Natural Law and the Constitution

By Russell Shaw
Herald Columnist
(From the issue of 12/5/02)

"The source of U.S. law is the Constitution, not the Bible."

The speaker was the Rev. Barry Lynn, head of the gadfly group called Americans United for Separation of Church and State, which specializes in mistaking its theological prejudices for constitutional principles. This time, intentionally or not, he was outdoing himself in obfuscation.

Lynn was speaking against the background of the much-publicized Alabama Ten Commandments case. On Nov. 18 U.S. District Judge Myron H. Thompson ruled that state Chief Justice Roy S. Moore had created a "religious sanctuary" by placing a monument celebrating the Decalogue in the rotunda of the supreme court building.

Judge Thompson said Justice Moore's action crossed the line between "the permissible and impermissible" under the Establishment Clause of the First Amendment. The Alabama jurist says he will appeal, and the argument could end up in the U.S. Supreme Court.

I have no intention of entering into specifics of the Alabama dispute or similar court tests involving public display of the Ten Commandments in two other states, Texas and Ohio. Most Americans probably would have no objection to a courthouse monument honoring the Commandments, and Justice Moore's intentions plainly are good. At the same time, he seems to have been pressing his cause in a Bible Belt Protestant style of which Catholics are understandably leery. We shall see how this turns out.

But the real interest here lies in the issue raised by Barry Lynn—and also by Justice Moore, who testified that the Ten Commandments are the "moral foundation of American law."

Who's right? Is the foundation of American law the Constitution, as Lynn would have it, or the Ten Commandments, as Moore contends?

Not to prolong the suspense: Justice Moore is right. The Ten Commandments are the foundation of American law, although possibly not in the way he and some of his supporters understand.

The point can be illustrated as follows. If the foundation of U.S. law is the Constitution, as Barry Lynn contends, it's reasonable to ask: What is the foundation of the Constitution? The framers of the Constitution knew. Its foundation, they agreed, was natural law, understood as the principles and norms of conduct arising from the innate ordering of human beings placed in them by their creator.

In the Western tradition, far and away the best known embodiment of natural law is the Ten Commandments. In that sense, the Commandments are, as Justice Moore insists, the ultimate moral foundation of our system of law.

To say this view is not universally accepted today would be an understatement. Relativism, which rejects the idea that there are moral standards true in all times and places, is the dominant ethic of secular culture. In the field of jurisprudence it works hand in glove with legal positivism, which holds that law is a product of human intellect and will ungrounded in anything else.

A half-century ago John Courtney Murray, S.J., the distinguished American theologian of church and state, saw this taking shape and was appalled. If public debate over questions of law and policy was to remain "civilized and civilizing," he warned, the social consensus grounded in natural law was essential.

"If there be no consensus with regard to what freedom is, and whence it comes, and what it means within the very soul of man," he wrote, "how shall freedom hope to live within society and its institutions?" Good question. Whatever happens to the Ten Commandments in that Alabama courthouse, legal positivism as espoused by the Barry Lynns of the world is profoundly destructive.

Shaw is a freelance writer from Washington, D.C.

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