Natural and Revealed Law and Originalism

First Principles

Coronavirus has taught us much about our culture, form of government and neighbors. Our system does not engender morality and the common-good as virtues. It is perhaps time conservatives reconsidered originalism.

Natural and Revealed law have very little influence on the dominant political philosophy in the U.S. Our political philosophy, an evolved form of Classical Liberalism[i], in the aggregate is shaped primarily by modernist and postmodern ideologies that derive from flawed continental philosophy. Only one of the political margins is shaped or influenced by concepts of Natural and Revealed Law – with little practical effect. Therefore, the influence of these concepts is minimal at most because the ideologies that have developed from Classical Liberalism either deny universals or define justice in terms that simply do not rely upon Natural or Revealed law.

Classical Liberalism, as defined and conceptualized by the two competing dominant ideologies (conservatism and left-liberalism), is the de facto political philosophy in the U.S. Both rely upon a form of reverence for Constitutional originalism. By necessity, this view holds the ‘Founders’ in a revered light and prefers the Federalists position.[ii] This position paints as salutary the revolt against tradition and convention that comprised the true founding of America nearly two hundred years before the birth of the United States.[iii] This is the core of the primary political philosophy in the U.S.,[iv] insofar as one might argue a political philosophy exists at all.[v]

The only remaining influence that Natural and Revealed Law has on political philosophy is only tangentially, on the margins and in some specific issues; abortion and marriage being prime examples.[vi] Few can explain how general revelation points to the truth of these positions. Without the aid of logic, reason, and philosophy, the growing minority is incapable of being understood by the growing majority that holds to no truth. Thus, even at the margins Natural and Revealed law have a shrinking practical effect.[vii]

Augustine argued that the temporal and the spiritual constantly intersect and that philosophy provides the common ground whereby the interaction between believers and nonbelievers can dialogue.[viii] This presupposes s functional philosophy. However, modernism and postmodernism have rendered philosophy impotent.[ix] Augustine held Plato in high regard but acknowledged the inability of pagan philosophers to effect a just society.[x] Augustine’s prescription for human government relied, overly so, on “eternal law…always and everywhere”[xi] History and events have proven man to fallen (Romans 8:3) to hear and abide by the eternal law alone.

Aquinas distinguishes between faith and reason in such a way that a failure of philosophy does not necessitate a failure of theology.[xii] He saw civil society not as deriving from nature[xiii] but as an integral part of the nature of man.[xiv] In his conception, the best form of government would comprise elements of monarchy, aristocracy, and polity.[xv]

The primary framers of the U.S. Constitution valued a theoretical, idealized, Neoplatonic conception of government. The Federalists in their writing demonstrated either a complete lack of comprehension of history and human nature or, perhaps more nefariously, a lie. Consider Hamilton in The Federalist number Seventeen discussing fears the central government would usurp local and state powers, abolishing subsidiarity. “I confess I am at a loss to discover what temptations the persons entrusted with the administration of the general government could ever feel to divest the states of the authorities of that description.”[xvi] History before and after 1787 proves that statement wrong, and Hamilton knew or should have realized this fact.

Originalism, a harkening back to the intent of the ‘Founders’ by conservatives is a plea to Neoplatonic idealism, a system that depends on citizens being good.[xvii] It is not sustainable, it lacks mechanism that ensure morality and the common good[xviii] as a virtue.[xix] Under such a system, Revealed and Natural Law have little practical effect or influence.

@onlyBarryLClark


[i] Classical Liberalism was flawed at the start and necessarily had to end in an abandonment of reverence for the Divine as it began focused on the power of man’s reason.

[ii] See, M. Diamond. Democracy and the Federalist: A Reconsideration of the Framers’ Intent, The American Political Science Review, Vol. 53, No. 1 (Mar., 1959), pp. 52-68. DOI: https://www.jstor.org/stable/1951730. For an example of ‘conservative’ Straussian arguments that synthesize the Framing and the Declaration of Independence.

[iii] We must first acknowledge that “America” had numerous founding’s, each with different goals, philosophical outlooks and worldviews. The U.S. was founded in 1787, but America has a much more diverse and longer history. Regions, states and the people that lived in each often had very different views of the role of Natural and Reveals Law in the political process. We must acknowledge that not all Framers held to the political philosophy. The debates before Ratification and until 1850, have influence that resonates to some degree with a minority view that persists. We must therefore acknowledge that The Federalist Papers were public relations documents, propaganda if your will, designed to appeal to support. They are inadequate to inform us of much of the intent of the Federalists themselves as they contain contradictions and, in some cases, outright misrepresentations and falsehoods (Federalist #68 for example). We must acknowledge the fundamental change in the nature of the Federal compact in 1861-1877. This change solidified Platonism as the dominant political philosophy in the U.S.

  For instance, most Americans accept that the “right to bear arms” is enshrined in the U.S. Constitution. Americans in the early eighteenth century would have understood this to be a state issue. Most would have understood that the concept of that right and others was a result of ancient British liberties rather than a Lockean social contract and a Federal constitution. 

[iv] See, “Government for the Common Good”, https://calhouninstitute.com/government-for-the-common-good/ for the arguments related to the presuppositions that support the argument presented here.

[v] Deviation only exists on the margins, paleoconservatism on the right and socialism on the left. The vast middle majority is shaped much more by ideology than true philosophy. Where issues that ought to be informed by Natural and Revealed law are debated in the public square these matters are shaped and corrupted by flawed notions deriving from events prior to the Framing and after. Because of our diverse founding coupled with the opposing views of political philosophy that were prominent until the mid-nineteenth century, and resident in some local and state laws until the mid-twentieth century, many Americans hold conceptions of politics that are best described and philosophically dissonant. This dissonance manifests for instance in ‘conservative’ Christians in the last several years that have accepted and fully supported national security policies that abandoned entirely the Thomistic concept of jus ad bellum as well as policies and programs that expand the power and scope of the central government. “Conservatives” cling to rights but attach the origin of those rights to a Ciceronian jurisprudence, not to ancient liberties and accidents of history as Burke might suggest. The left has essentially abandoned entirely the notion of universals as a basis for justice. It has abandoned the Lockean aspects of Classical Liberalism for a Hobbesian view. However, despite the subtle differences in the majority middle, these ideological divides share a Platonic foundation.

[vi] Even on those issues, the approach, and perhaps the understanding of most that support a position that aligns with Divine Law typically do so more ideologically than philosophically.

[vii] See, “Natural Rights and the First Amendment”, The Yale Law Journal, Volume 127, Number 2, 2017-1018, https://www.yalelawjournal.org/article/natural-rights-and-the-first-amendment. For an argument that the Framers held presuppositions about rights harkening to Natural Rights and a distinction between the Federalist and Anti-Federalist position of Common-law as a source of illumination of the Natural law.

[viii] Cropsey, Joseph. History of Political Philosophy. United States: University of Chicago Press, 2012. p. 177.

[ix] See polemic argument, http://www.openculture.com/2018/02/noam-chomsky-explains-whats-wrong-with-postmodern-philosophy-french-intellectuals.html

[x] Strauss and Cropsey, pp. 180-181.

[xi] Ibid. p. 184.

[xii] Ibid. 252.

[xiii] See argument why the Lokean/Hobbesian concept of the state of nature is wrong, “How Locke and Hobbes Were Wrong: State of Nature”, http://barryclark.info/how-locke-and-hobbes-were-wrong-state-of-nature/

[xiv] Strauss and Cropsey, p. 253.

[xv] Ibid. 257.

[xvi] J.R. Pole. The Federalist. Hackett Publishing, Cambridge,  2005. p. 87

[xvii] Tocqueville, Alexis de., Zunz, Olivier. Democracy in America. New York: Library of America, 2004. See, “Liberty cannot be established without morality, nor morality without faith.”

[xviii] Erler, E.J. The Problem of the Public Good in “The Federalist”, Polity, Vol. 13, No. 4 (Summer, 1981), pp. 649-667. https://www.jstor.org/stable/3234644

[xix] See, “Beyond Originalism”, https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/ and “Government for the Common Good”, https://calhouninstitute.com/government-for-the-common-good/.

Author: Barry

Southerner, father, husband, Christian and a retired Army field grade officer. Author of five books and of several papers and articles on ethics, culture, history, geopolitics and military affairs. He is the Executive Director of The Calhoun Institute and a partner at B&B Clark Consulting.

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