To say that people flown with high confidence offer specious things as moral truths is not to say that there are no moral truths there to be known.
Rethinking America's Cicero Connection
In “Cicero’s Fragile Trinity,” Scott Nelson reviews Michael Hawley’s important new book, Natural Law Republicanism. Hawley shows that Cicero greatly influenced John Locke, and that leading Founders (including John Adams and James Wilson) followed Cicero and Locke in basing their theories of government on three key concepts—natural law, liberty, and popular sovereignty.
As Hawley explains, those three concepts created an “uneasy combination,” which assumed that “the sovereignty of the people could somehow be reconciled with an immovable, eternal moral law and that the union of these two principles could undergird liberty for citizens.” Nelson describes the same confluence of ideas as a “fragile trinity.” Tensions within that “fragile trinity” caused serious disagreements among the Founders and pose significant challenges for our nation today.
Cicero, Locke, and the Founders
Cicero and Locke believed that the liberty of citizens depended on (1) a divinely-ordained law of nature, endowing people with natural equality as well as natural rights to life, liberty, and property, and (2) a government established by social contract, ensuring equal treatment for citizens under the law and protecting their natural rights consistent with the needs of a well-ordered society. Citizens had a God-given right to overthrow their government if it violated the social contract. Neither Cicero nor Locke discussed whether the social contract should be written down (instead of being based on custom), or whether violations of the social contract could be corrected by any remedy short of revolution.
The Founders filled important gaps in Cicero’s and Locke’s theories by developing written constitutions as well as new ideas about federalism, separation of powers, and judicial review. The Founders’ innovations provided peaceful methods for defending individual liberties and enforcing limits on government authority. However, the “fragile trinity” produced continuing controversies. As Hawley points out, contemporary Americans have great difficulty in reconciling competing claims involving public needs and individual rights because they do not share allegiance to a higher moral law that could resolve such disputes.
Disagreements about the binding authority of “unwritten” natural and moral laws have arisen since our nation’s early years. James Wilson suffered repeated defeats when he relied on natural-law principles to address constitutional disputes about federal-state relations and individual rights. Wilson’s setbacks create significant questions about the viability of current efforts to promote a “common good constitutionalism.” His defeats are part of a long-term failure by our political system to establish substantive rules for resolving the inherent tensions among liberty, natural law, and popular sovereignty.
James Wilson’s Reliance on Natural Law
My article about James Wilson agrees with Hawley that Wilson relied heavily on Cicero and Locke as he developed his ideas about popular sovereignty, natural law, and the social contract. However, Wilson’s version of popular sovereignty went beyond Cicero and Locke, as Wilson maintained that the people retained sovereignty after they created the social contract (instead of surrendering their sovereignty to the government).
Wilson’s concept of “perpetual popular sovereignty” provided a persuasive rationale for the Federalists’ novel ideas about separation of powers, federalism, and judicial review. Wilson and the Federalists argued that the perpetually sovereign people could divide authority between federal and state governments and could allocate each government’s powers among its three branches. Officials in all levels and branches of government would act as agents of the perpetually sovereign people.
Wilson was also heavily influenced by the Scottish “moral sense” theories of Francis Hutcheson and Thomas Reid. He drew on Cicero, Locke, Hutcheson, and Reid when he affirmed that human beings are endowed with reason and an “innate moral sense” so they can understand and follow God’s “immutable” law of nature. Quoting Cicero, Wilson declared that the law of nature is “right reason” that “calls men to their duty” and “deters them from vice.” In addition, reason must be “fortified by the moral sense; without the moral sense, a man may be prudent, but he cannot be virtuous.”
Wilson believed each citizen should enjoy “liberty, personal as well as mental, in the highest possible degree, which can consist with the safety and welfare of the state.” Each citizen should make a “devoted sacrifice” of his “private will” and “private interest” when “indispensably require[d]” by the “will and . . . interest of the community.” Citizens also owed an “indispensable duty of obeying those laws . . . of the Divinity.” In Wilson’s view, “virtue is the business of all men, [because] the first principles of it are written on their hearts, in characters so legible, that no man can pretend ignorance of them, or of his obligation to practice them.”
Wilson argued that the common law was America’s “dearest birthright and richest inheritance,” as it reflected the people’s “voluntary consent” and embodied “the common dictates of nature, refined by wisdom and experience.” Jury trials provided “the most excellent method for the investigation and discovery of truth; and the best guardian of both publick and private liberty.”
Wilson encouraged statesmen, lawyers, and judges to convey fundamental precepts of the “science of law” to ordinary citizens acting as electors and jurors. He urged common-law judges to apply principles of “natural justice” in their decisions and to guide juries by explaining applicable rules of law and summarizing the evidence.
Wilson argued that the federal Constitution established the law of nations—including its underlying natural-law principles—as a “rule of conduct” for U.S. citizens and a “rule of decision” for federal courts. He also contended that the power of judicial review was not limited to cases involving direct textual conflicts between statutes and written constitutions. He believed that a statute could “unquestionably, be controlled by natural or revealed law, proceeding from divine authority,” as determined by a court.
Many Americans disagreed with Wilson’s view that judges could establish binding rules derived from unwritten natural and moral laws. Americans revered jury trials, which gave local citizens broad discretion to decide cases without regard to the instructions of judges. Most Americans did not trust professional judges, and they strongly opposed efforts by judges to control jury verdicts.
Rejections of Wilson’s Natural-Law Arguments
Wilson suffered three major defeats when he tried to resolve disputes by invoking natural-law principles. Wilson’s positions were widely viewed as threats to individual liberties and constitutional limits on federal power.
Wilson’s first defeat occurred when he argued that a bill of rights should not be added to the federal Constitution. Wilson said that the perpetually sovereign people would retain all powers not expressly granted to the federal government. In addition, the Constitution’s silence about individual liberties would preserve the people’s unenumerated natural-law rights. Federal judges would prevent Congress from “transgress[ing] the bounds assigned to it” by the Constitution.
The Antifederalists rebutted Wilson’s arguments by pointing to the implied powers granted to Congress under the Necessary and Proper Clause, and by citing other provisions that defined treason narrowly, prohibited bills of attainder and ex post facto laws, and guaranteed jury trials in criminal cases. Those limited safeguards for individual liberties indicated that unenumerated rights would not be protected by the Constitution. In addition, the Supremacy Clause would allow the federal government to override declarations of rights in state constitutions. By adopting and ratifying the Bill of Rights, Congress and the states rejected Wilson’s claim that unwritten natural-law principles would provide adequate protection for individual rights against the federal government.
Wilson’s second defeat occurred when he joined the Supreme Court’s majority decision in Chisholm v. Georgia (1793). Chisholm denied Georgia’s claim of sovereign immunity against a suit brought by a South Carolina citizen to recover a Revolutionary War debt. Based on natural-law principles and the Constitution’s preamble, Wilson’s opinion declared that the Constitution recognized the existence of a sovereign national people, thereby precluding any possibility of state sovereignty. He also cited Article III, Section 2, which gave the Supreme Court original subject matter jurisdiction over suits between a state and citizens of another state.
Prior to the Constitution, the states enjoyed sovereign immunity from claims by individuals for money damages. Leading Federalists—including Alexander Hamilton, James Madison, and John Marshall—promised during the ratification process that Article III, Section 2 would not impair the states’ sovereign immunity. In addition, Madison (writing as Publius) affirmed that the American people would ratify the Constitution “not as individuals composing one entire nation; but as composing the distinct and independent States to which they respectively belong.” Consequently, “[e]ach State, in ratifying the Constitution, is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act” (Federalist no. 39).
Many newspapers and state legislatures condemned Chisholm, arguing that it threatened to consolidate the United States into a single political entity controlled by the federal government. Congress approved and the states ratified the Eleventh Amendment, which overruled Chisholm. Wilson’s opinion in Chisholm was plainly at odds with prevailing public opinion.
Wilson suffered a third defeat when he advocated a “federal common law of crimes” in Henfield’s Case (1793). In April 1793, President Washington issued a Neutrality Proclamation, which barred American citizens from participating in the ongoing war between France and Britain and Britain’s allies. Gideon Henfield disobeyed the Proclamation by serving on a French privateer that captured a British ship.
Wilson instructed the federal grand jury that indicted Henfield. He told the grand jury that the common law of the United States included the “law of nations . . . in its full extent,” and “infractions of that law form a part of her criminal jurisprudence.” Under the law of nations, each country had a “primary duty” to ensure its “self-preservation” and maintain peace with other nations. Henfield violated “his duty, and the laws of his country” when he engaged in “unauthorized” hostile acts against Britain, and the law of nations compelled the federal government to punish him. Wilson gave similar instructions to the petit jury, but the petit jury acquitted Henfield.
Henfield’s Case was the first major federal prosecution of a common-law crime. Wilson’s claim that federal courts could prosecute common-law crimes, including violations of the law of nations, was vigorously attacked by Republican newspapers. Article I, Section 8 of the Constitution empowered Congress to “define and punish . . . Offences against the Law of Nations,” but Congress had not passed any statute prohibiting Henfield’s conduct. Article III did not contain any provision authorizing federal courts to punish violations of the law of nations or other common-law crimes.
Federalist judges adopted Wilson’s analysis in Henfield’s Case and repeatedly upheld federal prosecutions of common-law crimes. Federalist members of Congress and judges justified the Sedition Act of 1798 by invoking the federal government’s natural right of self-preservation and its authority to prosecute the common-law crime of seditious libel. The federal common law of crimes became a major issue for Republicans in the election of 1800. For example, Madison argued that the Federalists were converting federal judges into “legislators” who would “overwhelm the residuary sovereignty of the states, and . . . new-model the whole political fabric of the country.” A popular backlash against the Sedition Act and federal prosecutions of common-law crimes helped the Republicans to capture the Presidency and Congress in 1800.
In 1812 and 1816, the Supreme Court held that federal courts were not authorized to prosecute common-law crimes. The Court’s 1812 opinion stated that it was “long since settled in public opinion” that Congress must “first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offense.” The demise of the federal common law of crimes represented a third major defeat for Wilson’s attempts to create a federal jurisprudence based on natural-law principles.
James Wilson sought to “enlarge” the rights of American citizens by creating an enlightened society, in which citizens would comply with rules derived from natural law and the moral sense. However, more skeptical Founders, like Jefferson and Madison, believed that people in a free society were motivated primarily by self-interested passions and could not reach a consensus on religious and moral values.
Proponents of “A Better Originalism” have embraced Wilson’s vision by advocating “a jurisprudence with an anchoring moral ground,” which incorporates natural-law principles and promotes “human flourishing, justice, and the common good.” Wilson’s defeats create significant questions about the viability of ”common good constitutionalism” in today’s America, which is far more pluralistic and secular than the country Wilson knew.