THE fundamental principle of American jurisprudence is that stated in the Declaration of Independence: that government is instituted to secure the rights of man. These rights are simply artificial divisions of the law of nature. 317 Now that which is to be secured—man’s rights—precedes that which secures them—civil government. They are also superior to the provisions of government. Blackstone says, “The law of nature 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 force, and all their authority, mediately or immediately, from this original.” 318
In the universal recognition (whether acknowledge or not) of this principle—that there is a superior standard of justice—lies the force of charges that certain legislative acts are unjust. For injustice is nonconformity to the law of justice—which is the natural law. If the legislature were omnipotent, if there were no superior law, if it could make right wrong and wrong right, then any law it might make could not be said to be unjust. Its own acts would be the standard of justice. Right would then be conformity to human law, and wrong, violation of human law. The absurdity of such a position is evident—the claim would be preposterous; as long as the maxim, Humanum est errare, is true, there must be some invariable standard by which all human acts, public as well as private, are to be judged. This standard is variously termed the law of justice, the law of nature, natural rights, etc., and has reference to those abstract principles of justice and right imprinted more or less clearly on the sense of every man.
It is this law that receives formal recognition in our declarations of rights—declarations simply of certain parts of this superior law;—not that these rights are any more sacred when thus “declared” than they were before, but they are thus rendered more susceptible of enforcement. That they are simply a part of this higher law, and are so recognized, is proved by the provision so generally inserted in declarations of rights, that “the enumeration herein of certain rights shall not be construed to deny or disparage others retained by the people”—a direct acknowledgment that these rights inhere in the people, and that such declaration is simply an express acknowledgment of the most important principles of this law. Theoretically, it adds no force whatever to the rights. Such declaration is not dissimilar to the frequent instances where the State Constitutions reenact certain provisions of the National Constitution. Such reenactment does not make the provision any more binding; nor would a provision to the contrary annul the superior law. The State Constitution, in so far as it contravened the provisions of the National Constitution, would simply be void. Blackstone states this principle in his commentaries: “Those rights, then, which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has the power to abridge or destroy them.”
It is true that when recognized in our constitutions, our rights are more easily enforced, and hence this recognition was insisted on by Jefferson and other early American statesmen. But because this recognition may not exist, one’s rights cannot therefore be legitimately trampled upon. Even if the Constitution did not prohibit the taking of private property for public use without just compensation, the legislature could not therefore legitimately do it. Nor can the legislature rightfully take the property of A and give it to B. There is no court in the land that would enforce such a decree. It would violate this superior law, and therefore be absolutely void. Hence, as government is instituted to secure the natural rights of man, and as our constitutions, in their declarations of rights, recognize this law and limit the powers of government accordingly, any law which deprives an individual of his rights is unconstitutional.
In accordance with this principle, Jefferson declared: “Our legislators are not sufficiently apprised of the rightful limits of their power, that their true office is to declares and enforce only our natural rights and duties, and to take none of them from us…. The idea is quite unfounded that on entering into society we give up any natural right.” This doctrine is coeval with courts of justice, and was unequivocally asserted and re-asserted centuries ago by England’s most eminent chief justices. Said the distinguished Lord Hobart: “Even an act of Parliament, made against natural equity, as to make a man judge in his own case, is void in itself; for jura natur? sunt immutabilia, and they are leges legume.”
Thus this American principle is simply that which has been declared again and again by the greatest jurists which have ever adorned the English bench. In “Elements of Right and of the Law” (Section 520), Mr. Smith says: “It is a well-established principle of the American law, that an act of Congress in excess of the constitutional powers of the Federal Government is absolutely void; and so far as the direct infringement of private rights is concerned, this principle is in fact enforced by the courts; but in questions merely political, there is in general no practical means of restraining the execution of the law. Nevertheless such a law is void, and not only affords no legal justification to any one seeking to enforce it, but every subordinate officer, and indeed every private individual, has the right to disobey it, and will be vindicated in doing so by the courts.”
The individual retains his natural rights, and government is limited accordingly. And as every individual equally has the natural right to worship whom he pleases and on what day he pleases (as long as he interferes not with this same liberty in others), or to refrain from worshiping altogether, any human law interfering with this right, is, under our constitutions, void; it matters not whether it be a Sunday law, a law to compel him to attend church, or a law requiring any other religious observance, if it interferes with the right of a single individual, it is unconstitutional and absolutely void.
It is true that our judiciary have not always had a clear conception of this principle, and numerous decisions are flatly contradictory. But this is because in some cases precedents have been followed, not principles. Law, by some, has been regarded as a bundle of previous decisions, rather than as a science founded, like other sciences, on the immutable law of nature. The erroneousness of such a view must be obvious to all who have given it reflection. “The law of England,” Lord Mansfield observed, “would be an absurd science were if founded upon precedent only.” And Lord Coke repeatedly declared that the law “is the perfection of reason.” “Reason,” said he, “is the life of the law; nay, the common law itself it nothing else but reason.”
In the onward march of civilization and in the advancement of science in general, progress has also been made in our system of jurisprudence;—not that principles have changed, for the law of nature is both unchangeable and immutable, but in this advancement clearer views of the principles of justice been obtained. Progress is especially seen in connection with religious legislation and religious decisions. In America the dogma that Christianity is a part of the common law has been repudiated. Sunday laws have been declared to be unconstitutional. Religious proclamations, too, were so held by Jefferson and Madison; and the latter also states that public chaplaincies are an illegitimate departure from American principles. And as our judges and legislators incline more to justice and reason and less to the precedents dictated by bigotry, our Government will become still more liberal, and our Sunday laws, and all other religious laws, will go the way that similar laws have gone before them. In order to fulfill the objects of government, every man must be insured “the fullest liberty to exercise his faculties compatible with the exercise of like liberty by every other man.” This is the principle asserted in the Declaration of Independence, when it says, “All men are created equal;” and the repeated departures from it in our religious laws which discriminate against the sabbatarian 319 and infidel are a standing reproach to our Government, and a constant travesty on justice.