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.