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Constituion as Higher Law

In: Historical Events

Submitted By maximkoko
Words 356
Pages 2
In discovering the importance of Higher law, it is of immense value to discover important judicial thinkers whom inspired the U.S. tradition. Perhaps rising above most is that of Edward Coke. It is in him we find both actions and words used to describe Higher Law, and most importantly it’s sanctimonious character. In defining the law of nature, Coke clarified that it is “that which God at the time of Creation of nature of man infused into his heart, for his preservation and direction; and this is Lex aeterna, the moral law, called also the law of nature,” (43). Coke continued with a clarification to express that this law was, written upon the hearts of man (Hebrews 8:10), directed man before the time of the written law given by Moses.1 Here we find a body of judicial law, as to be follows, by the ultimate Judge in God himself. Man was designed to follow the law of man, and in the reference to “common right and reason,” Coke speaks of the law of God written across our hearts. This law, higher law, takes precedence. In the American system, we see a characteristic not so much of God’s law (although it is no exaggeration to argue that the law of Moses and the Western tradition influenced law in the states), but this division of law. We call it judicial review, whereas the Constitution itself stands as the Higher law, and that lesser law (i.e. legislation), must stand in accordance to its nature. “And it appears, in our books, that in many cases, the common law will controul acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it and adjudge such act to be void.” (41-42). Within this statement from Coke, we find an early strand of Judicial Review. In striking down the act of Parliament, on the grounds that it conflicted

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