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The author proposes a new approach to effectively interpret the Constitution, one that draws from the positive law of the Constitution itself, grounds itself in history, and seeks to scale the heights of higher law.
Justice Elena Kagan famously said, “We are all originalists now,” at her 2010 confirmation hearing.[1] This statement came after she brought in now-Justice Brett Kavanaugh to teach at Harvard Law School in order to have every major interpretive approach represented. Today, a majority of the Supreme Court justices claim some form of originalism as at least an interpretive grid, if not the primary interpretive matrix.
Originalism has already been the primary interpretive approach to law in general. For example, the original intent of the parties plays a major role in contract interpretation, as the formation of a contract calls for a meeting of the minds. So, in a sense, the move back to originalism in constitutional interpretation moves the legal profession toward more consistency with the way legal texts are usually interpreted in other areas of law.
In legal interpretation in general, the intent or purpose behind a law, the text, and the context all play major roles. At the same time, legal work can evince a wide swath of learning, not to mention an array of styles in writing. After all, legal education has been called the “liberal arts professional education,” and law touches so many facets of society.
The Preamble to the Constitution states the purposes of the whole document:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”[2]
First, it’s important to note that the source of the Constitution is “We the People.” As renowned legal scholar Edward S. Corwin wrote, “… in the American written Constitution, higher law at last attained a form which made possible the attribution to it of an entirely new sort of validity, the validity of a statute emanating from the sovereign people … Invested with statutory form and implemented by judicial review, higher law, as with renewed youth, entered upon one of the great periods of its history, and juristically the most fruitful one since the days of Justinian.”[3]
Then notice that the purposes of the Constitution are Union, Justice, Tranquility, common defence, general Welfare, and the Blessings of Liberty. Finally, recognize that it was a system meant to stand the test of time — not just for those living in the late 18th century but for future generations.
Not to be confused with integralism, this white paper builds off of the “integrative jurisprudence” of the prodigious legal scholar Harold Berman. It proposes a new approach called “integrative originalism,” which draws from the positive law of the Constitution itself, grounds itself in history, and seeks to scale the heights of higher law.
This method of interpreting law essentially prevailed for a substantial portion of U.S. history, including during the nation’s founding and the framing of our Constitution. Notwithstanding historical amnesia and revisionism, the following elements of this approach have been part of the mainstream for much of world history and predominant in British-American law.
When I taught constitutional law, I often assigned my students to read the entire text of the Declaration of Independence, along with the Constitution, giving my students an overview, provision by provision. A former colleague once asked me, “Morse, why do you have the students read the Constitution? You know the text just doesn’t matter.” I disagreed then and still do. The text does matter. The U.S. Constitution is the most imitated, the most admired, and the most known constitution on the planet.
It has provided the legal framework for the greatest country in history. It is foundational and supreme, idealistic and realistic, practical and lofty, down to earth yet soaring. It upholds the rule of law while also calling for equal justice under the law.
The Bible teaches people to follow positive law, so long as it does not violate God’s higher law. This is consistent with the notion that we follow a higher authority. Ultimately, we should follow the Highest Authority, especially when lower authorities contradict the Supreme Judge, Lawgiver, and Executive of all law: God. In the Bible, the Hebrew midwives defied Pharoah’s order to slaughter male babies, and God rewarded them. The early apostles in the book of Acts stated that they were to obey God when human orders contradicted God’s commands. In U.S. history, Martin Luther King’s nonviolent resistance to unjust laws falls within this grand, historic tradition. As Corwin wrote: “They morally exonerated the humblest citizen in defiance of the highest authority.”[4]
In the context of legal interpretation, history includes the case history; when appropriate, the legislative history; the history of the relevant case law; the history in and around the enactment of the constitutional provision; the history of classical thought, which has stood the test of time (and thus indicates universal, higher law); and the deeper history of British-American common law, which sought to articulate higher law.
There is a view that common law has come closer to an enunciation of higher law than any other legal framework. Political philosopher John Neville Figgis wrote, “The Common Law is pictured invested with a halo of dignity peculiar to the embodiment of the deepest principles and to the highest expression of human reason and of the law of nature implanted by God in the heart of man … They regard it as the symbol of ordered life and disciplined activities, which are to replace the license and violence of the evil times now passed away … The Common Law is the perfect ideal of law; for it is natural reason developed and expounded on by a collective wisdom of many generations.”[5]
Daniel Dewey Barnard, a 19th century U.S. representative and chairman of the House Judiciary Committee, once stated that the common law “having a principle of growth and progress itself … is already … the most complete and admirable system of law — the most healthy and vigorous in its principles, the most favorable to civil liberty, standing the nearest to the divine law, and the best fitted to be the auxiliary and helper of religion itself in the government of individual men and of human society — that has ever existed on earth.”[6]
Henry de Bracton, the original systematizer of the British-American legal tradition, wrote: “Since from justice, as from a fountain-head, all rights arise and what justice commands jus [“the rights guaranteed by law”] is and whence it is so called and what its precepts are, and what law is and what custom, without which one cannot be just, so [laws and customs exist in order to] do justice and give just judgment between man and man. ‘Justice is the constant and unfailing will to give to each his right …’”[7]
He added, “Jurisprudence is the knowledge of things divine and human, the science of the just and the unjust … For jurisprudence discerns, justice awards to each his due. Justice is a virtue, jurisprudence a science. Justice is a certain summum bonum [a good end], jurisprudence a medium [a way to a good end].”[8]
Or as Aristotle put it: “Jurisprudence or the knowledge of those laws is the principal and most perfect branch of ethics.”[9]
The Magna Carta, or the Great Charter, proclaims in its most famous Chapter 29 that “No man’s liberty shall be taken away except by the law of the land.”[10] It would serve as a precursor to the due process clauses found in the Constitution’s 5th and 14th Amendments.
Moving from common law to the beginning of U.S. history, President George Washington, who presided over the Constitutional Convention, said in his first Inaugural Address: “[T]he propitious [favorable] smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right which Heaven itself has ordained.”[11]
The Declaration of Independence contains the resounding language:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men…”[12]
This notion of the “pursuit of happiness” comes from Augustine and William Blackstone, among others. For example, Blackstone wrote in his For example, Blackstone wrote in his Commentaries on the Laws of England:
“For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that [happiness] cannot be attained but by observing the former; and if the former be punctually obeyed, it cannot but induce [happiness]. In consequence of which mutual connection of justice and human felicity, [God] has not perplexed the law of nature with a multitude of abstracted rules and precepts…but has graciously reduced the rule of obedience to this one paternal precept, ‘that man shall pursue his own true and substantial happiness.’ This is the foundation of what we call ethics or natural law. For the several articles into which it is branched in our systems, amount to no more than demonstrating, that this or that action tends to man’s real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man’s real happiness, and therefore that the law of nature forbids it.”[13]
Clarence Manion, former dean of Notre Dame Law School and a conservative radio talk show host, stated: “The fact is that the Declaration is the best possible condensation of the natural law-common law doctrines as they were developed and expounded in England and America for hundreds of years prior to the American Revolution.”[14] The U.S. Code itself indicates that the Declaration of Independence is one of the Organic Laws upon which all statutory law rests.[15]
These words of our founding document philosophically frame our understanding of the Constitution that followed. Prominent appellate attorney Dan Himmelfarb puts it this way:
“Thus, before entering into a discussion of Marbury v. Madison (or even of the language of the Constitution itself), it seems entirely appropriate for authors of constitutional law casebooks to direct their readers’ attention, and for teachers of constitutional law classes to direct students’ attention, to the second sentence of the Declaration of Independence. Rather than being ignored, dismissed, or trivialized, these words should be the starting point for anyone who seeks to understand the meaning and purpose of the Constitution.”[16] This consideration provides a bridge from history to considering the higher law of which the Declaration speaks.
There is no view from nowhere. In other words, every view comes from somewhere. As C.S. Lewis put it in his essay “Meditation in a Toolshed,” shafts of light can not only be seen, but light is also the means by which we see.[17] Secular humanism, far from being neutral, acts as functional atheism: in this view, God is deemed irrelevant at best, deleterious at worst. Writing for the Emory Law Journal, legal scholar John Witte Jr. contends that “all the pregnant ideas and institutions of modern political thought are in essence secularized forms of theological doctrines and institutions,”[18] tracing how Puritan ideas and theological doctrines fed into what we generally see as foundational principles of constitutional law.
The Bible speaks of how God’s law is written on the hearts of all of humanity; each one of us is made in the imago Dei, or the image of God. This is the higher law, and it constitutes the common inheritance of humanity, the common core of morality shared across cultures, faiths, and peoples, which anthropological study has confirmed. It does not refer to specific commands to a particular faith community. For example, the command to take communion in the Bible is only for Christians; indeed, the Bible explicitly warns against giving communion to non-believers.
Thus, higher law in integrative originalism limits itself only to the rights that all people share. It is universal and does not prescribe that which applies only to particular faith communities. Thus, the Islamic requirement that women must wear hijabs and burkas would not apply under this approach nor would the halal and kosher (Islamic and Judaic) prohibitions on the consumption of pork or prohibition against eating beef. So fears of an entirely theonomic legal system, of whatever kind, are unfounded under integrative originalism.
I have made more extensive arguments along these lines in my law review article “Jurisprudential Underpinnings of Law, Especially International Law: The Basis for True Progress and Reform.”[19]
To be clear, this article does not place treaty law or any other form of international law above the U.S. Constitution for purposes of constitutional interpretation nor does it undermine a proper notion of U.S. sovereignty. What it does do is lay out the existence of higher law, using international law as an example, identifying the historical mainstream “that the laws by which men live can and should be the ‘embodiment of essential and unchanging justice,’” in Corwin’s words.[20]
Political scientist Clinton Rossiter defines it as Americans’ “deep-seated conviction” that “the Constitution is an expression of the Higher Law …”[21] And Cicero in De Republica articulates it this way:
“True law is right reason, harmonious with nature, diffused among all, constant, eternal; a law which calls to duty by its commands and restrains from evil by its prohibitions…Nor is it one law at Rome and another at Athens; one now and another at a late time; but one eternal and unchangeable law binding all nations through all time …”[22]
Moreover, regarding justice, Cicero mirrors this argument in De Legibus, asserting, “For Justice is one; it binds all human society and is based on one Law, which is right reason applied to command and prohibition. Whoever knows not this Law, whether it has been recorded in writing anywhere or not, is without Justice … What of the many deadly, the many pestilential statutes which nations put in force? These no more deserve to be called laws than the rules a band of robbers might pass in their assembly. For if ignorant and unskillful men have prescribed deadly poisons instead of healing drugs, these cannot possibly be called physicians’ prescriptions; neither in a nation can a statute of any sort be called a law, even though the nation, in spite of its being a ruinous regulation, has accepted it. Therefore Law is the distinction between things just and unjust …”23 In other words, justice through higher law is the paramount goal of law just as a healthy life is the primary goal of medicine.
From its framing, the Constitution has contained clauses that require content to be drawn from them. Because of the debate about whether a Bill of Rights would exclude any rights not expressly enumerated, the 9th and 10th Amendments were included. The privileges and immunities clause requires interpretation to indicate which privileges and immunities are contained therein.
And the due process clause, through which various rights have been recognized, is itself a product of higher law. American historian and political scientist William Archibald Dunning asked, “Is it not a common principle that the law favoureth three things, life, liberty and dower? …This because our law is grounded upon the law of nature. And these three things do flow from the law of nature …”[24]
This phrase, lodged in the 5th and 14th Amendments, also derives from John Locke’s Second Treatise on Civil Government.
As the Constitution is the foundational and supreme law of the land, it is fitting that it expresses higher law, which is most primary, and is intertwined with it. As Locke saw it, natural rights have existed prior to any government and do not depend on government for
“Rights antecedent to all earthly government — Rights that cannot be repealed or restrained by human laws — Rights derived from the great Legislator of the universe …British liberties are not the grants of princes or parliaments, but original rights, conditions of original contracts…coeval with government …Many of our rights are inherent and essential, agreed on as maxims, and established as preliminaries, even before a parliament existed.[25]
Governments, however, can recognize, execute, and enforce these natural rights. Chief Justice Oliver Wendell Holmes, who rejected the ideas of natural rights or higher law, adopted the brutish view that “might makes legal right.” For Holmes, there is no truth that speaks to power. Instead, there only remains power unmoored from any true, higher law. According to this view, the fist replaces fairness, and justice becomes a fantasy. Yet even Holmes’ “bad man” would be the first to squawk about injustice and unfairness when experiencing it firsthand himself.
Locke further foreshadows constitutional axioms: Law must be general; it must afford equal protection to all; it may not validly operate retroactively. Here we have the seeds of the constitutional prohibition against targeting individuals through legislation (bills of attainder), the Equal Protection clause, and the ban against ex post facto (“after the fact”) laws, or those put in place retroactively.
Originalism is turned to as an alternative to living constitutionalism. If the Constitution is living, the Constitution can “evolve” into the agenda of those who want to morph it. It can be a tool then of social engineering. As a corrective, originalism seeks to provide a fixed meaning to the Constitution, one that is not “alive” and “evolving.” The Massachusetts Circular Letter of 1768, drawing from the jurisprudence of Edward Coke and John Locke, establishes “that in all free states the constitution is fixed, and as the supreme legislative derives its power and authority from the constitution, it cannot overleap the bounds of it, without destroying its own foundation; that the constitution ascertains and limits both sovereignty and allegiance …”[26]
That way, the country would be protected from arbitrary, capricious, or unjust governmental violence to the Constitution. It would seek to prevent the fabrication of rights from wrongs, an attempted alchemy of crimes into rights. In De Legibus, Cicero declares: “We are born for justice, and right is not the mere arbitrary construction of opinion, but an institution of nature …and only a madman would conclude that these judgements [sic] are matters of opinion, and not fixed by Nature.”[27]
Holmes held to a reductionistic legal positivism that simply defines law as a command backed by force. Cicero refutes this simplistic claim:
“If it were possible to constitute right simply by the commands of the people, by the decrees of princes, by the adjudications of magistrates, then all that would be necessary in order to make robbery, adultery, or the falsification of wills right and just would be a vote of the multitude, but the ‘nature of things’ is not thus subject to the opinions and behests of the foolish.’”[28]
Thus, ignorance of the law is not a defense in criminal law since it has been inscribed upon every human soul. Later, in his public speech defending a friend who had been illegally dispossessed of property by force, Cicero asks rhetorically: “And I ask you, if the people had commanded that I should be your slave, or you mine, would that be validly enacted, fixed, established?”[29]
Originalism has been posited as a corrective to judicial activism, meaning judges going beyond their authority, especially to invent rights, even to the point of deeming wrongs as rights. Plain, public meaning originalism does provide limits to an extent. However, the Constitution alludes to rights not explicitly in its text, such as in the 9th and 10th Amendments, the Privileges and Immunities Clause, as well as the commonly regarded notion of substantive due process. While not originally perfect, the Constitution has within it the means for its own amendment. The Roman jurist Ulpian, for example, claims that “by the law of nature all men are born free.”[30] Notwithstanding the political accommodation of slavery in order to get the slave states to ratify it, the Constitution has, in the main, proven workable and enduring. Obviously, slavery has been abolished by the 13th Amendment.
Yet Rossiter declares that the U.S. Constitution “is in fact imperfect man’s most perfect rendering of what Blackstone saluted as ‘the eternal, immutable laws of good and evil … and which he [God] has enabled human reason to discover, so far as they are necessary for the conduct of human actions.’”[31]
Thus comes the commonly held notion of the Framers that law is discovered rather than invented. The Athenian statesman and orator Demosthenes put it this way: “Every law is a discovery, a gift of god — a precept of wise men.”[32] Corwin adds to this idea by stating: “There is, in short, discoverable in the permanent elements of human nature itself a durable justice which transcends expediency, and the positive law must embody this if it is to claim the allegiance of the human conscience.”[33]
With regards to conscience, Thomas Jefferson wrote: “He was endowed with a sense of right and wrong…This sense is as much a part of his nature, as the sense of hearing, seeing, feeling … It may be strengthened by exercise, as may any particular limb of the body.”[34] Classically, the term “reason” did not merely denote mere rationality but also included conscience, the faculty by which humans discern right and wrong.
This, in turn, gives the Framers’ idea of the rule of law. All rulers are under law. No ruler is above the law. It is Lex Rex (Law is King) rather than Rex Lex (The King is the Law). Corwin points out: “Indeed, the very title rex is derived from doing right, that is, acting in accordance with law recte.”[35] So no president, no justice, no legislator, no general, no governor, no ambassador is above the law, and neither is the majority of the voting populace, such as when constitutional law protects minorities.
Thomas Paine, in Common Sense, put it this way: “But where, say some, is the King of America? Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed in the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America the law is King.”[36] Or as Aristotle lays out in Politics: “He who commands that law should rule may thus be regarded as commanding that God and reason alone should rule; he who commands that a man should rule adds the character of the beast.”[37]
Chief Justice John Marshall goes so far as to say that “Judicial power, as contradistinguished from the power of the laws, has no existence.”[38] To quote Bracton in support of this idea: “The King himself ought not to be subject to man, but subject to God and to the law, for the law makes the King. Let the King then attribute to the law what the law attributes to him, namely, dominion and power, for there is no King where the will and not the law has dominion.”[39]
The Framers wrote the Constitution during the Constitutional Convention in Philadelphia in 1787. Although initially styled as a modification of the Articles of Confederation, it turned into a wholesale replacement of the Articles. To persuade their fellow Americans of the merits of the then new Constitution, James Madison, John Jay, and Alexander Hamilton wrote The Federalist Papers, first published in newspapers.
Originalists have referenced this series of 85 essays over the centuries as indicative of the original meaning of the Constitution. Rossiter places them “third only to the Declaration of Independence and the Constitution itself among all the sacred writings of American political history. It has a quality of legitimacy, of authority and authenticity, that gives it the high status of a public document, one to which, as Thomas Jefferson put it, ‘appeal is habitually made by all, and rarely declined or denied by any’ as to the ‘genuine meaning’ of the Constitution.”[40]
Regarding the judiciary, Hamilton in Federalist No. 78 explains that it
“has no influence over either the sword or the purse; no direction either of the strength or the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks … that as from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches; and that as nothing can contribute so much to its firmness and independence, as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution; and in a great measure as the citadel of the public justice and the public security.’”[41]
In the debate regarding whether or not to have a Bill of Rights, both sides assumed the existence of natural rights. From the side not wanting to have a federal Bill of Rights, there was concern that unenumerated rights would be disparaged or excluded. Thus, the last two amendments making up the Bill of Rights indicate that the people or states retain the residuum of rights not mentioned in the first eight.
Madison, considered the chief architect of the Constitution, addressed the array of concerns related to having a Bill of Rights but, in conclusion, considers the courts to be the protectors of rights, especially those explicitly enumerated in the Bill of Rights: “If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution …”[42]
Chief Justice John Marshall, who authored Marbury v. Madison, indicates that it is the role of the judiciary to say what the law is. As the judiciary can overrule federal statutes and treaties by deeming them unconstitutional, constitutional interpretation plays a part in establishing law for this country. The Constitution, in other words, stands as the paramount source of positive law — even among the categories of the Supremacy Clause: federal statutes, treaties, and the Constitution itself. At the same time, the other branches have no less of a duty to the Constitution. Indeed, it remains part of the oath or affirmation of federal governmental and military personnel to protect the Constitution against all enemies, foreign and domestic. Marshall probably played a bigger role in the early judicial interpretation of the Constitution than anyone else, through a line of precedents frequently cited, even to this day.
In more recent years, Justices Antonin Scalia, Samuel Alito, Clarence Thomas, and Chief Justice William Rehnquist have given much regarded leadership to the originalist approach. Each gave, or continue to give, their own flavor to originalism. While Justice Scalia claimed that he took a positivist approach, it has become evident to both those for and against his opinions that he did more than just provide positivism in his judicial writings. Justice Samuel Alito and Chief Justice William Rehnquist have emphasized a historic approach to rights. Justice Samuel Alito and Chief Justice William Rehnquist have emphasized a historic approach to rights. Such opinions not only involve U.S. history but the history of the British-American common law, including some of the scholarly luminaries thereof. Justice Clarence Thomas has emphasized the original public meaning, turning at times to lexicons and dictionaries contemporary to the Constitution’s writing.
What should characterize those who would judge based on integrative originalism? At a minimum, learned wisdom should characterize judges. As Blackstone notes in his famed Commentaries,
“The clergy in particular, as they then engrossed almost every other branch of learning, so (like their predecessors the British druids) they were peculiarly remarkable for their proficiency in the study of the law. Nullus clericus nisi causidicus [no clerk unless a lawyer], is the character given of them soon after the conquest by William of Malmsbury. The judges therefore were usually created out of the sacred order, as was likewise the case among the Normans [The judges are persons of wisdom and authority — such as archbishops, bishops, canons of cathedral churches, and other dignitaries of the holy church; the abbots, priors of convents and governors, &c]; and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated clerks to this day.[43]
Coke spoke to the king of those “learned in the Laws of his Realm of England, and Causes which concern the Life, or Inheritance, or Goods, or fortunes of his Subjects … Reason and Judgment of Law, which Law is an Art which requires long Study and Experience, before that a Man can attain to the Cognizance of it; and that the Law was the Golden met-wand and Measure to try the Causes of the Subjects; and which protected his Majesty in Safety and Peace …”[44]
Likewise, Bracton argues that he who judges ought to be wise, learned, and not corrupt: “Let no one unwise and unlearned presume to ascend the seat of judgment, which is like unto the throne of God, lest for light he bring darkness and for darkness light, and, with unskilful [sic] hand, even as a madman, he put the innocent to the sword and set free the guilty, and lest he fall from on high, as from the throne of God, in attempting to fly before he has wings.
And though one is fit to judge and to be made a judge, let each one take care himself lest, by judging perversely and against the laws, because of prayer or price, for the advantage of a temporary and insignificant gain, he dare to bring upon himself sorrow and lamentation everlasting.”[45]
So integrative originalism, then, refers to the original meaning of the Framers of the Constitution, the pertinent history, as well as the original higher law. It also recognizes the interweaving of the three. At its best, it is rooted in the highest and best Origin of law Himself.
Morse Tan is the senior executive director of the Center of Law and Government within Liberty University’s Helms School of Government.
From January 2022 to June 2024, Tan served as dean of the Liberty University School of Law, and prior to that, he served as ambassador at large for the U.S. State Department’s Office of Global Criminal Justice.
In his law career, Tan has served as an attorney and counselor at law for major law firms. In legal academia, he has served as a law professor or visiting scholar at the University of Texas at Austin School of Law, Northern Illinois University College of Law, Northwestern University Pritzker School of Law, and Handong International Law School in Pohang, Korea. He has taught courses on international criminal law, international human rights, bioethics, constitutional law, and North Korean policy.
He is the author of North Korea, International Law, and the Dual Crises and holds a B.A. and M.A. from Wheaton College and a J.D. from Northwestern University School of Law, where he completed an international law concentration.
He and his wife, Sarah, have four children.
[1] U.S. Congress, Senate, Committee on the Judiciary, The Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States, 111th Cong., 2nd Session (2010), 62.
[2] U.S. Constitution, National Archives, https://www.archives.gov/founding-docs/constitution.
[3] Corwin, Edward S., The Higher Law Background of American Constitutional Law (Ithaca, NY: Great Seal Books, 1955), 89.
[4] Corwin, Higher Law, 20.
[5] Figgis, John Neville, Divine Right of Kings, 2nd ed. (U.K.: Cambridge University Press, 1914), 228-30.
[6] Barnard, Daniel Dewey, Discourse on the Life, Character and Public Services of Ambrose Spencer (1849), 52.
[7] Bracton, Henry de, On The Laws and Customs of England, Vol. 2 (Cambridge: Harvard Law School Library, 2003), 22.
[8] Bracton, Henry de, On the Laws and Customs of England, Vol. 2 (Cambridge: Harvard Law School Library, 2003), 25.
[9] “Great Thoughts Treasury,” www.greatthoughttreasury.com, accessed January 29, 2025.
[10] “The Articles of the Barons: Article 29,” The Magna Carta Project, trans. H. Summerson et al.
[11] President George Washington’s First Inaugural Address (1789), National Archives, https://www.archives.gov/milestone-documents/president-george-washingtons-first-inaugural-speech.
[12] Declaration of Independence (1776), National Archives, https://www.archives.gov/founding-docs/declaration-transcript.
[13] Blackstone, William, Commentaries on the Laws of England (1765-69), 41.
[14] Manion, Clarence E., “The Founding Fathers and the Natural Law: A Study of the Source of our Legal Institutions,” 35 A.B.A.J. 461 (1949).
[15] 1 U.S. Code at xli (1994).
[16] Himmelfarb, Dan, “The Constitutional Relevance of the Second Sentence of the Declaration of Independence,” 100 Yale Law Journal, 187 (1990).
[17] Lewis, C.S., “Meditation in a Toolshed” in God in the Dock (Grand Rapids, MI: Eerdmans, 1998) pp. 212-215.
[18] Witte, Jr., John, “How to Govern a City on a Hill: The Early Puritan Contribution to American Constitutionalism,” 39 Emory Law Journal (1990), 41.
[19] Tan, Morse Hyun-Myung, “Jurisprudential Underpinnings of Law, Especially International Law: the Basis for True Progress and Reform,” Tennessee Journal of Law and Policy: Vol. 2: Iss. 1, Article 3 (2005).
[20] Corwin, Higher Law, vii.
[21] Clinton Rossiter’s prefatory note to Corwin, Edward S., The “Higher Law” Background of American Constitutional Law (Ithaca, NY: Cornell University Press, 1955), viii.
[22] Cicero, Marcus Tullius, De Republica (On the Republic), Book III (Cambridge: Loeb Classical Library, Harvard University Press, 1928), p. 211.
[23] Cicero, Marcus Tullius, On the Laws (De Legibus), Book I.
[24] Dunning, William Bradford, A History of Political Theories, Vol. 2: From Luther to Montesquieu (New York: McMillan & Co., 1905) 222, 346n.
[25] Adams, Charles Francis, editor, The Works of John Adams, Vol. III (Boston: Charles C. Little and James Brown, 1851), 448-64, especially at 449, 463.
[26] Cicero, Marcus Tullius, De Legibus (On the Laws), Book I, (Cambridge: Loeb Classical Library, Harvard University Press, 1928), 344-345.
[27] Cicero, Marcus Tullius, De Legibus (On the Laws), Book I (Cambridge: Loeb Classical Library, Harvard University Press, 1928), 328-347.
[28] MacDonald, William, Documentary Sourcebook of American History (New York: The Macmillan Company, 1908), 146-50.
[29] Cicero, Marcus Tullius “Pro Caecina” (69 B.C.).
[30] Honore, Tony, Ulpian: Pioneer of Human Rights, 2nd Ed. (New York: Oxford University Press, 2002), 76.
[31] Corwin, Higher Law, prefatory note, vi.
[32] Holland, Thomas Erskine, The Elements of Jurisprudence (Whitefish, MT: Kessinger Legacy Book Reprints), 38.
[33] Corwin, Higher Law, 11.
[34] Letter from Thomas Jefferson to Peter Carr, August 10, 1787.
[35] Corwin, Higher Law, 19.
[36] Paine, Thomas, Common Sense (1776).
[37] Aristotle, Politics, 127-28.
[38] Osborn v. Bank of the United States, 9 Wheat. 738, 866 (U.S. 1824).
[39] Bracton, Henry de, On the Laws and Customs of England, (Twiss ed., 1854) f. 5b.
[40] Clinton Rossiter introduction to The Federalist Papers (New York: New American Library, Mentor Publishing, 1961), vii.
[41] Hamilton, Alexander, Federalist No. 78 (1788).
[42] Madison, James, 1 Annals of Congress, 440 (Joseph Gales ed., 1789).
[43] Blackstone, Commentaries on the Laws of England, 14.
[44] Prohibitions Del Roy, King’s Bench Division (1572-1616), 12 Co Rep 63, 77 E.R. 1342, para. 4.
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