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The Fourteenth Amendment And The Continuing Struggle For The Principle
of Natural Law As The Foundation of American Constitutional Practice


Fredric W Henderson

           "The most perfect society is that whose purpose is the universal and supreme happiness."

          "It is obvious that the happiness of mankind consists in two things -- to have the power, as far as is permitted, to do what it wills and to know what, from the nature of things, ought to be willed."

          On Natural Law
          Selections from Ethical and Legal Writings
          Gottfried William Leibniz, 1693-1700


"The laws, the principles, which were to apply to the dwellers on the Penobscot were to apply to those on the Savannah and Susquehanna; else the Declaration would have proclaimed that the one the people on the Penobscot or Susquehanna were born free and equal, and those on the Savannah with a modified equality; that the one had inalienable rights, among which was liberty; that the other had inalienable rights, but perfect liberty was not among them. The grand idea of those immortal men was, that there were certain rights, privileges and immunities, which belong to every being who had an immortal soul, none of which should be taken from him, nor could he surrender them in any arrangement with society. So essential to the repose of the whole community was it that every man should possess each of these rights, privileges, and immunities, that he was forbidden by his Creator to part with them. He could not sell himself, he could not sell his children, into slavery. He could not sell his life for a price. He could not surrender the right to pursue his own happiness. Every attempt to do so was nugatory. Every instrument founded upon such a contract, no matter how solemn, no matter how hedged about by broad seals, no matter how stamped by State legislation and executive approval none of these things give it life. It was null and void; it was a corpse incapable of animation.''

            Thaddeus Stevens, March 6, 1868
          "Governments Republican in Form"
          Speech in the U.S. House of Representatives


    As the nation approaches July 4, and with it the celebration of Independence Day, it has before it the challenge, issued by the Reverend James Bevel, to reaffirm the principles of the Declaration of 1776 marking this nation's founding as an independent nation. The Reverend Bevel, a collaborator of the late Dr. Martin Luther King in the civil rights movement, has called on Americans to come to Philadelphia, the birthplace of this nation, to reaffirm that commitment elaborated in the Declaration: to the proposition that governments among men are created on the principle that "all men are created equal, endowed by their creator with certain inalienable rights, among which are that to life, liberty, and the pursuit of happiness.'' He has asked that every American so reaffirm those doctrines of the science of perfect government by adding their signatures to that original Declaration of 217 years ago, signed by the members of the Continental Congress who drafted it, and thus created the American nation as one unique in human history.

    But, some will surely ask, what, in fact, are those principles? Are they truly, in light of this nation's history, so unique? Are they in fact, principles worth reaffirming? These are questions that have been raised before, are being raised still and will inevitably be raised now, in response to Rev. Bevel's call.

    For example, another leading figure in the battle to make those principles real for all Americans, the late Supreme Court Justice Thurgood Marshall questioned the sagacity and honesty of the original founders in a piece on the Bicentennial of the U.S. Constitution for the Harvard Law Review in 1987. Justice Marshall wrote "The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the 'more perfect union' it is said we now enjoy....I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever 'fixed' at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, that we hold fundamental today."

    Justice Marshall would go on to challenge the sincerity of the drafters of the Declaration of Independence, as well, noting the obvious compromise with the institution of African slavery that occurred then, and continued with the creation of the Constitution in 1787. He would point out that only after a horrendous civil war and a constitutional amendment, the Thirteenth, was slavery ended in America; and only after that war, another 10 years of continued political turmoil, and two additional constitutional amendments, the Fourteenth and Fifteenth, was the principle of equality before the law truly established in American political thought and jurisprudence. Justice Marshall, would note that even after these changes, it would take almost another one hundred years to begin to see these principles acted upon. Justice Marshall was perhaps the preeminent legal mind of the past half century, and it is to him that we are indebted for the best constitutional views one finds among those in a position to make policy, and define the law of the Constitution in that same period. One therefore, should not take lightly Justice Marshall's views on such matters.

    However, while Justice Marshall's outlook certainly cannot be either ignored, or dismissed, the truth it contains is one which, unfortunately is mistakenly incomplete. This is largely because, despite the extraordinary debate, and the massive amount written, argued and spoken on the subject, the questions of the changes that occurred in this nation during the civil war period are still grossly misunderstood.
Along with generations of Americans, Justice Marshall, had been misled to believe that this nation fought a great civil war in 1861, not over such principles as articulated in the quotes that introduce this article, but over such as a State's right, or sovereignty, to act in any fashion it might choose as being in its particular interest. With such arguments we know the so-called right to the "domestic" institution of human slavery was defended and the alleged right to sever the Union through "secession" justified; while it is less clear today, such arguments were also used to justify the right to annul, obstruct, and subvert national policy if that policy was not perceived to be in the "sectional" (or, as we might call it today, "individual interest group") interests of the South. Most importantly, in this fashion was the great national purpose of the founders of this nation undermined; for it was not in the Lockean or Hobbesian doctrines of government as a social compact that America was founded. 

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