Qy^ibdisrnLaw, Morality, and Religionrnby Stephen B. PresserrnApaleoconservative thinks about the law the way EdmundrnBurke did. The basis of all law is the will of God or, to usernthe term employed by Blackstone (another hero of paleoconservatives),rn”natural law.” According to natural law as understoodrnby Blackstone, Burke, and our late 18th-century AmericanrnFounding Fathers (as paleoconservatives can still callrnthem), God endowed man with certain rights and responsibilities,rnand among these was a right to life, a right to liberty, and arnright to property, all to be exercised in a manner consistent withrnwhat has come to be called Judeo-Chrisdan morality. Law, forrnBlackstone and Burke and the American Framers, was notrnabout self-actualizahon (as it is for liberals and libertarians today)rnbut about responsibly fulfilling one’s duties to God, country,rnand one’s fellow citizens and family. In Burke’s England,rnthe basis of the legal system was tradition and prescription, and,rnin particular, a carefully and aristocratically ordered society.rnFor Burke, the English Constitution, as a result of the GloriousrnRevolution and presumably through divine intervention andrnthe ascendancy of the Protestant religion, had achieved the goalrnof political science first sought by the Greeks, namely, a balancedrnand mixed constitution in which monarchy, aristocracy,rnand the people all worked together to achieve prosperit- andrnharmony. The monarcli was able to provide energy in the defensernof the realm without slipping into tyranny because he wasrnchecked by an independent and hereditary House of Lordsrnbred to wisdom and responsibility and a House of Commons reflectingrnthe spirit, industr)-, and honesty of the English people.rnIn other words, the English system managed to combinerndemocracy, aristocracy, and monarchy without the ancient attendantrnevils of anarchy, oligarchy, or tyranny, because each ofrnthe three great social orders balanced the others.rnAn American paleoconservative, as devoted to tradition asrnwas Burke, is hard-wired to be an anglophile and is perhaps notrncompletely convinced that the break with England was wise.rnNevertheless, he understands that the American Framers believedrnthat the English system had become corrupted throughrnrotten boroughs, the machinations of unscrupulous operatorsrnin Parliament, and an inattentive monarch, and that the governmentrnof the United States had to be based not on monarchyrnand aristocracy, but on the sovereignty of the people and thernstates. Still, he believes that the English attempt at a balancedrnconstitution reflected a universal truth, that governmental powersrnhad to be checked by other powers if tyranny or corruptionrnwere to be avoided. The paleoconservative cherishes the Americanrnsolution, borrowed from another paleoconservative hero,rnMontesquieu, of separation of governmental powers. In the 15rnnew American republics, and eventually in the United StatesrnConstitution, the animating notion was that the sacred rights ofrnlife, liberty, and property could best be preserved by makingrnStephen B. Presser is the Raoul Berger Professor of Legal Histor}’rnat Northwestern Universit}’ School of Law and the legal-affairsrneditor for Chronicles.rnsure that only legislatorsrnlegislated, that judgesrnwere faithful to the rulesrnlaid down by the commonrnlaw and by the legislatures,rnand that the executives,rnin the words ofrnthe federal Constitution,rntook care that the lawsrnwere faithfully executed.rnThe American paleoconservativernalso understandsrnthat there was arnsecond set of checks andrnbalances secured by thernAmerican principle ofrnfederalism, of allocatingrnpowers and responsibilitiesrnbetween two differentrngovernments, thernstate and the federal.rnThe paleoconservative believes that the federal governmentrnis one of limited and enumerated powers and that, as the TenthrnAmendment provides, the powers not given to the federal governmentrnare reserved to the states, or to the people themselves.rnThe paleoconservative believes that the achievement of thernAmerican Founding Fathers, as Benjamin Franklin thought,rnwas guided by the hand of God; accordingly, the paleoconservativernis an originalist, a believer that the Constitution and lawsrnhave a fixed meaning, as they were originally understood. Thatrnis why he is horrified by the theory popular in today’s courts andrnlegal academy, that the Constitution is a “living document”rnwhich is putt’ in the hands of a judiciary bent on imposing itsrnparticular version of social policy on a quarter of a billion Americans.rnThe paleoconservative is equally alarmed by legislaturesrnthat seem cowed by overweening executives, and by a federalrngovernment that, in all three branches, has usurped the primacyrnin domestic policy that was supposed to belong to the states.rnHe is dismayed by both state and federal courts and legislaturesrnwho have forgotten the primacy of property rights, along withrnthe basic rights to life and liberty. He laments the politics of thernfocus group and the loss of the Framers’ Burkean knowledgernthat tradition, established institutions, and prudence ought tornrestrain temporary popular excess. The paleoconservative believes,rnas the Framers did, that there can be no order withoutrnlaw, no law without morality, and no morality without religion.rnHe understands that the redistributive efforts of the last 60 yearsrnundermine nothing less than the rule of law itself He is mortifiedrnby Supreme Court doctrines that have eviscerated the powersrnof the states and have swept religion from the public square.rnHe prays for the restoration of the original understanding of thernConstitution, the laws, and of human and divine nature.rn22/CHRONlCLESrnrnrn