ists had become classical, we relied largely upon an American
variant of natural law. It was not that natural law expressed the
nature of man. Rather it expressed the nature of government. One form
of this variant was due to our doctrine that the common law of England
was in force only so far as applicable to our conditions and our
institutions. The attempt to put this doctrine philosophically regards
an ideal form of the received common law as natural law and takes
natural law to be a body of deductions from or implications of
American institutions or the nature of our polity. But yesterday the
Supreme Court of one of our states laid down dogmatically that
primogeniture in estates tail (which by the way is still possible in
one of the oldest of the original states) could not co-exist with "the
axioms of the constitution" which guarantees to each state a
republican form of government. More generally, however, the American
variant of natural law grew out of an attempt at philosophical
statement of the power of our courts with respect to unconstitutional
legislation. The constitution was declaratory of principles of natural
constitutional law which were to be deduced from the nature of free
government. Hence constitutional questions were always only in terms
questions of constitutional interpretation. They were questions of the
meaning of the document, as such, only in form. In substance they were
questions of a general constitutional law which transcended the text;
of whether the enactment before the court conformed to principles of
natural law "running back of all constitutions" and inherent in the
very idea of a government of limited powers set up by a free people.
Now that courts with few exceptions have given over this mode of
thinking and the highest court in the land has come to apply the
limitations of the fifth and fourteenth amendments as legal standards,
there are some who say that we no longer have a constitutional law.
For how can there be law unless as a body of rules declaring a natural
law which is above all human enactment? The interpretation of a
written instrument, no matter by whom enacted, may be governed by
law, indeed, but can yield no law. Such ideas die hard. In the
language of the eighteenth century, our courts sought to make our
positive law, and in particular our legislation, express the nature of
American political institutions; they sought so to shape it and
restrain it as to make it give effe