By Paul G. Kauper
In his 1973 Bicentennial Lecture, the legal scholar Paul G. Kauper argues that a “higher law” emerged during the American Revolution, supporting it and the constitutional system it would birth. For Kauper, this higher law came from natural law, the natural rights that flowed from natural law, and the tradition of English common law. By invoking the natural rights of Americans, the Declaration of Independence was “an abiding affirmation of the higher law to which men and their governments are subject.” Yet the Founders’ real genius lay in the constitutional system they created, one which “laid the foundation for a society that provides peaceful means for growth and change.”
While a partisan for the constitutional system, Kauper is nonetheless emphatic that the basis for natural law is outside the Constitution. This was made clear during the slavery crisis, which was not resolved by “judicial or political means” but by “four years of bloody conflict.” In its aftermath, the Civil War amendments became, however imperfectly, a tool for implementing the Declaration’s promise of equality. Kauper warns that it is “idol worship to see the Constitution as the expression of ultimate values in our nation’s life.” Instead, he concludes, “The conscience of the nation lies outside the Constitution and supports it.”
