Announcer: The American Enterprise Institute presents the distinguished lecture series on the Bicentennial
of the United States.
Our host for this thought-provoking series is Vermont Royster, Pulitzer Prize-winning
Journalist with "The Wall Street Journal," and Professor of journalism and public affairs
at the University of North Carolina.
Vermont C. Royster: I'm Vermont Royster.
As part of America's 200th anniversary in 1976, the American Enterprise Institute is
presenting a series of lectures by American scholars who have become distinguished in
their fields of academic endeavor.
We're about to hear Professor Paul Kauper of the University of Michigan Law School at
Ann Arbor.
Professor Kauper delivers his lecture from Boston's Old North Church, a major landmark
made famous by Paul Revere.
He will discuss the founding fathers concept of an even Higher Law, and the universally
respected constitution they devised.
Old North Church is one of several representative historic sites across the United States, in
which the American Enterprise Institute has placed its distinguished lecture series.
The American Enterprise Institute is a nonprofit, nonpartisan research institution located in
Washington, D.C.
Its purpose is to encourage research and present differing points of view on important public
issues.
Old North Church is certainly an appropriate locale for a lecture on Americans heritage
since the church itself is a part of that heritage.
The church is located in one of the oldest sections of Boston, an area now populated
mostly by Italian Americans.
While the homes and apartments are somewhat crowded and aging, the neighborhood prides
itself on having one of the lowest crime rates in the entire Boston area.
Perhaps the proudest moment in the history of Old North Church came some 200 years ago.
It was from this steeple the lanterns were hung that signaled the British army was on
the march against the American revolutionaries.
Today, from Old North steeple, one can see almost everyone who is coming and going in
the Boston area.
The steeple looks out over the Charles River, and the busy bridges and highways leading
into this famed city.
Old North Church is an important name in the saga of America's fight for freedom, and from
its steeple freedom still rings.
While the United States prepared for the celebration of its 200th birthday in 1976, Old North Church
was already celebrating its 250th birthday in 1973.
The chandeliers in the church have been used for 249 years.
The oven dates back to 1759, and the clock has been tolling the hours since 1726.
The box pews are the highest of any church in the country, designed that way to capture
the heat of bodies and foot warmers.
In 1723, there was no central heating.
The Reverend Robert Golledge is the Vicar of Old North, he tells us about the most important
event in Old North's history.
Rev. Golledge: Of course, the event that really makes us famous is something that happened
here 198 years ago, on April 18th, 1775.
When two signal lanterns were displayed in the steeple, in such a way that people across
the harbor in Charleston, could know that the British were leaving Boston on their way
to Lexington and Concord.
And the man who hung the lanterns in the steeple has for most parts gone unknown, but it was
Robert Newman, the 23-year-old sexton of the church.
Who that night, with the front door locked from the outside, and darkness on the inside,
we believe was waiting in pew number 10 which is in front of that window over there, and
he waited there until he heard two raps on the window which indicated that the British
were getting into boats and crossing the Charles River on their way over to Cambridge to begin
their March.
So he grabbed two lanterns much like those two on the window sill, raced down the aisle
and up the 154 steps to the steeple.
Which is like going up 14 stories really, and he hung up those 2 lanterns, and at the
same time, Paul Revere and a couple of his friends were crossing the harbor in a rowboat
eluding a great big British frigate, The Somerset that was blockading the area.
But Paul got over to Charlestown hopped on a horse, and rode and made it as far as Lexington,
where incidentally he was captured.
Vermont C. Royster: The Old North Church is a fitting forum for our lecture which is entitled, "The
Higher Law and the Rights of Man in a Revolutionary Society."
Professor Kauper is an expert on constitutional law and church-state relations.
His major works include Civil liberties in the Constitution, and religion and the Constitution.
Professor Kauper.
Prof. Kauper: May I say that it is indeed an exciting, stirring experience to stand
here in the Old North Church of Boston, a church steeped in history, and rich in its
associations with the events leading to the American Revolution.
Like every schoolboy, I thrill to the story as narrated by a lone fellow of Paul Revere,
waiting for the lights, "One, if by land, and two, if by sea."
And then, dashing off on his midnight ride to warn his countrymen who rallied to the
call and were ready to fight Gage's men at Lexington and Concord.
It is exciting to be a part of your program celebrating the Boston Tea Party.
And to recall the passion for freedom, the spirit, and the audacity, which characterizes
challenge to English authority.
Finally, to speak in this church, which itself is celebrating its 250th anniversary this
year, is a reminder that religious freedom, the queen of all freedoms, occupies a central
position in that panoply of inalienable rights, with which all men are endowed as creatures
of God.
The right of a man to worship, and to believe according to the dictates of his conscience,
all that is embraced in the notion of religious liberty, we treasure as one of the finest
fruits of the American experiment in liberty.
This freedom stands at the apex of those natural rights which furnish the central theme for
this evening's lecture.
The American Revolution was both radical and conservative.
It asserted the right of a people to revolt against established authority.
It declared that government derives its authority from popular consent.
The central document of the revolution asserted an idea poignant with radical overtones that
all men are created equal.
But the revolution also had its conservative overtones.
It found its intellectual justification in ideas and principles with long-established
foundations.
It had its roots both in English legal and political institutions, and in a body of theological
moral and philosophic thought which had universal dimensions.
Old and essentially conservative ideas and traditions were harnessed through the cause
of revolution.
In turn, they laid the foundation for a new constitutionalism, which has survived because
of its capacity for change.
And yet, in the process remaining loyal to the ancient truce, which have given rootage
and continuity to the system.
It was no accident that lawyers and well-trained leaders played prominent roles in the revolutionary
struggle, and in the subsequent transformation from a confederation into a federal union.
Constitutional thinking was a pivotal element of the intellectual structure which undergirded
the revolution.
Central to this constitutional thinking was the concept of the higher law, to which ultimate
recourse could be made in judging the validity of ordinary laws and enactments.
Two principle components merged in American colonial thinking to shape this concept.
One was the idea of natural law and its corollary notion of natural rights.
The other was the tradition of the English Common Law as embodying a system of justice
founded on right and reason.
Natural law and natural rights on the one hand, and the view of the common law as basic
and fundamental law on the other.
Were twin notions that fitted together quite naturally to produce the concept of the higher
law, which emerged as a powerful force not only in supporting the claims of the colonists
but in laying the foundation of the American Constitutional System.
The conception of natural rights was a basic ingredient in the thinking of the colonist.
Speaking for the Supreme Court in 1963, Mr. Justice Clarke would say with historical accuracy,
"The fact that the Founding Fathers believed devotedly that there was a God, and that the
unalienable rights of man were rooted in Him, is clearly evidenced in their writings.
From the Mayflower Compact, to the Constitution itself."
The writings and speeches of the fathers abounded in the idea that men enjoyed basic freedoms
which were the gift of God, and were therefore immutable and inalienable.
James Otis defending the rights of the colonists said that if the charter privileges of the
colonists were disregarded or revoked, there still remained the natural inherent and inseparable
rights of men and citizens.
John Adams spoke of right antecedent to all earthly government, rights that cannot be
repealed or restrained by human laws, "Rights," he said, "derived from the great legislator
of the universe."
In a writing which preceded the Declaration of Independence, Jefferson wrote that, "God
who gave us life, gave us liberty at the same time."
Speaking of rights he said that, "Our right to life, liberty, the use of our faculties,
the pursuit of happiness, is not left to the feeble."
And as he said, "Sophistical investigation of reason, but is impressed on the sense of
every man.
We do not claim these under the charter of Kings or legislators but under the King of
kings."
George Mason identified the natural rights as the sacred rights of human nature.
Writing in 1774 Alexander Hamilton declared.
"The sacred rights of mankind are written as with a sunbeam in the whole volume of human
nature, by the hand of the divinity itself, and can never be erased or obscured by mortal
power."
Indeed it is fair to say that for the father's it was a conception of natural rights rather
than rights developed at the common law, which furnished the dominant philosophy undergirding
the revolutionary movement.
King and Parliament had violated these rights, and therefore the colonists were morally justified
in asserting their independence.
These ideas of course as we all know found their classical expression at Jefferson's
hand, in the great language of the Declaration of Independence.
When in the course of human events it becomes necessary for one people to dissolve the political
bands which have connected them with another.
And to assume among the powers of the earth, the separate and equal station to which the
laws of nature, and of nature's God entitle them, a decent respect of the opinions of
mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they're endowed
by their Creator with certain unalienable rights, that among these are life, liberty,
and the pursuit of happiness.
The great document of the revolution, thus speaks of the law of nature and of nature's
God.
Says that, "All men are created equal, and are endowed by their Creator with certain
inalienable rights."
Jefferson's preference for the term the Law of Nature and of nature's God, rather than
natural law, is a characteristic expression of the deistic yesterday thinking.
Nevertheless, it is significant, that he invokes an ultimate divine source of the moral law
and of natural rights.
And the appeal is to the divine law which governs men and their institutions, and which
is the source of the equality of man and of rights which belong to them as creatures of
God.
Vermont C. Royster: In the first part of his lecture, Professor Kauper has laid the historic foundation
for his contention, what he terms natural law on the one hand, and common law on the
other came together to form a higher law.
This higher law became a powerful force in the founding of the American Constitutional
System.
In just one moment he continues.
Boston's Old North Church is noted as much for its beauty as for its historical significance.
The name of its architect is lost in antiquity, but it is constructed in the unmistakable
style of the great English architect Sir Christopher Wren.
Inside, Professor Paul Kauper is discussing the higher law and the rights of man as America's
revolutionaries saw them.
In this portion of his lecture, Professor Kauper tells us how this higher law affected
the development of the United States Constitution, and how to guarantee the rights of man.
Paul Kauper: The great documents produced in time of crisis add strengths to the common
law tradition.
Out of Magna Carta wrested by the bearings from King John, emerged the idea that men
could not be deprived of their life, liberty, or property except in accordance with the
law of the land.
An idea which later found expression in the notion of due process of law.
An enduring English contribution to constitutional thinking.
The great declaration of rights of 1688 to affirm the basic rights of Englishmen, thus
the written document asserting fundamental law and fundamental right, a document to which
men could appeal in later generations a symbol and a beacon, assumed its place in the higher
law tradition.
Following in this great tradition, the colonist also penned a written document, whereby they
gave both a public proclamation of their rights and a recent statement in support of the decision
to assert their rights to self-government.
The ready acceptance of natural law and natural rights thinking coupled with a reverence for
the common law, as itself embodying the law of reason, and stating accepted norms of justice.
And the veneration accorded historic documents declaratory of right combined powerfully as
I have indicated before, to establish the higher law thinking which permeated the revolution,
and laid the foundation for a remarkable constitutional development.
Indeed American constitutional history, the crises it has endured, and the developments
which have ensued, can be viewed as an explication of the higher law.
It has given rise to hopes, expectations, and claims that have produced their own revolutions.
The adoption of state constitutions during the Revolutionary period preceded the adoption
and ratification of the federal constitution drafted at Philadelphia in 1787.
After the experience under the Articles of Confederation had demonstrated the need of
a government vested with adequate authority, to meet common needs, but sharing the powers
of government with the states which retain large areas of authority.
Unlike the declaration which was a political document, the Constitution was a carefully
drafted legal document, which established a federal structure of government.
The Constitution resting on the authority of the people, and premised on Republican
principles of government, defined, distributed and allocated authority.
Its carefully devised system of checks and balances implementing the separation of powers
was premised on the assumption as Hamilton had noted that men were not angels.
That the grant of power invites abuse, and that restraints are necessary to curb the
exercise of power.
Those limitations on power epitomized the rule of law when faithfully enforced by an
independent judiciary, it constitute the basic bulwark for protection of the liberties of
the citizens.
Noticeably absent, however, in the Constitution was a declaration of rights, a familiar feature
of the constitutions that had been adopted by the states.
We need not rehearse all the historical factors leading to the failure to include this, except
to mention that those who played a leading role in the drafting felt it unnecessary to
include the Bill of Rights, since they did not find it conceivable that the scope of
federal powers would permit an intrusion into the rights reserved to the people or to the
states.
This, however, did not go unchallenged, and to meet this opposition the first 10 articles
of amendment commonly known as the Bill of Rights were adopted shortly after the constitution
itself went into effect.
Specific rights are guaranteed in The First Amendment.
The great freedoms are there beginning with the very first amendment.
The indispensable freedoms of religion, speech, press, assembly, and petition for redress
of grievances.
The important procedures for the protection of the accused are there.
And significantly, after a specific cataloguing of the important guarantees, the Ninth Amendment
declared that the enumeration of the foregoing privileges and rights shall not be construed
to deny or disparage others retained by the people.
Here indeed was a clear expression that the rights set forth in the Bill of Rights were
not created, but were simply declaratory, those that had been reserved by the people,
and that still others might later be claimed.
The Ninth Amendment implicitly embodies the natural rights philosophy.
The stage was then set for the great American experiment in government pursuant to a written
charter.
Two great principles emerged.
They received their classic exposition at the hands of John Marshall in his famous opinion
in Marbury against Madison.
He said, "The Constitution was the fundamental or the higher law of the land, and that it
is distinctively the function of the judiciary to give this basic law its authoritative interpretation."
These twin concepts of paramount law and other judicial function in interpreting this law,
are the pivotal and distinctive aspects of American constitutional development, and may
well be characterized as America's unique contribution to constitutional thinking.
The relationship of these basic principles to the theory of natural law, and natural
right is readily apparent.
Once the people have reduced their thinking on the fundamental structure of government
and their reserved rights into a written document, notions of natural law and natural rights
tend to merge into this document, which becomes the symbol indeed of the higher law of the
land.
The veneration popularly accorded the Constitution amply demonstrates the tendency and the popular
mind to see in the Constitution an embodiment of presuppositions founded in the natural
law.
This higher law requires concreteness through a process whereby an independent judicial
tribunal interprets this law in a fine and authoritative way, so that natural law and
natural rights are happily absorbed into positive law through the process of empiric adjudication.
Indeed, for some, the Constitution thereby acquires even a divine sanction.
An even more important consideration, however, is that natural law however conceived and
whatever its authority, must necessarily remain outside the Constitution, and not be confused
with it.
Ultimate values in national life, goals to be achieved, principles relevant to new movements
in national life, conceptions of freedom, right, justice, and morality, have their inception
in theological, philosophical, moral, and social thinking, which transcend the constitution.
A constitution may indeed suffer a serious flaw, and its validity be judged by a recourse
to a higher law.
The same is true of any attempt to equate constitutionally guaranteed rights with natural
rights.
Vermont C. Royster: We are watching Professor Paul Kauper of the University of Michigan Law School discuss,
"The Higher Law, and the Rights of Man in a Revolutionary Society."
Professor Kauper is a leading authority on constitutional law, and on church-state relations,
we will rejoin him in just a moment.
Four hand-carved figures positioned around the organ in Old North Church were curved
in Belgium for shipment to a French church in Quebec.
But that was in 1746 when France and England were at war.
The ship carrying the figures to Canada was seized by an American privateer, who also
happened to be a parishioner of Old North.
He promptly brought them to his church where they've stood sentinel duty for over 200 years.
Right now, they are part of the audience watching professional Paul Kauper who is about to examine
one of the most troubled periods in America's continuing effort to establish a higher law
and the rights of man.
When slavery was the issue and the Civil War was the arbiter.
PPaul Kauper: The Declaration of Independence spoke in general terms of the right to life,
liberty, and the pursuit of happiness.
According to Locke, the generalized expression was right to life, liberty, and property.
A constitutional scholar has observed that the natural rights on which there was the
largest measure of agreement among at least the Virginians at the convention were, one,
freedom of conscience, two, freedom of communication, three, the right to be free from arbitrary
laws, four, the rights of assembly and petition, five, the property right, six, the right of
self-government.
To that must be added also the right of revolution, and finally, equality and the enjoyment of
right.
These were rights inherent in the conception of man as a moral and rational creature, entitled
to the full enjoyment of his faculties.
Not all of these were expressly captured in the specifics of the Bill of Rights.
On the other hand, some rights receiving positive recognition which reflect that English history
and practice such as the right to trial by jury, can hardly be called natural rights.
Jefferson referred to these as, "Ancillary rights which helped to fence in the natural
rights."
But there was still a natural law, and a conception of right outside the Constitution was made
manifest in the great struggle over the slavery issue.
Jefferson had boldly declared in the declaration that all men are created equal, that this
was a self-evident truth, and was associated with those inalienable rights with which all
men are endowed.
It had become painfully evident, that this grand assertion of the declaration could not
be reconciled with an institution whereby one race held another in subjection, and submitted
it to all the degradation of forced labor.
The slavery issue emerged as nation's great moral issue, as reflected in the sharp and
bitter sectional struggles on the question of whether the institution of slavery should
be extended to new territories.
And by the insistent demands of the abolitionist, that all slavery be abolished.
The latter could well point to the declaration as stating a self-evident natural right on
the part of all men to be free, be given equal treatment.
The Constitution itself had made a nodding concession to the slavery problem in permitting
the termination of the slave trade after 1808 and in fixing the formula for apportioning
seats in Congress.
But it also imposed a duty to return runaway slaves to owners.
Moreover, the Supreme Court in a celebrated Dred Scott decision went so far as to say
that the slave owner had a constitutionally protected property interest in his slaves.
And that for the law to deprive them of that interest when he took a slave into free territory
was itself a deprivation of property without due process of law.
Surely no further comment is needed upon a decision which expanded upon the right to
property at the expense of human freedom, and the most basic notion of human equality,
except to note that it went in the face of a growing moral revulsion against slavery.
A judicial decision which rested on considerations incompatible with basic moral concepts could
not in the end command respect.
William Lloyd Garrison here in Boston, denounced the Constitution as interpreted in the Dred
Scott decision, "As a covenant with death, and an agreement with hell."
Abraham Lincoln said that, "The Dred Scott decision, was morally wrong and that it should
be changed."
William Seward in a sharp criticism of the court declared that there is a higher law
than the Constitution, even constitutions are to be tested and judged by the natural
law.
The slavery issue we know is incapable of solution by either judicial or political means,
and in the end, required four years of bloody conflict for its resolution.
But out of the Civil War, came a radically revised constitutional order, and an extraordinary
expansion of rights accorded federal protection.
The 13th, 14th, and 15th Amendments were designed historically to give constitutional status
and protection to the former Black slaves.
They rested on a concept of equality which the declaration had declared to be a natural
right.
Viewed from the perspective of general constitutional theory, the function of the federal government
in the protection of rights, and the continued vitality of natural rights thinking, the 14th
Amendment had the widest and the most pervasive significance.
The provision that no state shall deprive any person of life, liberty, or property without
due process of law, nor deny to any person the equal protection of the laws, stated conceptions
of right which were capable of broad interpretations readily identifiable with basic natural rights.
In the end, the 14th Amendment marked a revolution in the protection of rights, and led to what
we may call the nationalization of rights.
In the hands of the judiciary, it became a tool for implementing the grand assertion
of the declaration that all men were to have equal opportunities to enjoy life, liberty,
and the pursuit of happiness.
Vermont C. Royster: Professor Kauper has been discussing one of the great tormenting issues which confronted
the concept of Ohio law in American history, the enslavement of Blacks.
It pointed out that this deprivation of human freedom was morally incompatible with the
basic natural rights proclaimed by the founding fathers.
In just a moment Professor Kauper will continue.
Old North Church is located in one of the oldest sections of Boston.
Its fountains and statues brighten the entire neighborhood.
Its inspiring history and its persistent efforts to unite Americans of all faiths, will probably
help that neighborhood to keep its crime rate well below the city.
Professor Kauper who's speaking in Old North Church now addresses himself to some moral
problems in today's society, and our relationship to the higher law and the rights of men.
Paul Kauper: Today we are in the midst of a great social revolution with many facets,
old ideas, conventions, institutions, and restraints, are challenged.
A fierce new individualism with large claim to personal liberty is being asserted.
The old morality has been discredited and a new permissiveness is dominant.
A parallel and related development is a new egalitarianism manifesting itself in the movement
to remove all discriminations based on race, color, religion, national ancestry, sex, age,
and economic status.
We are so close to these movements that we are likely to be blinded to their revolutionary
and even radical character.
For it is essentially a silent revolution coursing its way within established channels.
And the striking aspect of it all is the legitimatizing of these movements by constitutional interpretation.
Constitutional thinking has been accommodated to the great movements of our day and in turn,
has contributed to them.
Despite the efforts of some justices to discredit the natural rights doctrine, it has recently
reasserted itself in an interesting and dramatic way.
In its significant decision in Griswold against Connecticut the case holding invalid the Connecticut
statue, having to do with the sale and use of contraceptive devices.
The Supreme Court affirmed a fundamental rights interpretation of due process of law by finding
implicit in the concept of liberty, a notion of personal privacy, which includes the freedom
of marriage and of the family relationship.
The case presented some illuminating insights into the thinking of the justices.
Mr. Justice Douglas who shared with Mr. Justice Black in the abhorrence of natural rights
thinking, because he associates it with less a fair philosophy tried valiantly, but not
very persuasively to link the right of privacy, nowhere mentioned expressly in the Constitution.
He tried to link that with the rights in the Bill of Rights and included within what he
called their periphery or the radiation of these rights.
Establishing zones of privacy as he said.
Mr. Justice Goldberg dealt with the matter in a more forthright way.
He recognized the rights pertaining to the marital estate, to home and to family as fundamental
in character.
And said that the Ninth Amendment to the Constitution was a recognition that courts could recognize
and protect other rights besides those mentioned in the Bill of Rights.
A proposition which, of course, has support in the long history of the fundamental rights
interpretation of the Constitution, with its strong natural rights overtones.
Justices Harlan and Wright similarly rested their cases on application of the idea that
the privacy of married life was a fundamental right, which cannot be flagrantly invaded,
as was done in their view by the Connecticut statute without serving any substantial or
compelling public interest.
Clearly, a majority of the court was reaching out for a conception of right outside the
Constitution.
Notwithstanding the dissent and Justice Douglas's protestations, Griswold marked a significant
revival of natural rights thinking, whatever the formal argument employed by the majority.
And Griswold was followed in the recent cases, so recent to be well-known to all of you,
where the court found that the liberty secured by the 14th Amendment, protected the right
of a female to abort a fetus within the first six months of pregnancy.
Our interest in this case at this point, centers on the theory the court used in striking down
a state legislative enactment, by reference to a conception of right not explicit or even
implicit in the constitution.
Building on the right of privacy developed in Griswold, the court said, speaking to Mr.
Justice Blackmun that it was immaterial, whether this was derived from the fundamental rights
interpretation of due process, or from the Ninth Amendment, or from some peripheral aspect
of a Bill of Rights guarantee.
Even more strikingly than Griswold is this decisions affirmation of the classic notion,
that the liberty secured under the due process clause protects the so-called fundamental
rights, which the court articulates by a natural rights process type of reason.
These decisions have gone far to provide constitutional legitimacy for the current claims that a person
has a constitutional freedom to the pursuit of happiness, subject only to restrictions
designed to protect compelling public interest.
They provide the underpinning for the most basic freedom of all, the freedom to be let
alone to make one's own decision, to go one's own way, and to cultivate his own interest.
This is the Declaration of Independence all over again.
Although I should add here parenthetically, that I would doubt whether the fathers would
have considered the right to abort a fetus as among the natural rights of mankind.
The vitality and the persistence of fundamental rights thinking in the interpretation of the
higher law is strikingly demonstrated also in the interpretation of the Equal Protection
Clause.
Despite early intimations, that only the newly emancipated Black, would come within the protection
of this clause, it's used to protect the Black, who was virtually forgotten after the decision
in the Plessy case upholding the separate but equal theory.
Then came the great revitalization of the Equal Protection concept when the court in
1954, in its famous Brown decision, held that compulsory racial segregation in public schools
resulted in unlawful discrimination against Black children.
Chief Justice Warren's opinion on the effect of segregation upon the life of the Black
child makes clear that legally imposed segregation could not be reconciled with the moral imperative
underlying the equal protection idea.
The court is now giving constitutional flesh and blood, to the promise held out in the
declaration, giving expression to an idea of human dignity and fulfillment which had
its roots in the Judeo-Christian tradition.
Probably in no other democratic countries, and I emphasize Democratic not totalitarian.
Probably in no other democratic countries are the freedoms to which the colonists were
willing to sacrifice and die at present more fully protected.
And having grown accustomed to the constitutional protection of natural rights, and having become
self-indulgent in their enjoyment, we easily forget that belief in natural rights helped
spark the revolutionary movement.
It is indeed good, that we use the Bicentennial to refreshen our appreciation of our freedoms,
to capture again the excitement, daring, and devotion of the patriots who challenged authority,
when they threw the tea bags into Boston Harbor.
Who responded to Paul Revere's midnight ride with a resulting confrontation that Lexington
encountered, who fought doggedly and valiantly in the face of defeat and discouragement to
win the final victory at Yorktown.
Now, this is not to suggest that all is well with the system, indeed it would be an understatement
of the first magnitude to say that at this juncture in our history.
I suggested earlier that the conception of right is not static.
And part of our current problem is to develop and implement conceptions of right address
to current needs.
In this day of highly refined technological development which has provided the means of
sophisticated electronic surveillance, and data storage and retrieval, the newly formulated
right of privacy requires recognition and implementation.
At a time of great urban concentration, and the proliferation of regulation to deal with
a constantly in large myriad of interrelationships, the liberty of the individual is basic freedom
to be let alone to maintain some degree of personal identity, and to pursue a path of
self-respect.
Requires us to be careful of a paternalism whereby Big Brother peeks over the shoulder
to tell a citizen what is good for him.
The unrestrained exploitation of our resources and the debasement of the environment, require
recognition that citizens have a natural God-given right in their common resources, and in the
environment.
A right far more compelling than the freedom once claimed in the name of less a fair thinking
to plunder resources, pollute the air, and impair the amenities of living.
More troubling, however, are symptoms of a general malaise in American thought in life,
which creates an unease as we approach the Bicentennial.
And contemplate the nation's future.
Pessimism and cynicism about American life are widespread, as so well demonstrated by
the recent and continuing revelations.
Power has been shamefully exploited and abused.
And the governmental process corrupted by men who are concerned with power, free from
a sense of moral responsibility.
Illegal and reprehensible tactics directed to the end of winning elections are an ugly
thrust at the integrity of the political process, and even at the right to vote.
The trustworthiness and credibility of the people's elected agents have been deeply eroded
with a resulting loss of faith in the people servants and in the whole political process.
Extravagant campaign expenditures financed by large contributions from those with special
interests to protect, debase the free electoral process and undermine the freedom of the people's
representatives to serve the public interest.
Freedom of the press too often becomes an excuse for distortion and manipulation of
news, invasion of privacy, and intrusions into those judicial processes designed to
maintain the conditions of a fair hearing for those charged with wrongdoing.
Private groups are bastions of wealth and power which parallel the government and the
authority they exercise.
The new freedom of the individual characterized by the sloughing off of old moral restraints
finds expression in license and permissiveness.
The new egalitarianism poses the risk of cheapening American life and culture, and eroding the
sense of excellence.
The pursuit of materialistic gratifications in our affluent society, also claimed in the
name of liberty has dulled the conscience, impaired our vision of the enduring spiritual
values that make a people great.
And where there is no vision the people perish.
And so it appears to many, that the spark ignited by the revolution, the elan,
the vitality and lively expectations which guided the fathers have been dimmed
and corroded by selfishness, corruption, and aimlessness.
We deed not however despair, indeed a healthful pessimism underlies constitutionalism.
The concept of a government of limited powers and the rule of law.
The recognition of the evil in man, and the need of restraints to check the abuse of power.
For we know power does corrupt.
This in itself is a basic premise of natural law, and one which underlies our system with
its dispersion of authority between the federal government and the states, its separation
of powers and its system of checks and balances.
These basic limitations on authority are even more essential to the maintenance of freedom
and the rights formally declared in the Constitution.
The very fact that flagrant abuse of a power has been uncovered, and that the legislative
branch is now reasserting its authorities against extravagant assertions of executive
power, is itself evidence of the strength and resiliency of our system.
We have the means of curbing large concentrations of power, whether in the large or the private
sectors.
Of reforming the electoral process, if only we have the understanding and determination
to do so.
But even more important, we have the resources of mind and spirit, needed to cleanse our
society of its grossness, its preoccupation with material ends, of recapturing the dedication
and fire, which inspired the revolution and harnessing them to the revitalization of today's
society.
Basically, our problem is a moral problem, a problem addressed to the minds and hearts
of the people.
The pessimism which is an important ingredient of our constitutional thinking is balanced
by an optimism, a faith that men can work together to achieve common goals in a society
held together by what the Protestant Reformers called a sense of civic righteousness.
This is the faith we must again recapture and cultivate.
A later generation cannot continuously harvest the fruits from trees others have planted
and cultivated.
This means a restoration for our day of faith in the basic institutions that have served
us so well, and which constitute what Walter Lippmann has called the public philosophy.
It calls for a continued vigilance in the nurture of ideas and institutions, which are
our higher law heritage.
The notion of limited power, of representative government as a fundamental check on power.
The right to vote, the freedoms of speech and press, the freedom of dissent, the protection
of minorities, access to courts for the vindication of our liberties.
It calls for renewed appreciation of our heritage of Rights and Freedoms and renewed insistence
on the premises underlying the conception of natural rights, for restoration of a moral
sense and integrity in the affairs of government.
For decency in public life, and for stability and reasoned discourse in the great debates
on issues of public concern.
For sensitivity, compassion, and generosity in response to human needs.
For self-restraint and responsibility in the claim to and in the exercise of freedom, lest
liberty degenerate into licentiousness and freedom into anarchy.
It calls for an appreciation, an affirmation of moral values which undergird the public
order.
It calls for assessment of our rights and liberties that's more than negative restraints,
but as positive means for self-development and service to society and to others.
Freedom encarnalized by purpose, discipline, and regard for the common good, is self-destroying.
I have suggested that in the end, the institutions we deem important, and the significance of
the rights we assert must rest upon some consensus in the public mind respecting the values we
deem important.
The content of the contemporary natural law.
It is in the shaping of a common ethic of the people, which draws its inspiration from
religious, moral, and philosophical sources, which is illuminated by history, fortified
by the ringing affirmation of the great declaration, and given concrete application through the
reasoned discourse which is the hallmark of a great society that our hope lies, of giving
contemporary meaning to the higher law, and to the natural rights of man.
Thank you.
Vermont C. Royster: You've been watching Professor Paul Kauper of the University of Michigan Law School,
discuss, "The Higher Law and the Rights of Man in a Revolutionary Society."
He spoke from historical North Church in Boston.
Tonight's lecture is one of a series presented by the American Enterprise Institute.
All the lectures deal with the 200th anniversary of the American Revolution.
They present several points of view, consider a broad spectrum of major issues before our
society, ranging from the art of war, to education, the economy, the press, and the state of our
cities.
If you would like a copy of Professor Kauper's lectures, or copies of the entire Bicentennial
series, write the American Enterprise Institute, that's AEI, P.O.
Box 19191, Washington, D.C. 236.
Until next time, this is Vermont Royster.
Thank you for joining us.
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