Modern law has a distaste for natural law. The legal establishment looks upon it like a weed cluttering the legal process that deprives modern law of its moral neutrality. It sees no reason to recognize a higher natural law, written on the hearts of men, valid for all peoples and places, providing the foundation of moral certainty.
Such recognition would clash with the individualist dogmas championed by Enlightenment thinkers. It contradicts the liberal notion that individuals should be allowed to do anything that does not hurt another. Individuals living in a social contract with others determine the validity of law, not a moral code. The State, not the Creator, is the only source of law.
Thus, law becomes merely the mechanical rules that keep society running smoothly, not the product of a divinely ordained order. Positive law drafted by individuals and confirmed by a strong government avoids messy moral absolutes and creates the illusion of a humanity in control of its destiny.
The Need for a Solid Law of the Land
Thus, conservatives are rightly disappointed when judges they appointed betray their principles in favor of this legal model without a moral compass. They cannot understand how they find unknown “rights” and “freedoms” in the name of a misdirected constitutionalism that ignores the firm foundation of fundamental truths based on tradition and morals.
Indeed, all law, even modern law, needs such solid foundations since it cannot function when constantly changing. An unchangeable or at least hard-to-change framework provides stability and certainty.
That solid foundation of law in Western civilization was once provided by natural law via classic philosophy and Church teaching. This set of broad guidelines urging all to do good and avoid evil formed the foundation of morals that must inform law. Elements of this natural law were also present at the time of the Founding.
However, nineteenth-century liberalism gradually destroyed the natural-law tradition that served as guidance. The legal establishment has adopted a positive law standard that relied on human judgment alone to make law outside any established moral framework.
While denying natural law, this new legal order gradually used the U.S. Constitution to assume the stabilizing functions of a natural law trumping all others. Thus, the Constitution stands as the supreme law of the land, and the Supreme Court is its interpreter.
The Limits of the Constitution
However, the Constitution has its limitations. While influenced by solid natural-law principles, there is nothing to guarantee that its interpretations will not err in defining justice. Indeed, the document has been amended twenty-six times. Court decisions regarding it have been overturned. Some of its interpretations failed the common good.
To function properly, the Constitution presupposes an ordered nation since it is only as good as those who uphold and interpret it. In virtuous times, the document could be counted upon to defend very basic Christian and family values.
However, in these decadent times, progressives have weaponized the interpretations of the Constitution to make it a “living” document reflecting immoral standards. Inside the “penumbra” of its clauses, judges are now finding bizarre “rights” and outlandish “freedoms” and imposing them on the nation.
Thus, the document becomes a double-edged sword since both parties use the same Constitution as a reference. When moral atrocities like procured abortion are approved, the text provides little protection for conservatives. Indeed, these aberrations become enshrined as “settled” law that is difficult to change.
A Higher Law Substitute
In the face of this failure, many conservatives adopt a rigid “Constitution alone” attitude toward the text. They reason that if the liberal reading of the document cannot guarantee order, then its interpretation must be limited to reflect the Founders’ original intent.
These “originalists” or “textualists” hold that the body of frozen wisdom of the Founders is enough to guide the nation through this period of tribulation. They claim that this interpretation of law will preserve the American order without changing any positivist premises.
The truth is different. The collection of these interpretations creates a cheap natural law ersatz substitute that further compounds the disastrous consequences of rejecting the genuine thing.
Today, reflecting the moral decadence of the times, this solution has broken down. The horrible decision of Justice Neil Gorsuch in Bostock v. Clayton County (2020) showed that something has gone awry with originalist logic. No one understands how the avowed “textualist” Justice Gorsuch (joined by Justice Roberts) extracted “transgender rights” from the original meaning of the word “sex” in the intent of the drafters and enactors of the 1964 Civil Rights Act. Such readings reveal that there is more penumbra and darkness than sunshine in the originalist camp.
A Firestorm About Truths
In this legal dilemma, many do not know where to turn. Some insist on “better originalism.” Others say it is time to change the legal paradigm.
Amherst Professor Emeritus Hadley Arkes ignited a firestorm on the right by affirming that some truths precede law. He claims that nature has something to say about modern problems beyond the reach of the Founders. He even proves that the Founders recognized this moral foundation of law.
His proposal is not a change of paradigm but a return to a tradition of ordered liberty. Such primary truths are all within the ancient common law roots of American law. It is a return to the wellspring—an originalism much more original than modern efforts to define the intent of the Founding Fathers.
The Real Battle of Mentalities
The dilemma is not a choice between originalist and progressive readings of the Constitution since the two readings are now based on the same positivist premises. Without a stable foundation of objective norms, one reading holds no more authority than the next. The downward slide to legal chaos will prevail.
The real battle is one of worldviews. On one side is a naturalistic evolutionary system driven by human passion, without a special purpose or final end. It relies upon fallen humanity to chart its course. The other is a hierarchical order governed by God by which humanity progresses in accordance with human nature and virtue toward moral perfection and sanctity.
The Culture War is not about single issues but the clash of worldviews. It now rages in the field of law.
The Hobbesian Nightmare
The progressive interpreters of the Constitution have adopted a Hobbesian worldview that denies any higher end in life other than self-preservation. In this bleak secular and anti-metaphysical world, there is no transcendental reality, spiritual soul or summum bonum. Indeed, Thomas Hobbes held that society is a “war of all against all,” where individuals follow their passions and struggle to survive. The only solution is a strong unchallengeable government called Leviathan that imposes its law to keep society from falling into disorder.
Thus, free from the metaphysical restraints of human nature, the progressives hold that natural law is a body of poetic fantasies made up by those disconnected from reality. With no final end, they claim man needs no guiding framework like natural law since life is reduced to a struggle to survive amid the gratification of the passions. With no eternal life, natural law becomes an invention of the Church to restrain the unruly appetites. The omnipotent State is the supreme lawgiver, which interprets the will of the people.
Thus, modernity introduced the Hobbesian nightmare of a rationalist dog-eat-dog world fueled by the frenetic intemperance of the passions that have changed the external structures of society. Postmodernity has taken this process further by changing the internal structures of identity, being and sexuality of the individual human being today.
Radicals are now seeking to adapt law accordingly so that the imagination takes control. Thus, a return to “originalism” based on positivist premises will not lead to a return to order. It will not stop the progress of the cutting-edge radicals who deny human nature and seek to destroy anything that stands in the way of their exacerbated passions.
The Opposing Christian Worldview
The classical and Christian worldview could not be more different from the Hobbesian nightmare. Its metaphysical framework affirms the nature and causality that takes things toward their final end and purpose in life. Natural law derives from the nature of man and enshrines objective and moral norms of right and wrong behavior.
This law does not impose itself on individuals but serves to help them develop their full potential and avoid the destructive havoc of the unruly passions. The Church becomes not the inventor of this law but its gentle guardian, leading people to their sanctification.
Natural law is the only way to oppose the march toward the destruction of law and order. Its solid metaphysical foundation is connected to reality and the final end of salvation.
American Higher Law Tradition
Moreover, natural law is not something alien to American history. Indeed, America has a strong natural-law tradition. The nation’s attachment to higher law dates back before independence as can be seen in this reference from renowned English jurist Sir William Blackstone (1723—1780): “This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.”
Blackstone is the ultimate authority on both American and English common law and unequivocally defends a higher law. Such opinions can also be found in the works of Sir Edward Coke (1552—1634), who also strongly influenced American law and embedded the Magna Carta’s natural-law principles in colonial law.
Proof of natural law’s ancient past can be traced further to the Roman roots of law found in Cicero’s expressions, lex naturae, non scripta sed nata lex, lex caelestis, lex divina (“natural law, inborn or unwritten law, heavenly law, divine law”). Christian philosophers and canonists later adopted such universal formulations.
In addition, manifestations of natural law can be found everywhere because it is embedded wherever there is human action. Law reflecting it is found among the many places where God has planted it—in public opinion, the common conscience, the testimony of custom, the ancient charters and the legal sense of the people.
Far from an arbitrary set of religious rules, natural law works with human nature to provide legal frameworks that are connatural with it.
How different this vision is from the legal chaos now afflicting the nation! As the country’s legal infrastructure unravels, Americans must have the courage to proclaim that objective and inescapable truths, grounded in nature, precede and influence law and that even the Founders recognized them as anchors and axioms. Justices and judges can no longer afford to ignore the moral substance of modern cases in the name of an assumed textual reading. Conservatives will always be disappointed when there is no substantial foundation to interpret law.
It is time to return to tradition. It is time to return to God, the source of all authority and law. The only other choice is the irrational path to the chaos of postmodern law. Only the firm foundation of a higher law tradition will serve to oppose the legal shipwreck that looms on the horizon.