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4 S. Cal. Interdisc. L. J. 549 (1994-1995)
Natural Law and a Limited Constitution

handle is hein.journals/scid4 and id is 557 raw text is: NATURAL LAW AND A LIMITED CONSTITUTION CHARLES R. KESLER* Two kinds of questions arise when considering the natural law's relation to the United States Constitution. One is historical: we wish to know whether and to what extent natural law doctrines informed the writing and ratification of the Constitution. The other is prescrip- tive: we desire to know, in general terms, whether and how those doc- trines ought to guide citizens, judges, and lawmakers today, as these various groups attempt to apply the Constitution to political issues and legal cases. Both questions involve a definition or discovery of what natural law is, and in this sense they are aspects of the same problem. On the first question, there would seem little reason to doubt that natural law notions played a prominent role in the thought of the Founding generation. Indeed, the language and logic of natural law run throughout the major documents and debates of the period.1 Despite this overwhelming evidence, some scholars have attempted to read natural law and natural rights out of the American Founding, either by claiming that natural rights was simply a rhetorical gloss on the rights of Englishmen, or that at any rate these rights had no abstract meaning but were rooted in the American way of life as it was lived in the mid-1770s.2 It was certainly true that for the American colonists the idea of natural rights or law was entangled with both the British Constitution in the abstract and its familiar manifestations (including colonial self-government) in the New World. But from the * Claremont McKenna College. 1. For a compendium of such references, see EDWARD S. CORWIN, THE HIGHER LAW BACKGROUND OF AMERICAN CONSTITUTIONAL LAW (1955); Terry Brennan, Natural Rights and the Constitution: The Original Original Intent, 15 HARV. J.L. & PUB. POL'Y 965 (1992). 2. Cf DANIEL J. BOORSTIN, THE GENIUS OF AMERICAN POLITICS 8-35, 66-98 (1953); RUS- SELL KIRK, THE CONSERVATIVE CONSTITUTION 19-48, 63-98, 115-27 (1990); IRVING KRISTOL, REFLECTIONS OF A NEOCONSERVATIVE 78-94 (1983). 549

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