Higher Law

• Author: Thomas C. Grey
• Pages: 1286-1289

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Americans have never been hesitant to argue that if a law is bad it must be unconstitutional. When no written constitutional provision suggests an interpretation that undermines the law under attack, American lawyers have often looked to the ancient tradition of unwritten higher law for support.

It is worth distinguishing two kinds of unwritten higher law. The first is natural law, conceived by the ancient Stoics as, in Cicero's words, "right reason, harmonious, diffused among all, constant, eternal." The Stoic conception was integrated with Christian theology by the medieval scholastics, and later was reformulated in a secular and individualistic direction by the NATURAL RIGHTS theorists of the Enlightenment. In this latter form, the natural law tradition provided the intellectual background for the American colonists' assertion of "certain inalienable rights" in the DECLARATION OF INDEPENDENCE.

The second kind of unwritten higher law, which we may call FUNDAMENTAL LAW, derives from those conventional and largely unquestioned values and practices that need be neither constant, eternal, nor dictated by reason. The members of a society may see their fundamentals as contingent, peculiar to themselves, and mutable?though, because fundamental, not easily or quickly mutable. On the other hand, those who see their own society's basic conventions as the only possible ones do not accept, perhaps cannot even understand, the distinction between "natural" and "fundamental" law.

In the practice of legal argument either natural or fundamental law can have priority, with the other regarded as ancillary. Thus one can argue that a principle is legally binding because it comports with right reason, as is incidentally confirmed by its acceptance in society; or one can reverse the priorities, leaving reason to confirm what convention and tradition primarily establish. Until about the mid-nineteenth century, American lawyers alternated between these rhetorical strategies, but since the Civil War the fundamental law strand has predominated.

The American idea of fundamental law derived originally from the seventeenth-century English habit of conducting political disputes in terms of an "ancient constitution," unwritten and believed (like the COMMON LAW itself) to be of "immemorial antiquity." Sir EDWARD COKE exemplified this habit when he merged natural with traditional law and both with English common law, and then asserted judicial authority to override legislation in the name of this powerful conglomerate. His declaration in BONHAM ' SCASE (1608) that "when an Act of Parliament is against common right and reason ? the common law will control it, and adjudge such act to be void" supplied a significant argument in the American colonists' struggle with Parliament between 1761 and 1776.

During the prerevolutionary period, the Americans argued for limitations on Parliament's authority over them on the basis of this same conglomerate of reason, common law, and constitutional tradition. Only when they broke with the English crown altogether in 1776?an avowedly revolutionary step?was their justification purely in terms of natural right.

With independence, the new states enacted popularly ratified written constitutions, a process later repeated in the adoption of the federal Constitution. The question then arose whether the new constitutions subsumed the older idea of unwritten constitutional law based on reason or tradition. The classic debate on this question was the exchange of OBITER DICTA between Justices JAMES IREDELL and SAMUEL CHASE of the Supreme Court in CALDER V. BULL (1798). Iredell argued that a law consistent with the applicable written constitutions was immune from further JUDICIAL REVIEW; because the "ablest and the purest minds differ" concerning the requirements of natural justice,

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judges should assume no special authority to enforce so indeterminate a standard. Chase insisted that "certain vital principles in our free Republican governments" would invalidate inconsistent legislation whether the principle were enacted or not; thus a law that took the property of A and gave it to B could not stand, even if the applicable written constitution did not explicitly protect private property.

Chase's dictum followed the tenor of the NINTH AMENDMENT to the federal Constitution (1791): "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But the Ninth Amendment does not settle the Chase-Iredell dispute...