Edward S. Corwin’s The “Higher Law” Background of American Constitutional Law is a seminal work that explores the philosophical and legal foundations underlying the United States Constitution. First published in the early 20th century, this essay argues that the principles of natural law and higher law profoundly influenced the development of American constitutional thought. Corwin’s analysis provides valuable insights into how early American legal theorists and framers viewed the Constitution not just as a legal document, but as one rooted in universal moral principles that transcend positive law (laws made by human authorities).
Key Themes and Concepts:
Natural Law and Higher Law: Corwin focuses on the idea of higher law, which refers to the belief that there are certain laws, grounded in nature, reason, or divine will, that are superior to any human-made laws. This concept of natural law is central to the philosophical tradition that influenced the Founding Fathers, particularly figures like John Locke, whose theories of natural rights and government by consent were instrumental in shaping American political thought.
Influence on American Constitutional Law: Corwin argues that the Declaration of Independence and the U.S. Constitution were heavily influenced by higher law traditions. The Declaration’s assertion that all men are endowed with certain unalienable rights, including “life, liberty, and the pursuit of happiness,” reflects the natural law thinking that the law must conform to moral principles. This higher law concept implies that governments are legitimate only insofar as they respect these natural rights, and laws that violate these rights are inherently unjust.
Historical Development of Higher Law Theory: Corwin traces the origins of higher law ideas through English common law, Enlightenment philosophy, and classical political theory. He discusses how these ideas were incorporated into American legal traditions through the writings of thinkers like William Blackstone and Montesquieu, as well as how higher law thinking was adapted to the political and social conditions of the American colonies. For instance, the early colonists often invoked higher law principles in their disputes with Britain, particularly regarding taxation and representation.
Judicial Interpretation and Higher Law: Corwin explores how the American judiciary, particularly the Supreme Court, has used higher law principles to interpret the Constitution. He discusses landmark cases in which the Court has invoked the idea of natural rights or inherent freedoms to strike down laws that were deemed unconstitutional. For example, the Dred Scott v. Sandford decision and the debates surrounding slavery are examined in the context of whether higher law principles were applied or ignored.
Higher Law vs. Positive Law: A major theme in Corwin’s work is the tension between higher law and positive law. Positive law refers to laws enacted by governments, while higher law represents a moral framework that judges the justice or injustice of those laws. Corwin highlights moments in American history when this tension became especially significant, such as during the Civil War and the struggle for civil rights, where legal systems enforcing slavery and segregation were challenged by appeals to higher law.
Critique of Legal Realism: In his analysis, Corwin also critiques the emerging school of legal realism, which downplays the importance of moral or philosophical principles in legal interpretation and emphasizes the practical effects of law. He defends the notion that higher law provides a necessary moral compass for understanding constitutional law and argues that legal realism risks undermining the foundational ideals of the Constitution.
Significance of the Work:
Edward S. Corwin’s The “Higher Law” Background of American Constitutional Law is a foundational text for understanding the philosophical underpinnings of the American legal system. It demonstrates that the U.S. Constitution was not merely a pragmatic legal framework but was also conceived within a broader context of moral and philosophical ideals. This work has had a lasting impact on constitutional scholarship, especially in discussions of natural rights, judicial review, and the moral obligations of law.
Corwin’s exploration of higher law is crucial for understanding debates about constitutional interpretation, including originalism and living constitutionalism. His work helps clarify the idea that the Constitution is more than a set of rules; it is a reflection of deeply held beliefs about justice, human rights, and the role of government.
Conclusion:
The “Higher Law” Background of American Constitutional Law provides a rich analysis of the natural law tradition and its influence on American constitutional development. Edward S. Corwin’s exploration of how higher law principles shaped the Founding Fathers’ understanding of law and governance offers readers a deeper appreciation of the moral dimensions of the U.S. Constitution. This work remains relevant for legal scholars, historians, and anyone interested in the philosophical foundations of American law and government.
