Wednesday, July 23, 2008

The Founders & Higher Law

Ed Brayton sent me a post from Nathan Bradfield, a Christian America apologist, on the Founding and Religion with some quotations from our Founding Fathers about "higher law." The notion of "higher law" is easily misinterpreted and thus needs explaining. The Founders believed in both man made "positive" law, and God given "natural" law, which positive law, by right could not contradict. "God given" did not necessarily mean "biblical." The content of natural law was ascertainable by man's reason unaided. If revelation had any role to play in determining "the laws of nature and nature's God," it was to assist or provide support for man's reason, not the other way around. Further, though the key Founders believed that reason and revelation mostly agreed, they also believed that some revelation was not legitimately given by God and had to pass the "reason" smell test to be true or part of the "higher" law that rules us and which no positive law could contradict. That is the lens through which we need to view the following quotations that Mr. Bradfield offers:

All laws, however, may be arranged in two different classes. 1) Divine. 2) Human. . . . But it should always be remembered that this law, natural or revealed, made for men or for nations, flows from the same Divine source: it is the law of God. . . . Human law must rest its authority ultimately upon the authority of that law which is Divine. --James Wilson, Signer of the Constitution; U. S. Supreme Court Justice--

The law . . . dictated by God Himself is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity if contrary to this. --Alexander Hamilton, Signer of the Constitution--

The . . . law established by the Creator . . . extends over the whole globe, is everywhere and at all times binding upon mankind. . . . This is the law of God by which he makes his way known to man and is paramount to all human control. --Rufus King, Signer of the Constitution--

Bradfield and others in first encountering quotations such as Hamilton's believe it refers to biblical law. In fact, Hamilton's "law...dictated by God Himself" refers to the "law of nature" or what man discovers from reason unaided. In founding era parlance this is how the law of nature defines. Here is the entire quotation from Hamilton:





Though Hamilton quotes Blackstone, he does so in the context of arguing the "state of nature" theory, which is Hobbsean/Lockean in origin, and, as Leo Strauss put it, "wholly alien to the Bible." The context of the quotation shows Hamilton clearly arguing for truth discovered by natural reason -- even if divinely mandated -- not the Bible. Finally, note that when Hamilton wrote this, he was not a Christian and didn't become one until the end of his life after he had done his work "founding" the nation. He believed in the same system of theistic rationalism/theological unitarianism, in which Jefferson, Franklin, Adams, and Madison believed.

Moreover, here is John Adams on the matter explaining that the laws of nature and nature's God are discovered by reason, not revelation.



Adams clearly regarded reason superior to revelation. In the following letter to Jefferson (Dec. 25, 1813), he discusses Joseph Priestley's work and prefaces his statement by noting that man's reason is the ultimate discerner of the truth. Reason not only supersedes revelation, it makes revelation entirely unnecessary:


Writing in 1735, here Ben Franklin says basically the same thing (note Franklin states these ideas in the context of defending a Presbyterian minister -- Samuel Hemphill -- from charges of "heterodoxy"; Hemphill was one of many ministers during the Founding era who preached what the orthodox termed "infidelity" from the pulpit):


Franklin goes on to describe the proper relationship between reason and revelation and, like Adams above, positioned scripture as secondary revelation, with "reason" or "the light of nature" as primary revelation that God gave to man:


Article I.


In the following, Franklin clearly noted that revelation must be "reasonable" in order to be true. And the difference between this system and orthodox Christianity makes a difference. Franklin argues for this method in the context of denying original sin and that non-Christians, because of such, deserve eternal damnation and will go there if they die without Christ. Franklin disagrees: "to suppose a Man liable to Punishment upon account of the Guilt of another, is unreasonable; and actually to punish him for it, is unjust and cruel." He then writes:

Our Adversaries will perhaps alledge some Passages of the sacred Scriptures to prove this their Opinion; What! will they pretend to prove from Scripture a Notion that is absurd in itself, and has no Foundation in Nature? And if there was such a Text of Scripture, for my own Part, I should not in the least hesitate to say, that it could not be genuine, being so evidently contrary to Reason and the Nature of Things. But is it alledg'd, that there are some Passages in Scripture, which do, at least, insinuate the Notion here contradicted? In answer to this, I observe, that these Passages are intricate and obscure. And granting that I could not explain them after a manner more agreeable to the Nature of God and Reason, than the Maintainers of this monstrous System do yet I could not help thinking that they must be understood in a Sense consistent with them, tho' I could not find it out; and I would ingeniously confess I did not understand them, sooner than admit of a Sense contrary to Reason and to the Nature and Perfections of the Almighty God, and which Sense has no other Tendency than to represent the great Father of Mercy, the beneficent Creator and Preserver of universal Nature, as arbitrary, unjust and cruel; which is contrary to a thousand other Declarations of the same holy Scriptures. If the teaching of this Notion, pursued in its natural Consequences, be not teaching of Demonism, I know not what is.

James Wilson, whom Bradfield quotes, likewise believed the same. He once stated "the scriptures support, confirm, and corroborate, but do not supersede the operations of reason and the moral sense." Indeed, he believed revelation's task was to support reason, not the other way around: "Reason and conscience can do much; but still they stand in need of support and assistance." And yes, Wilson, like Adams, Franklin, Hamilton, and Jefferson, was not an orthodox Christian but a "theistic rationalist."

In sum, when the Founders spoke of higher law which no positive law could contradict, they referred to natural law which was discoverable by reason, and not necessarily revelation. Indeed, only those "reasonable" parts of the Bible were part of such "higher" law which, they believed, formed the organic law of our nation. Thus, the higher law/natural law dynamic of our Founding lends more support to an "Enlightenment" worldview than a "Biblical" one.


bpabbott said...


Another excellent post. Any chance you'll write a book on the subject?

Jonathan Rowe said...

Eventually yes I'd like to write a book. Though I'm still thinking of what my "niche" or particular angle will be ('cause there are a hell of a lot of books out there already on the matter generally by far more distinguished folks).

Tom Van Dyke said...

How much does a God-promulgated "natural law" owe to the Enlightenment? You can find it in Aquinas.

Jonathan Rowe said...

Good point. "Enlightenment" perhaps is a loaded term. I equate it with "reason." So perhaps Aquinas was the father of "Christian Enlightenment."

Tom Van Dyke said...