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:

Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed, that the deity, from the relations, we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensibly, obligatory upon all mankind, prior to any human institution whatever.

This is what is called the law of nature, "which, being coeval with mankind, and 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; and such of them as are valid, derive all their authority, mediately, or immediately, from this original." Blackstone.

Upon this law, depend the natural rights of mankind, the supreme being gave existence to man, together with the means of preserving and beatifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty, and personal safety.

Hence, in a state of nature, no man had any moral power to deprive another of his life, limbs, property or liberty; nor the least authority to command, or exact obedience from him; except that which arose from the ties of consanguinity.

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.

To him who believes in the Existence and Attributes physical and moral of a God, there can be no obscurity or perplexity in defining the Law of Nature to be his wise benign and all powerful Will, discovered by Reason.

-- John Adams to Thomas Boylston Adams, March 19, 1794. Adams Papers (microfilm), reel 377, Library of Congress. Seen in James H. Hutson's, "The Founders on Religion," p. 132.

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:

Priestly ought to have done impartial justice to Phylosophy and Phylosophers, Phylosophy which is the result of Reason, is the first, the original Revelation of The Creator to his Creature, Man. When this Revelation is clear and certain, by Intuition or necessary Induction, no subsequent Revelation supported by Prophecies or Miracles can supercede it.

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):

Now that natural Religion, or that the Laws of our Nature oblige us to the highest Degrees of Love to God, and in consequence of this Love to our almighty Maker, to pay him all the Homage, Worship and Adoration we are capable of, and to do every thing we know he requires; and that the same Laws oblige us to the Love of Mankind, and in consequence of this Love, as well as of our Love to God, (because he requires these things of us) to do good Offices to, and promote the general Welfare and Happiness of our Fellow-creatures...What Hemphill means by the first Revelation which God made to us by the Light of Nature, is the Knowledge, and our Obligations to the Practice of the Laws of Morality, which are discoverable by the Light of Nature; or by reflecting upon the human Frame, and considering it's natural Propensities, Instincts, and Principles of Action, and the genuine Tendencies of them.

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:

Now, that to promote the Practice of the great Laws of Morality and Virtue both with Respect to God and Man, is the main End and Design of the christian Revelation has been already prov'd from the Revelation itself. And indeed as just now hinted at, it is obvious to the Reason of every thinking Person, that, if God almighty gives a Revelation at all, it must be for this End; nor is the Truth of the christian Revelation, or of any other that ever was made, to be defended upon any other Footing. But quitting these things; if the above Observations be true, then where lies the Absurdity of Hemphill's asserting,

Article I.

That Christianity, [as to it’s most essential and necessary Parts,] is plainly Nothing else, but a second Revelation of God’s Will founded upon the first Revelation, which God made to us by the Light of Nature.

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.