Harvard Law Review, eventually published as The “Higher Law” Background of American Constitutional Law (1955), traced both the theory and practice of American constitutional law to ideas of natural justice implicit in the English common law tradition, and beyond that to the ancient concept of ius naturale. It is worth noting, however, that Corwin’s work was not widely read until it was assembled into a monograph in 1955, after the natural law renascence was well under way. In the early 1930s, Charles Haines’s The Revival of Natural Law Concepts (1930) and Benjamin Wright’s American Interpretations of Natural Law (1931) also investigated the role of natural law in American jurisprudence.
Still, Corwin, Haines, and Wright were not especially interested in the philosophical grounds of natural law. Like the advocates of sociological jurisprudence and the legal realists, they were interested primarily in what judges do. To be sure, until the 1890s there was relatively little reason for judicial review to ignite debates over natural law. For example, in federal cases adjudicated during the early years of the Republic, the theme of natural law arose infrequently and even then only indirectly. Admittedly, the federal courts of the nineteenth century did face problems of natural justice in connection with slavery. Even so, most federal judges enforced the written terms of the fugitive slave clause.14 The Dred Scott case in 1857 was perhaps a premonition of a debate as to whether judges should avail themselves of moral theories in adjudicating constitutional cases, but the problem was settled by Congress after the Civil War. Abolitionist enthusiasm for natural justice found expression in the legislative rather than the judicial arena.
Corwin, Haines, and Wright’s interest in natural law was piqued by judicial events that began to transpire three decades after the Civil War. In the 1890s the Supreme Court embarked on a new interpretation of the due process clause of the Fourteenth Amendment. Due process guarantees were invested with “substantive” meanings and purposes, especially with regard to rights of property and contract. Over the next two decades, federal courts struck down hundreds of state laws under the rubric of “substantive due process.” Both partisans and critics of this new jurisprudence understood that the courts were using something like natural law reasoning.15
In varying degrees, Corwin, Haines, and Wright approved of what seemed to be a fresh “revival” (to cite Haines’s term) of natural law, especially in defense of individual liberty against government.16 But this attitude was not widely shared, and it certainly did not represent a significant movement in the universities or law schools, not to mention the wider public. This is easily explained. At that time, the judicial discovery of natural rights was perceived not only as antipopulist but as contrary to social reform. By their advocates, these newly discovered rights were deemed to be bulwarks of individual economic liberty, upheld against the policies of social reform enacted by state legislatures in the early part of this century, and then by the New Deal Congress during the Depression. In defending individual property rights from the bench during a time of economic crisis and dislocation, the Court made natural law appear contrary to the common good. Here, of course, we are not passing judgment on that jurisprudence (natural law theory, after all, is typically used to check legislative will, whether of kings or of democratic majorities); rather, we are explaining why a very interesting episode of natural law reasoning in the 1930s fell flat. Not only in America, but even more so in Europe, there prevailed a popular urge to remove whatever was deemed an impediment to strong legislative and executive action in addressing the crises of the decade. In any event, with the retirement in 1938 of Justice George Sutherland this era of judicially enforced natural rights came to a close.17
Interestingly, although Heinrich Rommen has relatively little to say about the Anglo-American traditions of natural law jurisprudence, he does mention the institution of judicial review.18 Indeed, he refers approvingly to the project of juridically applied natural law. On this matter, two points need to be made. First, Rommen was not trying to insinuate himself into a debate over American constitutional law. He shows little or no awareness of the currents and riptides of debate over use of natural law by the Supreme Court. Rommen refers to the institution of judicial review in order to make the philosophical (rather than constitutional) point that the mere fact that a law is posited by the will of a lawmaker is neither the first nor the last word in what constitutes a law. Wherever there is a Bill of Rights, he observes, there is a “strong presupposition” that the law is not out of harmony with natural law.19 Second, we need to remember that in Europe—in Germany and Italy in particular—the problems of the Great Depression quickly led to centralized state authority that brutally trampled on individual rights in the name of the common good. Thus, for many Europeans like Rommen,20 the discovery and defense of individual rights by the United States judiciary, especially in the face of a public emergency like the Depression, certainly appeared to be evidence of a tradition lost in Europe.
The renascence of natural law theory in the 1940s and 1950s owed little to this rather specialized issue of judicial review; if anything, it had to overcome an allergic reaction to that subject.21 In any case, the recently transplanted Europeans were far more interested in philosophical, and in what might be called civilizational, issues. Consider, for example, the first round of publications produced by these thinkers: Rommen’s The Natural Law was published in English translation in 1947; Leo Strauss’s National Right and History in 1950; Simon’s Philosophy of Democratic Government, and Maritain’s Man and the State in 1951; and Voegelin’s New Science of Politics in 1952. In these books the problem of the moral foundations of law and politics are treated speculatively, broadly, and, for lack of a better term, classically.
To some extent, the interests of these émigrés overlapped. They agreed, for example, that the origins of modern totalitarianism are to be found in the Enlightenment; they also agreed that the Romantic reaction worsened rather than corrected the Enlightenment’s consequences. The contrast between the philosophy of the ancients and moderns became a trademark of the Straussian school, but virtually all of the émigré thinkers, including Rommen in The Natural Law, drew some version of that distinction. Yet it would be a mistake to suppose that their common interests and overlapping research programs amounted to a common doctrine of natural law. Leo Strauss, Eric Voegelin, and Catholics like Rommen, had distinctively different approaches to the subject.
Besides the obvious fact of their religion, the Catholic thinkers had at least three things in common that distinguished them from the other émigrés. First, Rommen, Simon, and Maritain shared a philosophical vocabulary that was rooted in scholastic thought, specifically in the work of Thomas Aquinas. Second, for the Catholic thinkers the philosophy of natural law was a living tradition: that is to say, it was not only a concept to be expounded according to the philosophy of the schools, it was a tradition formed by centuries of application to a wide array of intellectual and institutional problems. Third, the Catholic thinkers were more confident in building and deploying a system of natural law. Not only Heinrich Rommen, but also such well-known Thomists as Jacques Maritain and the American Jesuit John Courtney Murray wanted to rescue the concept of natural rights from what they deemed the dead-ends and errors of modern philosophy—a project that was a contradiction in terms to many, if not most, of the writings and students of Leo Strauss.
At midcentury, then, these Catholic thinkers were confident that the crisis of the Second World War provided an opportune moment for reconsidering democratic institutions in light of traditional natural law theory. Because this Scholastic tradition informs almost every page of Rommen’s The Natural Law, it will be helpful briefly to examine it.
The word scholasticism derives from the dialectical method of the medieval schools, in which the dicta of authorities (auctoritates) in matters of theology, law, and philosophy were submitted to a very complex and open-ended form of systematization. Beginning with the compilation and classification of authoritative dicta, the data were to be interrogated, distinguished, and disputed. The scholastic method was in part the legacy of the legal revolution of the twelfth century, when the Roman Catholic Church, having secured its legal autonomy from the Carolingians, consolidated its independence by systematizing ecclesiastical customs and legal rulings. In about 1140, for example, Gratian, a Camaldolese monk from Bologna, produced
