The higher law and the rights of man in a revolutionary society (1973) | ARCHIVES

The higher law and the rights of man in a revolutionary society (1973) | ARCHIVES


Announcer: The American Enterprise Institute presents
the distinguished lecture series on the Bicentennial of the United States. Our host for this thought-provoking series
is Vermont Royster, Pulitzer Prize-winning Journalist with “The Wall Street Journal,”
and Professor of journalism and public affairs at the University of North Carolina. Vermont C. Royster: I’m Vermont Royster. As part of America’s 200th anniversary in
1976, the American Enterprise Institute is presenting a series of lectures by American
scholars who have become distinguished in their fields of academic endeavor. We’re about to hear Professor Paul Kauper
of the University of Michigan Law School at Ann Arbor. Professor Kauper delivers his lecture from
Boston’s Old North Church, a major landmark made famous by Paul Revere. He will discuss the founding fathers concept
of an even Higher Law, and the universally respected constitution they devised. Old North Church is one of several representative
historic sites across the United States, in which the American Enterprise Institute has
placed its distinguished lecture series. The American Enterprise Institute is a nonprofit,
nonpartisan research institution located in Washington, D.C. Its purpose is to encourage research and present
differing points of view on important public issues. Old North Church is certainly an appropriate
locale for a lecture on Americans heritage since the church itself is a part of that
heritage. The church is located in one of the oldest
sections of Boston, an area now populated mostly by Italian Americans. While the homes and apartments are somewhat
crowded and aging, the neighborhood prides itself on having one of the lowest crime rates
in the entire Boston area. Perhaps the proudest moment in the history
of Old North Church came some 200 years ago. It was from this steeple the lanterns were
hung that signaled the British army was on the march against the American revolutionaries. Today, from Old North steeple, one can see
almost everyone who is coming and going in the Boston area. The steeple looks out over the Charles River,
and the busy bridges and highways leading into this famed city. Old North Church is an important name in the
saga of America’s fight for freedom, and from its steeple freedom still rings. While the United States prepared for the celebration
of its 200th birthday in 1976, Old North Church was already celebrating its 250th birthday
in 1973. The chandeliers in the church have been used
for 249 years. The oven dates back to 1759, and the clock
has been tolling the hours since 1726. The box pews are the highest of any church
in the country, designed that way to capture the heat of bodies and foot warmers. In 1723, there was no central heating. The Reverend Robert Golledge is the Vicar
of Old North, he tells us about the most important event in Old North’s history. Rev. Golledge: Of course, the event that really
makes us famous is something that happened here 198 years ago, on April 18th, 1775. When two signal lanterns were displayed in
the steeple, in such a way that people across the harbor in Charleston, could know that
the British were leaving Boston on their way to Lexington and Concord. And the man who hung the lanterns in the steeple
has for most parts gone unknown, but it was Robert Newman, the 23-year-old sexton of the
church. Who that night, with the front door locked
from the outside, and darkness on the inside, we believe was waiting in pew number 10 which
is in front of that window over there, and he waited there until he heard two raps on
the window which indicated that the British were getting into boats and crossing the Charles
River on their way over to Cambridge to begin their March. So he grabbed two lanterns much like those
two on the window sill, raced down the aisle and up the 154 steps to the steeple. Which is like going up 14 stories really,
and he hung up those 2 lanterns, and at the same time, Paul Revere and a couple of his
friends were crossing the harbor in a rowboat eluding a great big British frigate, The Somerset
that was blockading the area. But Paul got over to Charlestown hopped on
a horse, and rode and made it as far as Lexington, where incidentally he was captured. Vermont C. Royster: The Old North Church is a fitting
forum for our lecture which is entitled, “The Higher Law and the Rights of Man in a Revolutionary
Society.” Professor Kauper is an expert on constitutional
law and church-state relations. His major works include Civil liberties in
the Constitution, and religion and the Constitution. Professor Kauper. Prof. Kauper: May I say that it is indeed
an exciting, stirring experience to stand here in the Old North Church of Boston, a
church steeped in history, and rich in its associations with the events leading to the
American Revolution. Like every schoolboy, I thrill to the story
as narrated by a lone fellow of Paul Revere, waiting for the lights, “One, if by land,
and two, if by sea.” And then, dashing off on his midnight ride
to warn his countrymen who rallied to the call and were ready to fight Gage’s men at
Lexington and Concord. It is exciting to be a part of your program
celebrating the Boston Tea Party. And to recall the passion for freedom, the
spirit, and the audacity, which characterizes challenge to English authority. Finally, to speak in this church, which itself
is celebrating its 250th anniversary this year, is a reminder that religious freedom,
the queen of all freedoms, occupies a central position in that panoply of inalienable rights,
with which all men are endowed as creatures of God. The right of a man to worship, and to believe
according to the dictates of his conscience, all that is embraced in the notion of religious
liberty, we treasure as one of the finest fruits of the American experiment in liberty. This freedom stands at the apex of those natural
rights which furnish the central theme for this evening’s lecture. The American Revolution was both radical and
conservative. It asserted the right of a people to revolt
against established authority. It declared that government derives its authority
from popular consent. The central document of the revolution asserted
an idea poignant with radical overtones that all men are created equal. But the revolution also had its conservative
overtones. It found its intellectual justification in
ideas and principles with long-established foundations. It had its roots both in English legal and
political institutions, and in a body of theological moral and philosophic thought which had universal
dimensions. Old and essentially conservative ideas and
traditions were harnessed through the cause of revolution. In turn, they laid the foundation for a new
constitutionalism, which has survived because of its capacity for change. And yet, in the process remaining loyal to
the ancient truce, which have given rootage and continuity to the system. It was no accident that lawyers and well-trained
leaders played prominent roles in the revolutionary struggle, and in the subsequent transformation
from a confederation into a federal union. Constitutional thinking was a pivotal element
of the intellectual structure which undergirded the revolution. Central to this constitutional thinking was
the concept of the higher law, to which ultimate recourse could be made in judging the validity
of ordinary laws and enactments. Two principle components merged in American
colonial thinking to shape this concept. One was the idea of natural law and its corollary
notion of natural rights. The other was the tradition of the English
Common Law as embodying a system of justice founded on right and reason. Natural law and natural rights on the one
hand, and the view of the common law as basic and fundamental law on the other. Were twin notions that fitted together quite
naturally to produce the concept of the higher law, which emerged as a powerful force not
only in supporting the claims of the colonists but in laying the foundation of the American
Constitutional System. The conception of natural rights was a basic
ingredient in the thinking of the colonist. Speaking for the Supreme Court in 1963, Mr.
Justice Clarke would say with historical accuracy, “The fact that the Founding Fathers believed
devotedly that there was a God, and that the unalienable rights of man were rooted in Him,
is clearly evidenced in their writings. From the Mayflower Compact, to the Constitution
itself.” The writings and speeches of the fathers abounded
in the idea that men enjoyed basic freedoms which were the gift of God, and were therefore
immutable and inalienable. James Otis defending the rights of the colonists
said that if the charter privileges of the colonists were disregarded or revoked, there
still remained the natural inherent and inseparable rights of men and citizens. John Adams spoke of right antecedent to all
earthly government, rights that cannot be repealed or restrained by human laws, “Rights,”
he said, “derived from the great legislator of the universe.” In a writing which preceded the Declaration
of Independence, Jefferson wrote that, “God who gave us life, gave us liberty at the same
time.” Speaking of rights he said that, “Our right
to life, liberty, the use of our faculties, the pursuit of happiness, is not left to the
feeble.” And as he said, “Sophistical investigation
of reason, but is impressed on the sense of every man. We do not claim these under the charter of
Kings or legislators but under the King of kings.” George Mason identified the natural rights
as the sacred rights of human nature. Writing in 1774 Alexander Hamilton declared. “The sacred rights of mankind are written
as with a sunbeam in the whole volume of human nature, by the hand of the divinity itself,
and can never be erased or obscured by mortal power.” Indeed it is fair to say that for the father’s
it was a conception of natural rights rather than rights developed at the common law, which
furnished the dominant philosophy undergirding the revolutionary movement. King and Parliament had violated these rights,
and therefore the colonists were morally justified in asserting their independence. These ideas of course as we all know found
their classical expression at Jefferson’s hand, in the great language of the Declaration
of Independence. When in the course of human events it becomes
necessary for one people to dissolve the political bands which have connected them with another. And to assume among the powers of the earth,
the separate and equal station to which the laws of nature, and of nature’s God entitle
them, a decent respect of the opinions of mankind requires that they should declare
the causes which impel them to the separation. We hold these truths to be self-evident, that
all men are created equal, that they’re endowed by their Creator with certain unalienable
rights, that among these are life, liberty, and the pursuit of happiness. The great document of the revolution, thus
speaks of the law of nature and of nature’s God. Says that, “All men are created equal, and
are endowed by their Creator with certain inalienable rights.” Jefferson’s preference for the term the Law
of Nature and of nature’s God, rather than natural law, is a characteristic expression
of the deistic yesterday thinking. Nevertheless, it is significant, that he invokes
an ultimate divine source of the moral law and of natural rights. And the appeal is to the divine law which
governs men and their institutions, and which is the source of the equality of man and of
rights which belong to them as creatures of God. Vermont C. Royster: In the first part of his lecture,
Professor Kauper has laid the historic foundation for his contention, what he terms natural
law on the one hand, and common law on the other came together to form a higher law. This higher law became a powerful force in
the founding of the American Constitutional System. In just one moment he continues. Boston’s Old North Church is noted as much
for its beauty as for its historical significance. The name of its architect is lost in antiquity,
but it is constructed in the unmistakable style of the great English architect Sir Christopher
Wren. Inside, Professor Paul Kauper is discussing
the higher law and the rights of man as America’s revolutionaries saw them. In this portion of his lecture, Professor
Kauper tells us how this higher law affected the development of the United States Constitution,
and how to guarantee the rights of man. Paul Kauper: The great documents produced
in time of crisis add strengths to the common law tradition. Out of Magna Carta wrested by the bearings
from King John, emerged the idea that men could not be deprived of their life, liberty,
or property except in accordance with the law of the land. An idea which later found expression in the
notion of due process of law. An enduring English contribution to constitutional
thinking. The great declaration of rights of 1688 to
affirm the basic rights of Englishmen, thus the written document asserting fundamental
law and fundamental right, a document to which men could appeal in later generations a symbol
and a beacon, assumed its place in the higher law tradition. Following in this great tradition, the colonist
also penned a written document, whereby they gave both a public proclamation of their rights
and a recent statement in support of the decision to assert their rights to self-government. The ready acceptance of natural law and natural
rights thinking coupled with a reverence for the common law, as itself embodying the law
of reason, and stating accepted norms of justice. And the veneration accorded historic documents
declaratory of right combined powerfully as I have indicated before, to establish the
higher law thinking which permeated the revolution, and laid the foundation for a remarkable constitutional
development. Indeed American constitutional history, the
crises it has endured, and the developments which have ensued, can be viewed as an explication
of the higher law. It has given rise to hopes, expectations,
and claims that have produced their own revolutions. The adoption of state constitutions during
the Revolutionary period preceded the adoption and ratification of the federal constitution
drafted at Philadelphia in 1787. After the experience under the Articles of
Confederation had demonstrated the need of a government vested with adequate authority,
to meet common needs, but sharing the powers of government with the states which retain
large areas of authority. Unlike the declaration which was a political
document, the Constitution was a carefully drafted legal document, which established
a federal structure of government. The Constitution resting on the authority
of the people, and premised on Republican principles of government, defined, distributed
and allocated authority. Its carefully devised system of checks and
balances implementing the separation of powers was premised on the assumption as Hamilton
had noted that men were not angels. That the grant of power invites abuse, and
that restraints are necessary to curb the exercise of power. Those limitations on power epitomized the
rule of law when faithfully enforced by an independent judiciary, it constitute the basic
bulwark for protection of the liberties of the citizens. Noticeably absent, however, in the Constitution
was a declaration of rights, a familiar feature of the constitutions that had been adopted
by the states. We need not rehearse all the historical factors
leading to the failure to include this, except to mention that those who played a leading
role in the drafting felt it unnecessary to include the Bill of Rights, since they did
not find it conceivable that the scope of federal powers would permit an intrusion into
the rights reserved to the people or to the states. This, however, did not go unchallenged, and
to meet this opposition the first 10 articles of amendment commonly known as the Bill of
Rights were adopted shortly after the constitution itself went into effect. Specific rights are guaranteed in The First
Amendment. The great freedoms are there beginning with
the very first amendment. The indispensable freedoms of religion, speech,
press, assembly, and petition for redress of grievances. The important procedures for the protection
of the accused are there. And significantly, after a specific cataloguing
of the important guarantees, the Ninth Amendment declared that the enumeration of the foregoing
privileges and rights shall not be construed to deny or disparage others retained by the
people. Here indeed was a clear expression that the
rights set forth in the Bill of Rights were not created, but were simply declaratory,
those that had been reserved by the people, and that still others might later be claimed. The Ninth Amendment implicitly embodies the
natural rights philosophy. The stage was then set for the great American
experiment in government pursuant to a written charter. Two great principles emerged. They received their classic exposition at
the hands of John Marshall in his famous opinion in Marbury against Madison. He said, “The Constitution was the fundamental
or the higher law of the land, and that it is distinctively the function of the judiciary
to give this basic law its authoritative interpretation.” These twin concepts of paramount law and other
judicial function in interpreting this law, are the pivotal and distinctive aspects of
American constitutional development, and may well be characterized as America’s unique
contribution to constitutional thinking. The relationship of these basic principles
to the theory of natural law, and natural right is readily apparent. Once the people have reduced their thinking
on the fundamental structure of government and their reserved rights into a written document,
notions of natural law and natural rights tend to merge into this document, which becomes
the symbol indeed of the higher law of the land. The veneration popularly accorded the Constitution
amply demonstrates the tendency and the popular mind to see in the Constitution an embodiment
of presuppositions founded in the natural law. This higher law requires concreteness through
a process whereby an independent judicial tribunal interprets this law in a fine and
authoritative way, so that natural law and natural rights are happily absorbed into positive
law through the process of empiric adjudication. Indeed, for some, the Constitution thereby
acquires even a divine sanction. An even more important consideration, however,
is that natural law however conceived and whatever its authority, must necessarily remain
outside the Constitution, and not be confused with it. Ultimate values in national life, goals to
be achieved, principles relevant to new movements in national life, conceptions of freedom,
right, justice, and morality, have their inception in theological, philosophical, moral, and
social thinking, which transcend the constitution. A constitution may indeed suffer a serious
flaw, and its validity be judged by a recourse to a higher law. The same is true of any attempt to equate
constitutionally guaranteed rights with natural rights. Vermont C. Royster: We are watching Professor Paul Kauper
of the University of Michigan Law School discuss, “The Higher Law, and the Rights of Man in
a Revolutionary Society.” Professor Kauper is a leading authority on
constitutional law, and on church-state relations, we will rejoin him in just a moment. Four hand-carved figures positioned around
the organ in Old North Church were curved in Belgium for shipment to a French church
in Quebec. But that was in 1746 when France and England
were at war. The ship carrying the figures to Canada was
seized by an American privateer, who also happened to be a parishioner of Old North. He promptly brought them to his church where
they’ve stood sentinel duty for over 200 years. Right now, they are part of the audience watching
professional Paul Kauper who is about to examine one of the most troubled periods in America’s
continuing effort to establish a higher law and the rights of man. When slavery was the issue and the Civil War
was the arbiter. PPaul Kauper: The Declaration of Independence
spoke in general terms of the right to life, liberty, and the pursuit of happiness. According to Locke, the generalized expression
was right to life, liberty, and property. A constitutional scholar has observed that
the natural rights on which there was the largest measure of agreement among at least
the Virginians at the convention were, one, freedom of conscience, two, freedom of communication,
three, the right to be free from arbitrary laws, four, the rights of assembly and petition,
five, the property right, six, the right of self-government. To that must be added also the right of revolution,
and finally, equality and the enjoyment of right. These were rights inherent in the conception
of man as a moral and rational creature, entitled to the full enjoyment of his faculties. Not all of these were expressly captured in
the specifics of the Bill of Rights. On the other hand, some rights receiving positive
recognition which reflect that English history and practice such as the right to trial by
jury, can hardly be called natural rights. Jefferson referred to these as, “Ancillary
rights which helped to fence in the natural rights.” But there was still a natural law, and a conception
of right outside the Constitution was made manifest in the great struggle over the slavery
issue. Jefferson had boldly declared in the declaration
that all men are created equal, that this was a self-evident truth, and was associated
with those inalienable rights with which all men are endowed. It had become painfully evident, that this
grand assertion of the declaration could not be reconciled with an institution whereby
one race held another in subjection, and submitted it to all the degradation of forced labor. The slavery issue emerged as nation’s great
moral issue, as reflected in the sharp and bitter sectional struggles on the question
of whether the institution of slavery should be extended to new territories. And by the insistent demands of the abolitionist,
that all slavery be abolished. The latter could well point to the declaration
as stating a self-evident natural right on the part of all men to be free, be given equal
treatment. The Constitution itself had made a nodding
concession to the slavery problem in permitting the termination of the slave trade after 1808
and in fixing the formula for apportioning seats in Congress. But it also imposed a duty to return runaway
slaves to owners. Moreover, the Supreme Court in a celebrated
Dred Scott decision went so far as to say that the slave owner had a constitutionally
protected property interest in his slaves. And that for the law to deprive them of that
interest when he took a slave into free territory was itself a deprivation of property without
due process of law. Surely no further comment is needed upon a
decision which expanded upon the right to property at the expense of human freedom,
and the most basic notion of human equality, except to note that it went in the face of
a growing moral revulsion against slavery. A judicial decision which rested on considerations
incompatible with basic moral concepts could not in the end command respect. William Lloyd Garrison here in Boston, denounced
the Constitution as interpreted in the Dred Scott decision, “As a covenant with death,
and an agreement with hell.” Abraham Lincoln said that, “The Dred Scott
decision, was morally wrong and that it should be changed.” William Seward in a sharp criticism of the
court declared that there is a higher law than the Constitution, even constitutions
are to be tested and judged by the natural law. The slavery issue we know is incapable of
solution by either judicial or political means, and in the end, required four years of bloody
conflict for its resolution. But out of the Civil War, came a radically
revised constitutional order, and an extraordinary expansion of rights accorded federal protection. The 13th, 14th, and 15th Amendments were designed
historically to give constitutional status and protection to the former Black slaves. They rested on a concept of equality which
the declaration had declared to be a natural right. Viewed from the perspective of general constitutional
theory, the function of the federal government in the protection of rights, and the continued
vitality of natural rights thinking, the 14th Amendment had the widest and the most pervasive
significance. The provision that no state shall deprive
any person of life, liberty, or property without due process of law, nor deny to any person
the equal protection of the laws, stated conceptions of right which were capable of broad interpretations
readily identifiable with basic natural rights. In the end, the 14th Amendment marked a revolution
in the protection of rights, and led to what we may call the nationalization of rights. In the hands of the judiciary, it became a
tool for implementing the grand assertion of the declaration that all men were to have
equal opportunities to enjoy life, liberty, and the pursuit of happiness. Vermont C. Royster: Professor Kauper has been discussing
one of the great tormenting issues which confronted the concept of Ohio law in American history,
the enslavement of Blacks. It pointed out that this deprivation of human
freedom was morally incompatible with the basic natural rights proclaimed by the founding
fathers. In just a moment Professor Kauper will continue. Old North Church is located in one of the
oldest sections of Boston. Its fountains and statues brighten the entire
neighborhood. Its inspiring history and its persistent efforts
to unite Americans of all faiths, will probably help that neighborhood to keep its crime rate
well below the city. Professor Kauper who’s speaking in Old North
Church now addresses himself to some moral problems in today’s society, and our relationship
to the higher law and the rights of men. Paul Kauper: Today we are in the midst of
a great social revolution with many facets, old ideas, conventions, institutions, and
restraints, are challenged. A fierce new individualism with large claim
to personal liberty is being asserted. The old morality has been discredited and
a new permissiveness is dominant. A parallel and related development is a new
egalitarianism manifesting itself in the movement to remove all discriminations based on race,
color, religion, national ancestry, sex, age, and economic status. We are so close to these movements that we
are likely to be blinded to their revolutionary and even radical character. For it is essentially a silent revolution
coursing its way within established channels. And the striking aspect of it all is the legitimatizing
of these movements by constitutional interpretation. Constitutional thinking has been accommodated
to the great movements of our day and in turn, has contributed to them. Despite the efforts of some justices to discredit
the natural rights doctrine, it has recently reasserted itself in an interesting and dramatic
way. In its significant decision in Griswold against
Connecticut the case holding invalid the Connecticut statue, having to do with the sale and use
of contraceptive devices. The Supreme Court affirmed a fundamental rights
interpretation of due process of law by finding implicit in the concept of liberty, a notion
of personal privacy, which includes the freedom of marriage and of the family relationship. The case presented some illuminating insights
into the thinking of the justices. Mr. Justice Douglas who shared with Mr. Justice
Black in the abhorrence of natural rights thinking, because he associates it with less
a fair philosophy tried valiantly, but not very persuasively to link the right of privacy,
nowhere mentioned expressly in the Constitution. He tried to link that with the rights in the
Bill of Rights and included within what he called their periphery or the radiation of
these rights. Establishing zones of privacy as he said. Mr. Justice Goldberg dealt with the matter
in a more forthright way. He recognized the rights pertaining to the
marital estate, to home and to family as fundamental in character. And said that the Ninth Amendment to the Constitution
was a recognition that courts could recognize and protect other rights besides those mentioned
in the Bill of Rights. A proposition which, of course, has support
in the long history of the fundamental rights interpretation of the Constitution, with its
strong natural rights overtones. Justices Harlan and Wright similarly rested
their cases on application of the idea that the privacy of married life was a fundamental
right, which cannot be flagrantly invaded, as was done in their view by the Connecticut
statute without serving any substantial or compelling public interest. Clearly, a majority of the court was reaching
out for a conception of right outside the Constitution. Notwithstanding the dissent and Justice Douglas’s
protestations, Griswold marked a significant revival of natural rights thinking, whatever
the formal argument employed by the majority. And Griswold was followed in the recent cases,
so recent to be well-known to all of you, where the court found that the liberty secured
by the 14th Amendment, protected the right of a female to abort a fetus within the first
six months of pregnancy. Our interest in this case at this point, centers
on the theory the court used in striking down a state legislative enactment, by reference
to a conception of right not explicit or even implicit in the constitution. Building on the right of privacy developed
in Griswold, the court said, speaking to Mr. Justice Blackmun that it was immaterial, whether
this was derived from the fundamental rights interpretation of due process, or from the
Ninth Amendment, or from some peripheral aspect of a Bill of Rights guarantee. Even more strikingly than Griswold is this
decisions affirmation of the classic notion, that the liberty secured under the due process
clause protects the so-called fundamental rights, which the court articulates by a natural
rights process type of reason. These decisions have gone far to provide constitutional
legitimacy for the current claims that a person has a constitutional freedom to the pursuit
of happiness, subject only to restrictions designed to protect compelling public interest. They provide the underpinning for the most
basic freedom of all, the freedom to be let alone to make one’s own decision, to go one’s
own way, and to cultivate his own interest. This is the Declaration of Independence all
over again. Although I should add here parenthetically,
that I would doubt whether the fathers would have considered the right to abort a fetus
as among the natural rights of mankind. The vitality and the persistence of fundamental
rights thinking in the interpretation of the higher law is strikingly demonstrated also
in the interpretation of the Equal Protection Clause. Despite early intimations, that only the newly
emancipated Black, would come within the protection of this clause, it’s used to protect the Black,
who was virtually forgotten after the decision in the Plessy case upholding the separate
but equal theory. Then came the great revitalization of the
Equal Protection concept when the court in 1954, in its famous Brown decision, held that
compulsory racial segregation in public schools resulted in unlawful discrimination against
Black children. Chief Justice Warren’s opinion on the effect
of segregation upon the life of the Black child makes clear that legally imposed segregation
could not be reconciled with the moral imperative underlying the equal protection idea. The court is now giving constitutional flesh
and blood, to the promise held out in the declaration, giving expression to an idea
of human dignity and fulfillment which had its roots in the Judeo-Christian tradition. Probably in no other democratic countries,
and I emphasize Democratic not totalitarian. Probably in no other democratic countries
are the freedoms to which the colonists were willing to sacrifice and die at present more
fully protected. And having grown accustomed to the constitutional
protection of natural rights, and having become self-indulgent in their enjoyment, we easily
forget that belief in natural rights helped spark the revolutionary movement. It is indeed good, that we use the Bicentennial
to refreshen our appreciation of our freedoms, to capture again the excitement, daring, and
devotion of the patriots who challenged authority, when they threw the tea bags into Boston Harbor. Who responded to Paul Revere’s midnight ride
with a resulting confrontation that Lexington encountered, who fought doggedly and valiantly
in the face of defeat and discouragement to win the final victory at Yorktown. Now, this is not to suggest that all is well
with the system, indeed it would be an understatement of the first magnitude to say that at this
juncture in our history. I suggested earlier that the conception of
right is not static. And part of our current problem is to develop
and implement conceptions of right address to current needs. In this day of highly refined technological
development which has provided the means of sophisticated electronic surveillance, and
data storage and retrieval, the newly formulated right of privacy requires recognition and
implementation. At a time of great urban concentration, and
the proliferation of regulation to deal with a constantly in large myriad of interrelationships,
the liberty of the individual is basic freedom to be let alone to maintain some degree of
personal identity, and to pursue a path of self-respect. Requires us to be careful of a paternalism
whereby Big Brother peeks over the shoulder to tell a citizen what is good for him. The unrestrained exploitation of our resources
and the debasement of the environment, require recognition that citizens have a natural God-given
right in their common resources, and in the environment. A right far more compelling than the freedom
once claimed in the name of less a fair thinking to plunder resources, pollute the air, and
impair the amenities of living. More troubling, however, are symptoms of a
general malaise in American thought in life, which creates an unease as we approach the
Bicentennial. And contemplate the nation’s future. Pessimism and cynicism about American life
are widespread, as so well demonstrated by the recent and continuing revelations. Power has been shamefully exploited and abused. And the governmental process corrupted by
men who are concerned with power, free from a sense of moral responsibility. Illegal and reprehensible tactics directed
to the end of winning elections are an ugly thrust at the integrity of the political process,
and even at the right to vote. The trustworthiness and credibility of the
people’s elected agents have been deeply eroded with a resulting loss of faith in the people
servants and in the whole political process. Extravagant campaign expenditures financed
by large contributions from those with special interests to protect, debase the free electoral
process and undermine the freedom of the people’s representatives to serve the public interest. Freedom of the press too often becomes an
excuse for distortion and manipulation of news, invasion of privacy, and intrusions
into those judicial processes designed to maintain the conditions of a fair hearing
for those charged with wrongdoing. Private groups are bastions of wealth and
power which parallel the government and the authority they exercise. The new freedom of the individual characterized
by the sloughing off of old moral restraints finds expression in license and permissiveness. The new egalitarianism poses the risk of cheapening
American life and culture, and eroding the sense of excellence. The pursuit of materialistic gratifications
in our affluent society, also claimed in the name of liberty has dulled the conscience,
impaired our vision of the enduring spiritual values that make a people great. And where there is no vision the people perish. And so it appears to many, that the spark
ignited by the revolution, the elan, the vitality and lively expectations
which guided the fathers have been dimmed and corroded by selfishness, corruption, and
aimlessness. We deed not however despair, indeed a healthful
pessimism underlies constitutionalism. The concept of a government of limited powers
and the rule of law. The recognition of the evil in man, and the
need of restraints to check the abuse of power. For we know power does corrupt. This in itself is a basic premise of natural
law, and one which underlies our system with its dispersion of authority between the federal
government and the states, its separation of powers and its system of checks and balances. These basic limitations on authority are even
more essential to the maintenance of freedom and the rights formally declared in the Constitution. The very fact that flagrant abuse of a power
has been uncovered, and that the legislative branch is now reasserting its authorities
against extravagant assertions of executive power, is itself evidence of the strength
and resiliency of our system. We have the means of curbing large concentrations
of power, whether in the large or the private sectors. Of reforming the electoral process, if only
we have the understanding and determination to do so. But even more important, we have the resources
of mind and spirit, needed to cleanse our society of its grossness, its preoccupation
with material ends, of recapturing the dedication and fire, which inspired the revolution and
harnessing them to the revitalization of today’s society. Basically, our problem is a moral problem,
a problem addressed to the minds and hearts of the people. The pessimism which is an important ingredient
of our constitutional thinking is balanced by an optimism, a faith that men can work
together to achieve common goals in a society held together by what the Protestant Reformers
called a sense of civic righteousness. This is the faith we must again recapture
and cultivate. A later generation cannot continuously harvest
the fruits from trees others have planted and cultivated. This means a restoration for our day of faith
in the basic institutions that have served us so well, and which constitute what Walter
Lippmann has called the public philosophy. It calls for a continued vigilance in the
nurture of ideas and institutions, which are our higher law heritage. The notion of limited power, of representative
government as a fundamental check on power. The right to vote, the freedoms of speech
and press, the freedom of dissent, the protection of minorities, access to courts for the vindication
of our liberties. It calls for renewed appreciation of our heritage
of Rights and Freedoms and renewed insistence on the premises underlying the conception
of natural rights, for restoration of a moral sense and integrity in the affairs of government. For decency in public life, and for stability
and reasoned discourse in the great debates on issues of public concern. For sensitivity, compassion, and generosity
in response to human needs. For self-restraint and responsibility in the
claim to and in the exercise of freedom, lest liberty degenerate into licentiousness and
freedom into anarchy. It calls for an appreciation, an affirmation
of moral values which undergird the public order. It calls for assessment of our rights and
liberties that’s more than negative restraints, but as positive means for self-development
and service to society and to others. Freedom encarnalized by purpose, discipline,
and regard for the common good, is self-destroying. I have suggested that in the end, the institutions
we deem important, and the significance of the rights we assert must rest upon some consensus
in the public mind respecting the values we deem important. The content of the contemporary natural law. It is in the shaping of a common ethic of
the people, which draws its inspiration from religious, moral, and philosophical sources,
which is illuminated by history, fortified by the ringing affirmation of the great declaration,
and given concrete application through the reasoned discourse which is the hallmark of
a great society that our hope lies, of giving contemporary meaning to the higher law, and
to the natural rights of man. Thank you. Vermont C. Royster: You’ve been watching Professor Paul
Kauper of the University of Michigan Law School, discuss, “The Higher Law and the Rights of
Man in a Revolutionary Society.” He spoke from historical North Church in Boston. Tonight’s lecture is one of a series presented
by the American Enterprise Institute. All the lectures deal with the 200th anniversary
of the American Revolution. They present several points of view, consider
a broad spectrum of major issues before our society, ranging from the art of war, to education,
the economy, the press, and the state of our cities. If you would like a copy of Professor Kauper’s
lectures, or copies of the entire Bicentennial series, write the American Enterprise Institute,
that’s AEI, P.O. Box 19191, Washington, D.C. 236. Until next time, this is Vermont Royster. Thank you for joining us.

One thought on “The higher law and the rights of man in a revolutionary society (1973) | ARCHIVES

  1. Well said sir….but I think this system made by Europeans for Europeans would only last if the US was basically a homogeneous society. As our country is multi cultural I have no reason to believe the republic will stand. I wish to be wrong but see no evidence to the contrary.

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