The history of American constitutional jurisprudence has been marked by a persistent fascination with the idea of natural law. This springs first and foremost from the fact that we understand as our constitutional foundation those “laws of Nature and of Nature’s God” to which Thomas Jefferson made such eloquent appeal in the Declaration of Independence. Further, American politics since the founding of the republic has been characterized by a commitment, with more or less success, to the simple truth James Madison posited in The Federalist. “Justice,” Madison declared, “is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit.”1 Natural law has provided a convenient rhetorical framework for the moral progress of our politics.

But natural law understood in what sense? In and of itself, the term natural law is vague and ambiguous; its content is not immediately apparent. As a result, the history of natural law in American political life is a history marked more by the utility of the phrase than by the moral certainty of the idea. It can be claimed by either side in almost any debate. At its deepest level, the idea of natural law that has periodically percolated to the surface of American politics is a confused collection of often contradictory claims. Whether “natural law” is being invoked in the sense of St. Thomas Aquinas or in the sense of Thomas Hobbes is a very important thing to know; the philosophic differences are profound.2 Sorting out those differences is thus essential to understanding the proper relationship of the Constitution to the Sweeping historical tradition of natural law.

Implicit in the natural law foundation of the written Constitution is the question of when and how may the people recur to that foundation, to the natural law and natural rights that undergird the constitutional edifice. How is the textual permanence of the written Constitution to be reconciled practically with the philosophic permanence of those self-evident truths of the laws of nature and of nature’s God? More precisely, what role was intended for natural law in interpreting the written Constitution?

A useful guide in this inquiry is Thomas Rutherforth, whose Institutes of Natural Law was a work widely read and cited among those of the Founding generation and of the first generation under the Constitution of 1787.3 But Rutherforth’s influence is not merely time-bound; he has been summoned as authority on both sides of the contemporary debated in constitutional theory.4

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Copyright © 1992 Oxford University Press. This article first appeared in The American Journal of Jurisprudence 37:1 (1992), 57-81

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