For the past three years, the conservative legal movement in America has been split by a debate over natural law. Basically, there are two schools of thought. The first, called positivism, is embodied by the late Justice Antonin Scalia, who believed that judges should be bound by the text of the law as enacted by the people, and should not impose their own moral views when deciding cases. The other position, called natural-law theory, has many proponents, but its primary leader at the moment is Professor Adrian Vermuele of Harvard Law School. Professor Vermuele, a staunch social conservative, has argued that judges should take into account the moral traditions of Western civilization as they evaluate legal questions, and must sometimes be willing to go beyond the text of the written law (lex) in order to uphold what he considers the ius (unwritten/natural law).

Most of this debate has centered around how federal judges should interpret the US Constitution, but interestingly enough, North Carolina courts have already been debating this topic for over 200 years. This article takes a brief look at that rich history, and explores how both naturalists and positivists can use our state’s case law to strengthen their arguments.  

Archibald Maclaine and Bayard v. Singleton 

In early America, North Carolina was a legal giant, contributing two of our nation’s first Supreme Court justices and establishing the concept of judicial review in a 1787 case called Bayard v. Singleton, nearly two decades before the US Supreme Court decided Marbury v. Madison. In Bayard, the question was whether or not a law that stripped loyalists of their property without a trial violated our state constitution. At this time, a brilliant lawyer named Archibald Maclaine published a series of pamphlets under the pen name the Independent Citizen, urging that the statute be stricken down as contrary to the natural law, with or without a specific constitutional violation. He surveyed the history of the jury trial from the English common law to his own day and concluded that no government could deny it without running afoul of “natural justice.”  

“If any act of Assembly,” Maclaine concluded in his fourth letter, “is in any way contrary to the divine [natural] laws, it has no force.”  

While the North Carolina Superior Court (then the highest court in NC) did ultimately strike down the confiscation law, it did so without adopting Maclaine’s natural-law theory. Instead, Judge Samuel Ashe’s majority opinion relied on the plain text of the 1776 state constitution, holding that, “by the Constitution[,] every citizen ha[s] undoubtedly a right to a decision of his property by a…jury.” Thus, the naturalist Maclaine and the positivist Ashe agreed on the outcome of the case, but used different reasoning.   

State v. Boon: Slavery and the natural law 

In 1801, a North Carolina appellate court was asked to decide a horrific case. After a slave was brutally murdered, the killer, Boon, claimed that state law regarding the status of slaves was unclear, and thus he could not be subjected to punishment. In a narrow vote, the court agreed with Boon’s claim, holding that a 1791 law protecting slaves was too vague to be enforceable. In a reluctant concurrence, Judge Samuel Johnston (who was also the former governor of North Carolina) said that while the killing of a defenseless slave was the “most atrocious and barbarous” crime possible, he was still bound by the rule of lenity, which required that legislation be absolutely clear before any punishment is handed down. He urged the General Assembly to act swiftly to clarify the law and prevent similar injustices in the future.  

Judge John Taylor, who would later become the first chief justice of the North Carolina Supreme Court, issued a fierce dissent. He argued that murder (the intentional taking of any human life without sufficient cause) was always a crime under the natural law. Nothing that the General Assembly said in 1791 could change that, he maintained. His passage is so eloquent that it deserves to be quoted in full: 

“Policy may occasionally dictate the propriety of enhancing or mitigating the punishment; may at one time subject the offender to a year’s imprisonment, and at another to death; yet amidst all these mutations the crime is unchanged in its essence, undiminished in its enormity. According to…Blackstone,…human laws are only declaratory of and act in subordination to the divine and natural law. [For] instance in the case of murder: this is expressly forbidden by the divine and demonstrably by the natural law; and from these prohibitions arise the true unlawfulness of this crime. Those human laws that annex a punishment to it do not at all increase its moral guilt, or superadd any fresh obligations…to abstain from its perpetration.”  

Wells v. Wells: The ius of family law 

In 1947, the North Carolina Supreme Court took up the case of Wells v. Wells, which asked whether or not a father was still required to support his handicapped son after he reached adulthood. The court held that this was the case. It acknowledged that there was no written statute specifically requiring a parent to assist their child after they are no longer a minor, but it held that the natural law of the family nevertheless required a father to do so in this particular case.  

The opinion is a masterful history of Western legal thought, drawing upon the treatises of William Blackstone, James Kent, and finally North Carolina’s own common-law thinkers. It concludes with an explicitly naturalist question:  

“[T]he child may have the same need of support, care and maintenance after reaching that age as before. If so, does the obligation of the father to provide necessary support to such child terminate at that time? The dictates of humanity, which the law follows, answer ‘No.’”  

Thus, in Wells, the North Carolina Supreme Court held that individuals are still bound by the natural law even when the written law of the legislature is silent.  


Throughout North Carolina history, judges have fiercely debated the use of natural law. On the one hand, naturalism might preserve human rights in a way that would otherwise be difficult. On the other hand, positivism is a form of judicial humility, recognizing that judges are also fallible humans who can be tempted by power, and leaves to the people’s elected representatives the task of policymaking and implementing moral principles. Regardless of how you come down in this debate (I personally agree with Professor Alicea’s view that the natural law actually requires deference to the original meaning of positive law), I encourage my fellow Tar Heels to study the rich case law of our state. You will not be disappointed.  

(This is the first piece in a series of articles by Maclain Conlin exploring the history of North Carolina’s court system. The series is part of a new youth civics initiative called The William Gaston Project, named in honor of William Gaston, one of our state’s greatest jurists and a staunch defender of religious liberty.)