Enlightenment and Higher Law Philosophy in American Law

Constitutional Rights

Introduction

The Constitution of the United States is an enduring document that has been the subject of much analysis and interpretation. The document establishes the framework for the federal government and guarantees certain rights and privileges to citizens. These protections have been interpreted in a variety of ways over the years, and there is still much debate about their meaning and application. One way to analyze the Constitution is through the lens of higher law philosophy. This approach emphasizes the importance of natural law and unalienable rights. It holds that the Constitution should be interpreted in light of these principles, rather than simply as a set of rules or regulations. Another common way to analyze the Constitution is through the lens of contemporary legal views. This approach focuses on the current understanding of constitutional law and strives to apply it to 21st century challenges. Both of these approaches have merit, and they can provide insights into the meaning of the Constitution. Yet when it comes to understanding Constitutional Rights, there continue to be problems regarding how society interprets universal principles of morality and justice.[footnoteRef:2] The problem is that much of modern society has moved away from a Biblical understanding of these principles, and therefore people assert their own personal and subjective definitions of truth, dignity, morality, and so on. It is a situation in which moral and legal chaos portends a disintegration of meaning as it pertains to the notion of Constitutional Rights. For if society cannot even agree on what is morally good and what is not, how can it agree on how the Constitution should be interpreted? This paper will evaluate the relationship between higher law philosophy and contemporary legal views as they pertain to the issue of Constitutional Rights and show why a Biblical perspective is needed for structural purposes. [2: Brauch, Jeffrey A. "Preserving True Human Dignity in Human Rights Law." Capital University Law Review, Forthcoming (2022), 116.]

Higher Law Philosophy

The universal principles of higher law philosophy are those legal principles that are derived from natural law or morality, as opposed to positive law. The concept of higher law is often contrasted with positive law, which consists of the man-made laws enacted by legislature or other government bodies. Many philosophers and legal theorists believe that there is a higher law that exists independently of positive law, and that this higher law should take precedence in cases where the two conflict. Proponents of higher law often argue that it provides a more just and moral foundation for the legal system, as it is based on objective principles rather than the whims of legislators. As such, the universal principles of higher law philosophy are an important part of many legal systems around the world.

There are a number of different philosophies that fall under the umbrella of higher law. But there are also some universal principles that can be found across all of these philosophies. One of the most important is the idea that there is a higher authority than human laws – whether that be God, nature, or reason. This higher authority is what gives human laws their validity and importance. Another universal principle is the idea of natural rights – the belief that all human beings have certain inherent rights that must be respected by any just legal system. This includes things like the right to life, liberty, and property. Finally, another key principle is the idea of justice – the idea that everyone should be treated fairly and equally under the law. These are just a few examples of the universal principles of higher law philosophy. But they provide a good starting point for understanding this complex and important area of thought.

The main problem is that in spite of this common understanding of a higher law under the higher law umbrella, there is still a great deal of disagreement among the philosophies that govern the perspectives under that umbrella. For instance, God-based higher law (such as that of Christianity) is much different from rationalism or naturalism, which can have very different principles and meanings for human dignity, purpose of life, happiness, goodness, the common good, and so on. The God of the Bible has clear laws for humanity—but rationalists and naturalists would not necessarily deign to accept these laws as applicable in modern society. For example, naturalists and rationalists might see no reason divorce should not be permitted in society (or perhaps why marriage should even be necessary), while a Christian could point to Luke 16:18—“Everyone who divorces his wife and marries another commits adultery, and he who marries a woman divorced from her husband commits adultery” and Matthew 19:6—“So they are no longer two but one flesh. What therefore God has joined together, let not man separate” to show that marriage is serious and desired by God. Rationalists, naturalists, and Christians might agree on the importance of a higher law versus a positive law, but they do not agree on what that law actually teaches in every case. Christians have a sense of revealed law, given to them by God. Those without faith reject revelation and thus reject the idea that there is a way that God wants them to live.

Where Constitutional Rights Come In

The US Constitution was written by rationalists and naturalists of the Enlightenment era, using “The Rights of Man” by Thomas Paine as a foundation for their framework. It is notable that they used the “Rights of Man” rather than the more medieval concept of the “Rights of God” to guide their Declaration of Independence, which set the stage for the Constitution that followed. The point is that by turning away from the “rights of God” and God’s revealed laws, the founders and framers devised their own positive law, but based it on naturalist and rationalist perspectives. The result was the Constitution. The Constitutional Rights today taken for granted are situated in that framework. It is not a Christian or Biblical framework. It is a secular framework rooted in Enlightenment philosophy.[footnoteRef:3] [3: Loughlin, Martin. Against Constitutionalism. Harvard University Press, 2022.]

The Enlightenment was a period of intellectual experimentation in Europe during the 18th century, and it ultimately paved the way for American political thought. A number of leading thinkers of the time developed ideas that were based on reason and individual rights, rather than tradition and authority (i.e., revealed religion). These ideas formed the basis of the Enlightenment philosophy, which had a profound impact on the development of the United States Constitution. The founding fathers of the United States were exposed to Enlightenment thought through their education and travels and men like Thomas Paine advocated sharply for American independence and a new American government based on freedom and equality and dignity.[footnoteRef:4] Paine was no friend of revealed religion and viewed Christianity very critically, seeing it as one of the big reasons for society’s problems (which is how many Enlightenment thinkers viewed it).[footnoteRef:5] They used these ideas to inform the creation of the Constitution. The document itself reflects Enlightenment values such as the separation of powers, checks and balances, and individual rights. In addition, the Bill of Rights guarantees a number of freedoms that are essential to Enlightenment thought, such as freedom of speech and freedom of religion. Thus, it is clear that the US Constitution has its roots in the Enlightenment philosophy. [4: Paine, Thomas. The Collected Works of Thomas Paine. DigiCat, 2022.] [5: Halverson, Jared M. "The Art of Ridicule in the Age of Reason: The Anti-Biblical Rhetoric of Thomas Paine." PhD diss., Vanderbilt University, 2022.]

Contemporary Legal Views and Why This is a Problem

The American Founding Fathers were deeply influenced by Enlightenment philosophy, which emphasizes reason, natural rights and the separation of church and state. Christianity, on the other hand, is based on faith and revelation, and teaches that Jesus is the only way to salvation. These two worldviews are fundamentally incompatible, and this tension has played out in American politics throughout the country's history. The most recent example is the culture war between conservative Christians and secular liberals, which has resulted in heated battles over issues like abortion and same-sex marriage. Or in the case of dying with dignity that Brauch highlights, the same clash is evident: the Constitution can be interpreted differently depending on how one defines the idea of “human dignity” and what the duty of the person is.[footnoteRef:6] Christianity and modern liberalism have two opposing views on this subject and that affects how Constitutional Rights are interpreted. This clash between Christianity and Enlightenment values is likely to continue as long as America remains a deeply religious country with a Constitution that protects the separation of church and state. [6: Brauch, Jeffrey A. "Preserving True Human Dignity in Human Rights Law." Capital University Law Review, Forthcoming (2022), 116.]

Contemporary legal views also highlight this clash. The United States Constitution is the supreme law of the land, and as such, its interpretation is of the utmost importance. For over two centuries, the Supreme Court has been the final arbiter of what the Constitution means, and its decisions have had a profound impact on American society. In recent years, however, there has been a growing movement among legal scholars to re-examine the Constitution and reassess its meaning in light of contemporary issues. This so-called living Constitution approach has generated a great deal of controversy, but it remains an essential part of our system of government.

The living Constitution approach is based on the idea that the Constitution is not a static document, but rather a living document that must be interpreted in light of current circumstances.[footnoteRef:7] Critics of the living Constitution argue that it gives too much power to judges and allows them to impose their own personal views on the country. They argue that the Founders intended for the Constitution to be interpreted according to its original meaning, and that this is the only way to ensure that our government remains true to its founding principles. Supporters of the living Constitution argue that it is necessary in order to adapt the Constitution to changing times. They argue that the Founders could not have anticipated all of the problems that we would face today, and that it is therefore necessary to interpret the Constitution in a flexible way. [7: Vermeule, Adrian. Common good constitutionalism. John Wiley & Sons, 2022.]

The fact of the matter is, nonetheless, that contemporary legal views are impacted significantly by living constitutionalism, which itself is impacted by shifting perspectives on morality and justice. What had informed the Western world for hundreds of years on that matter was rejected in essence by the Enlightenment era revolutionaries who created their legal system starting with the US Constitution. Contemporary views offer myriad takes on the problem. One view is that the Constitution protects certain individual rights, such as the right to free speech, freedom of religion, and the right to bear arms. Another view is that the Constitution protects collective rights, such as the right to form a union or the right to vote. There is also the view that the Constitution does not protect any rights at all, but instead establishes limitations on government power. These views are not mutually exclusive, and many legal scholars hold more than one view. However, these three views are predominant in contemporary legal thinking on Constitutional Rights along with the idea of living constitutionalism. Underneath these views, however, is a shifting bed of sand in which there is no anchor for thought and no cause for commonality. It is the problem of a society once moored by Christianity, no adrift at sea attempting to maintain order but acknowledging no external system or law of higher origin but that which emanates from the individual’s own mind.