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Full resolution (TIFF) - On this page / på denna sida - I. The Approach - 1. American Ideals and the American Conscience - 9. Natural Law and American Puritanism
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1 6 An American Dilemma
origin and reality of the judicial order undoubtedly, in one way, raised its
moral prestige among the American people as it had done earlier in the
history of the Old World. No careful observer of the present American
scene should miss seeing, in spite of everything we shall discuss presently,
the common Americanos pride in and devotion to the nation’s judicial system
and its legal institutions. Government authorities constantly appeal to this
idealistic pride and devotion of the citizens in order to enforce the law. In
America, there is a continuous endeavor to keep the judicial system orderly,
and there is a continuous educational campaign on behalf of this idealism.
Undoubtedly the idealistic comeft of American law as an emanation of
’^natural law^^ is a force which strengthens the rule of law in America.
But, in another way, it is at the same time most detrimental to auto-
matic, unreflecting law observance on the part of the citizens. Laws become
disputable on moral grounds. Each legislative statute is judged by the
common citizen in terms of his conception of the higher “natural law.”
He decides whether it is “just” or “unjust” and has the dangerous attitude
that^ if it is unjust, he may feel free to disobey it?^ The strong stress on
individual rights and the almost complete silence on the citizen’s duties
in the American Creed make this reaction the more natural. The Jeffer-
sonian distrust of government—“that government is best which governs
least”—soon took the form, particularly on the Western frontier, of a
distrust and disrespect for the enacted laws. The doctrine of a higher law
fosters an “extra-legal” disposition towards the state and excuses illegal
acts.
But the frontier was not, in this respect, fundamentally different from
the old colonies. Without stepping outside the American tradition. Garrison
could pronounce even the Constitution to be a “compact with Hell” on the
slavery issue. This, by itself, would not have been dangerous to democ-
racy, if he had meant to argue only for a change of the Constitution. But
he and many more Northerners of conscientious inclinations found it a
moral obligation not to obey the fugitive slave laws. Here the citizen does
not stop to criticize the laws and the judicial system and demand a change
in them, but he sets his own conception of the “higher law” above the
existing laws in society and feels it his right to disobey them. It is against
this background also that we shall have to study the amazing disrespect
for law and order which even today characterizes the Southern states in
America and constitutes such a large part of the Negro problem. This
anarchistic tendency founded upon a primitive concept of natural law has
never left American political speculation or American popular thought.^
This anarchistic tendency in America’s legal culture becomes even more
dangerous because of the presence of a quite different tendency; a desire
to regulate human behavior tyrannically by means of formal laws. This
last tendency is a heritage trom early American puritanism which was some-
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