Calder v. Bull (1798), II
Bill Long 9/26/05
The Issue of Natural Law
The real reason I got into this case in the first place was to understand one of the few natural law references in a Supreme Court decision. I had introduced the theory of natural law jurisprudence to my students through reading QQ. 90-97 of the First Part of the Second Part of Aquinas' Summa Theologica. This is the locus classicus defining natural law. Then, we examined vol.1, ch. 2 of Blackstone's first edition (Commentaries) to see how he took over the philosophical heritage of natural law in shaping his work. Though he gave it lip service, in my judgment, he was not of a philosophical bent, and so he didn't try to define statutes in a natural law manner. Indeed, he focused on municipal law, one of the four kinds of law (natural law was another), and thus didn't have to deal further with what natural law might have meant except for his discussion in ch. 2.
Returning to Calder
But when Justice Chase took up the issue of whether the resolution or law (he calls it both) of the CT Legislature in 1795 vacating a 1793 decision of the Hartford Probate Court was an ex post facto law, he also took up the issue of natural law. He does not use the terminology, as if it is blinking in red lights for all to see; rather he poses the question: "Whether the Legislature of any of the States can revise and correct by law, a decision of any of its Courts of Justice, though not prohibited by the Constitution of the State, is a question of very great importance, and not necessary now to be determined; because the resolution or law in question does not go so far." How far does it go, however? Only to the granting of a new trial. But before getting to the specifics of whether this is an ex post facto law prohibited by the federal Constitution (if the state constitution forbade or permitted it, the Supreme Court would have no jurisdiction in the matter, according to Chase), he reflects on the powers of a legislature.
"The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact....This fundamental principle flows form the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit....."
And then he uses words that could have been cribbed from Augustine or Aquinas:
"An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority."
Hence it is, as the two great Christian theologians would say, no law at all. In fact, Chase will conclude that the 1795 action by the CT Legislature was not such an act and thus wasn't contrary to the great first principles of the social compact. It wasn't an ex post facto law because those laws only relate to the criminal sphere (much more needs to be said about this issue, though I will not be saying it here).
Justice Iredell's Response
After dealing with the first issue, in which he, like Justice Paterson, supported the "judicial" function of the CT Legislature, Iredell turned to the issue of natural law and his disagreement with Chase. Chase had used as a hypothetical example of the violation of the social compact a statute which would authorize a man to try his own cause (i.e., be the judge in his own case). That is, such an arrangement would violate natural law. However, Iredell suggests that in a government composed of the three branches, the Constitution could establish a rule in which no limits were placed on legislative powers. In such a case, quoting Blackstone, Iredell says, "there is no court has power to defeat the intent of the Legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the Legislature, or no."*
[*Again, there is a very interesting issue, which is always skirted whenever Calder v. Bull is mentioned. Could the Legislature, in fact, pass a statute allowing a person to be judge at his/her own trial?]
But Iredell wants to get to the point about natural law. He says,
"It is true, that some speculative jurists have held, that a legislative act against natural justice must, in itself be void; but I cannot think that under such a government, any court of Justice would possess a power to declare it so."
What he means is that a court is precluded from advancing a natural law justification for or against a statute. The role of a court is to deal, by implication, with positive (i.e., enacted) law.
Thus, two nice mini-essays about Calder v. Bull without getting into the real "meat" of the case--the definition of ex post facto in Art. 1, sec. 10 of the US Constitution. But, others have done that very well, I think...
Copyright © 2004-2008 William R. Long