy they were abject disciples of their European mentors. On the contrary, they exhibited the critical and creative capacities of intellect to build anew, to innovate. At the same time, it should be acknowledged, the Founding Fathers were not in total agreement with each other. Often they failed to rise above the partisan aspects of their political situations, although, to their lasting credit, they grasped the importance of compromise in the implementation of theoretical principles.

The case of Benjamin Franklin is outstanding. A confirmed unicameralist, he nonetheless introduced at the convention the resolution that provided for a bicameral national legislature: a Senate in which the states would have equal representation and a House of Representatives where representation would vary proportionally among the states according to population. This "great compromise," which overcame in the convention the struggle between the large states and the small, is nowhere better explained than in Franklin's own plain talk. As Franklin said,

Compromise might seem remote from philosophical theorizing and the absolute prescriptiveness of higher law; yet, at Philadelphia in 1787, it was the instrument of fundamental change toward the realization of the highest objectives sought by the people and articulated in the preamble.

To mention two other founders whose fundamental differences concerning the character of republican government are blurred by Richards' commentary, which is narrowly oriented toward an emphatically Lockean standpoint: John Adams and James Madison stand out as statesmen and political theorists who, despite their occupancy of common ground in 1787, yet faced in opposite directions.

A classical republican who stressed civic virtue and esteemed political participation to be the highest realization of human nature, Adams admired the British constitution as a mixed polity, with orders of monarchical, aristocratic, and democratic men brought into balance. He envisaged its replication in America.

On the other hand, Madison looked forward to a modern republicanism in which men could be free of the burdens of full-scale political participation in order to realize their own interests. For Madison, the stability of republican government pivoted on a balance of interest groups, and not on a balance of fixed orders of men.

Ironically, Adams, who owned no slaves, looked backward, while Madison, who lived off his slaves despite his abhorrence of slavery, looked forward, foreshadowing developments in American politics long after his time. The nostalgic archaism of Adams’ A Defense of the Constitution of Government in the United States of America is absent from the brilliant political realism of Madison’s Federalist 10. Adams epitomized classical republicanism; Madison begot modern republicanism.

Reflections on Richards' return to Locke should neither obscure the founders' quest for some conception of higher law compatible with their partisan differences nor their readiness to compromise. They were also nourished by philosophers other than Locke. In this regard, the works of Morton White are helpful. They are helpful, too, in illustrating the cumulative continuity of scholarship from the bicentennial celebration of the American Revolution in the 1970s to the more recent bicentennials of the Constitution and the Bill of Rights.

Before the bicentennial celebration of the American Revolution, Carl Becker's work, The Declaration of Independence, provided the unchallenged interpretation of Thomas Jefferson's thinking as he composed the document that he himself described as "an expression of the American mind."First published in 1922, Becker’s work distinguished two strands of political philosophy in the Declaration of Independence. The first is the general theory of government introduced by the phrase "We hold these truths to be self-evident." It contains the assertions of human equality and of inalienable rights to "life, liberty, and the pursuit of happiness." It also affirms the thesis that government is designed to secure these rights and rests on popular consent, and that, if a government fails in this regard, the people have the right of revolution, to overthrow the existing government and establish a new government.

The second strand of political theory in the Declaration is a specific theory of the British Empire. Implicit and adumbrated in all the charges the Declaration hurls at King George III, this theory portrays the British Empire "as a confederation of free peoples submitting themselves to the same king by an original compact voluntarily entered into, and terminable, in the case of any member, at the will of the people concerned."8

Although the specific theory of the British Empire is the distinctive contribution of the American revolutionaries to political thought, a theory that anticipated by nearly a century and a half the plan of the British Commonwealth of Nations, it is the general theory of government that has been in the forefront of scholarly commentary. Becker maintained that this general political philosophy was taken from John Locke. As Becker said, "The Declaration, in its form, in its phraseology, follows closely certain sentences in Locke's second treatise on government," and "Jefferson copied Locke."9 Hence, as the bicentennial of the American Revolution approached, John Locke was entrenched as the author of American political theory in general.

Locke's legacy was twofold: It contained a theory of natural rights and a moral epistemology for knowing these rights. The American revolutionaries seemingly subscribed to both parts of the Lockean theory. On the question of moral epistemology, some, like Locke, were indisputably rationalists who found moral knowledge to be similar to mathematical knowledge. According to these thinkers, self-evident truths are grasped by reason; they are the axioms for further inferences. Jefferson's appeal in the Declaration, then, could be construed as this sort of Lockean rationalism.

The rationalist moral epistemology, moreover, echoes in the writings of other American patriots-most notably perhaps in Federalist 31 by Alexander Hamilton. Here, Hamilton places the maxims of ethics and politics among "certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind."10

THE ROLE OF FRANCIS HUTCHESON AND DAVID HUME

Locke's preeminence as the philosopher influencing Jefferson's composition of the Declaration of Independence was brought into question by Morton White in 1972.11 White's construal of Jefferson underscored the influence of the moral-sense theory derived from the Scottish philosopher Francis Hutcheson.

Gary Wills followed White's lead. In his book Inventing America, Wills finds that the term self-evident in the Lockean sense does not suffice to establish the moral and political claims concerning rights that Jefferson affirmed in the Declaration. Wills attributes the major influence on Jefferson to Hutcheson's moral-sense doctrine.12

Meanwhile, White has had second thoughts about his 1972 interpretation, confessing that he had "exaggerated the extent to which some of Jefferson's references to the moral sense signified an abandonment of moral rationalism."13 In his book The Philosophy of the American Revolution, White maintains that the Declaration uses self-evident in the Lockean sense of moral rationalism but finds in the legal philosophy of Jean-Jacques Burlamaqui the clue to the interpretation of Jefferson's intentions respecting the content of the rights.

Hence, both White and Wills undermined the scholarly consensus that accorded Locke central place as the philosopher behind early American political ideology-White replacing the English philosopher with the Swiss Burlamaqui and Wills with the Scottish Hutcheson.

Despite scholars' quarrels, a major element of the higher law tradition consists in rights and in the claim that rights are paramount, hovering over whatever political institutions are devised, as the inspiration for actions, the standards to measure results, and the ideals to which humans aspire. Thus, rights comprise a significant part of the normative dimension of the Constitution.

In Philosophy, "The Federalist," and the Constitution, Morton White resumes his investigations into the philosophical background of early American political thought. 14 Shifting from the Declaration of Independence to the Constitution and, in particular, to the Federalist Papers, he examines the statements of Publius, the pseudonymous author who masked the identities of Hamilton, Madison, and John Jay. Here, White brings to the very forefront the crucial role of David Hume in the formation of the political ideology of the Founding Fathers, especially Madison.

More than a generation ago, Douglas Adair and Charles Hendel had independently sought to restore Hume to his rightful place as an influence on the Founding Fathers. 15 Indeed, Gary Wills dedicated his study of the Federalist Papers to Adair.16 But it is White's work that completes the job of restoring Hume, not only by detailed analyses of Publius' statements that wring out of them their philosophic content but also by explications of the general philosophical principles involved. The framers pondered both history and philosophy, and Hume was preeminent in both disciplines.

Hume's psychological theories of moral judgment and moral character, as well as his conceptions of politicians, factions, and political institutions, informed the eighteenth-century mind whenever it reflected on the facts of history and the motivation of individuals to discover empirical generalizations or maxims. While lacking the degree of certainty attached to axioms, or self-evident truths, these maxims nonetheless were considered to be on the level of empirical generalization definitory of natural laws. Whereas the conception of higher law embracing a natural rights doctrine, buttressed by a rationalist moral epistemology or by an appeal to moral sense, marks one strand, another conception of higher law as maxims of psychology and political history appears as a second strand of the founders' political ideology, a strand that, to paraphrase Hume, reduces politics to a science.

It should come as no surprise, then, that the founders of the American republic studied human psychology, moral and political thought, and history to discover the principles that would guide them. Such principles are expressed in their conceptions of human motivation and in the mechanism of checks and balances.

DEFINING HIGHER LAW

Higher law as normative for the Constitution is, therefore, twofold. The founders adhered to two conceptions of higher law in establishing the Constitution: one empirical and the other nonempirical.

The empirical conception of higher law signifies that, like physical nature, human nature and society in history display regularities of connections between facts that can be fruitfully generalized into maxims or scientific laws. When known, these prescribe what humans can and ought to do. Because of the nature of humankind, government is necessary. As Madison explained in Federalist 51,

Springing from the study of history and human psychology, the empirical maxim requires nothing less than government over the people. In addition, because of the nonempirical component of higher law requiring that the government be accountable to the people, a system of checks and balances, as long experience has demonstrated, must be embodied in the governmental system. To paraphrase Madison, ambition checks ambition, and interest is joined to rights. As A.O. Lovejoy has remarked, the Founding Fathers learned of this mechanism from the seventeenth-and eighteenth-century writers. Lovejoy has aptly dubbed checks and balances "the method of counterpoise-accomplishing desirable results by balancing harmful things against one another."18

At this juncture, the second conception of higher law surfaces-a conception that embraces "desirable things" and proscribes "harmful things." Here, normativeness governs the governors and the governed and transcends even the Constitution itself; it is nonempirical. The Founding Fathers invoked the existence of such nonempirical normativeness when they appealed to the laws of nature and of nature's God in the Declaration of Independence and professed the self-evident truths concerning human rights. It is reiterated by Madison, when, in justifying the Constitution even though it overthrew (perhaps illegally) the Articles of Confederation, he quoted the Declaration and declared: "In all great changes of established governments, forms ought to give way to substance . . . . A rigid adherence in such cases to the former would render nominal and nugatory the transcendent and precious right of the people to `abolish or alter their governments as to them shall seem most likely to effect their safety and happiness."'19

THE RELEVANCE OF SAINTS

The framers of the Constitution were, in sum, adherents to a higher law, higher indeed than any existing constitution could exemplify. Hence, they were disposed to validate their political judgments and plans by reference to an objective reality that had two levels: one amenable to empirical generalizations that possessed the force of scientific law and another ascending in normativeness to the absolute imperativeness of right. To explore the second level is to conduct an investigation into what Graham Walker has called "the moral foundations of constitutional thought."

The quest for these foundations hitherto has reached into the natural law tradition of Saint Thomas Aquinas, who was copied by Thomas Hooker, who was quoted by Locke, whom Jefferson plagiarized. But beyond these modern and medieval philosophers are the ancient Greco-Roman thinkers.

To the eighteenth-century mind, none of the latter outranked the Roman senator and Stoic philosopher Cicero. He was admired as the preeminent moral and political philosopher of antiquity. Cicero's definition of natural law was canonical for the founders' generation. The Roman philosopher had stated that "true law is right reason in agreement with nature; it is of universal application, unchanging and everlasting." Immutable and universal, it is "one eternal and unchangeable law . . . valid for all nations and all times." It is grounded in God, who "is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature."20

Cicero, moreover, was esteemed for his conception of the republic, a conception that linked the concepts of people, property, justice, and the common good. The Roman defined the republic--res publica, literally "public thing"-as "the property of a people," and he added: "A people is not any collection of human beings brought together in any sort of way, but an assemblage of people in large numbers associated in an agreement with respect to justice and a partnership for the common good."21

Walker examines critically the plethora of contemporary interpretations of the Constitution, dividing the field between nihilistic skeptics (like Robert Bork) and moral realists deficient in epistemological foundations (like Michael Moore). He then looks to Saint Augustine for the promised solution of the normative impasses he has presumably exposed. He applauds Saint Augustine's disputation of Cicero's definition of a republic,22 a definition that allegedly confuses justice in a moral sense with justice in a legal sense. In addition, Walker argues that Saint Augustine provides the moral foundations absent from but necessary to current constitutional conversation. He supports this thesis by fundamentally religious doctrines-namely, that human nature is vitiated (his word for corrupted) since the fall, and that the bonds of community are "love," not the mundane "public thing" a multitude of people share, as Cicero taught. While Walker's notions may be highly respected in some quarters, they seem alien to the sort of thinking that went into the framing of the American Constitution.

In explaining the constitutions of the state governments, John Adams struck a singularly secular note when he said that the men who erected these governments were not inspired by the gods but merely used "reason and the senses .. . . Neither the people, nor their conventions, committees, or sub-committees, considered legislation in any other light than ordinary arts and sciences, only as of more importance."23 As for the alleged depravity (or vitiation) of human nature, Adams took a less monkish, more sagacious view:

Madison echoed this judicious conception of human nature when, in Federalist 55, he said:

Walker's thesis that Saint Augustine offers the way out of the alleged normative impasses of constitutional conversation collapses in the face of the actual reasoning that went into the Constitution and that still goes on in the public arena. And Walker himself obliquely retreats from maintaining that a historical connection subsists between Saint Augustine and the Founding Fathers. He writes: "Whether the founding generation thought in Augustinian categories is a complex but separate question in itself."26

He never really answers the question, posing instead another question and terminating his thin book lamely. The closing paragraph reads:

Can Augustine's thought help decipher the incongruities of liberalism? I suspect it is capable of performing this larger task. Whether it is or not, I hope I have shown here how it illuminates the moral foundations of constitutional thought in contemporary liberal America.27

A DOCUMENT FOR THE FUTURE

The Constitution and the Bill of Rights, celebrated in the 1987 to 1992 bicentennials, have inspired fresh thinking about their significance. The celebrations have ended for now, although the interpretive theories and conceptions they aroused linger on.

The very idea of popular sovereignty, the democratic idea, is coupled with principles of right embracing liberty and welfare, yet directed toward the common good of union, defense, tranquillity, and justice. A magnificent edifice of law, with stories higher even than the Constitution, is manifest. It occupies and surpasses the local place and present moment.

Buttressed by reason and compromise, its stability often stressed, hopefully it will stand-with renovations no doubt-for another two hundred years and more.•

NOTES

1. Edward S. Corwin, The "Higher Law"Background ofAmerican Constitutional Law (Ithaca, N.Y.: Cornell University Press, 1955). 4-5.

2. Corwin, The Higher Law,"89.

3. Paul Weiss, Toward a Perfected State (Albany, N.Y: State University of New York, 1986), 279-315. See also Mortimer Adler, We Hold These Truths (New York: Macmillan Publishing Co., 1987),83-136.

4. Compare these objectives with the discussion in John Finnis, Natural Law and Natural Rights (Oxford, England: Clarendon Press, 1980), 85-90.

5. See Andrew Reek, "The Enlightenment in American Law I: The Declaration of Independence," The Review of Metaphysics, XLIV (1991), 549-73; "The Enlightenment in American Law II: The Constitution," The Review of Metaphysics, XLI (1991); and "The Enlightenment in American Law III: The Bill of Rights," The Review of Metaphysics, XLV (1991) 57-87.

6. David Richards, Foundations ofAmerican Constitutionalism (New York: Oxford University Press, 1989).

7. "Debates in the Federal Convention of 1787 as reported by James Madison," in Documents Illustrative of the Formation of the Union o(the American States (Washington, D.C.: Government Printing Office, 1927), 312-13.

8. Carl Becker, The Declaration o/' Independence (New York: Vintage Books, 1970), 130.

9. Becker, Declaration, 27, 79.

10. The Federalist Papers, Clinton Rossiter, ad. (New York: New American Library, 1961), 193.

11. Morton White, Science and Sentiment in America (New York: Oxford University Press, 1972), 55-70..

12. Gary Wills, Inventing America: Jefferson's Declaration of Independence (New York: Doubleday, 1978),181-92.

13. Morton White, The Philosophy of the American Revolution (New York: Oxford University Press, 1978), 101.

14. Morton White, Philosophy, "The Federalist," and the Constitution (New York: Oxford University Press, 1987).

15. See Trevor Colbourn, ed., Fame and the Founding Fathers: Essays by Douglas Adair (New York, 1974), and Charles W. Hendel, ed. with Introduction, David Hame's Political Essays (New York: The Liberal Arts Press, 1953).

16. Gary Wills, Explaining America: The Federalist (Garden City, NY: Doubleday, 1981).

17. The Federalist Papers, 321.

18. A.O. Lovejoy, Reflections on Human Nature (Baltimore, Md.: Johns Hopkins University Press, 1961), 33.'4.

19. The Federalist Papers, 252-53.

20. Cicero, De republica, III, xxii, in De republica, De legibus, Clinton Walker Keyes, trans. (New York: Lueb Classical Library, 1928), 211.

21. Cicero, De republica, xxv, 65.

22. Graham Walker, Moral Foundations of Constitutional Thought (Princeton, N.J.: Princeton University Press, 1990), 77.

23. John Adams, A Defence of the Constitutions of Government of the United States of America (New York: H. Gains, 1787), xvi. For discussion of this work in more detail, see Andrew Rack, "The Philosophical Background of the American Constitution(s)," in Marcus Singer, ed., American Philosophy (Cambridge, England: Cambridge University Press, 1987), 273-93.

24. Adams, A Defence of the Constitutions, 127.

25. The Federalist Papers, 346.

26. Walker, Moral Foundations, 167.

27. Walker, Moral Foundations, 170.