The United States rose slightly after a time in which absolute despotism, in the form of centralized, hereditary monarchy – dominated the thought of the West. Before this “Age of Despotism”, the idea of divine Providence establishing “rights” delegated to individuals outside the sovereign did not exist in a nuanced manner. These assumed rights were unconsciously protected by the dispersion of feudal power – and through the revolution of the aristocracy when trodden upon. When the improvement of technology allowed for the rise of despotism, the Enlightenment exploded to codify these implicit limitations, appealing to the far earlier tradition aforementioned.
Natural law, particularly the influences of Sir Edward Coke and Sir William Blackstone in the common law tradition, formed the basis of the American constitutional order’s judicial mechanisms. Natural law found its way into common law through the Law of Moses, the Roman civil code, and chivalry culture. Thus, common law became justifiable to the citizenry as an accepted moral code for not only civil society, but the courts as well. In early America, the common law tradition flourished more naturally than even that of its origin country of Britain, as the death of Blackstone saw the utilitarianism of Jeremey Bentham and Justin Austin’s positivism begin to take precedence in the Anglo judicial system.[1] While at the same time, the inherent decentralization of the early American environment and lack of landed aristocracy made familiar traditions (common law), rather than academic theories like Blackstone’s, more palatable.
The natural law that common law was based upon defined man’s purpose – gave rights and obligations agreed to in a compact. In particular, the American Puritan colonies were influenced by this line of thought tied together with their Calvinism. The New England Puritans penned the 1641 Body of Liberties that expressed in the preamble:
“The free fruition of such liberties Immunities and [sic] priveledges as [sic] humanitie, [sic] Civilitie, and [sic] Christianitie call for as due to every man in his place and proportion; without impeachment and Infringement hath ever [sic] bene and ever will be the [sic] tranquillitie and [sic] Stabilitie of Churches and Commonwealths. And the [sic] deniall or [sic] deprivall thereof, the disturbance if not the [sic] ruine of both.”[2]
The constitution developed by the Puritans of Massachusetts mentioned the natural law and communal obligations, in covenant with Providence, to sustain a morally grounded civil society. The Puritans affirmed rights originated from God, not from a manufactured state or sovereign. This Puritan development would influence a century later the drafting of the Constitution of the United States.
Alexis de Tocqueville noted that he believed the Puritans to be the validated founding forefathers of America, as their very purpose for an expedition to the Americas was principled.[3] Tocqueville further insisted Puritanism was a foundational block in American constitutionalism, dismissing the state as the dispatcher of rights, law, or obligations.[4]
The Enlightenment era would retain a hold in American law and philosophy throughout the nineteenth century; it was not until the later decades that both America and Western societies would see the emergence of a more revolutionary line of thought. This line of thought emerged during a far different Enlightenment, derived from the Prussian movement of Idealism, counter to the Anglo-American tradition. The most notable of these German Idealists was Georg Wilhelm Friedrich Hegel, whose philosophy of perpetual social progress would prove to have a permanent impact on the American psyche.
Hegel would begin the notion of merging state, society, and the individual into one cohesive unit meant for social change. He saw that the state was simply a “reflection of social order” – as in “both individualism and social unity and progress coexisted.” Woodrow Wilson would be influenced by Hegelianism, as it expressed the state as a unit of both private and public spheres, and society entirely the latter. This made Hegel most suitable for American Progressives such as Wilson with their emphasis on “social reform”.[5]
It is to be noted Hegelianism never lapsed directly into the state being subject to the individual, but “blazed the trail between the two.” The material explanation forwarded by Marx’s dialectic – in rejection of Hegel’s Lutheran metaphysic – would. Like Marx, Hegel reduced the individual to a mere subject, combined with what the Prussian philosopher called the “object”, known as “social organicism”. By this logic, the individual to Hegel is nothing without living in collective unison combined with a constant state of social progress.
Yet worst of all was Hegel’s rejection of moral absolutes for “relative opposites”.[6] To Hegel, no actual standard is absolute, as society is destined on a path of continuous social progress. With social progress as the objective, all other omnipresent forces (natural law, tradition, faith in divine Providence) are vacant, hold validity, or have a legitimate authority over dictating the moral code of society, that by Hegel’s logic, is evolutionary.
Wilson was an adherent of this form of Hegelian organicism, that change was a natural process for man. This was a monumental shift from the Anglo-American tradition, and he knew it, too.
“It is … particularly true of constitutional government that its atmosphere is opinion …. It does not remain fixed in any unchanging form, but grows with the growth and is altered with the change of the nation’s needs and purposes.”[7]
The Wilsonian view took in the perspective of society being organic, meaning no standard is absolute, so this change should be forwarded as much as possible by an arbiter agent, as he avowed: “progress is motion, government is action.”[8]
Immediately, you have an emphasis on social progress, morphed into the present form of moral relativism. The principle became revolutionary, as society was “organic”, tradition held man or established principles back from this “natural” evolution. In the long term, the Post-Enlightenment birthed by Hegel gave birth to political movements championing change for social control over the populace. It doesn’t take a genius to see how this spiritual understanding, transferred to the material, gave birth to modern ideologies like communism, fascism, and liberalism.
It did not take particularly long after the introduction of Wilson’s progressive era, that natural law jurisprudence capitulated to this form of social activism. Associate Justice Oliver Wendell Holmes Jr.’s “legal realism” was remnant of Hegelianism – law as to be based on developed empirical policy instead of metaphysical principles. Holmes attacked the common law for its emphasis on Anglo-American legal tradition, he went on to proclaim:
“The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong…”[9]
“Scattered prophecies” was Holmes’ term for both the natural and common law rooted in Anglo-American Tradition.[10] Friedrich Carl von Savigny, an affiliate of Hegel, opposed the codification of laws in the German states, emphasizing that culture-constant motion is incompatible with the omnipresent “Roman law”. Holmes held the understanding that all legal jurisprudence derived from “public policy”, or what the community determined to be acceptable for human behavior.[11] Holmes’ positivism and realism were based on Hegel’s society-centric values, progressive empiricism, and sociological factors to determine how laws are to be executed. The court, in place of applying the law, was now the legislator of the law.
From the Darwinian perspective, this makes sense. Man “evolved”, so society is evolving towards an endless pursuit of social progress. In such a setting there is no need for God or principle to act as arbitration. Law came from man, both are products of evolution, the United States Constitution and the Anglo-American tradition be damned. “Natural” law is non-existent, God has been eradicated from the equation, the artificial state is the bestower of your liberties, and with constant progress, they are not guaranteed. Adopting no morality as a principle meant that law became about control and an agency for revolution.[12]
The epistemological move to progress from an omnipresent principle saw the departure from the Age of Enlightenment. The American Republic had the principles of natural law woven within the Anglo-American tradition eroded over the course of an extensive process. The Post-Enlightenment voided natural truths with a materialistic moral relativism, which since the advent of post-modernity has only magnified. The modern American Epicureanism was developed from lack of moral or providential connection with individuals – to the Epicurean no truth is evident, no wrong is evident. Just as the sexual revolutions pushed Epicurean dogmas into the mainstream of our entertainment, Roe v. Wade acted as the judicial manifestation with Justice Harry Blackmun being the arbiter.[13] The moral code is not arbitrated via omnipresent principles, but by ethics subjected to progressive marches for change.
Senator Joshua D. Hawley wrote in a National Affairs article entitled “America’s Epicurean Liberalism”, about how the devolution of morals has led to what he called a “radical individualism”.[14] Hawley’s assertion is accurate; paradoxically, radical individualism has created a new form of collectivism, a collectivized catalog based on demographic differences in American society. Here you saw the emergence of the Marxian Critical Race Theory that holds the erroneous “oppressor versus oppressed” archetype. Raymond Wacks describes the postmodernist school in Understanding Jurisprudence as:
“Critical theory, aesthetic or ethical, seeks to subvert ‘foundational’ ideas of truth ‘whether founded in transcendental conceptions of truth or in an acceptance of the self’s unchallenged place at the centre of any analysis.”[15]
The inevitability is the rejection of any omnipresent natural principles. Everything constructed by tradition is rendered invalid to be suited for modern society. Progress means progressing from Anglo-American tradition. The Progressive John Dewey avowed that [negative] liberty (in terms of tradition) was not a given, [positive] liberty to the progressive Hegelian has yet to be achieved. Rights are not bestowed by God, they are again, human developments, a Darwinian evolution in man’s social engineering. Natural law, rights, liberties are “mythical” to Dewey, to the point of being described as “mythology”.[16]
The plan for sempiternal progress requires the mass mobilization of American society to obtain unreachable objectives set by elitist philosopher-kings to direct the populace. At one point the progressive Hegelianism was limited to academia and the bureaucratic engagements of the United States federal government. With the influx of progressive culture, corporations (believed to be held for conservatives in the past century), have morphed into agents of change becoming the largest proponents of Epicurean policies. Corporations now push the antithesis to American traditionalist culture: permissiveness, relativism, and racialism.
The late nineteenth century saw the Anglo-American tradition challenged by a form of Hegelian Epicureanism that emphasized rationalism as an engine of social progress. Society became organic and evolutionary, change an endless campaign forced upon man, purpose rendered useless. Omnipresent principles are discarded for revolutionary pursuits, paradoxical to natural law as the universal arbiter of the polis that surrounds him. Thus, we now face a new dispensation defined not entirely by the lack thereof.
Bibliography and Footnotes
Hawley, Joshua D. “America’s Epicurean Liberalism.” National Affairs. Accessed June 7, 2021. https://www.nationalaffairs.com/publications/detail/americas-epicurean-liberalism.
Holmes, Oliver Wendell. “The Path of the Law.” Harvard Law Review 110, no. 5 (1997): 991-1009. Accessed June 5, 2021. doi:10.2307/1342108. 991.
Mendenhall, Allen Porter. “The American Founders and Natural Law Jurisprudence.” The Literary Lawyer: A Forum for the Legal and Literary Communities, April 9, 2014. https://allenmendenhallblog.com/2014/04/09/the-american-founders-and-natural-law-jurisprudence/.
Northeastern University Law Review. “Oliver Wendell Holmes’s Theory of Contract Law at the Massachusetts Supreme Judicial Court.” Northeastern University Law Review. Northeastern University Law Review, January 19, 2021. http://nulawreview.org/volume-13-issue-1-articles/ogorman.
Rickert, Paul R., “Legal Positivism: The Leading Legal Theory in America” (2005). Faculty Publications and Presentations.
“Roe v. Wade (1973).” Legal Information Institute. Legal Information Institute. Accessed June 10, 2021. https://www.law.cornell.edu/wex/roe_v_wade_%281973%29.
Schambra, William A. “The Progressive Movement and the Transformation of American Politics.” The Heritage Foundation. Accessed June 7, 2021. https://www.heritage.org/political-process/report/the-progressive-movement-and-the-transformation-american-politics.
Wacks, Raymond. Understanding Jurisprudence: An Introduction to Legal Theory. Oxford: Oxford University Press, 2015.
Wolfe, Christopher. “Woodrow Wilson: Interpreting the Constitution.” The Review of Politics 41, no. 1 (1979): 121-42. Accessed June 12, 2021. http://www.jstor.org/stable/1406981.
[1] Mendenhall, Allen Porter. “The American Founders and Natural Law Jurisprudence.” The Literary Lawyer: A Forum for the Legal and Literary Communities, April 9, 2014. https://allenmendenhallblog.com/2014/04/09/the-american-founders-and-natural-law-jurisprudence/.
[2] “1641: Massachusetts Body of Liberties.” Online Library of Liberty. Accessed June 3, 2021. https://oll.libertyfund.org/page/1641-massachusetts-body-of-liberties.
[3] Kessler, Sanford. “Tocqueville’s Puritans: Christianity and the American Founding.” The Journal of Politics 54, no. 3 (1992): 776-92. Accessed June 3, 2021. doi:10.2307/2132311. 778.
[4] Kessler, 779.
[5] Newman, Simon P. “The Hegelian Roots of Woodrow Wilson’s Progressivism.” American Presbyterians 64, no. 3 (1986): 191-201. Accessed June 4, 2021. http://www.jstor.org/stable/23330852. 197.
[6] Newman, 198.
[7] Wolfe, Christopher. “Woodrow Wilson: Interpreting the Constitution.” The Review of Politics 41, no. 1 (1979): 121-42. Accessed June 12, 2021. http://www.jstor.org/stable/1406981.
[8] Newman, 199.
[9] Northeastern University Law Review. “Oliver Wendell Holmes’s Theory of Contract Law at the Massachusetts Supreme Judicial Court.” Northeastern University Law Review. Northeastern University Law Review, January 19, 2021. http://nulawreview.org/volume-13-issue-1-articles/ogorman. I.
[10] Holmes, Oliver Wendell. “The Path of the Law.” Harvard Law Review 110, no. 5 (1997): 991-1009. Accessed June 5, 2021. doi:10.2307/1342108. 991.
[11] O’Gorman, I.
[12] Rickert, Paul R., “Legal Positivism: The Leading Legal Theory in America” (2005). Faculty Publications and Presentations. 3.
[13] “Roe v. Wade (1973).” Legal Information Institute. Legal Information Institute. Accessed June 10, 2021. https://www.law.cornell.edu/wex/roe_v_wade_%281973%29.
[14] Hawley, Joshua D. “America’s Epicurean Liberalism.” National Affairs. Accessed June 7, 2021. https://www.nationalaffairs.com/publications/detail/americas-epicurean-liberalism.
[15] Wacks, Raymond. Understanding Jurisprudence: An Introduction to Legal Theory. Oxford: Oxford University Press, 2015. 328.
[16] Schambra, William A. “The Progressive Movement and the Transformation of American Politics.” The Heritage Foundation. Accessed June 7, 2021. https://www.heritage.org/political-process/report/the-progressive-movement-and-the-transformation-american-politics.
