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Published online by Cambridge University Press: 01 August 2014
This study represents a preliminary inquiry into certain of the functional aspects of the natural law doctrine, particularly as it applies to American constitutional development. Throughout, the conceptual considerations, as such, will be ignored. Instead, the basic consideration will be one of usage. How does natural law work? What does it do? If this distinction seems arbitrary, the writer can only point out that law and politics are not theoretical studies; that they are the bone and sinew of society; that if the social order is to serve humanity with the greatest possible direction, it should know the proper functioning of its constituent elements. Natural law, like atomic energy, is important because it works, not because it was invented. And by the same token, it is best understood by a respectable familiarity with its usage, not by memorizing the symbols of its essence.
The easy identification of natural law with the constitutional development of this country is apparent from even a cursory examination of the great body of constitutional doctrine. We have, for example, the whole concept of property relationships as they have come to us from the eighteenth century. We have a similar form-pattern in the development of certain processes of the law itself. We talk of the “reasonable man,” or we invoke the “rule of reason.” But the decisive characteristic of American constitutional development has been none of these. Rather it has been the acceptance of the working principle of negation. To avoid an enactment or a statute is considered, in this country at least, a valid exercise of authority. While it might be difficult to seek the legitimate derivation of such an action, or even to justify it, it is possible to consider its assumptions.
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25 3rd sec.
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34 Hurtado v. California, 110 U.S. 536.
85 Butcher's Union Company v. Crescent City Co., 111 U.S. 759.
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38 They were, of course, not confined to the federal judiciary. The Massachusetts supreme court declared during this time that “there are certain fundamental rights of every citizen which are recognized in the organic law of all our free American states. A statute which violates any of the rights is unconstitutional and void, even though the enactment of it is not expressly forbidden.” Commonwealth v. Perry, 155 Mass. 125.
39 U.S. v. Cruikshank, 92 U.S. 554.
40 Chicago, B & Q R. R. Co. v. Chicago, 166 U.S. 226.
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