Reason and Will in the Origins of American Constitutionalism

science of politics. The debate on natural law, then, is largely about whether reason or will-or perhaps both-is the source of constitutional authority. The specific question before the Court in Calder was the constitutionality of a Connecticut statute which set aside a decree of the local probate court. Pursuant to that decree, Calder had been awarded a right to recover property under a will. The controverted statute required a new hearing, the result of which was to divest Calder of his interest in the will and to award it, instead, to Bull. Calder argued that this retroactive dis109. During this period, the articulation and development of constitutional law had not yet become a virtually exclusive function of the judiciary. See, e.g., Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 927-41 (1985) (discussing Virginia and Kentucky Resolutions and role of public usage in constitutional interpretation). The issue of whether constitutional law was to be a function of popular movements or expert knowledge (through the Court) was itself an example of the tension between will and reason. 110. 3 U.S. (3 Dall.) 386 (1798). 1989] Origins of American Constitutionalism 475 turbance of his vested interest in the estate violated the ex post facto clause of the Constitution. Justice Chase's opinion is frequently cited as an early expression of the place of natural law in judicial review of the constitutionality of state and federal legislation.111 His view of the role of natural law is, however, more complex than is normally represented. His argument is not simply an appeal to pure reason and an abstract science of politics as the source of constitutional authority. Rather, Chase pursues the dualist vision-scientific, natural law legitimated by the popular will-of the meaning of the founding moment. Thus, he writes that "the obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which [the government] is founded."1' Self-government, or "express compact," and science, or "republican principles," remain essentially linked for Chase. This linkage defines the peculiar character of American constitutional order: it is neither will nor reason alone, but rather a contractual endorse-