Higher Law Background of American Constitutional Law [Paperback]

I first read this book for a Constitutional Law class as part of my undergraduate degree in political science. I would suspect that a good many people interested in American Constitutional Law, American political history, and theory and philosophy of law are familiar with this little book. It is actually an extended essay that first appeared in the Harvard Law Review in 1928-29. Professor Edward Corwin, professor of law at Princeton, was an historian of the Constitution.

Corwin begins the essay with a parallel very apt toward the sacrosanct way in which the American Constitution is regarded: 'The Reformation superseded an infallible Pope with an infallible Bible; the American Revolution replaced the sway of a king with that of a document.' Corwin quotes Thomas Paine who stated that 'in America the law is king.' He draws upon ancient Greek philosophers (most notably, Aristotle), Roman senators (Cicero), and medieval thinkers to develop the idea of higher power and higher law.

Corwin looks at both the transcendent and the practical nature of the law; indeed, Corwin sees them intertwined in many ways - the common law, for example, derives from common sense principles that are derived not from developed bodies of law but rather from a more natural law. Corwin states, 'Many of the rights which the Constitution of the United States protects at this moment against legislative power were first protected by the common law against one's neighbours.' Part of the idea of common law was the authority invested in the higher power, the King, and his justices. Also, the power of the King was seen as and intended as a power of justice, not injustice.

Just as authority and common law derived from natural, popular origins, so too did the idea of the limitation of human authorities (as the King was coming to be seen). Locke refers to this in his philosophy, so instrumental in the thinking of the founding fathers of the United States. The idea of the Constitutional Law being a higher law derives in part from a growing respect for the rights of individuals, a Protestant notion of 'the priesthood of all believers', and from philosophical developments.

In the American Constitution, Corwin argues, 'higher law at last attainted a form which made possible the attribution to it of an entirely new sort of validity, the validity of a statute emanating from the sovereign people.' This has led to an age of juriprudence unprecedented since the time of Justinian.

This essay holds up well over time, and gives a good historical and theoretical underpinning to understanding the Constitution of the United States, so much examined as the Supreme Court gains two new members in short order.

An excellent resource to fill the gaps on background history to America's Constitutional law. A very good read.

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