In the Law and Liberty Books section, David Foster reviews Justin Dyer’s new book, Natural Law and the Antislavery Constitutional Tradition. Foster’s review underscores the book’s focus on the way natural law, which Dyer defines as
. . . . what Thomas Jefferson called the “American mind” – a set of ideas that (in Jefferson’s words) rested on “the harmonizing sentiments of the day” (p. 1). The core of these ideas are the natural rights expressed in the Declaration of Independence, understood as resting on the premise that reason can discover in human nature, general, morally obligatory principles of action (or justice) that are ultimately traceable to God, the creator and orderer of nature.
intersected with and undergirded the American constitutional tradition and slavery. Here is an excerpt from Foster’s review essay:
The basic difficulty is easily stated. If all men are created equal, so that government rests on the consent of the governed and is limited by inalienable natural rights, and if these principles underlie the government established in the Constitution, then the institution of race-based chattel slavery is a gross contradiction of the founding principles of American government. Worse even than this contradiction between principle and fact are the “disharmonies” in the Constitution itself. While it is the foundation of American liberties, the Constitution also has many provisions that appear to protect slavery: the notorious three fifths clause and interstate rendition of fugitive slaves, to mention only two examples. Far from being the glorious “liberty document” Lincoln thought it was, the Constitution seems at best ambiguous on the question of slavery and at worst directly to support it.
How then did men with antislavery sentiments work within the constitutional order to promote their views? The heart of Dyer’s answer is sketched in chapters two through five, which reflect on a series of court cases that occurred between 1772 and 1857. It is a complex, even convoluted story, in part because there is no simple linear progress, but also because each case involves different parts of the law, different legal and political circumstances, and different aspects of the contradictions mentioned above. With the occasional detour to visit a scholarly controversy, Dyer guides the reader through these multiple complex considerations with an eye for the essential fact and the heart of an argument. No one is likely to be satisfied with every argument, but he raises many essential questions and I know of no more succinct introduction to the issue.