Strengthening Constitutional Self-Government

No Left Turns

SCOTUS Catholics again

The WaPo’s Alan Cooperman (who is generally scrupulous in his coverage of religion and politics) offers a very good account of Catholic intellectual traditions and legal education in his treatment of the incipient Catholic majority on the Court, about which I posted here.. I wasn’t sure that I’d ever see the words "natural law" in the Post, or in any other newspaper.

Update: Ken Masugi has more, as do the folks at Mirror of Justice.

Discussions - 11 Comments

Catholics are heirs to a richer intellectual tradition and . . . are more inclined to believe that reason supplies good grounds for the moral and political positions characteristic of social conservatism. Call it the ’natural law’ thing."

So true, so good, and so dangerous. Natural law is good and useful, yet it should not replace the Constitution. Assuming that there is any power like a natural law that goes beyond the Constitution (from the bench) is very dangerous and open to infinite interpretation. Natural law is hard to define. Thomas and Kennedy are good examples of how different natural law can be. What we need on the court is not natural law but NATIONAL LAW.

I’m glad that Catholics are finally well-represented on the Supreme Court.

Natural law is not a threat; rather, it is a safeguard. It is the best safeguard possible against tyranny and against human rights violations. It is the greatest gift of the Framers and of the Enlightenment political thinkers (including John Locke) who inspired them, and the best mark of their genius: The notion, set forth in the Declaration of Independence, that we are all "endowed by the Creator" with the inalienable rights to life, liberty and the pursuit of happiness - and that Government exists to safeguard and protect those rights; that Government, to behave legitimately, MUST do so; that the sole legitimate source for Government power is the will of the people; and that, therefore, Government can justly derive its power and authority ONLY from the consent of the governed. Agreeing to base our community, our government, and our laws, on this notion does not require one to be Catholic; one can be an atheist or agnostic and readily do so. Its benefits are obvious: by grounding the rights to life, liberty and the pursuit of happiness in an EXTERNAL source, we safeguard those rights from being trampled upon by whomever might temporarily be in power over us. By insisting - as the Declaration does - that these rights and their source apply to "ALL", we also establish appropriate boundaries: your rights are bounded by, and must respect, the rights of others -- this notion is reflected in the statement, "Your right to swing your fist ENDS where my nose BEGINS."

Virginian: Natural Law is good. I do not deny that, but it is not the best possible safeguard against tyranny from the bench. While no doubt a true natural law exists, it does so in the purely abstract. Therefore, natural law will always be open to broad and varied interpretations. An example might be Locke, who you brought up, not believing that atheists could be a part of a civil society. You claim they can be, so you and Locke disagree over how the natural law is recognized. While Locke is right, it cannot be proven as a judge. National Law (the Constitution) is the supreme guide for any court. The Constitution is a practical statement of government powers, not an abstract idea. If judges are not limited by the founder’s Constitution and are allowed go beyond it to natural law (or anything else), then we are on the road to tyranny.

Our government was not purely founded by Enlightenment thinkers (like France). It also had a good deal puritan thought in it, as well as people with a respect for practical experience. I believe Dickens said something like "let experience be our only guide for reason may mislead us." The U.S. Constitution is our experienced way of government while pure natural law theory is reason--nothing more, nothing less.

You’re correct about Locke’s view as to atheists (he also wrote that Roman Catholics could not be part of the social contract, either), but in this respect he was wrong, and this aspect of his views was not adopted by the Framers.

One need not be a theist at all to participate in our social contract here in the United States. All that is required is that one agrees to indulge the PREMISE that all are created equal, that all are endowed by an external source with inalienable rights to life, liberty and pursuit of happiness. As Lincoln phrased it at Gettysburg, our nation was "dedicated to the PROPOSITION" that all are created equal, etc. In that sense, therefore, the Natural Law statements in the Declaration of Independence are foundational statements that our Republic was established on. As a community, we have agreed to ASSUME they are true FOR PURPOSES OF OUR GOVERNMENT’S RELATIONSHIP TO THE PEOPLE, and to ORIENT OUR GOVERNMENT’S APPROACH TO HUMAN RIGHTS as though they were true, regardless of whether they are in fact objectively true.

Your assertion that this understanding of Natural Law is somehow extra-constitutional ignores, among other things, (1) the timing, nature and purpose of the Declaration of Independence; and (2) the Framers’ statements (in the Federalist Papers and elsewhere) about the binding nature of its premises on our Government.

Your suggestion that Natural Law is purely theoretical and not experience-based overlooks the manner in which the Declaration of Independence and our Constitution came together -- in particular, the extensive reliance upon the lessons of history that animated them. The Framers were very conscious of the fact that every experiment in self-government in the history of the world up to that time had failed; yet, believing very much in self-government as the best form, they fashioned a government -- again, utilizing the lessons of EXPERIENCE -- that they hoped would be immunized from the vices and defects that had caused other such experiments to collapse. In doing so, they came up with what was, in their collective judgment -- again, based on the lessons of EXPERIENCE -- the best system, with the most optimal foundational premises -- and I’d say they did a very good job of it. The Declaration of Independence is very much a foundational part of what the Framers established.

It follows that a Court’s adherence to the principles enshrined in the Declaration of Independence could not fairly be described as extra-constitutional; nor could such adherence fairly be deemed to justify reliance on TRULY extra-constitutional sources for constitutional decisionmaking. Perhaps your objection -- and the mischief you fear -- flow from the use of the phrase "natural law". But I contend that if "natural law" is understood to mean the principles -- the PROPOSITIONS -- to which this Republic was dedicated at its outset, noted above, there is no mischief in Courts adhering to them. And there is considerable mischief in courts NOT adhering to them, as the failures of so many self-government experiments -- known to the Framers -- attest.

I agree with probably everything that you say about the founders and the founding principles of America. To expect every generation to have such men as Franklin, Washington, Jefferson, Madison etc rise to rule a nation is impossible. Such an understanding of politics, men and natural law cannot be expected from ordinary men and even Supreme Court justices. If every man understood the natural law--or if men were angels--government would not be needed nor would the Constitution. We have the Constitution because most men and most judges fail to grasp natural law and justice as our founders did.

Therefore, I think that the Constitution should be binding to the JUDICIAL BRANCH, not natural law (even though America is founded on much natural law). It is a type of imperfect compromise being less than the natural law in some ways, but more lasting in that it is clearer and more understandable to man.

I agree with everything Clint has written.

Virginian, I think you are missing Clint’s point. I used to believe exactly like you, but have come over to Clint’s point. We’ll take one aspect of the Declaration and examine how a court could interpret it.

The Declaration claims there is an inalienable right to pursue happiness. Obviously different people want different things in order to be happy. There can be no doubt that some homosexuals very sincerely wish to be married, that such marriage would make them happy, and that laws depriving them of the ability to marry take away from that inalienable right. What is a judge to do? Under your approach we would have to have judges consider what pursuits of "happiness" are legitimate. Some people might derive happiness from killing others, but we would claim that form of happiness is illegitimate, some might be happy under homosexual marriage, and that might be considered a valid form of happiness. This allows the Supreme Court to impose its own value judgments about legitimate forms of happiness on the rest of America. This is what upsets conservatives the most. Your position is not compatible with a conservative judicial philosophy, which does not mean it is necessarily wrong, but you ought not to pretend it is in step with conservative thought.

The electorate is in the best position to determine natural law. Lincoln’s use of the Declaration is a perfect example. He did not argue the Declaration in front of the Supreme Court, rather he argued it in front of the people, and this resulted in several constitutional amendments reflecting a further codification of certain aspects of natural law.

Finally, modern interpretations of the Constitution do have a Declaration like component. The 14th amendment provides for "life, liberty, and property." This area of the law is called substantive due process, and is the primary underpinning for such decisions as Roe and the recent decision stating that States cannot forbid homosexual conduct (I forget the case name). Conservatives are always upset by these decisions. Your Declaration/natural law method of interpretation is already used by the modern Supreme Court, and it is a failure.

Interesting points, Steve. But I say the "pursuit of happiness" clause is not the threat you fear it to be. To take your example of those whose idea of pursuing happiness might be the killing of others: This could not be permitted by any jurist maintaining the Declaration to be part of our nation’s fundamental law, since doing so would be at odds with the inalienable right to LIFE, also enshrined in the very same clause of the Declaration. It is a cardinal principle of statutory construction that a statute must, "upon the whole, be so construed that no clause, sentence or word shall be superfluous, void or insignificant." Your gay marriage example is likewise misplaced, since the gay marriage proponents right to pursue their happiness’ must be constrained and bounded by the remainder of the citizenry’s right to pursue ITS happiness. The gay marriage proponents think (sadly and mistakenly) that the guilt and shame they feel (feelings that in fact, unbeknownst to them, derive from the objectively disordered nature of their sexual activity) will evaporate, and that they will therefore be happy, if they gain society’s acceptance and approval, in the form of gay-marriage-endorsement. In this respect, however, they are no different from other unconventional sexual practitioners --like polygamists-- who have likewise unsuccessfully sought American society’s blessing for their unions. There is a countervailing right - a right ably championed by Lord Devlin in his famous debate with John Stuart Mill - of society to determine the principles on which it will be organized. In the United States of America, we have consistently, from the founding generation to the present day, made plain that marriage is the union of one man and one woman. It is well known, for example, that Utah was DENIED ADMISSION TO THE UNION until the 1890s, despite their having met all the prerequisites for statehood decades earlier, UNTIL THEY BANNED POLYGAMY. Once Utah banned polygamy, it was admitted as a state. Similarly, applicants for U.S. citizenship, at the time of their swearing in, are specifically asked, among other things, whether they practice polygamy, and an affirmative answer is disqualifying. The fact is that so-called "victimless crimes" -- as Lord Devlin ably demonstrates -- like prostitution, drug abuse, polygamy, etc. -- fundamentally change the character and living conditions of a society in a way that adversely impacts the PURSUIT OF HAPPINESS of the great mass of the citizenry who, after all, have an interest in having their organizing principles respected. The gays, polygamists, drug users and pimps would, of course, continue to have the right to PURSUE their happiness by seeking to persuade society to CHANGE ITS MIND on its organizing principles. In the absence of successful DEMOCRATIC persuasion by them, however, the more-than-2-centuries-old rules on these subjects could not -- consistently with the pursuit of happiness clause, be judicially changed. That is because the members of the larger society’s individual rights to pursuit of happiness could not -- consistently with the Declaration of Independence -- be ignored.


Your counter examples to my argument all dealt with legislative action. We have no disagreement there. Utah was not admitted as a State because of Congress, not because of the Supreme Court. The citizenship oath was created by Congress, not by the Supreme Court.

Find a Supreme Court case where the court decides whether something is legitimate happiness. I bet you will not be pleased with the result. Only liberals are pleased when the Court starts determining what is happiness.

Furthermore, the Declaration claims pursuit of happiness is inalienable. I would assume that inalienability refers to pursuing legitimate happiness. If Congress or the Court were to ever decide a legitimate form of happiness were illegitimate then there decision would no force, because people cannot alienate, that is, "give up" their right to pursue such happiness. People could disregard the law.

Such an example shows why the Declaration is a fine instrument to refer to while advocating a particular position (although for modern times the 14th amendment would be better because the 14th amendment is more conservative, it does not refer to happiness but rather property, just like Locke), but because it is so expansive and radical is a poor document to govern by.

Steve has correctly represented conservative judicial philosophy.

An example of the Court and happiness might be Lawrence v Texas in which the court ruled that sodomy laws were unconstitutional. Clearly the court used a natural law argument (a flawed one) to justify their ruling. Allowing Judges to use natural law opens us up to bad interpretations and philosophy. If the court had been bound to the Constitution, they would have found no Constitutional right to sodomy.

Again, I agree with Steve that natural law should be debated by the people and the legislature. It should be the basis for our laws. But once we have passed our laws the Courts must interpret the law and constitution, not impose their own natural law beliefs.

Evidently, Clint and Steve, your definition of "conservative judicial philosophy" is that any foundational document of this Republic must be jettisoned -- in toto -- if it contains even one clause that, under a superficial and isolated reading, might conceivably be used by some liberal judge as a pretext to legislate from the bench. By this standard, our entire Constitution would need to be thrown overboard, too, since it guarantees rights to "liberty" and contains many clauses (like "cruel and unusual punishments") whose content and meaning are not specified in the document. Gentlemen, this is not "conservative judicial philosophy." This is paranoia. This is depriving the citizenry of rights for which much blood and treasure was expended. This is cutting off one’s nose to spite one’s face.

As conservative constitutional scholar and Pepperdine Law School Professor Douglas Kmiec has persuasively contended, the Declaration of Independence is the foremost foundational document of our Republic in that it sets forth the philosophy behind our government; while the Constitution implements that philosophy. Accordingly, on this view, BOTH the Declaration AND the Constitution must be recognized and respected by ALL branches of Government, including the courts, and BOTH must be relied upon by the Courts. In this approach, Professor Kmiec is joined by many, many conservative thinkers, including the National Lawyers’ Association -- a pro-life counterpart to the American Bar Association. (The NLA’s members broke away from the ABA and formed the NLA after the ABA voted to take a pro-abortion-rights position.)

Again, your concerns about the "pursuit of happiness" clause ignore the Declaration’s statement in the very same paragraph that Government may derive its legitimate powers only "from the consent of the governed." This philosophical pillar would prevent any true Declaration-respecting jurist from going off on a tangent, and imposing his own idiosyncratic preferences on the rest of us, based on an isolated reading of the "pursuit of happiness" phrase alone. When applied to the Courts -- as it must be, under Professor Kmiec’s (and my) view -- the "consent of the governed" requirement means that when Courts make Constitutional law decisions, they must be ever cognizant of the principle that they may decide cases legitimately only if their holding and reasoning are supported by compelling evidence that they accord with the will of the people.... and not just any "will," but rather the will of SUPERMAJORITY of the people -- since that is the very magnitude of mandate required to accord legitimate Constitutional stature.

Thus, the LEGISLATIVE actions of the generation that ratified a particular clause are EXTREMELY PROBATIVE of the meaning of the clause in question. The late Chief Justice Rehnquist pointed out in dissent, for example, that the 14th Amendment’s liberty clause could not possibly have meant the right to abortion, because the same generation that ratified that amendment enacted anti-abortion laws in every state. Similar reasoning occurs in scores of Supreme Court cases. Such reasoning is appropriate, and reflects a healthy grounding in Declaration-based judicial philosophy.

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