公 法 评 论

et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis


The Christian Statesman POBox 8741-WP
Pittsburgh, Pennsylvania 15221

The Founding Fathers' View of Natural Law

by John Fielding

In a letter to Henry Lee, Thomas Jefferson specified the writings he considered basic sources for the ideas contained in the Declaration of Independence. Jefferson stated as follows:

When forced, therefore, to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification. This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit call for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c. 1


The works cited by Jefferson give us a clue as to the Founding Fathers' view of natural law


In February of 1825, Madison and Jefferson exchanged letters concerning the curriculum at the University of Virginia. Madison wrote as follows:

I have looked with attention over your intended proposal of a text book for the Law School. It is certainly the very material that the true doctrines of liberty, as exemplified in our Political system, should be inculcated on those who are to sustain and administer it. It is, at the same time, not easy to find standard books that will be both guides & guards for the purpose. Sidney & Locke are admirably calculated to impress on young minds the right of Nations to establish their own Governments, and to inspire a love of free ones.... And on the distinctive principles of the Government of our own State, and that of the United States, the best guides are to be found in--

The Declaration of Independence, as the fundamental act of Union of these States.
The book known by the title of the Federalist, being an Authority to which appeal is habitually made by all & rarely declined or denied by many, as evidence of the general opinion of those who framed & those who accepted the Constitution of the United States on questions as to its genuine meaning.
The Resolutions of the General Assembly of Virginia in 1799, on the subject of the Alien & Sedition laws, which appeared to accord with the predominant sense of the people of the U.S.
The Inaugural Speech & Farewell Address of President Washington, as conveying political lessons of peculiar value; and that in the branch of the School of law which is to treat on the subject of Government, these shall be used as the text & documents of the school.2
As a result, in the Minutes of the Board of Visitors, University of Virginia of 1825, the trustees accepted a resolution that Jefferson prepared and that stated, in relevant part, as follows:

Resolved, that it is the opinion of this Board that as to the general principles of liberty and the rights of man, in nature and society, the doctrines of Locke, in his Essay concerning the true original extent and end of civil government, and of Sidney in his Discourses on government, may be considered as those generally approved by our fellow citizens of this, and the United States....3

As we can see, Jefferson states that the Founding Fathers made no pretense to originality in the Declaration. The object was to give an apologetic to the world (including, presumably, American supporters in England, such as Edmund Burke4) in terms that the world would already understand so that the world would be persuaded that the separation from England under the circumstances alleged would appear to be the most natural and common sense action that could be taken. The works cited by Jefferson, then, provide an insight into the philosophical background of the Declaration and give us a clue as to the Founding Fathers' view of natural law.

The Classics: Aristotle and Cicero

Aristotle. Plato, Aristotle's teacher, viewed natural law as the unchanging world of forms which emanated from Absolute Good and which the present world merely shadowed. Consequently, the ideal state for Plato consisted of Philosopher-Kings who, through their education, were prepared "to know the Good through rational insight and embody its ideals by ruling directly over the social order."5 Aristotle, by contrast, combined the changeless principles ("essences") with the changing embodiments of those essences. Thus, Rommen states:

Plato had totally separated the world of sense perception from the world of pure ideas, the objects of scientific, necessary, and true knowledge (universalia ante rem). Aristotle transferred the idea as the form which determines the formless matter into the individual (universalia in re). This "becomes" through the union of the form (or the essence or the true whatness) with the matter (or the potency or the possibility) and thus gives actuality to the individual. The archetype for Aristotle was human artistic activity: the architect who constructs a house according to the plan in his mind; the sculptor who molds a statue in accordance with his artistic conception; even organic nature which causes the plant to grow from the actualizing essential form that exists in the seed in an incorporeal manner. Aristotle wished to comprehend motion, development, becoming. To him, therefore, the essence, and the perfect expression of it in the individual, is also the telos, or end. The form is thus the efficient and the final cause at one and the same time. Applied to the domain of ethics, however, this means that pure being or the pure essential form is likewise the goal of becoming for the man who is to be fashioned by education into a good citizen. From the essential being results an oughtness for the individual man. In this way, from the content of the primary norm, "strive after the good," arises the norm, "realize what is humanly good," as it appears in the essential form of man. The supreme norm of morality is accordingly this: Realize your essential form, your nature. The natural is the ethical, and the essence is unchangeable.6

For Aristotle, society or the polis "was a complex natural whole," 7 which contained within it the principles of law, as opposed to Plato who held to an "idea of the good so [transcendent over] individual phenomena that it leaves practical life without a guide." Of course, the Sophists relativized law to the individual so that any laws became purely conventional, positivistic, and based upon power. As a practical matter, Aristotle believed that Plato's view of law had to necessarily reduce to that understanding as well.8

It is Aristotle's view of the purpose of society and how to achieve it that forms the basis of his Nicomachean Ethics and, derivatively, his Politics, and, in turn, establishes a beginning point for understanding the Founding Fathers' view of natural law. As Harry Jaffa states: "The conditions of happiness are seldom if ever within the ability of one man to control. Only good men can be happy (although they may not be), but good laws make good men, and good government makes good laws."9 Aristotle, in his Nicomachean Ethics, describes the highest good for men (the Summum Bonum) as "happiness."10 The remainder of the Ethics is devoted to laying out a system of ethics describing the method by which men best achieve happiness. Furthermore, since it was inconceivable by Aristotle that happiness could be achieved by man in isolation (since happiness consisted in the best fit between man, society [the polis], and the proper form of government suited to the polis), his Politics was written as an extension of the Ethics. Thus, the Ethics and the Politics are devoted to two halves of the same subject: "the philosophy of human affairs"11 or "practical wisdom."12

While there is a closer connection between Plato and Aristotle than supposed by many, Aristotle is concerned in these works with laying out the method of attaining betterment of action calculated to produce the greatest happiness for individuals as well as society. To this end, his books are not intended to be a method of analysis of causes and principles so much as to "articulate the phenomena of human action...through a...refinement of men's opinions concerning those phenomena."13 This is not a speculative or abstract exercise. Smith explains that in the Ethics Aristotle shows what goodness or virtue is, and how it is to be reached; however,

By itself it does not enable us to become, or to help others to become, good. For this it is necessary to bring into play the great force of the Political Community or State, of which the main instrument is Law. Hence arises the demand for the necessary complement to the Ethics, i.e., a treatise devoted to the questions which centre round the enquiry; by what orgainisation of social or political forces, by what laws or institutions can we best secure the greatest amount of character.

We must, however, remember that the production of good character is not the end of either individual or state action; that is the aim of the one and the other because good character is the indispensable condition and chief determinant of happiness, itself the goal of all human doing.14

Thus, "practical wisdom" or "practical science" (or "prudence") is divided into three branches: ethics, economics (or "domestic management"), and the science of "governing."15 The object of any leader is to use practical wisdom to discern the best regime for enabling all in the society to achieve their full potential, i.e., happiness. Leo Strauss states:

In order to reach his highest stature, man must live in the best kind of society, in the kind of society that is most conducive to human excellence. The classics called the best society the best politeia. By this expression they indicated, first of all, that, in order to be good, society must be civil or political society, a society in which there exists government of men and not merely administration of things.... Yet politeia is not a legal phenomenon. The classics used politeia in contradistinction to "laws." The politeia is more fundamental than any laws; it is the source of all laws....

The American Constitution is not the same thing as the American way of life. Politeia means the way of life or a society rather than its constitution.... The thought of connecting "way of life of a society" and "form of government" can be provisionally stated as follows: The character, or tone of a society depends on what the society regards as most respectable or most worthy of admiration. But by regarding certain habits or attitudes as most respectable, a society admits the superiority, the superior dignity, of those human beings who most embody the habits or attitudes in question.16

In turn, the society produces those that may guide the society to this goal by educating the participants in moral virtue so that the practical wisdom may be inculcated in the citizenry.17

Cicero. The Stoics, and Cicero in particular, developed natural law more completely. Russell Kirk explains the Ciceronian concept of natural law:

[H]uman laws are only copies of eternal laws. Those eternal laws are peculiar to man, for only man, on earth, is a rational being. The test of validity for the state's laws is their conformity to reason.... Learned men know that "Law is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite. This reason, when firmly fixed and fully developed in the human mind, is Law. And so they believe that Law is intelligence, whose natural function it is to command right conduct and forbid wrongdoing. They think that this quality has derived its name in Greek from the idea of granting to every man his own and in our language I believe it has been named from the idea of choosing. For as they have attributed the idea of fairness to the word law, so we have given it that of selection, though both ideas properly belong to Law. Now if this is correct, as I think it to be in general, then the origin of Justice is to be found in Law; for Law is a natural force; it is the mind and reason of the intelligent man, the standard by which Justice and Injustice are measured." Law, then, at base is a knowledge of the ethical norms for the human being.18

Thus, natural law forms the basis in creation for our intuitions of right and wrong, and is the context for our ability to reason. Additionally, according to Cicero, the ability to discern the natural law is not limited to one nation:

True law is right reason in agreement with Nature...it is of universal application, unchanging and everlasting.... we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one rule, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge.19

Kirk points out that the natural law, conceived as a natural moral order rather than a natural physical order, was the "moral imagination," enabling man, through the exercise of reason, to apply other laws humanely. Kirk believes that Cicero's version of natural law (coming as Cicero believed from God) was incorporated into the Declaration of Independence.20

Western culture was greatly influenced by the appropriation of natural law concepts combined with a certain optimism concerning the abilities of human reason to appropriate such law, gleaned from the Greeks and Romans, and maintained through the syncretism of the medieval Schoolmen.21 Through the writings of Thomas Aquinas and Richard Hooker, the Founding Fathers inherited a form of Christianized Aristotlianism.22 Leo Strauss sums up:

To describe, then, as concisely as we can the character of what we shall venture to call the "Socratic-Platonic-Stoic natural right teaching," we start from the conflict between the two most common opinions regarding justice: that justice is good and that justice consists in giving to everyone what is due to him. What is due to a man is defined by law, i.e., by the law of the city. But the law of the city may be foolish and hence harmful or bad. Therefore, the justice that consists in giving to everyone what is due to him may be bad. If justice is to remain good, we must conceive of it as essentially independent of law. We shall then define justice as the habit of giving to everyone what is due to him according to nature.... Justice exists, then, only in a society in which everyone does what he can well and which everyone has what he can use well. Justice is identical with membership in such a society and devotion to such a society--a society according to nature....23

By way of application, in answer to the question, "Why does the Declaration speak of the 'pursuit of happiness' rather than 'property,'" as the statement appears in John Locke, it is because the Founding Fathers were not slaves to any particular enunciation of natural law. Consider the following quotes from James Wilson and James Madison. Wilson writes:

All men are, by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the government, above what they could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government.24

While Madison states:

The diversity in the faculties of men from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of Government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results....25

If one looks carefully, Wilson and Madison would seem to contradict one another on the primary function of government unless, in their minds, the protection of "different and unequal faculties of acquiring property" was, in some way, equivalent to "the happiness of society." Thus, the Declaration was written for the purpose of vindicating the Americans' right to be secure in their lives, liberty, and methods of securing property to those ends.

Sidney and Locke
Algernon Sidney. John Adams wrote to Thomas Jefferson on September 17, 1823:

I have lately undertaken to read Algernon Sidney on government.... As often as I have read it, and fumbled it over, it now excites fresh admiration [i.e., wonder] that this work has excited so little interest in the literary world. As splendid an edition of it as the art of printing can produce--as well for the intrinsic merit of the work, as for the proof it brings of the bitter sufferings of the advocates of liberty from that time to this, and to show the slow progress of moral, philosophical, and political illumination in the world--ought to be now published in America.26

Algernon Sidney wrote his Discourses on Government as an answer to Sir Robert Filmer's work, Patriarcha, which defended the royal prerogative and the divine right of kings.27 Sidney sums up Filmer's argument thus: "But there is more than ordinary extravagance in his assertion, that the greatest liberty in the world is for a people to live under a monarch, when his whole book is to prove, that this monarch hath his right from God and nature, is endowed with an unlimited power of doing what he pleaseth, and can be restrained by no law. If it be liberty to live under such a government, I desire to know what is slavery."28 Sidney states concerning Filmer's citation of Hooker and Aristotle in defense of his propositions:

But if Hooker and Aristotle were wrong in their fundamentals concerning natural liberty, how could they be in the right when they built upon it? Or if they did mistake, how can they deserve to be cited? or rather, why is such care taken to pervert their sense?... These great and learned men mistook the very principle and foundation of all their doctrine.29

Contrary to Filmer, Sidney sets forth his statement concerning the origin of liberty:

The creature having nothing, and being nothing but what the creator makes him, must owe all to him, and nothing to anyone from whom he has received nothing. Man therefore must be naturally free, unless he be created by another power that we have yet heard of. The obedience due to parents arises from hence, in that they are the instruments of our generation; and we are instructed by the light of reason, that we ought to make great returns to those from whom under God we have received all. When they die we are their heirs, we enjoy the same rights, and devolve the same to our posterity. God only who confers this right upon us, can deprive us of it: and we can no way understand that he does so, unless he had so declared by express revelation, or had set some distinguishing marks of dominion and subjection upon men; and, as an ingenious person not long since said, caused some to be born with crowns upon their heads, and all others with saddles upon their backs. This liberty therefore must continue, till it be either forfeited or willingly resigned. The forfeiture is hardly comprehensible in a multitude that is not entered into any society; for as they are all equal, and equals can have no right over each other, no man can forfeit anything to one who can justly demand nothing, unless it may be by a personal injury, which is nothing to this case; because where there is not society, one man is not bound by the actions of another.30

Despite the fact, however, that men were naturally free, liberty consisting "in an independency upon the will of another,"31 "the liberty of one is thwarted by that of another; and whilst they are all equal, none will yield to any, otherwise than by a general consent. This is the ground of all just government."32 In Sidney, however, we see nothing of Hobbes' or Locke's state of nature with men turned against each other. To Sidney, society is natural to man.33 While for Hobbes and Locke, one uses the social contract for escaping nature, Sidney follows the classical concept of being political by following nature.34 Any contract that is made is strictly for the purpose of limiting government, not for creating one from a state of nature.35

Furthermore, liberty cannot be unrestrained. The general consent must be informed consent. Thus, even as we saw in Aristotle, the government must educate in and enforce virtue:36

If the publick safety be provided, liberty and propriety secured, justice administered, virtue encouraged, vice suppressed, and the true interest of nation advanced, the ends of government are accomplished; and the highest must be contented with such a proportion of glory and majesty as is consistent with the publick; since the magistracy is not instituted, nor any person placed in it for the increase of his majesty, but for the preservation of the whole people, and the defence of the liberty, life, and estate of every private man....37

As may be seen, Sidney draws from both the classics and the Bible, citing Romans 13, in his defense of the proper role of government which is to protect individuals as they participate in society and nation. Unfortunately, Sidney uses Scripture as support for conclusions already reached by reason, citing a verse from Ecclesiastes and then pointing out that this judgment of Solomon's "perfectly agrees with what we learn from Plato, and plainly shews, that true philosophy is perfectly conformable with what is taught by those who were divinely inspired."38 Finally, Sidney is not a pure democrat, despite his emphasis on the "consent of the governed," following the classical authors by preferring rule by those equipped to do so by superior practical wisdom.39

John Locke. While Thomas Aquinas and Richard Hooker allowed Aristotle in the front door, Locke has been described as "the father of the Enlightenment," his personal piety notwithstanding.40 Gary Amos points out that Locke was a source of the understanding of "the law of nature" and "the law of God" that we find in the Declaration of Independence.41 Relying upon the notion of the two expressions of law found in Hooker, Locke is considered as evidence by Amos that the founders established America on both the creation law and Scripture.42 However, the issue is not whether America was founded using that language, but the relative authority granted to each sphere of law in the thinking of the philosophers. That is to say, what is the relative place of man's reason in determining the proper interpretation of reality? In the case of Locke, both in his writings on government and his writings on human understanding, it is evident that man's reason, unaided by reference to Scripture, is sufficient.43 As Rushdoony remarks, "the mind of man rather than the mind of God was now the key to the universe."44 Despite God being given credit for being the ultimate source of natural law, Scripture is given a subordinate role in the interpretation of that law.

Locke attacked the Platonic notion that our knowledge results from innate ideas from the world of Being that are then "remembered" here, in the world of Becoming. He asserted that man's mind was a tabula rasa, a blank slate, on which the experience of nature wrote.45 Therefore, all men come to the knowledge that they possess by gleaning it from the creation and revelation. The ways of knowing are intuitive, demonstrative, and sensitive. Intuitive knowing is the most certain because we directly perceive "the agreement or disagreement of two ideas immediately by themselves, without the intervention of any other...."46 Demonstrative knowledge is less certain because it is not based on immediate perception but upon a connection of two ideas through intervening proofs.47 These two, along with "sensitive" knowledge constitute the natural ways of knowing. All men are equipped with the same ways of knowing and are, therefore, said to possess "common sense."48

Revelation, on the other hand, insofar as we know it to be revelation, is absolutely certain and trumps all the other forms of knowledge. The catch is that we must determine the revelation to be revelation. Locke states:

And, therefore, in those cases, our assent can be rationally no higher than the evidence of its being a revelation, and that this is the meaning of the expressions it is delivered in. If the evidence of its being a revelation, or that this is its true sense, be only on probable proofs, our assent can reach no higher than an assurance or diffidence, arising from the more or less apparent probability of the proofs.49

Bronowski and Mazlish comment: "Handling revelation after this fashion, Locke, although a deeply religious man, hardly gave comfort to those who turned to it for certainty."50 Locke saw nature as guided by reason and, as we have seen, so was the "common sense" of man. Thus, "[i]t is implicit in Locke that the true function of government is not to impose laws on the people but to discover what the laws of nature are.... Thus, if Newton saw God as a regulator of clockwork, Locke saw the state as a judge maintaining the social workings; both had as their ideal a mechanical stability, based on laws of nature."51

Despite couching man's activity in "rights" language, Locke's theory of property and ownership is based upon Hobbes' view of "power" or "will" of the individual human ego constructing society in obedience to mechanistic scientific principles of politics, instead of man as a political or social animal governed by "law" or "right reason" as held by natural law thinkers such as Aristotle and Richard Hooker or, for that matter, Algernon Sidney.52 Stanlis remarks:

But the fundamental similarity between Locke and Hobbes is their common empirical theory of knowledge and mechanistic conception of human nature. Locke's empiricism and denial of innate ideas is indistinguishable from Hobbes' basic principle that all knowledge is derived from sensations of external objects. In this, Locke contradicts both his professed faith in Christian revelation and his declared belief in the innate rights to "life, liberty, and estate" of traditional Natural Law. This contradiction between Locke's theory of knowledge and his social thought makes his whole political philosophy endlessly equivocal.53

Finally Sabine states:

This theory, in all its social and political implications, was as egoistic as that of Hobbes. It is true that Locke drew a different picture of the state of nature. The war of all against all no doubt seemed to his common sense to be overdrawn, but like Hobbes he was saying in substance that society exists to protect property and other private rights which society does not create. As a result the psychology which in the eighteenth century grew out of Locke's theory of mind was fundamentally egoistic in its explanation of human behavior. It ran in terms of pleasure and pain, and not like Hobbes' in terms of self-preservation--a doubtful improvement--but the calculation of pleasure was exactly as self-centered as the calculation of security. Hobbes' better logic had its way in spite of Locke's better feeling. By a strange and un-designed cooperation the two men fastened on social theory the presumption that individual self-interest is clear and compelling, while a public or a social interest is thin and unsubstantial.54

Instead of the biblical covenant resting upon biblical law as the basis for government, Locke substituted a social contract because he saw that men were not perfect and would not uphold the rights of others in a state of nature. Thus, men consent together to form a society to escape the state of nature for self-preservation and those things seen as necessary to that preservation i.e., life, liberty, and property.55 The contract for governance was based upon the "consent of the governed" and the ability of all reasonable men to discern just laws. The purpose of the government was to preserve life, liberty, and property.56 If the ruler broke the contract by oppressing the people, the people had the right to overthrow him.57

A comparison of Sidney and Locke reveals significant differences. Sidney is the much more conservative of the two. Despite the fact that both are "natural law" advocates, Sidney advocates natural law in the classical natural law tradition as received from Aristotle, Cicero, Aquinas and Hooker, while Locke uses the language of Hooker to conceal his reliance on Hobbesian individual egoism and, Hobbes' progenitor, Machiavelli. Sidney quotes frequently from the classic tradition while Locke hardly does. Thus, while Sidney considers liberty to include freedom from vice and restraint by virtue within a societal structure (like Aristotle), Locke sees liberty simply as a materialistic "fence" protecting the private property of the individual.58 Furthermore, while Sidney believes with the classic tradition that virtuous men should be the rulers, freely chosen by the people, Locke makes no mention of virtue being a prerequisite to rule. Sidney sees the job of government to promote virtue while government does not have that role for Locke. West summarizes:

In sum, Locke's thought, although expressed with great caution, rests on premises more radically modern than Sidney's. Locke's republicanism ultimately stands on a view of human nature that doubts or denies the older view that man is oriented by nature to a life of decency and reason. Sidney's republicanism still adheres to a view of life that is recognizably at home within the ancient and medieval tradition of political philosophy.59

To say that the Founding Fathers, and, in particular, Thomas Jefferson, relied on Locke in writing the Declaration, is an understatement. Some of the phraseology is almost word for word. The Declaration reads:

Prudence indeed will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.

Locke states:

For till the mischief be grown general, and the ill designs of the Rulers become visible, or their attempts sensible to the greater part, the People, who are more disposed to suffer, than right themselves by Resistance, are not apt to stir.60

They are hardly to be prevailed with to amend the acknowledg'd Faults, in the Frame they have been accustom'd to.61

The Declaration reads:

But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

Locke writes:

But if a long train of Abuses, Prevarications, and Artifices, all tending the same way, make the design visible to the People, and they cannot but feel, what they lie under, and see, whither they are going; 'tis not to be wonder'd, that they should then rouze themselves, and endeavor to put the rule into such hands, which may secure to them the ends for which Government was at first erected.62

It is plain to be seen that the Declaration borrows language from John Locke's Two Treatises of Civil Government. The issue is not the language but the light the language of the document as whole sheds on the political philosophy of the Founding Fathers as a group, not just Thomas Jefferson. After all, the declared purpose of the document even as stated by Jefferson was "not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit call for by the occasion."63

The Declaration thus is a much more conservative document than Jefferson probably was personally.64 The purpose of the Declaration was not to vindicate Jefferson's views or be a platform for the abstract enunciation of "the Rights of Man," but was to serve as an apology for the rights the Americans were seeking, not from the English Constitution but from an argument of an Aristotelian "best regime" that would found the rights of Americans in the same common natural law source that resulted in the rights of Englishmen seen in the English Constitution as it developed through history. At the same time, the Declaration implicitly pointed out that the "best regime" for securing those rights for Americans might not be that which obtained in England. Jaffa observes:

When the Declaration speaks of the people, instituting new government, such as "to them shall seem most likely to effect their Safety and Happiness," he is appealing to a tradition of more than two thousand years, for safety and happiness are the alpha and omega of political life, according to a tradition originating with Aristotle. Political life, Aristotle had written, originates in the desire for life, that is, for self-preservation. But it moves on a scale of dignity, from mere life to the good life. And the name for the good life is happiness.65

What we have seen from the Founding Fathers' view of natural law is that while they might have acknowledged God's hand in the presence of natural law in the creation, they were overly optimistic concerning its universal discernability. Thus, when placing before the world the "common sense" of the subject, God was mentioned long enough to provide a source for the natural law and then dismissed.66

While the Declaration is couched in Locke's language, the concepts are Aristotelian and Stoic as mediated through Aquinas and Richard Hooker. Therefore, even though the document is therefore conservative in its foundation for natural rights,67 it reflects the general utilitarian use of religion: to provide a natural source of virtue to stabilize the new republic.

Thus, to the Founding Fathers, sectarian disputes involving what were seen as purely theological and ecclesiastical accretions built upon a foundation of natural theology and law were to be avoided as that which interfered with the natural utility of religion. Therefore, far from asserting the demands of Christ's Law-Word, the Founding Fathers found all they needed in Aristotle and Cicero, interpreted through Aquinas, Hooker, and Sidney. If one is intent, like modern evangelicals, to return to the Founding Fathers for guidance, like soothsayers poring over the entrails of a dead animal, one has only to look around to see where it has led. Let us not worship history. Let us learn from it and move on.

John Fielding (J.D., M.Div., M.A.) is a member of the National Reform Association Board of Directors and practices law in Berks County, PA.


1. Thomas Jefferson, "Letter to Henry Lee" [May 8, 1825] in Thomas Jefferson, Writings (The Library of America) ; New York: Literary Classics of the United States, 1984), 1501.

2. James Madison, "Letter to Thomas Jefferson," February 8, 1825 (Founder's Library; The Claremont Institute), 1-2.

3. "From the Minutes of the Board of Visitors, University of Virginia, 1822-1825" [March 4, 1825], Thomas Jefferson, Writings, The Library of America, 479.

4. Basing the concept of natural law primarily on some abstract notion of "the rights of man" as found in Rousseau and the French Revolution would have been repugnant to Burke. See Edmund Burke, Reflections on the Revolution in France in Reflections on the Revolution in France & The Rights of Man (Anchor Books; New York: Doubleday, 1989), 15-266. Thus, reflection on the diversity of the audience for the Declaration militates against a radical Enlightenment view of natural rights.

5. W. Andrew Hoffecker, "Plato's Republic: A Rational Society," in Building a Christian World View, W. Andrew Hoffecker, ed. (Phillipsburg, NJ: Presbyterian and Reformed, 1988), 2:132.

6. Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and Philosophy, rev. ed., Thomas R. Hanley, trans. [1947] (Indianapolis: Liberty Fund, 1998), 14-15.

7. Harry V. Jaffa, "What is Politics?" The Conditions of Freedom (Baltimore: John Hopkins University, 1975), 38.

8. Ibid., 18-19.

9. Ibid., 17.

10. The Ethics of Aristotle, Ernest Rhys, ed., D.P. Chase, trans. (New York: E.P. Dutton & Co., Inc., 1911), 1:4:1095a, 4 (hereinafter "NE").

11. J.A. Smith, "Introduction" (NE), vii.

12. Carnes Lord, "Aristotle," History of Political Philosophy, Leo Strauss and Joseph Cropsey, eds., Third edition (Chicago: University of Chicago, 1987), 119.

13. Ibid., 119-20.

14. Smith, "Introduction," viii-ix.

15. NE, 6:8:1142a, 139.

16. Leo Strauss, Natural Right and History (Phoenix Books; Chicago: University of Chicago, 1965), 135-137. See also NE, 10:9:1181a, 260-261; Aristotle, The Politics, World's Classics, Ernest Barker, trans. (New York: Oxford, 1995), 2:2:1273a, 79; 3:6:1278b, 97; 3:17:1288a, 131; 4:2:1289a, 135; 4:5:1292b, 146-147; 4:11:1295a-1295b, 157-158; 4:13:1297a, 163. (hereinafter "P").

17. Charles Vereker, The Development of Political Theory (Harper Colophon; New York: Harper & Row, 1965), 36-37; P, 7.1-17; 8.1-7; 251-317.

18. Russell Kirk, The Roots of American Order, 3rd edition (Washington, DC: Regnery Gateway, 1991), 109-11 (quoting from Cicero, De Legibus, trans. Clinton Walker Keyes (Cambridge, MA: Harvard University, 1928), I, vi.18-19.

19. Cicero, De Re Publica, trans. Clinton Walker Keyes (Cambridge, MA: Harvard University, 1928), III, xxii.33.

20. Ibid., 112.

21. Strauss, Natural Right, 163-164.

22. Ibid., 157: "According to Thomas Aquinas...the principles of natural right, the axioms from which the more specific rules of natural right are derived, are universally valid and immutable; what are mutable are only the more specific rules.... The Thomistic interpretation is connected with the view that there is a habitus of practical principles, a habitus which he calls 'conscience' or, more precisely, synderesis. The very terms show that this view is alien to Aristotle; it is of Patristic origin...."

Ernest L. Fortin, "St. Thomas Aquinas," History of Political Philosophy, 268: "Aquinas's natural law doctrine constitutes a prime example on the moral and political level of the Thomistic synthesis between biblical faith and Aristolelian philosophy. As a law of nature, the natural law shares in reason and cannot be reduced exclusively to the will of God. The actions that it commands or forbids are intrinsically good or bad; they are not good or bad simply as a result of their being commanded or forbidden by God. As a law, however, it also contains an explicit reference to God's will, to which it owes its moving force.... it defines law as essentially an act of reason rather than of the will, and...it conceives of God not only as the final cause of the universe or the unmoved mover who moves all things by the attraction that he exerts on them but as a lawgiver and an efficient cause who produces the world out of nothing and by his ordinances actively directs all creatures to their appointed end." See also Aquinas, Summa Theologica, 1:qu 79:a12-13.

Duncan B. Forrester, "Richard Hooker," History of Political Philosophy, 360 (also quoting Richard Hooker, Of the Laws of Ecclesiastical Polity, Abridged edition, eds. A.S. McGrade and Brian Vickers [New York: St. Martin's, 1975], 1:14:5, 158): "The fundamental purpose of Scripture, [Hooker] claimed, is to teach supernatural duties, and for this end it is entirely sufficient. But the natural and supernatural order complement each other. The achievement of bliss depends on the fulfillment both of natural and of supernatural duties. The former are discovered primarily by reason, but the latter, as a result of the Fall, are beyond reason's scope. Accordingly natural reason and Scripture 'both jointly and not severally either of them be so complete that unto everlasting felicity we need not the knowledge of anything more.' This is not to deny that there is much in Scripture that is in fact concerned with natural rather than supernatural duties, nor yet that Scripture may often correct faulty reasoning, but simply to state emphatically that the possession of Scripture does not free us from the arduous process of reasoning to discover our duties in moral and political matters." See also Hooker, Laws, 1:16:5, 165.

If anyone doubts that these formulations influenced the Founding Fathers' view of law, I provide one quote from James Wilson, a signer of the Declaration of Independence and a judge: "Laws may be promulgated by reason and conscience, the divine monitors within us. They are thus known as effectually, as by words or by writing: indeed they are thus known in a manner more noble and exalted. For, in this manner, they may be said to be engraven by God on the hearts of men: in this manner, he is the promulgator as well as the author of natural law." (James Wilson, "Of the General Principles of Law and Obligation" (Printed on the website of The Claremont Institute: http://www.founding.com/library/), 5.

23. Ibid., 146-150

24. James Wilson, Considerations on the Nature and Extent of the Legislative Authority of the British Parliament [1774] The Claremont Institute: http://www.founding.com/library/), 2.

25. James Madison, "The Federalist 10," in Debate on the Constitution; Bernard Bailyn, ed. (New York: Literary Classics of the United States, 1993), 405-406.

26. Algernon Sidney, Discourses Concerning Government, Revised edition, foreword and ed. by Thomas G. West (Indianapolis: Liberty Fund, 1996), xv (quoting "Letter of September 17, 1823" (Lester J. Cappon, The Adams-Jefferson Letters [New York: Simon & Schuster, 1971], 598). Algernon Sidney was executed for treason on December 7, 1683 after being accused of participation in a plot to assassinate King Charles II. An additional note of interest: Sidney is the source for the saying: "God helps those who help themselves." (ibid., 2:23:210).

27. Ibid., xviii. Locke's Two Treatises of Government were written for the same reason.

28. Ibid., 1:5:17.

29. Ibid., 1:15:18.

30. Ibid., 3:33:510-511. Sidney's phrase concerning "all others with saddles on their backs" is echoed in Thomas Jefferson's letter to Roger Weightman of June 24, 1826 (Thomas Jefferson, "To Roger C. Weightman," The American Enlightenment: The Shaping of the American Experiment and a Free Society, ed. Adrienne Koch (New York: George Braziller, 1965), 372.

31. Ibid., 1:5:17.

32. Ibid., 1:10:30-31.

33. Ibid., 2:20:191-192.

34. Ibid., 2:20:191f.

35. Ibid., 2:32:309-315.

36. Ibid., 1:20:70.

37. Ibid., 3:21:444.

38. Ibid., 2:1:84.

39. Ibid., 2:1:79ff.; 3:22:447.

40 Rousas John Rushdoony, The One and the Many (n. p.: Craig, 1971), 285.

41. Gary Amos, Defending the Declaration (Nashville: Wolgemuth & Hyatt, 1989), 59-60.

42. Ibid., 60.

43. For example, "Thus the Law of Nature stands as an Eternal Rule to all Men, Legislators as well as others. The Rules that they make for other Mens Actions, be conformable to the Law of Nature, i.e. to the Will of God, of which that is a Declaration, and the fundamental Law of Nature being the preservation of Mankind, no Humane Sanction can be good, or valid against it" (John Locke, Two Treatises of Government, ed. Peter Laslett [New York: Cambridge, 1965], 358); "For though the Law of Nature be plain and intelligible to all rational Creatures; yet Men being biassed by their Interest, as well as ignorant for want of study of it, are not apt to allow of it as a Law binding to them in the application of it to their particular Cases" (ibid., 351); "But, though this be the most obvious truth that reason discovers [the existence of God-JAF], and though its evidence be (if I mistake not) equal to mathematical certainty, yet it requires thought and attention; and the mind must apply itself to a regular deduction of it from some part of our intuitive knowledge, or else we shall be as uncertain and ignorant or this as of other propositions, which are in themselves capable of clear demonstration" (John Locke, An Essay Concerning Human Understanding, abridged and edited by A. D. Woozley [n. p.: Wm. Collins Sons and Co., Ltd.2, 1964], 379). Locke is also viewed by some as a turning point in natural rights theory.

44. Rushdoony, One and Many, 286.

45. Locke, Human Understanding, 89: "Let us then suppose the mind to be, as we say, white paper, void of all characters, without any ideas; how comes it to be furnished? Whence comes it by that vast store which the busy and boundless fancy of man has painted on it with an almost endless variety? Whence has it all the materials of reason and knowledge? To this I answer, in one word, from experience. In that all our knowledge is founded, and from that it ultimately derives itself."

46. Ibid., 325 [Bk.4, Ch.2, 'a71].

47. Ibid., 326 [Bk.4, Ch.2, 'a72].

48. J. Bronowski and Bruce Mazlish, The Western Intellectual Tradition: From Leonardo to Hegel (New York: Hutchinson, 1960), 202.

49. Locke, Human Understanding, 414-15 [Bk.4, Ch.16, 'a714].

50. Bronowski and Mazlish, Western Intellectual Tradition, 203.

51. Bronowski and Mazlish, Western Intellectual Tradition, p. 213. A position that Locke borrowed from Thomas Hobbes. Thomas Hobbes had a thoroughly pessimistic and mechanistic view of nature and devised a absolutist view of government to mitigate its effects. His importance lies in the fact that he "not only rejected theology as a basis for political theory but proposed a new basis. He wished to create a political science. To do this...he based politics on the findings and method of seventeenth-century natural science.... The physics of Galileo and Newton had supplanted the doctrine of Christianity as the basis of political theory." (Bronowski and Mazlish, Western Intellectual Tradition, 207-208). Borrowing from Machiavelli, ("It was Machiavelli, that greater Columbus, who had discovered the continent on which Hobbes could erect his structure." [Strauss, Natural Right, 177]), Hobbes also rejected the traditional assumption made by the classic philosophers "that man is by nature a political or social animal." "By rejecting this assumption, Hobbes joins the Epicurean tradition. He accepts its view that man is by nature an a-political and even an a-social animal, as well as its premise that the good is fundamentally identical with the pleasant. But he uses that a-political view for a political purpose. He gives that a-political view a political meaning. He tries to instil the spirit of political idealism into the hedonistic tradition. He thus became the creator of political hedonism...." (Strauss, Natural Right, 169). Locke broke from Hooker and adopted Hobbes' philosophy, couching it in "the judicious Hooker's" terminology. Strauss, Natural Right, 165.

52. Peter J. Stanlis, Edmund Burke and the Natural Law (University of Michigan, 1965), 3-28; Leo Strauss, Natural Right and History, 3rd. ed. (Chicago, 1965), ch. IV-V; George H. Sabine, A History of Political Theory, 3rd. ed. (London, 1963), ch. XXIII, and 523-41.

53. Stanlis, 21-22.

54. Sabine, 528-29.

55. Locke, Two Treatises, 330-331 [Bk.2, Ch.8:95]; 350-353 [Bk.2, Ch.9:123-131].

56. Ibid., 355-363 [Bk.2, Ch.11: 134-142].

57. Charles S. McCoy and J. Wayne Baker, Fountainhead of Federalism: Heinrich Bullinger and the Covenantal Tradition (Louisville, KY: Westminster/John Knox, 1991), 92.

58. Locke, Two Treatises, 350 [Bk.2, Ch.9:123].

59. Thomas G. West, "Foreword" (Sidney, Discourses), xxv.

60. Locke, Two Treatises, 417-418 [Bk.2, Ch.19:230].

61. Ibid., 414 [Bk.2, Ch.19:223].

62. Ibid., 415 [Bk.2, Ch.19:225].

63. Thomas Jefferson, "Letter to Henry Lee" [May 8, 1825], Thomas Jefferson, Writings, The Library of America (New York: Literary Classics of the United States, 1984), 1501.

64. Peter Laslett states: "Thomas Jefferson may have been a Lockeian, in somewhat the sense that political scientists have used that expression, as is evident from the coincidence of phrases between the Declaration of Independence and Two Treatises .... But it would seem that not many of his contemporaries went with him." Peter Laslett, "Introduction" (Locke, Two Treatises), 14 fn. (Emphasis supplied).

65. Harry V. Jaffa, "Inventing the Past: Garry Wills's Inventing America and the Pathology of Ideological Scholarship" American Conservatism and the American Founding (Durham, NC: Carolina Academic Press, 1984), 108.

66. In fact, Thomas Jefferson's earlier draft of the Declaration had even less reference to God than the final version.

67. On the other hand, the radical rights theory of Machiavelli, Hobbes and Locke was adopted by the French, through Voltaire.