A paleoconservative thinks about the law the way Edmund Burke did. The basis of all law is the will of God or, to use the term employed by Blackstone (another hero of paleoconservatives), “natural law.” According to natural law as understood by Blackstone, Burke, and our late 18th-century American Founding Fathers (as paleoconservatives can still call them), God endowed man with certain rights and responsibilities, and among these was a right to life, a right to liberty, and a right to property, all to be exercised in a manner consistent with what has come to be called Judeo-Christian morality. Law, for Blackstone and Burke and the American Framers, was not about self-actualization (as it is for liberals and libertarians today) but about responsibly fulfilling one’s duties to God, country, and one’s fellow citizens and family. In Burke’s England, the basis of the legal system was tradition and prescription, and, in particular, a carefully and aristocratically ordered society. For Burke, the English Constitution, as a result of the Glorious Revolution and presumably through divine intervention and the ascendancy of the Protestant religion, had achieved the goal of political science first sought by the Greeks, namely, a balanced and mixed constitution in which monarchy, aristocracy, and the people all worked together to achieve prosperity and harmony. The monarch was able to provide energy in the defense of the realm without slipping into tyranny because he was checked by an independent and hereditary House of Lords bred to wisdom and responsibility and a House of Commons reflecting the spirit, industry, and honesty of the English people. In other words, the English system managed to combine democracy, aristocracy, and monarchy without the ancient attendant evils of anarchy, oligarchy, or tyranny, because each of the three great social orders balanced the others.

An American paleoconservative, as devoted to tradition as was Burke, is hard-wired to be an anglophile and is perhaps not completely convinced that the break with England was wise. Nevertheless, he understands that the American Framers believed that the English system had become corrupted through rotten boroughs, the machinations of unscrupulous operators in Parliament, and an inattentive monarch, and that the government of the United States had to be based not on monarchy and aristocracy, but on the sovereignty of the people and the states. Still, he believes that the English attempt at a balanced constitution reflected a universal truth, that governmental powers had to be checked by other powers if tyranny or corruption were to be avoided. The paleoconservative cherishes the American solution, borrowed from another paleoconservative hero, Montesquieu, of separation of governmental powers. In the 15 new American republics, and eventually in the United States Constitution, the animating notion was that the sacred rights of life, liberty, and property could best be preserved by making sure that only legislators legislated, that judges were faithful to the rules laid down by the common law and by the legislatures, and that the executives, in the words of the federal Constitution, took care that the laws were faithfully executed. The American paleoconservative also understands that there was a second set of checks and balances secured by the American principle of federalism, of allocating powers and responsibilities between two different governments, the state and the federal.

The paleoconservative believes that the federal government is one of limited and enumerated powers and that, as the Tenth Amendment provides, the powers not given to the federal government are reserved to the states, or to the people themselves. The paleoconservative believes that the achievement of the American Founding Fathers, as Benjamin Franklin thought, was guided by the hand of God; accordingly, the paleoconservative is an originalist, a believer that the Constitution and laws have a fixed meaning, as they were originally understood. That is why he is horrified by the theory popular in today’s courts and legal academy, that the Constitution is a “living document” which is putty in the hands of a judiciary bent on imposing its particular version of social policy on a quarter of a billion Americans. The paleoconservative is equally alarmed by legislatures that seem cowed by overweening executives, and by a federal government that, in all three branches, has usurped the primacy in domestic policy that was supposed to belong to the states. He is dismayed by both state and federal courts and legislatures who have forgotten the primacy of property rights, along with the basic rights to life and liberty. He laments the politics of the focus group and the loss of the Framers’ Burkean knowledge that tradition, established institutions, and prudence ought to restrain temporary popular excess. The paleoconservative believes, as the Framers did, that there can be no order without law, no law without morality, and no morality without religion. He understands that the redistributive efforts of the last 60 years undermine nothing less than the rule of law itself. He is mortified by Supreme Court doctrines that have eviscerated the powers of the states and have swept religion from the public square. He prays for the restoration of the original understanding of the Constitution, the laws, and of human and divine nature.