When Thomas Jefferson wrote in the Declaration of Independence that "all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness," he could not have meant then what we understand these words to mean today.
When the framers of the government wrote in the Constitution that "No person shall be…deprived of life, liberty, or property, without due process of law," and that the Constitution is "the supreme Law of the Land," they conveniently omitted a definition of the word person. When presidents from Abraham Lincoln to Woodrow Wilson to Franklin Delano Roosevelt enforced two sets of laws themselves—one that treated whites fairly and one that treated blacks unfairly—or permitted the government to conduct gruesome medical experiments on black men, what did they think of their oaths to uphold the Constitution?
Jefferson's immortal words in the Declaration attached the new nation's soul to what lawyers and judges call the natural law. But when he bought and sold slaves, Jefferson rejected the natural law for himself, in favor of what lawyers and judges call positivism.
Natural law teaches that our rights come from our humanity. Since we are created by God in His image and likeness, and since He is perfectly free—or, if you prefer, since we are creatures of nature born biologically dependent but morally free—freedom is our birthright. Liberty comes from our humanity, not from an outside source such as the government.
Had the framers and their successors adhered to these beliefs for all persons, there could have been no slavery, no Jim Crow, no public segregation, and none of the evils they spawned.
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Unfortunately, positivism reared its ugly head. Positivism teaches that the law is whatever the lawgiver says it is, providing the rule is written down. Under positivism, so long as the legislature in a democracy was validly elected and followed its own rules in enacting a law, the law is valid and enforceable no matter what it says.
From the beginning of the settlement of the American colonies, the government sometimes enforced the natural law for whites but almost always enforced laws based on positivism for blacks. From slavery to war to Reconstruction to Jim Crow, the government presumed to pick and choose whose rights to respect and whose to reject, and it did so based on race.
The ultimate positivist rejection of the natural law happened to Dred Scott, a slave who sued for his freedom and lost. The sophomoric ratiocinations, moral contortions, and collectivist absurdities articulated by the Supreme Court of the United States as it purported to justify legally human slavery in Dred Scott v. Sandford spawned 150 years of horrific treatment of blacks that destroyed lives and suppressed freedom.
The Constitution's Original Sin
Slaves represented approximately 40 percent of the Southern population in 1789. Because apportionment was the vehicle through which interests would be represented in the new government, the more representatives were apportioned to a State, the more powerful that State would become. The number of allotted representatives was determined by population. Thus, Southern interests would be significantly threatened if slaves were not fully counted. Conversely, the North did not want the slaves counted at all in order to curtail Southern influence.
The result was the Three-Fifths Compromise. Widely considered to be the chief pro-slavery clause in the Constitution, it epitomized the racism of the document—as it reduced each slave to three-fifths of a person, a reflection of the inferior, subhuman class blacks would come to represent in the coming decades. Inherent in this compromise is a bitter irony, as it was the Southern slaveholding states that wanted slaves counted as full persons while the North and its abolitionists wanted slaves to remain uncounted; the slaves themselves, of course, had no say whatsoever in their constitutional standing.
Throughout the 19th century, American courts would repeatedly put the judicial stamp of approval on the institution of slavery. In 1804, the State of New Jersey enacted a law that declared "every child born of a slave, after the fourth of July of that year, should be free, but remain the servant of the owner of the mother until he or she should arrive at a specified age." The act was intended to abolish slavery gradually in New Jersey. In 1844, though, the state adopted a new constitution that held that "all men are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness." Abolitionists brought suit claiming that this provision of the new New Jersey Constitution prohibited slavery in the State irrespective of the 1804 act.
Justice James S. Nevius, writing for New Jersey's highest court in 1845, disagreed. In State v. Post, he found that if the state had wanted to abolish something as paramount as slavery, it would have done so explicitly and not through some "doubtful construction of an indefinite abstract political proposition." Further, he noted that American slavery as a whole had existed alongside the similarly constructed Declaration of Independence and that this was demonstrative that those general declarations in favor of liberty were not incompatible with the provisions that recognized slavery.
According to Justice Nevius, there was a distinction between freedom in the state of nature and freedom in a society; the latter was subject to the involuntary surrender of certain rights for the better protection of others via the social contract. While Nevius openly sympathized with the slaves and respected the arguments made by their counsel, he noted that "much of the argument seemed rather addressed to the feelings than to the legal intelligence of the court."
Justice Nevius' reasoning is rooted in legal positivism. The theory's fundamental premise is that there is a difference between what the law is and what the law should be, and that a responsible jurist should adhere to the current law and refrain from casting value judgments that are best reserved to the people through the exercise of their voting rights and the democratic process. This dilemma has confounded the legal world for millennia. Should social change be effectuated by an unelected judiciary or through the democratic processes embedded in our constitutional system? Should it perturb us when change is spurred by appointed judges, even if we find the change liberating? Or should it bother us when judges do not use their power to strike down laws that are consistent with positive law but inconsistent with natural law?
Interestingly, the Massachusetts Supreme Court reached the opposite conclusion of the New Jersey court in Commonwealth v. Ames in 1859. The language of the Massachusetts Constitution contained virtually the same language as the New Jersey Constitution. Chief Justice Lemuel Shaw found the passage was enough to hold slavery illegal in Massachusetts, noting that "slavery is contrary to natural right, to the principles of justice and humanity, and repugnant to the constitution."
Where positivism is limited to laws passed by governments, natural law is not. Natural law knows only one authority: our own human nature. Therefore natural law would allow judges to strike down properly passed laws that infringe on our freedom of speech, worship, or assembly even if the Constitution did not protect those rights. The great individual liberties guaranteed by the Constitution reflect natural God-given rights that no government can properly restrict, absent a violation of natural law itself.
The American judiciary would remain at the forefront of the race issue throughout the 19th century. The courts' decisions would not be consistent. They would at times follow positivism and stick to the letter of the law and other times follow the natural law and free the oppressed. They would both take the lead in spurring change in American race relations and also hinder it. They would hand down some of the most heroic and some of the most infamous decisions in American history. The most infamous case would be Dred Scott v. Sandford, which came to epitomize America's ideological bipolarity and the federal government's racist agenda.
Dred Scott's Illegal Humanity
In antebellum America, whether blacks were free or slaves depended largely on the state in which they resided. As a result, abolitionists were quick to advocate the position that slaves would be permanently freed when taken to a free state. It was upon this theory that Dred Scott brought his claim to freedom to the United States Supreme Court.
Dred Scott was born enslaved to Peter Blow, the owner of an 860-acre farm in Virginia, in 1799; Blow sold him to Dr. John Emerson in 1833. Emerson, a Pennsylvanian, was appointed by the U.S. Army to a post in Illinois, then transferred to what is now St. Paul, Minnesota, an area where slavery was illegal. Scott bounced around with the Emerson family to Louisiana, Minnesota, and St. Louis, eventually suing for his freedom in 1846 after Emerson's widow Irene rejected his offer of $300 to purchase liberty for himself and his wife. A decade of legal wrangling later, Scott's last hope was an appeal to the United States Supreme Court against Irene Emerson's brother, John Sandford.
The Court's composition in 1857 was hardly sympathetic to slaves. Of the nine justices, seven had been appointed by Southern presidents, and five were from slaveholding families themselves. Chief Justice Taney, the man who would author the Dred Scott opinion, was himself a former slaveholder, a staunch supporter of slavery, and a defender of the South from what he saw as Northern aggression. Not surprisingly, the Court ruled that blacks were not considered (and were not intended to be considered) citizens under the Constitution. Therefore, they could not claim any of the rights and privileges the Constitution guaranteed and secured to citizens of the United States. According to Chief Justice Taney, "it [was] too plain for argument, that they [blacks] had never been regarded as a part of the people or citizens of the State, nor supposed to possess any political rights which the dominant race might not withhold or grant at their pleasure." Thus, because Dred Scott was not a citizen, he could not sue in the federal courts and diversity jurisdiction—which allows federal courts to hear cases between citizens of different states—was inappropriate.
Chief Justice Taney did not flat-out declare that blacks were inferior or unqualified for freedom by some absurd or backward theory. Rather, he justified his opinion on originalist grounds, arguing that it was rooted in what a strict interpretation of the Constitution, the supreme law of the land, would entail. "It is not the province of the Court to decide upon the justice or injustice, the policy or impolicy, of these laws," he wrote. Instead, "the duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted."
But to say that the Constitution's slavery provisions stripped all blacks of citizenship is absurd. The Three-Fifths Clause, the Importation Clause, and the Fugitive Slave Clause of the Constitution simply cannot be read to remove citizenship from all blacks. At the time of the founding, 10 of the 13 states allowed free blacks to vote, as Justices Curtis and McLean pointed out in dissent. While five of those 10 states had either limited or completely withheld the right, assigning such meaning to the Constitution's text requires more than dispassionate adjudication; it represents an aggressive form of judicial activism to carve new meaning into the text of the Constitution. The logical conclusion of the Dred Scott decision is that the states were empowered to enslave free blacks.
The Court should have struck down slavery. But it had little, if any, positive law with which to justify such a move, given the explicit slavery provisions in the Constitution. The Court would have had to base such a decision wholly on natural law.
The Case for Natural Law
The Dred Scott holding was overruled by the Thirteenth Amendment, enacted and ratified in 1865, which abolished slavery; and by the Slaughter-House cases, decided in 1873, in which the Court held that the amendment superseded the Taney Court's ruling. But the essence of Chief Justice Taney's despicable opinion was not overruled. Blacks were still treated like second-class citizens, a fact that was fueled by the positivist idea that government can write any law, enact any policy, and enforce any cultural norm, so long as the measure has popular support.
The teachings of St. Thomas Aquinas indicate otherwise. Aquinas' fundamental premise is that a well-formed conscience will naturally seek good and avoid evil. His theory places much faith in human nature-that the truth is available to all people through informed human reasoning and recognition of divine revelation. Yet Aquinas did not stop there. He wrote that because governments do not have the right to enact unjust laws, only just laws need to be obeyed. Moreover, unjust laws carry with them a duty of disobedience. If laws do not seek and promote goodness, they are unjust and in violation of natural law-and our cognizance of this requires us to disobey them.
Prominent American figures have shown support for natural law. Justice Clarence Thomas once said: "Without such a notion of natural law, the entire American political tradition, from Washington to Lincoln, from Jefferson to Martin Luther King, would be unintelligible." He said that he subscribes to this principle because it guarantees equality, even if the words of the Constitution do not. "Natural rights and higher law arguments are the best defense of liberty and of limited government."
The founders, especially Thomas Jefferson, believed in natural law, which positive law could not lawfully contradict. "A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest," Jefferson wrote. "The laws of necessity, [and] of self-preservation…are of higher obligation." And in the Declaration of Independence he wrote that we are "endowed by our Creator" with certain inalienable rights. For Jefferson and his fellow founders, natural law was necessarily discovered.
The great Martin Luther King Jr., in his "Letter from a Birmingham Jail," explained that "an unjust law is a human law that is not rooted in eternal law and natural law." In arguing that government-enforced segregation is morally wrong because it "distorts the soul and damages the personality," King used the teachings of St. Thomas Aquinas to urge men to disobey the unjust segregation laws.
Is it the role of the courts to sidestep the positive law of the land when natural law is violated? My own view is an unequivocal yes. The standard should be an unmistakable deference to liberty.
Whatever any government does (unless it is preserving freedom by enforcing the natural law) should be suspect. Government either compels behavior or forbids behavior. Some behavior should be compelled (driving safely, for example) and some behavior should be forbidden (violating another's right to life, liberty, and property, for example). Whatever else the government does, no matter what it claims the goal is and no matter the stated justification, because it curtails human freedom it should be suspect and presumed to be unlawful and unconstitutional. If these libertarian principles had been accepted throughout history, then slavery-an obvious violation of natural rights-and all the evils it has spawned would never have existed here.
The real culprit throughout our racial history has been the government. The government-local, state, and federal-at virtually every turn, in every generation, and in innumerable ways, selectively chose to enact and enforce laws based on the natural law or on positivism, depending on race. Relying on the laws of positivism, the government permitted, condoned, and protected the most horrific abuse imaginable to blacks, and to some of the whites who protested.
Without a fundamental, obvious public rejection of positivism and embrace of the natural law by the government, the courts should presume that what the government seeks to do is unconstitutional; the government should be compelled to justify constitutionally, under the natural law and morally, whatever it wants to do, whenever and wherever it wants to do it. When the government protects freedom and respects natural rights, it is doing its job. When it ceases to protect freedom and when it violates natural rights, it is the duty of the people to alter or abolish it.
Andrew P. Napolitano, the youngest life-tenured Superior Court judge in the history of the State of New Jersey, is senior judicial analyst for the Fox News Channel. His most recent book is Dred Scott's Revenge (Thomas Nelson), from which this article is adapted. Copyright 2009 by Andrew P. Napolitano.