For a nation founded on the Laws of Nature and of Nature’s God, much of the past century of American moral and legal thinking has been a denial of our heritage. While we once thought that man, the rational animal, could intelligibly discern transcendent principles of justice, many contemporary figures have downplayed, if not flat-out denied, this possibility. By doing so they have undermined the foundations of our political order.
Justin Dyer’s new book explores the natural-law foundations of our constitutional regime. Against scholarly trends that argue that our Constitution was in favor of (or at best neutral on) slavery, Dyer presents a host of early Americans who argued that the principles of the Founding and the logic of the Constitution were undeniably antagonistic to it. Against Whiggish history that views the abolition of slavery as the inevitable result of the march of progress, Dyer argues that nothing was inevitable, and that arguments had to be made in order to secure a just outcome. Against neat and tidy accounts of the relation of principle to practice, Dyer shows how the application of moral principle to concrete cases is frequently convoluted, full of tension and disharmony. And against skeptics who deny the existence of moral truth and political liberals who refuse to allow religious and other “comprehensive doctrines” to influence debates, Dyer insists that the antislavery constitutional tradition demonstrates that moral truths can be known and are vitally important.
Alas, he doesn’t make any of these points as effectively as he could, for the book’s structure obscures his argument. Without a roadmap, readers may lose their way in the weeds of his case studies. Some of the chapters are previously published journal articles, which helps explain the book’s fragmentary feel (along with the abundant repetition, including quotations that appear several times). Only in my second reading did I grasp Dyer’s goals, and I fear that many will close the book before finishing it.
And that would be a shame, since the book is a carefully argued, richly sourced study of an important topic. At its heart is the proposition that “if all men were created equal in some relevant moral sense, and if legitimate government authority was both founded on the consent of the governed and circumscribed by inalienable natural rights derived from the laws of nature, then the institution of race-based and hereditary chattel slavery stood out as a gross contradiction of the theoretical foundations of American government.”
It was the Declaration’s truths, Abraham Lincoln argued, that the Constitution was meant to serve. The principle it announced was the word “‘fitly spoken,’ which has proved an ‘apple of gold’ to us,” he said, alluding to Proverbs 25:11; and thus the Constitution was “the picture of silver, subsequently framed around it.” Lincoln insisted that “the picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple — not the apple for the picture.” The Constitution’s various compromises about slavery that were needed to form a more perfect union, then, should be seen as ultimately putting the country on the path toward abolition. James Madison had insisted it was “wrong to admit in the Constitution the idea that there could be property in men,” and so the text never spoke of slavery, but used various circumlocutions.
Moreover, Dyer shows that a generation of antislavery statesmen insisted that “the natural-law principles undergirding the Constitution were antithetical to chattel slavery . . . even though slavery had been protected by the Constitution’s various compromises.” For these men, natural law gave “the theoretical foundation both for constitutional arguments against slavery and for an antislavery defense of the Constitution’s compromises.”
Exploring the thought of figures such as Lord Chief Justice Mansfield, John Quincy Adams, and John McLean, Dyer shows how even jurists who could not champion their antislavery principles owing to contingencies of political life and demands of positive law nonetheless believed that slavery offended the laws of nature and nature’s God — and that the opinions they did issue allowed for more daring challenges to slavery, especially those advanced by Adams and Lincoln.
We can group these arguments around four headings: self-government, the morality of slavery, judicial review or supremacy, and the metaphysics of morals. If the Declaration declared the principle of self-government, and if the Constitution was designed to thwart arbitrary rule, then on what ground could one claim to govern another man as property? Dyer notes that the “system of chattel slavery established the private despotism of one man over another; the rule of private human will instead of the rule of law; and the expansion and enlargement of arbitrary power.” This put the entire foundation of self-government at risk.
#page#At a speech in Peoria, Lincoln explained that if the slave “is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the negro is a man, is it not to that extent, a total destruction of self-government?” In his debate with Stephen Douglas, Lincoln showed that Douglas’s claim to have no position on slavery — and that each locality should decide for itself — amounted to taking a stance on slavery: “When Judge Douglas says that whoever, or whatever community, wants slaves, they have a right to have them, he is perfectly logical if there is nothing wrong in the institution; but if you admit that it is wrong, he cannot logically say that anybody has a right to do wrong.”
This forced the question of the morality of slavery. To answer it — and show its relevancy to constitutional debates — both Adams and Lincoln appealed to the Declaration’s natural-law truths. Dyer notes that Adams appealed to a “transhistorical basis of right against which the historical practice of slavery was thought to be antithetical.” And this source of right “had a metaphysical basis in reality while also having a historical basis in America’s founding documents,” thus rendering it “relevant to constitutional adjudication.” If all men are really created equal and endowed by their Creator with rights, slavery was self-evidently wrong.
After the Supreme Court’s decision in Dred Scott, Lincoln affirmed judicial review but denied judicial supremacy. The Court’s ruling was binding for the parties in that case. Yet while it deserved “very high respect” in similar cases and from other branches of government, Lincoln said, the legislative and executive branches were co-equal with the Court and had a duty to uphold the Constitution as they understood it: To give the Court the final word on what the Constitution meant was to “resign their government into the hands of that eminent tribunal.” Lincoln further insisted, “If I were in Congress, and a vote should come up on a question whether slavery could be prohibited in a new territory, in spite of the Dred Scott decision, I would vote that it should.”
These arguments require a certain metaphysics of morals. As Dyer notes, Lincoln’s view was that the Constitution “was informed by moral principles, grounded in human nature, which provided the logical basis for republican government.” These principles were binding because of God’s design. Dyer argues that “in Locke’s natural-law theory, as interpreted by the Founders and amalgamated with American Protestant theology, a providential God provided the grounds of moral obligation to obey the laws of nature.” Contemporary American legal theorists reject much of this: Vanderbilt law professor Mark Brandon notes that “invoking a standard of human dignity is problematic, not least because of its metaphysical roots. Human dignity evokes natural law and natural rights, which are off limits in the new constitutionalism.” But this, Dyer argues, undercuts our entire moral and political order: “If an intelligent, creating and moralistic God has not imbued the natural order with discernible purposes, then it is senseless to talk about morally binding laws accessible to human reason.” Dyer quickly adds that one need not start with belief in God and then work toward morality. Instead, the intelligible order of nature, our “grasp of human goods,” and the “distinction we draw between right and wrong” are themselves “evidence for the existence of such a providential God.”
Dyer closes the book with an assessment of Frederick Douglass’s public arguments against slavery. Measuring them, along with Lincoln’s, by the standards of Rawlsian public reason, Dyer concludes that Rawls’s attempt to find an overlapping consensus based on current political culture rules out appeals from so-called “comprehensive doctrines” and their deeper metaphysical sources. But the arguments of the antislavery constitutional theorists “were notable precisely because they challenged, from foundational premises, important aspects of their own public political culture.” This serves as a fitting reminder that the natural-law tradition should help us challenge important aspects of our own political culture as well.
– Mr. Anderson is the editor of Public Discourse: Ethics, Law, and the Common Good, the online journal of the Witherspoon Institute of Princeton, N.J.