Ellis Sandoz

Eric Voegelin Institute, Louisiana State University

AMERICAN RELIGION AND HIGHER LAW:

HIGHER THAN WHAT?

Philadelphia, Pennsylvania, April 26, 1997

Extent of subject matter. The most familiar account of America's debt to something called higher law is the little book by Edward S. Corwin which carries the term in its title. The most familiar reference to higher law is the Declaration of Independence's appeal to "the laws of nature and Nature's God." Natural, divine, and eternal law are understood to be "higher law." If we still inquire "higher than what?"--the answer will be higher than merely human, or man-made, positive law such as that enacted by Congress, Parliament, or other legislative bodies. On the borderline as clearly man made will be the Constitution of the United States whose Art. VI proclaims it (and the Laws made in pursuance thereof and all Treaties made under the authority of the United States) to be the "Supreme law of the land" and, thus, itself intended to be higher law. Lastly, it has been observed that "the average American believes strongly that there is such a thing as Natural Law and that he has natural rights" (Origins of Natural Law, ed. R. N. Wilkin et al. [1954], vi)--a sociological fact of importance in a country whose laws and governments supposedly rest on the principle of consent.
1. Illustrations of the sentiment of transcendence. The attitude that invokes higher law is notoriously religious and philosophical in our secular age. For most of the past 2,500 years "theories of natural law have dominated" Western jurisprudence as fundamental to all law and societal order (Jurisprudence, ed. G. Christie and P. Martin [St. Paul, 1995], 119). But today it is in almost total eclipse. Reigning supreme is positivism as descended from Hobbes and the Austinian jurisprudence of utility and power that dominates the thinking of lawyers and what courts do in the name of law and constitutional interpretation. Ever since the early Supreme Court decision in Calder v. Bull (1798), which generated a lively but inconclusive debate between Justices Samuel Chase and James Iredell regarding the place of "fundamental principles of government" and "natural justice" in constitutional litigation, camouflaged vestiges of natural law jurisprudence have steadily remained in our law, although not expressly so. It has been propounded under such rubrics as the several versions of substantive due process and substantive equal protection, extra-constitutional rights to privacy discovered as emanations of penumbras of explicit provisions, use of reasonableness and fairness as a tests, and in other ways especially as devised during the past half-century by an activist judiciary. All of this will have to be left to another day.

More to the present point is to notice that American independence from James Otis' speech against the Writs of Assistance in 1761 to the Declaration of Independence in 1776 and beyond was argued largely on the basis of the old legal and constitutional traditions, as I shall briefly illustrate. But it is the religious and philosophical aspects that are of the main focus of my remarks here as being fundamental, in my view, to our understanding of both the Founding and perhaps of human reality simply.

The sentiment of openness to transcendent reality central to our subject is commonplace. It is movingly expressed, for example, in the third stanza of America--My Country 'tis of Thee" which reads:

"Our fathers' God , to thee,

Author of liberty,

To the we sing.

Long may our land be bright

With freedom's holy light;

Protect us by thy might, Great God our King. "

The outlook is evident also in Thomas Jefferson's motto, engraved on his seal, which reads: "Resistance to Tyrants is Obedience to God." Divine and natural orders are, thus, understood to shape the course of human affairs and communicate higher law dimensions of our national and civilizational destiny . In other words, this tension toward the transcendent is taken to be constitutive of the human condition as experienced. As illustrations suggest, the experience is reflexively acknowledged on all hands in ordinary discourse. Thus, the Virginia Statute for Religious Freedom---whose adoption was engineered by James Madison and that Thomas Jefferson claimed in his epitaph as one of the three signal achievements of his lifetime--opens with the words: "Almighty God hath created the mind free." The attitude is reflected by the prior of the Trappist monastery, Dom Christian de Cherge, who before being slaughtered by Algerian Islamic terrorists last year, movingly wrote of this anticipated end in a poem that evoked "the true strand of the Gospel learnt at my mother's knee, my very first Church"--where most of us first learn of higher things. We remember also the cry of Shakespeare's King Henry V (Act. IV, Sc. viii), after the astonishing victory at Agincourt with hardly an English casualty:

"O God, thy arm was here ;

And not to us, but to thy arm alone,

Ascribe we all!

.... Take it, God,

For it is none but thine!...

Let there be sung 'Non nobis' and 'Te Deum'...."

3. Liberty and Historical and Natural Jurisprudence.. To attend briefly to the jurisprudential dimensions within our period of concern, it should be said that the Bill of Rights to the Constitution as conceived and adopted illustrates some higher law perspectives. It is substantively part and parcel of a tradition of common law liberty and natural law productive of what we refer to as constitutionalism or rule of law. Liberty and rule of law developed in medieval England from King Edward the Confessor (d. 1066) to Sir John Fortescue (Lord Chief Justice and Lord Chancellor under Henry VI, d. 1479-?) and was recovered, vivified, and perfected in seventeenth-century England during the lengthy contest between parliament and the Stuart kings memorialized by revival of Magna Carta and culminating in the Glorious Revolution of 1688 and Settlement of 1689. Anything dated before the coronation of Richard I in 1189 and in continual usage since that time was regarded as prescriptive custom as being before memory, in Littleton's phrase: "where a custom, or usage, or other thing, hath been used for time whereof the mind of man runneth not to the contrary" such rights and liberties were allowed by the common law. Such remote antiquity took on the aura accorded the law of nature as resting on continual and universal assent. (Quoted from Corinne Weston in Roots of Liberty, ed. E. Sandoz [1993], 234-35.)

This tradition as it survived into the period of the Founding is especially the work of Sir Edward Coke, John Selden, and their associates in the House of Commons, as fashioned in the struggle over extension of royal prerogative and the attendant parliamentary resistance leading up to adoption of the Petition of Right (1628). The fixing of this vision came through debate surrounding political events from the English Civil War to the American Revolution and education of generations of lawyers by Coke's Institutes for the next 150 to 200 years--down to the late 1760s when Blackstone's Commentaries began to supplant them as the law student's principal textbook. These included Sir Matthew Hale LCJ, Lord Camden (formerly Pratt, LCJ), Chatham, and Burke, as well as such American luminaries as James Otis, George Mason, John Adams, John Jay, Alexander Hamilton, and Thomas Jefferson (who were lawyers), and James Madison and George Washington (who were not.)

Thus, "rule of law" or constitutionalism and "liberty" were complementary if not identical terms. Coke defines libertates in Magna Carta as meaning, in the first instance, "the Laws of England" or "the Laws of the Realme, in which respect this Charter is called Charta libertatum." And John Phillip Reid recently has insisted upon the point as valid for the generation of the American founding:

Liberty in the age of the American Revolution was not the sum of enumerated rights, the rights to speech, press, security, property or isonomy. It was rather government by the rule of law, government by the customary British constitution. If put in terms of freedom, liberty would...be defined...as freedom from arbitrary power, from government by will and pleasure, from government by a sovereign, unchecked monarch or from government by a sovereign, unchecked Parliament.

It is on some such understanding as this that Publius in Federalist No. 38 rhetorically asks, "Is a Bill of Rights essential to liberty?" Relying upon a theory of human nature as old as Plato and Aristotle to undergird the institutional separation and division of powers, and of checks and balances among coordinate branches of government, Publius discloses the "auxiliary precautions" a generally virtuous people can take to avoid arbitrary government in the form most likely in republics--tyrannical majorities led by demagogues--so as to foster justice and liberty in such a compound mixed republic of great extent as the United States. Publius cites Montesquieu and quotes the exemplary Massachusetts Constitution of 1780 as "expressing this fundamental article of liberty. It declares 'that the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them.' This declaration corresponds precisely with the doctrine of Montesquieu...."

Publius eventually quotes the Preamble to the Constitution, understood by his readers to be the intended "supreme Law of the Land" (Article VI) and, so, fundamental law in the United States: "'We the People of the United States, [...] to secure the blessings of liberty to ourselves and our posterity do ordain and establish this constitution for the United States of America.'" And he roundly concludes with the claim that, "The truth is...that the constitution is itself in every rational sense, and to every useful purpose, a Bill of Rights."

Too fine a point, however, need not be put on the dichotomy liberty singular and liberties plural. It is indubitably right--and a recovery of a nearly forgotten signification--to stress liberty and just law as coincident in eighteenth-century Anglo-American jurisprudence. This jurisprudential insight is a theoretical insight shared with the religious or pneumatic understanding that "You shall know the truth, and the truth shall make you free," as well with the (classical) philosophical or noetic understanding that the true and free man and just society are the ones in which, respectively, reason and law rule so as to govern the passions in individuals and in society as a whole. The opposite conditions are equated with natural slavery in the individual, its liberty with vulgarian liberty (license), and with tyranny through the rule of base passions in the society.

The particularities of liberty in the singular certainly include--and partly compose--the liberties specified by constitutions and bills of rights. Indeed, for Coke himself the secondary and tertiary meanings of Magna Carta's libertates are "the Freedoms, that the Subjects of England have" and "the franchises, and priviledges, which the Subject have of the gift of the King.... Generally all monopolies are against this great Charter, because they are against the liberty and freedome of the Subject, and against the Law of the Land."

Lastly, prescriptive customary law grounded in the immemorial usages of the ancient constitution and natural law comprehending, implying and securing personal rights (as mentioned) combine to form a matrix of fundamental higher law in Anglo-American jurisprudence, and the two strands can hardly be disentangled from one another. To take a striking illustration from the Founding period: in the parliamentary debate over the Declaratory Act (in 1766, after repeal of the Stamp Act) there occurred the remarkable spectacle of Lord Camden, formerly Pratt, Lord Chief Justice of England, powerfully arguing in the House of Lords very much as James Otis in Boston had done in opposing the Writs of Assistance five years earlier. Camden said that--

"The sovereign authority, the omnipotence of the legislature, my lords, is a favourite doctrine, but there are some things they cannot do. They cannot enact anything against the divine law, and may forfeit their right. They cannot take away any man's private property without making him compensation. They have no right to condemn any man by bill of attainder without hearing. [The Declaratory Bill is] illegal, absolutely illegal, contrary to the fundamental laws of nature, contrary to the fundamental laws of this constitution [which is] a constitution grounded on the eternal and immutable laws of nature; a constitution whose foundation and centre is liberty.... [T]axation and representation are inseparably united: God hath united them [and] no British parliament can separate them; to endeavour to do it is to stab our very vitals. [Their union is not only] founded on the laws of nature; it is more, it is an eternal law of nature; for whatever is a man's own is absolutely his own; no man hath a right to take it from him without his consent, either expressed by himself or [his] representative...."

The natural and divine law referenced by Lord Camden and elsewhere herein (as by Jefferson and his associates in the Declaration of Independence) is that of Western civilization in its Anglo-American articulation as formulated from Aristotle to Cicero to Aquinas to Fortescue to Coke to Locke to Otis, Camden, Jefferson, and Madison (even to include the verbiage of Blackstone in volume one of the Commentaries)--vital and venerable dimensions of our constitutional and political theory. This is, thus, a tradition--in fact a variety of traditions which we consider together-- of generally ascertainable content and experiential specificity. It is not, we must mention, some amorphous mass or blank to be filled with scribblings of equal theoretical cogency or historical efficacy such as the coercive barbarous "natural" law of Nimrod in Genesis or of (say) the Hitlers, Stalins, or Saddam Husseins of the modern world--as some commentators seem prepared to assert.

The confusion between natural law as reason and natural law as passionate indulgence is elucidated by Thomas Aquinas's discussion of the lex fomitas and may help to clarify the point. Apparent failure to recognize the distinction vitiates any discussion and puts ostensible adversaries of legal positivism inadvertently right back on a positivist footing, embracing law as merely power, will, or command and "values" as anybody's (supposedly equally untenable) subjective surmises--even while disavowing positivism in the same breath. Some way out of this box must be found, and, in fact, an ample pertinent literature exists. Saint Thomas Aquinas, in "Treatise on Law," Summa theologiae I-II, Q. 91 A. 6, has this to say: The rule of passion and brutish inclination "in man...has not the nature of law...rather is it a deviation from the law of reason....[Such so-called "natural" law in man] "is called the 'fomes' in so far as it strays from the order of reason."

4. Religion and the principal terms of higher law. An attitude of openness towards divine reality as higher and hence governing in human affairs was ubiquitous among Americans at the time of the Founding , despite the inroads of secularism and the prominence of "Enlightened" statesmen and intellectuals as leading members of that Enlightened generation. How may the specifics best be appreciated?

The Americans of that era can best be understood as "Providential Christians," an attitude we have seen reflected by Shakespeare's Henry V and one powerfully affirmed by Benjamin Franklin (himself a major figure of the American Enlightenment) in a speech made at a difficult moment in the Federal Convention, in a building not four blocks from where we convene today. Too feeble to read his message to the other delegates, Franklin wrote on that occasion that--

"In the beginning of the contest with G. Britain, when we were sensible of danger, we had daily prayer in this room for the divine protection.--Our prayers, Sir, were heard, and they were graciously answered,... To that kind providence we owe this happy opportunity of consulting in peace on the means of establishing our future national felicity.... I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth--that GOD governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? We have been assured, Sir, in the sacred writings, that 'except the Lord build the House they labor in vain that build it.' I firmly believe this; and I also believe that without his concurring aid we shall succeed in this political building no better than the Builders of Babel."

These were representative views at the time. As Perry Miller remarked decades ago, the American Revolution was preached as a revival and had the astonishing result of succeeding. A new generation of scholars is concluding that Miller was right. At the center of attitudes lay a kind of consensual Christianity that unified all denominations. It joined with Whig political views to give a resonant core of love of liberty and courageous resistance to tyranny and corruption to a great moral and political cause as the heartbeat of the American community. Federalist No. 2 reflects this, and it is wonderfully stated by John Adams in a letter to Jefferson late in life. Adams wrote to his fellow "Argonaut" of the American founding in their declining years, and he asked--

"Who composed that Army of fine young fellows that was then before my eyes [during the American Revolution]? There were among them, Roman Catholicks, English Episcopalians, Scotch and American Presbyterians, Methodists, Moravians, Anabaptists, German Lutherans, German Calvinists, Universalists, Arians, Priestleyans, Socinians, Independents, Congregationalists, Horse Protestants, House Protestants, Deists and theists; and [Protestants who believe nothing]. Very few however of several of these Species. Never the less all educated in the general Principles of Christianity: and the general Principles of English and American Liberty.

"The general Principles, on which the Fathers atchieved Independence, were the only Principles in which that beautiful assembly of young gentlemen could unite.... And what were these general Principles? I answer [John Adams wrote]-- the general principles of Christianity, in which all those sects were united: And the general Principles of English and American Liberty, in which all those young men united, and which had united all parties in America, in majorities sufficient to assert and maintain her Independence. Now I will avow, that I then believed, and now believe, that those general Principles of Christianity, are as eternal and immutable, as the Existence and Attributes of God; and those principles of Liberty, as unalterable as human nature and the terrestrial, mundane system "(Letter of Adams to Jefferson, June 28, 1813).

5. Continuity with classical and medieval higher law. The terms of the higher law embraced by most Americans at the time of the founding were profoundly embedded in the Biblical horizon just intimated by John Adams, their most comprehensive and readily accepted frame of reference. John Locke was read that way--as at bottom a Christian and Aristotelian- and the Declaration of Independence also was understood in that way. As Perry Miller again observed, a cool rationalism such as Jefferson's might have declared the independence of such folk but could never have persuaded them to fight for it! As previously noticed, higher law principles were part and parcel of the tradition of English Liberty nurtured by common law Whig jurisprudence, political theory from Sir Edward Coke onward, and by the pervasive dissident Protestant influence whose stress on resistance to tyranny as religious duty and natural right animated the invocation of higher law by preachers, citizenry, and statesmen alike. Nurturing the mind of the founders also were the Greek and Latin classics, this being the "Golden Age of the Classics in America," as Meyer Reinhold and others have demonstrated, and where especially Cicero's writings were second-nature to all educated Americans.

With these perspectives in mind, we may say that higher law is intelligible either from the top down or bottom up, so to speak: i.e., as objective or subjective. From the top down or macro perspective, there is the Biblical Creator and the natural creation with its creatures, nature thus formed and penetrated by divine grace, we should notice. The abiding order of reality is viewed in terms of an ordered cosmos whose being , constancy, and regularities are self-evident and extend not only to materiality but to the moral and spiritual dimensions of experienced reality. Such a vision is invoked in Genesis as well as in Cicero's famous lines (when read against a Biblical background) that--

"True law is right reason [vera lex recta ratio], harmonious with nature, diffused among all, constant, eternal; a law which calls to duty by its commands and restrains from evil by its prohibitions... It is a sacred obligation not to attempt to legislate in contradiction to this law....nor does it require any but ourself to be its expositor or interpreter...[it is] one eternal and unchangeable law binding all nations through all time...." (Quoted from Corwin, p. 10).

This is to equate law and reason as the essential nature of man and hegemonic element, both in society and singly, as Plato and Aristotle taught, and as Cicero summarized for the benefit of subsequent centuries. The "government of laws and not of men" that, in various phrasings, made its way into Harrington's Oceana (1656), the Massachusetts Constitution of 1780 and, finally, Marbury v. Madison in 1803, began from an original statement by Aristotle in the Politics that the rule of law is superior to that of any man. The "law" in question is preeminently customary or higher law, equating with Reason, Justice and God. This standard lies behind Cicero's and Augustine's maxim, "An unjust law is no law at all" and the ready agreement of the founders that "We must obey God rather than men" (Acts 5:29). The American founding was not merely one event among others but a moral cause rooted in the deepest springs of civilization and conscious of being so.

Considered from the bottom up, our micro- perspective is that of every individual human person in relationship to God. A 16^th century English jurist Christopher Saint Germain summarized the participatory relationship as follows:

"The law of nature...is also called the law of reason [and] pertains only to creatures reasonable , that is [to] man wh[o] is created to the image of God.... And this is the law which among the learned in English law is called the law of reason, which natural reason has established among all men so that there is a natural instinct present in all men to observe it....[I]t is a sign, possessed naturally, which is indicative of the right reason of God which wills that the human rational creature shall be held or bound to do (or refrain from doing) something, in order to pursue its natural end, which is human happiness [felicitas]--be it monastic, domestic or political.... Hence the law of reason is nothing else than the participation or knowledge of eternal law in a rational creature, revealed to him by the natural light of reason, whereby he has a natural inclination [naturalem inclinationem] to act duly, and to a due end. Whence it is said in the Psalm: "The light of thy countenance is signed upon us, O Lord" [4:6?]; that is to say, the light of truth; for the light of God's countenance is truth" Doctor and Student, pp. 13-15 [1523; Selden Society Ed.]

Behind Saint Germain stands Jean Gerson , and behind Gerson , William of Ockham and Thomas Aquinas.

Now it will doubtless alarm a few of you that I think most of the talk about ancient and modern natural law and natural right in our context is largely a red herring that puts us off the scent of truth when it comes to understanding the mind of America's founders. The founders, however "enlightened" some of them were, to a man claimed to be Christians and none of them ever admitted to being a Hobbesian. Even more importantly, there is no doubt but that the society of which they were representative was pervasively religious and pervasively Christian--largely dissenting Protestant Christian at that--and this determined the tenor of their higher law convictions.

This brings us back to the affinities of the natural law and natural rights thinking reflected in the Declaration of Independence with the medieval Christian understanding of such matters, including that of Thomas Aquinas the greatest philosopher of that era. To fend off an obvious objection, 18^th century Protestantism in America drew substantially on the patristic, and to some extent upon the medieval scholastic teachings. Thus, Ralph Barton Perry long ago warned against the "fallacy of difference" in his analysis of American Puritanism, to the end of denying that theologically it was an innovating doctrine or radically different from previous Christian teaching: the similarities and agreements were much more substantive than the dissimilarities and disagreements. Another helpful clue is to remember Presbyterian John Witherspoon's admiration of the "popish divines." Their work was imbibed by young James Madison and seven other members of the Federal Convention who had been his students and were graduates of the College of New Jersey (later Princeton, where Witherspoon was president) as a standard part of their studies. But the substance of the presentation of the key ontological, anthropological, and political issues--i.e., the overall understanding of reality, human and divine-- shows the equivalence in essential respects of the understanding of human nature, natural law, and natural rights advanced in medieval philosophy with that reflected in much of American thought and conviction during the founding.

The matter at this stage can be given a strong formulation: contrary to one vocal and influential school of thought in our midst, "it is just not true that 'the notion of subjective right is logically incompatible with classical natural right'," nor that "'natural rights and traditional natural law are...incompatible,'" as has been alleged. We follow in this judgment the distinguished medievalist, Brian Tierney, who flatly rejects these views as "based on a mistaken idea that modern rights theories are derived entirely from Hobbes and on simple ignorance of the history of the concept of ius naturale before the seventeenth century." By contrast Tierney demonstrates that--

"the precepts and prohibitions of natural law [can] readily be seen as implying rights. To say that 'Thou shalt not steal' is a command of natural law is to imply that others have a right to acquire property.... In fact one finds natural rights regarded as correlative with natural law at every stage in the history of the doctrine--in the twelfth-century renaissance of law, in the eighteenth-century Enlightenment, and still in twentieth-century discourse,"

as in Jacques Maritain and John Finnis (B. Tierney, The Idea of Natural Rights [1997], 35--contra and quoting Leo Strauss and Walter Berns.)

6. Aquinas, Algernon Sidney, and the Declaration of Independence. It is just this correlation and reciprocal relationship between the requirements of natural law and implicit natural rights that was decisively important to the founders. It is deserving of emphasis here as a means of reuniting the vision that sustained the Revolution and made the Constitution possible in an America that was not nearly so theoretically shattered and in secularized disarray as some suppose.

To dig a bit deeper into the subject, it will be helpful to consider some of the points advanced by the universally admired and widely read Whig martyr, Algernon Sidney (executed in 1683), whose great classic of Liberty, entitled Discourses Concerning Government, is a major conduit linking civilizational past and founding era. For Sidney, the complementarity of reason, experience, and revelation (as disclosed in Scripture) in knowing the truth of things is a basic conviction, one shared by the American founding generation. Sidney's self-evident starting point in prudential and political matters is that Good is that at which all things aim. In so holding he is reiterating Western political philosophy, not only back to Aquinas and, but back to Aristotle and Plato as well. In concise summary Sidney writes that --

"if governments arise from the consent of men, and are instituted by men according to their own inclinations, they did therein seek their own good; for the will is ever drawn by some real good, or the appearance of it. This is that which man seeks by all the regular or irregular motions of his mind. Reason and passion, virtue and vice, do herein concur.... A people therefore that sets up [government does it so]...that it may be well with themselves and their posterity" (Discourses, 49).

The chief good, therefore, of the social and political order is the safety and well-being of the people and of every individual among them: salus populi suprema lex [esto] (Discourses, 357n, 432). Perhaps following John Selden, then, the supreme well-being of the people is to foster God-given Liberty that, along with Reason, is the specific essence of every human being, each considered to be equal to one another by nature as bearing the mark of their Creator. This, in turn, requires that Justice be the cardinal aim of political and legal administration. Sidney says of the basis or first principle of free government that--"[I]f the safety of the people be the supreme law, and this safety extend to, and consist in the preservation of their liberties, goods, lands and lives, that law must necessarily be the root and beginning, as well as the end and limit of all magistratical power, and all laws must be subservient and subordinate to it. The question will not then be what pleases the king, but what is good for the people...what best secures the liberties he is bound to preserve" (ibid., 403).

As to law, Sidney writes that "we are free-men governed by our own laws, and ...no man has a power over us, which is not given and regulated by them" (ibid., 416). The vital connection between the law of nature and natural rights is simply reciprocal. Sidney states that --

"[I]f the safety [and well-being] of nations be the end for which governments are instituted, such as take upon them[selves] to govern... are by the law of nature bound to procure it; and in order to this, to preserve the lives, lands, liberties and goods of every one of their subjects [or citizens].... If all princes are obliged by the law of nature to preserve the lands, goods, lives and liberties of their subjects, those subjects have by the law of nature a right to their liberties, lands, goods, &c. , and cannot depend upon the will of any man, for that dependence destroys liberty, &c." (ibid., 405-406 emphasis added).

Since this reciprocal connection is seldom understood today, I emphasize the point: whatever is required by the law of nature at the same time creates or legitimates a correlative subjective or personal natural right, so that duty and right are mirror images. The law of self-preservation entails the right of defense or the use of such other means as may be essential to preserve one's being, for instance. This correlative connectedness is identifiable in Western theory at least as early as the 12^th century. It is set forth in John Locke, and it is a pivotal argument of the Declaration of Independence.

Liberty itself--to continue with Sidney a little farther-- is both an exemption from the dominion or will of another as well as from domination by irrational and enslaving passions from within. It "subsists as arising from the nature and being of a man" as God's creature (ibid., 510). No man has authority over another except by consent, nor can such authority be continued unless it serves the common good and welfare of the people which is its raison d'être and ultimate justification (ibid., 519). Any power that presumes to usurp or otherwise exercise domination is arbitrary or tyrannical and ought to be resisted: "God helps those who help themselves," Sidney famously writes (ibid., 210). And he does not fail raise the banner of "Christian valor" and to quote from the New Testament, Acts 5:29: "It is better to obey God than man" (ibid., 359, 436). As for the celebrated teaching of Romans 13 that the "powers that be are ordained of God," Sidney responds much as did the American preachers of the Revolutionary period. "An unjust law is no law at all," Cicero, Augustine, and Aquinas wrote, Sidney and Americans of the period believed--and still seem to believe, if Martin Luther King's 1963 Letter From Birmingham Jail and the "Civil Rights Revolution" it justified be taken as evidence. On this view, only just government, established not for their destruction, but for the well-being and preservation of the people, can claim legitimate authority (ibid., 380, 355). "All princes therefore that have power are not to be esteemed equally the ministers of God," Sidney states. He then continues-

"And tho I am unwilling to advance a proposition that may sound harshly to tender ears, I am inclined to believe, that the same rule, which obliges us to yield obedience to the good magistrate who is the minister of God, and assures us that in obeying him we obey God, does equally oblige us not to obey those who make themselves the ministers of the Devil, lest in obeying them we obey the Devil, whose works they do" (ibid., 372-73).

These are views completely consonant with the American argument against the ministry and George III whose policies are condemned in the Declaration as perverting monarchy into tyranny and thereby rupturing the obligations of allegiance on the part of the colonies. It coincides, also, with the rejection of passive obedience to the powers that be, since American preachers widely agreed that God never intended obedience to tyrants but demanded resistance to evil.

The "fit" of the implicit and explicit American theories with those of Thomas Aquinas' philosophy of human affairs is striking as demonstrating a continuity of civilization and thought, at least in basic principles, over a period of half-a-millennium and across the vicissitudes of the Protestant Reformation. I can mention here only bare-bones essentials. You will remember that the Declaration asserts the primacy of the laws of nature and of nature's God, seals its claims by invoking "a firm reliance on the protection of Divine Providence" and by pledging the signatories' lives, fortunes, and sacred honor. The Declaration proclaims it to be self-evident truth that all men are created equal and endowed by their Creator with certain indelibly defining characteristics called inalienable rights, included among which are rights to life, liberty and the pursuit of a happiness; governments exist primarily so as to secure these rights to the people individually and collectively, and draw all of their just authority from the consent of the free men or people who compose the political community governed.

What about Aquinas, who admittedly developed no natural rights doctrine himself? Thomas begins from self-evident truth in setting forth the terms of natural law which is, in fact, a summary of political no less than legal philosophy. The basic truth that is the self-evident foundation or first principle of all prudential or practical reason, and governs all action, is that all things seek Good. This is interpreted as empirically vindicating the Golden Rule as the foundation of all law: the first precept of law is that "good is to be done and ensued, and evil is to be avoided." Thus, "whatever the practical reason naturally apprehends (naturaliter apprehendit) as man's good (or evil) belongs to the precepts of the natural law as something to be done or avoided." We should mention that true Good (bonum verum) for Thomas is finally validated by cognition, not by desire.

Everything else follows from this basic principle, in an account indebted to Aristotle's Nicomachean Ethics (I.i. 1094a3). Seeking the good is natural to all things. When considered in specifically or properly human terms (as we also saw in Christopher Saint Germain), it is the law of our nature manifested in terms of appetite, tendency or inclination (inclinationem). These are manifest in three related precepts of natural law as goods to which we are drawn or naturally attracted. As such, in Thomas's terse text, these are ends or objects of pursuit in all human action. First is the inclination to preserve one's being itself or life, so that whatever tends to the preservation of life or existence and warding off its obstacles belongs to natural law. The second is the inclination shared with other animals to reproduce, care for and protect one's family, educate progeny and otherwise foster their well-being. The third is the inclination to good according to man's highest faculty of reason which is proper to him as being intelligent, his specific essence: "thus man has a natural inclination to know the truth about God and to live in society; and in this respect, whatever pertains to this inclination belongs to natural law." Thomas later on cites Gratian (fl. ca. 1140, Decretum I.i): "'the natural law is what is contained in the Law [Torah] and Gospel,... by which everyone is commanded to do to others what he would have done to himself [Matt. 7:12], and forbidden to do to others what he would not have done to himself'" ( quotations from Summa theologiae I-II, Q. 94, A. 2 & A.4.)

Our suggestion is merely that the Thomasic account as natural law generally accords with the Declaration's account as natural rights. If we can put labels aside, perhaps we can agree. In any event, we are attempting to explore a fabric of thought shared in substantial degree by a civilization, and it is recognizable in different rhetorical modes in time and place as patently analogous or equivalent articulations of the common reality of human experience. That is the argument. Thus, the inalienable right to life corresponds to the law of self-preservation. The right to liberty bears correspondence to the law of so living as freely to propagate and nurture the physical, intellectual and spiritual well-being of one's self , progeny and family according to one's own lights and rational inclinations toward the beneficial and good. And the right to "pursue Happiness" corresponds to the desire to know the truth about God and ultimate reality and to live at peace in society. The highest expressions of this quest as proper to the specifically human in man include the desire for earthly flourishing in political and economic communities formed through friendship and like-mindedness, civic orders protective of property, peace and safety. Beyond history and the world itself, the spiritual quest encompasses the hope through love of God of eternal Beatitude.

From Aristotle onward the highest good attainable by action is happiness and blessedness--eudaimonia and makarios in his words. For Christians it is the summum Bonum of union with God, Beatitude, and the satisfactions of the life of faith-grace relationship formed through love in the here and now in hope of salvation in the eternal beyond. This is experientially to know through participation the presence and truth of God. Such a range of highest goods and their sources clearly fell within the range of the American founders' thought as reflected in the Declaration and much more discursively elsewhere at the time. There is, of course, no excluding nor minimizing of the lesser goods we seek as contributory to personal happiness in life. The goods whereby we preserve and foster life and well-being, both personally and socially, are both ordained by natural law to human fulfillment, as the rule of our natures, and also presumptive rights that inhere in every person in relationship to every other person and to institutional authority of every kind.

7. Conclusion. To conclude, then, it can be stressed that both the Declaration and Thomas proffer person-centered teachings. The goods that define inclinations or affections in terms of natural law find their correlates in natural rights to those goods as the just aspirations of every human being considered as all equal and brothers because potentially bearing the image and likeness of the Creator. The goods essential to human thriving that define what it is to be a man rather than something less are, at the same time, both natural law and natural rights, both the word of the Creator governing life and the just desire of the creature, despite all sin and imperfection. Such a map of reality human-divine as we have hinted at is a great gift of our civilization in both its medieval and modern stages. Its vitality continues into the present. In its political and constitutional aspects, the Founders supposed, perhaps civilization's best gift to mankind in history.