Natural law ethical theory teaches that moral standards can be objectively derived from the nature of human beings. Natural law legal theory teaches that the some authority for legal standards comes from the moral merit of the standards.
The Overlap Thesis, best laid out by Saint Thomas Aquinas, and
common to all Natural Law theories, is the foundation for classical naturalism.
Aquinas discerns four classes of law:
(1) eternal law;
(2) natural law;
(3) human law; and
(4) divine law.
Eternal law is law governing the nature of an eternal universe,
including all true physical, chemical, biological, and psychological law. Divine
law is the legal standard for a human being to reach eternal salvation.
Natural reason must be supplemented by divine revelation to gain sufficient
understanding of divine law. Natural law is the part of eternal
law governing behavior of beings possessing reason and free will. Aquinas tells
us that the first precept of natural law is the imperative to do good
and avoid evil. Good and evil derive from the rational nature of human
beings; Good and evil are objective and universal.
Human law is valid only if it conforms to natural law. Aquinas writes: "[E]very
human law has just so much of the nature of law as is derived from the law of
nature. But if in any point it deflects from the law of nature, it is
no longer a law but a perversion of law" (ST I-II, Q.95, A.II).
An unjust law is really no law at all.
William Blackstone writes "This law of nature, being co-eval with mankind
and dictated by God himself, is of course superior in obligation to any other.
It is binding over all the globe, in all countries, and at all times: no
human laws are of any validity, if contrary to this; and such
of them as are valid derive all their force, and all their authority, mediately
or immediately, from this original" (1979, 41). Conceptual naturalism
claims: 1) all valid legal standards conform with natural law; and 2) all valid
law derives its force and authority from natural law.
Classical naturalism allows human beings to create law. Law can extend beyond
necessary moral principles to coordinating practices that have multiple moral
alternative solutions, such as which side of the road to drive on. Man's law
is necessarily limited, however, by moral norms. For example, it can never be
truly lawful to intentionally take an innocent life.
Conceptual naturalism allows criticism of norms that are enforced as law. If
a norm is unjust, it is not legally valid. The state commits wrong by enforcing
such a norm against private citizens.
Source.
``When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.'' -The Declaration of Independence, 1776
Emmerich de Vattel: The Law of Nations (summary; Natural Law).
"I am much obliged by the kind present you have made us of
your edition of Vattel. It came to us in good season, when the circumstances
of a rising state make it necessary frequently to consult the Law of
Nations. Accordingly, that copy which I kept, has been continually
in the hands of the members of our congress, now sitting."
-Benjamin Franklin, letter to Charles W.F. Dumas, December 1775
"The most perfect society is that whose purpose is the universal
and supreme happiness."
-Gottfried Wilhelm Leibniz, 'On Natural Law,' c.1690
The Law of Nations and the Constitution -Alexander Hamilton
Natural Law, the Constitution, and Judicial Review
by Robert P. George
The concept of "natural law" is central
to the Western tradition of thought about morality, politics,
and law. Although the Western tradition is not united around
a single theoretical account of natural law, its principal architects
and leading spokesmen–from Aristotle and Thomas
Aquinas to Abraham Lincoln and Martin Luther King–have shared
a fundamental belief that humanly created "positive" law is morally
good or bad–just or unjust–depending on its conformity to the standards
of a "natural" (viz., moral) law that is no mere human creation.
The natural law is, thus, a "higher" law, albeit
a law that is in principle accessible to human reason and not dependent
on (though entirely compatible with and, indeed, illumined by) divine revelation.
1 St. Paul, for example, refers to a law "written
on the heart" which informs the consciences even of the Gentiles
who do not have the revealed law of Moses to guide them (Romans 2:14—15).
Many centuries later, Thomas Jefferson appeals to "the
law of nature and nature’s God" in justifying the American
Revolution.
Most modern commentators agree that the Founders were firm believers in natural
law and sought to craft a constitution that would conform to its requirements,
as they understood them, and embody its basic principles for the design of a
just political order. The framers of the Constitution sought to create institutions
and procedures that would afford respect and protection to those basic rights
("natural rights") which people possess, not as privileges
or opportunities granted by the state, but as principles of natural
law which it is the moral duty of the state to respect and
protect. Throughout the twentieth century, however, a lively debate
has existed on the question whether the Constitution incorporates natural law
in such a way as to make it a source of judicially enforceable, albeit unwritten,
constitutional rights and other guarantees. 2
I will discuss two significant "moments" in this debate: (1) the exchange
between majority and dissenting justices in the 1965 Supreme Court case of Griswold
v. Connecticut ; and (2) an important effort by a distinguished constitutional
law scholar, the late Edward S. Corwin of Princeton University, to specify,
and draw out the implications of, the rootedness of American constitutional
law in natural law concepts.
THE GRISWOLD PROBLEM
In 1965, the Supreme Court, by a vote of seven to two, invalidated a Connecticut
anti-contraception law on the ground that it violated a fundamental right of
marital privacy, though nowhere mentioned or plainly implied in the constitutional
text, found in "penumbras formed by emanations" from various "specific
guarantees in the Bill of Rights." Writing in dissent, Justice Hugo Black,
accused the majority of indulging in "the natural law due process philosophy"
of judging. Although critics would later heap ridicule on the majority’s
metaphysics of "penumbras formed by emanations," Black was content
on this score merely to record his view that we "get nowhere in this case
by talk about a constitutional ‘right of privacy’ as an emanation
from one or more constitutional provisions." His focus, rather, was on
unmasking what he judged to be an implicit revival by the majority of the long
discredited "natural law" doctrine.
As far as Black was concerned, bringing to light the "natural law"
basis of the decision in Griswold v. Connecticut was sufficient to establish
the incorrectness of the ruling and the unsoundness of the reasoning set forth
in Justice William O. Douglas’s opinion for the Court. Black assumed that
Douglas would not dare [fear of the Lord is the beginning of wisdom]
to defend the proposition that judges are somehow authorized [by God?] to enforce
an unwritten "natural law," or invalidate legislation that allegedly
violated unwritten "natural rights" or "substantive
due process." In this assumption he was correct. Douglas emphatically denied
that the majority was resurrecting the jurisprudential doctrine under which
the Court had earlier in the century struck down worker protection laws and
other forms of economic regulation and social welfare legislation as violations
of unwritten natural rights (above all the right to freedom of contract) allegedly
protected by the due process clauses of the Fifth and Fourteenth Amendments.
3 Indeed, Douglas did not even mention due process in his long catalogue of
explicit Bill of Rights guarantees whose penumbral emanations supposedly created
a right of married couples to purchase and use contraceptives. 4
Both Black (in 1937) and Douglas (in 1939) had been appointed by Franklin D.
Roosevelt whose manifest intent was to put onto the Supreme Court jurists who
could be counted on to oppose the judicial philosophy that had since at least
1905 impeded the progressive legislative agenda. The most celebrated cases involved
freedom of contract and other economic issues, 5 although a small number of
cases invalidated restrictions on non-economic liberties, such as the right
of parents to choose private, religiously affiliated schools, rather than public
education, for their children, 6or of teachers to teach foreign languages. 7
Roosevelt and other critics had excoriated the Court for its rulings in cases
involving economic regulation and social welfare legislation, suggesting that
the justices were, without the slightest constitutional warrant, substituting
their personal political and economic opinions for the contrary judgments of
the elected representatives of the people. 8 Under the pretext of giving effect
to implied constitutional protections, the critics alleged, the "nine old
men" were reading the social and economic policies they favored into the
Constitution as a means of imposing them on the public. 9 Even twenty years
after Roosevelt’s death, no self-respecting Roosevelt appointee to the
Supreme Court would want to be caught indulging in the practice he had condemned.
In those twenty years, much had changed in American social life; new issues
were before the Court. One of these was contraception. 10 The development of
the anovulent birth control pill in the early 1960s energized contraception
groups, such as Planned Parenthood, and catapulted the issue into the mainstream
of public discussion. The practice of contraception, which even fifty years
earlier had been condemned not only by the Catholic Church but across the denominational
spectrum (and by such esteemed organs of the American social-political establishment
as the Washington Post ), became increasingly respectable among opinion-shaping
elites and middle- and upper-class Americans generally. Protestant and Jewish
leaders came almost unanimously to endorse the use of contraceptives by married
couples to limit the size of their families, and more than a few people predicted–wrongly,
as it turned out 11 –that the Vatican would soon revise Catholic teaching
[impossible for matters of faith and morals] to permit contraception
for married couples who had legitimate reasons to postpone or avoid pregnancy.
People of a liberal social and political persuasion, together with more than
a few conservatives, came to view effective contraception as a great boon both
for individuals and society alike. The availability of contraceptives would,
they supposed, strengthen marriages by relieving the pressures created by couples
having more children than they desired or could comfortably afford. It would,
moreover, enable sexually active, unmarried, young women to avoid the ignominy
and other burdens of illegitimate pregnancy. Above all, perhaps, it would alleviate
welfare costs by reducing out-of-wedlock births to impoverished women. 12
Many supporters of contraception neither anticipated nor desired a "revolution"
in sexual morality. At the same time, most considered the old moral objections
to contraception, not to mention legal prohibitions such as the Connecticut
statute, to be relics of an unenlightened–even sexually repressive–age.
13 There is every reason to suppose that all nine of the Griswold justices shared
this view. Black, who was joined in dissent by Potter Stewart, opened his opinion
by remarking that the Connecticut’s law was "every bit as offensive
to me as it is to my brethren." Stewart’s opinion began with a denunciation
of the statute as "uncommonly silly." What distinguished Black and
Stewart from their brother justices was not any difference of opinion over the
morality of contraception or the undesirability of laws against it; rather,
it was their unwillingness to declare that anti-contraception laws, however
"offensive" or seven "silly," violated the Constitution.
Black and Stewart reminded their brethren that the judicial invalidation of
legislation in the name of rights that lack any foundation in the constitutional
text or its historical understanding was precisely what critics had condemned
an earlier Court for doing in the cause of conservative economic and social
policy. Doing it in the cause of a particular view of sexual morality–even
an "enlightened" view–was, they maintained, no more justifiable.
Since the Constitution provided no textual or historical basis for a right to
contraception (or "marital privacy"), they argued, the only ground
on which such a right could be declared is the very ground on which the discredited
right to freedom of contract had been declared, namely, the idea of natural
law–a law superior to the statutory law to which judges may appeal in
striking down a statute even where the constitutional text provides no warrant
for doing so. So, in their view, the majority could not escape the problem merely
by declining explicitly to invoke the "natural law due process philosophy"
and appealing instead to "penumbras formed by emanations." 14 "Natural
law" jurisprudence by any other name remains natural law jurisprudence;
and "natural law" jurisprudence is, Black insisted, in principle illegitimate.
But, someone may ask, is it not true that the framers and ratifiers of the Constitution
were firm, indeed fervent, believers in natural law and natural rights? Did
they not found the United States precisely on the proposition that the institutions
of government are justified by the moral imperative that natural rights be protected
by civil authority? Did they not design institutions of government with a view
to insuring that civil authority would conform itself to the requirements of
natural law and not degenerate into tyranny by violating the very rights government
is instituted to protect? But, if so, how could Black and Stewart condemn a
jurisprudence of natural rights? And why would Douglas and those joining his
majority in Griswold go out of their way to deny, rather implausibly, that theirs
was such a jurisprudence?
CORWIN ON NATURAL LAW AND CONSTITUTIONALISM
In 1949, more than a decade after the effective demise of Lochner , and a decade-and-a-half
before the Court’s decision in Griswold , Edward S. Corwin–Woodrow
Wilson’s successor as McCormick professor of jurisprudence at Princeton
and perhaps the nation’s preeminent constitutional scholar–delivered
an address at the Third Annual Natural Law Institute of the College of Law at
the University of Notre Dame. There, Corwin sought to show "how very large
a part of its content American constitutional law has always
owed, and still owes, to its natural law genesis." He
argued that the positive law of the "documentary Constitution is still,
in important measure, natural law under the skin." 15
Corwin’s analysis was largely historical. His aim was to show that the
legal tradition that shaped the understanding of the framers of the American
constitution and the early practitioners of American constitutional law was
deeply informed by two central natural law concepts (or "juristic
connotations of the concept of [natural law]"): "first, that natural
law is entitled by its intrinsic excellence to prevail over any law which rests
solely on human authority; second, that natural law may be
appealed to by human beings against injustices sanctioned by human authority."
16
Central to Corwin’s account is the idea that the English common
law emerged historically as a sort of positive embodiment of
the natural law, that is, as a body of law which is the fruit
of (juristic) reason and enjoys its status as law precisely as such.
It differs from statutory law inasmuch as its legal status does not
derive, as does, say, an act of Parliament, from the sheer will of a lawmaking
authority. "Thus," Corwin concludes, "the common
law becomes higher law, without at all losing its quality as positive law."
17
From the philosophical viewpoint, however, Corwin’s distinction is highly
questionable. Common law judges were lawmaking authorities. They, no less than
legislators, faced choices between options as to what rules to lay down; like
legislators, their stipulations conferred upon the rules they selected the status
of binding law. In "developing" the law of contract, tort, crime,
and so forth, they made decisions based in significant measure on judgments
as to how the common good of their communities would best be served. True, the
theory of common law judging places a particular premium on choosing rules that
best "fit" with pre-existing patterns of the law. But precisely inasmuch
as a new rule is needed, judges must exercise choice and judgment. Sound judgment,
to be sure, requires careful reasoning. But this does not mean that the rule
selected by a common law judge enjoyed its status as law simply by virtue of
its reasonableness. On the contrary, from the intrasystemic viewpoint, its status
as law depended entirely on the judge’s authority ("jurisdiction")
to make the choice between (or among) competing possible rules, and (unless
reversed by a higher court) its status of law obtained even where the judge
made what was, from the point of view of reason, or even justice, a (or the)
incorrect choice. In an important sense, then, it was, and was understood to
be, the judge’s will–that is, the fact that the choice was his –that
was crucial, though his obligation was certainly to choose as reasonably as
possible.
Now, a legislator’s choosing is in significant respects less restricted
than the choosing of a conscientious common law judge. But the legislator’s
(and the legislature’s) obligation, no less than the judge’s, is
precisely to make the choice as reasonably as possible–"reasonable"
here including the concepts of morality and justice, such that
immoral and, particularly, unjust choices are in principle unreasonable. To
be sure, the status of a legislative enactment as law depends on the jurisdictional
authority of the legislature, and in this way it is, indeed, a matter of will
. But, as we have seen, this does not distinguish in principle the (common law)
judicial from the legislative office, as Corwin seemed to suppose. It is true
that natural law thinkers held (and hold) that the constitutive power of humanly
posited law to create (or reinforce existing) moral obligations depends on the
substantive justice ("reasonableness") of the law, and not merely
on the jurisdictional authority of the person or institution purporting to promulgate
it. But, again, this is true whether that person or institution in question
is a judge (or court) or a legislature. Either way, valid law is
the fruit (or, as traditional natural law theorists would put it, "an
act") of both reason and will. 18
Corwin suggests that an important strand of the English legal tradition
conceives the common law as enjoying a certain superiority to acts of Parliament.
He gives significant weight to the famous "dictum,"
so-called [of Lord Coke] in Dr. Bonham’s Case which reads:
And it appears in our books, that in many cases, the common law [e.g.
jury] 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.
In this dictum, according to Corwin, we have a jursiprudential notion which,
when allied later (as it would be) with John Locke’s conception of substantive
("inherent and inalienable") rights of the individual, provides the
foundation for American-style judicial review. 19 He notes that "the dictum
had won repeated recognition in various legal abridgements and digests before
the outbreak of the American Revolution," and cites various invocations
of the substance of the dictum by American lawyers and political figures in
the years leading up to the Revolution. 20
A central feature of Corwin’s account is his claim that "judicial
review initially had nothing to do with a written constitution." 21 He
asserts that the idea of judicial review appeared in America some twenty
years before the first written constitution, and that judicial review was practiced
"in a relationship of semi-independence of the written constitution on
the basis of ‘common right and reason,’ natural law, natural rights,
and kindred postulates throughout the first third of the nineteenth century."
22 He argues that the "competing conception of judicial review as something
anchored to the written constitution had been in the process of formulation
in answer to Blackstone’s doctrine that in every state there is
a supreme, absolute power , and that this power is vested in the legislature."
23 It was one thing, according to Corwin, for Blackstone to reject the idea
of judicial review, as he did, in the context of a system in which the supreme
will was embodied in the legislature; it is another thing altogether, however,
where the supreme will is understood to be that of the people themselves
as expressed in their constitution. In the latter case, as American authorities
such as Alexander Hamilton 24 and John Marshall 25 recognized, the duty of courts
facing a conflict between legislation (considered as the act of mere
agents of the people) and the constitution (considered as the act of the people
themselves)[Though there is no evidence of ratification by the people.], was
plainly to give effect to the constitution.
Corwin viewed these competing conceptions of judicial review as clashing near
the beginning of our national history in the case of Calder v. Bull. 26 There,
in a dispute involving the question whether the Constitution’s prohibition
of ex post facto laws applies only to the criminal legislation, Justice Samuel
Chase asserted the authority of the Court to invalidate legislative acts on
the basis of "certain vital principles in our free republican governments,
which will determine and overrule an apparent and flagrant abuse of legislative
power." In reply, Justice James Iredell, though agreeing with Chase that
the constitutional prohibition of ex post facto laws did not extend beyond the
criminal law, denied the power of courts to act on the basis of the proposition,
advanced by "some speculative jurists . . . that an act against
natural justice must, in itself, be void."
Who had the better view? Characteristically, Corwin appeals to the authority
of history, asserting that while Iredell’s view prevailed as a matter
of official doctrine, his victory was "more in appearance than in reality."
27 "In the very process of discarding the doctrine of natural rights and
adherent doctrines as the basis of judicial review," Corwin insists, "the
courts have contrived to throw about those rights which originally owed their
protection to these doctrines the folds of the documentary Constitution."
28
NATURAL LAW AND THE GRISWOLD PROBLEM
Does Corwin’s analysis supply what is needed to vindicate the "natural
law" jurisprudence Justice Black complained about in Griswold?
It is possible to read Corwin as supposing that belief in natural law entails
the authority of judges to enforce it where they judge it to be in conflict
with positive law, at least in those jurisdictions that authorize courts to
exercise judicial review of legislation, and, in particular, where the
framers and ratifiers of a written constitution evidently sought to protect
natural rights and insure the conformity of governmental acts to the requirements
of natural law. But if this was, in fact, Corwin’s view, and
his esssentially historical approach to the subject leaves the matter a bit
unclear, then I do not believe he was correct. It is certainly true that believers
in natural law consider positive law to be legitimate and binding in conscience
only where it conforms to natural law and, as such, respects the natural rights
of people subject to it. But natural law itself does not settle the
question whether it falls ultimately to the legislature or the judiciary in
any particular polity to insure that the positive law conforms to natural law
and respects natural rights. [It falls ultimately to each man wherever
he is, not to any fictional or representational body which is dead at law and
cannot think or speak for itself.] 29 And nothing in the record suggests
that the American founders believed otherwise. To be sure, there were debates
at the margins, such as the debate between Chase and Iredell. But the questions
at issue in such debates involved nothing like the Griswold problem. They had
to do, rather, with whether the judiciary could refuse to enforce laws that
were incapable of being complied with, for example. Or whether courts could
overrule legislative acts which plainly violated "vital principles"
that, though not expressly stated, were presupposed by the very institutions
of "free republican government."
If we see that natural law does not dictate an answer to question of its own
enforcement, it is clear that authority to enforce the natural law may reasonably
be vested primarily, or even virtually exclusively, with the legislature [Councils
of the Church]; or, alternatively, a significant measure of such authority
may be granted to the judiciary [Priests] as a check on legislative
power. The question whether to vest courts with the power of constitutional
judicial review at all, and, if so, what the scope of that power should be,
is in important ways underdetermined by reason. As such, it is a matter
to be resolved prudently by the type of authoritative
choice among morally acceptable options, what Aquinas called "determinatio,"
and distinguished from matters that can be resolved "by a process akin
to deduction" from the natural law itself. 30 It is a mistake,
then, to suppose that believers in natural law will, or necessarily should,
embrace expansive judicial review or even "natural law" jurisprudence
(of the type criticized by Justice Black in Griswold ). And that is because
questions of the existence and content of natural law and natural rights
are, as a logical matter, independent of questions of institutional authority
to give practical effect to natural law and to protect natural rights.
Let us now return to the Griswold case. Imagine that someone, say Justice Black,
accepts the proposition that the framers and ratifiers of the Constitution were
fundamentally motivated by a concern to conform governmental acts to natural
law and protect natural rights. Suppose further that he agrees that people have
a natural right to "marital privacy" which includes the right to use
contraceptives. He could, nevertheless, without logical inconsistency, come
down on the question of the constitutionality of the Connecticut statute exactly
as he did in Griswold . Moreover, he could come down that way for precisely
the reasons he stated in the case. These reasons do not necessarily involve,
and certainly do not logically entail, denial of the existence of natural law
or natural rights. Rather, they constitute the denial that judges are authorized
under the positive law of the Constitution to invalidate legislation based on
their understanding of natural law and natural rights.
As Robert Bork, perhaps the leading contemporary critic
of "natural law" jurisprudence, explains his position: "I
am far from denying that there is a natural law, but I do deny both that we
have given judges authority to enforce it and that judges have any greater access
to that law than do the rest of us." 31 Of course, Bork’s
view of the scope of judicial authority under the constitution might or might
not be correct. A proposition may be logically sound yet substantively false.
Perhaps the Constitution, properly interpreted, does, in fact, confer upon judges
the power to enforce their views of natural law and natural rights, even in
the absence of textual or historical warrant for their views. What matters for
purposes of the current analysis is that the issue is itself textual and historical.
If judges do, as Ronald Dworkin, for example, claims, legitimately enjoy the
constitutional authority to invalidate legislation precisely on the ground that
it violates abstract constitutional principles understood in light of the judges’
own best judgments of natural law (viz., moral truth), then, as Dworkin himself
acknowledges, that is because this power is conferred on courts by the positive
law of the Constitution, not by the natural law itself. 32 So any argument seeking
to establish the authority of courts to invalidate legislation by appeal to
natural law and natural rights ungrounded in the constitutional text or history
will itself have to appeal to the constitutional text and history. This is by
no means to suggest that there is anything self-contradictory or necessarily
illicit about such arguments. There is no reason in principle why a Constitution
cannot, expressly or by more or less clear implication, confer such authority
on Courts. It is merely to indicate that the question whether a particular constitution
in fact confers it is, as I have said, one of positive, not natural, law.
JUDICIAL REVIEW: CONSTITUTIONALLY LEGITIMATE
Now, I should observe before concluding that someone who believes that our own
Constitution does, in fact, confer upon judges authority to enforce natural
law and natural rights need not come down in favor of the decision in Griswold
. This is because that decision presupposes not only (a) the authority of courts
to enforce natural rights, but also (b) the existence of a substantive natural
right to contraception, at least for married couples. Someone who believes in
(a) may or may not also believe in (b). Stephen Krason, for example, who relies
heavily on Corwin’s account of the natural law basis of American constitutionalism
to argue for the broad judicial enforcement of natural law principles, at the
same time sharply condemns some of the leading decisions in which the Court
seems most clearly to have been acting on the justices’ understanding
of natural law and natural rights, for example, the establishment of a right
to abortion in Roe v. Wade .33 Responding to arguments by Bork and others that
acceptance of judicial authority to enforce natural law will likely result in
decisions incorporating into our constitutional law the modern liberal view
of morality, Krason insists that the answer is to appoint judges who reject
liberalism and would enforce "the true natural law." 34 According
to Krason, the problem with Roe (and, he would no doubt add, Griswold ) is not
the judicial enforcement of natural law and natural rights, but, rather, the
enforcement of a false conception of natural law and natural rights. Challenging
the views of Bork and other conservative jurists, including, notably, Justice
Scalia, 35 Krason argues that the correct decision in Roe would not have been
a form of judicial abstention which would have permitted the question to be
resolved legislatively (on the ground, adduced by Bork, Scalia, and others that
the Constitution is "silent" on the issue of abortion), but, rather,
a decision recognizing the right to life of the unborn and "declaring legalized
abortion to be unconstitutional." 36
I agree with Corwin and his followers that the fabric and theory of our Constitution
embodies our Founders’ belief in natural law and natural rights. And while
I also share their view that judicial review itself emerged as part of the strategy
of the founding generation to insure governmental conformity with natural law
and to protect natural rights, I do not draw from this the conclusion that judges
have broad authority to go beyond the text, structure, logic, and original understanding
of the Constitution to invalidate legislation which, in the opinion of judges,
is contrary to natural justice. On the contrary, Black, Bork, Scalia, and other
"textualists" and "originalists" are nearer the mark in
calling for judicial restraint in the absence of a clear constitutional warrant
for overturning duly enacted legislation. This is because, as I read the document,
the Constitution places primary authority for giving effect to natural law and
protecting natural rights to the institutions of democratic self-government,
not to the courts. It is primarily for the state legislatures, and, where power
has been duly delegated under the Constitution, to the Congress to engage in
the practicing of making law in harmony with the requirements of morality (natural
law), including respect for valuable and honorable liberties (natural rights).
Judicial review is, I believe, constitutionally legitimate, and can, if exercised
with proper restraint, help to make the natural law ideal of constitutional
government a reality. However, courts can usurp, and, I believe, often have
usurped, legislative authority under the guise of protecting individual rights
and liberties from legislative encroachment. 37 And courts can usurp, and have
usurped, legislative authority in good as well as bad causes. Whenever they
do so, however, even in good causes, they violate the rule of law by seizing
power authoritatively allocated by the framers and ratifiers of the Constitution
to other branches of government (even if that power could, rightly, have been
allocated to them). And respect for the rule of law is itself a requirement
of natural justice. 38
Sometimes courts have no legitimate authority to set right what they perceive
(perhaps rightly) to be a wrong; and where this is the case, it is wrong–because
usurpative–for them to do so. There is no paradox in this. Fidelity to
the rule of law imposes on public officials in a reasonably just regime (that
is, a regime that it would be wrong for judges to attempt to subvert) a duty
in justice to respect the constitutional limits of their own authority. To fail
in this duty, however noble one’s ends, is to behave unconstitutionally,
lawlessly, unjustly. The American founders were not utopians; they knew that
the maintenance of constitutional government and the rule of law would limit
the power of officials to do good as well as evil. They also knew, and we must
not forget, that to sacrifice constitutional government and compromise the rule
of law in the hope of rectifying injustices is to strike a bargain with the
devil.
***
Dr. George is McCormick Professor of Jurisprudence and Director of the James
Madison Program in American Ideals and Institutions at Princeton University.
------------------------------------------------------------------------
ENDNOTES
1 ~ See Robert P. George, "Natural Law Ethics," in A Companion to
Philosophy of Religion, eds. Philip L. Quinn and Charles Taliaferro (Oxford:
Blackwell Publishers, 1997), pp. 453—465.
2 ~ For a valuable summary of, and important contribution to, the debate, see
Philip A. Hamburger, "Natural Rights, Natural Law, and American Constitutions,"
Yale Law Journal 102 (1993): 907—960.
3 ~ "We do not sit as a super-legislature to determine the wisdom, need,
and propriety of laws that touch economic problems, business affairs, and social
conditions." Griswold v. Connecticut, 381 U.S. 479 (1965).
4 ~ Douglas listed "the right of association contained in the penumbra
of the First Amendment"; the Third Amendment’s prohibition of quartering
soldiers in private houses in peace time; the Fourth Amendment right against
unreasonable searches and seizures; the Fifth Amendment right against self-incrimination;
and the Ninth Amendment’s concept of "rights retained by the people."
In a famous concurring opinion, Justice Arthur Goldberg (a Kennedy appointee),
joined by Chief Justice Earl Warren and Justice William J. Brennan (both Eisenhower
appointees), expounded a due process theory of the case, one buttressed by the
invocation of the Ninth Amendment, which, according to Goldberg , "lends
strong support to the view that the ‘liberty’ protected by the Fifth
and [Fourteenth] Amendments [is] not restricted to rights specifically mentioned
in the first eight amendments." Justice John Marshall Harlan (another Eisenhower
appointee), in a separate concurrence, announced his preference for a more straightforward
Fourteenth Amendment due process theory.
5 ~ E.g. Lochner v. New York , 198 U.S. 45 (1905), invalidating a New York statute
limiting the number of hours employees in a bakery could be required or permitted
to work; Adair v. United States , 208 U.S. 161 (1908), striking down a federal
law against "yellow dog contracts" on interstate railroads; Adkins
v. Children’s Hospital , 261 U.S. 525 (1923), citing Lochner to invalidate
legislation setting minimum wages for women workers in the District of Columbia.
6Meyer v. Nebraska , 262 U.S. 390 (1923).
7Pierce v. Society of Sisters , 268 U.S. 510 (1925).
8 ~ Roosevelt’s criticisms of the Court have come to be widely accepted
as valid by liberal and conservative constitutional scholars alike. A notable
exception is Hadley Arkes, whose recent writings offer a vigorous defense of
the "natural rights" approach taken by the Justices in Lochner ,Adair
,Adkins , and other leading "Lochner era" cases. See, in particular,
Arkes’ essay " Lochner v. New York and the Cast of Our Laws,"
in Robert P. George ed., Great Cases in Constitutional Law (Princeton University
Press, forthcoming), and his book The Return of George Sutherland: Restoring
a Jurisprudence of Natural Rights (Princeton University Press, 1994).
9 ~ In his radio address of March 9, 1937, Roosevelt defended his "court
packing plan" as necessary to "save the Constitution from the Court
and the Court from itself."
10 ~ Pro-contraception groups had attempted to challenge anti-contraception
statutes in the courts beginning in the 1940s. Prior to Griswold , however,
these constitutional challenges had ultimately been dismissed on procedural
grounds. See Tileston v. Ullman , 318 U.S. 44 (1943) and Poe v. Ullman , 367
U.S. 497 (1961).
11 ~ See Pope Paul VI, Humanae Vitae (1968).
12 ~ The dubiousness of some of these suppositions was not evident in 1965,
though opponents of contraception warned that the social consequences of its
widespread availability and acceptance would be dire. The Griswold court barely
considered these warnings. In the end, Douglas’s opinion rests on the
essentially undefended assertion that the availability of contraceptives is
good for the institution of marriage. But that was a debatable proposition even
in 1965. Supporters of Connecticut’s law argued that access to contraceptives,
far from strengthening the institution of marriage, would weaken it by fueling
a revolution in sexual mores leading to increased family breakdown, abandonment,
divorce, adultery, fornication, and other evils. Some maintained that these
social pathologies were predictable consequences of the intrinsically anti-marital
nature of contraception as a severing of the link between spousal love and openness
to procreation that gives marriage its intelligible purpose and specifies its
essential requirements (e.g., permanence of commitment, exclusivity [fidelity],
obligations of mutual support). If, indeed, the question ultimately turns on
empirical, and even moral, judgments as to whether contraception strengthens
or weakens the institution of marriage, it is difficult to see how a court could
be justified in displacing a legislative judgment of the matter one way or another.
It obviously won’t do to say that the invalidation of laws restricting
contraception simply leaves the question of the goodness or badness of the practice
to the conscientious judgment of individuals and married couples. The question,
as Douglas seemed to grasp clearly enough, is whether the availability of contraception
is good for the institution of marriage. The decision is an inherently social
one. To recognize this fact is not necessarily to conclude that contraception
is bad for marriage or that laws against it will do more good than harm; it
is merely to suggest that these questions are unavoidably political. To endorse
the political proposition that contraception should be left to individual judgment
is to answer the questions in a particular way. And even if one is prepared
to answer them in precisely this way, the question remains as to whether courts
should have the authority to displace contrary legislative judgments. (Thus,
Black and Stewart, basing their dissenting opinions solely on the denial of
judicial authority, could denounce the Connecticut law as "offensive"
and "silly" yet judge it to be constitutionally permissible.)
13 ~ Anti-contraception laws in Connecticut and other states had been enacted
by legislatures in the mid-nineteenth century–a time when religious and
moral opinion was largely united in opposition to the practice of contraception.
The contraception movement, beginning with Margaret Sanger’s crusade for
birth control and sexual liberation in the early twentieth century, attempted
to persuade state legislators to repeal anti-contraception statutes. When, as
in Connecticut, their efforts in the legislatures failed or stalled, they turned
to the courts in the hope of persuading judges to do what public opinion, still
clinging at some level to the older sexual morality, prevented elected representatives
from doing. As Justice Douglas’s opinion for the majority in Griswold
makes clear, the pro-contraception parties suggested that a decision invalidating
the Connecticut statute could be based explicitly on precisely the doctrine
which Black would accuse the majority of surreptitiously reviving, namely, the
"natural law substantive due process philosophy" of the " Lochner
era." After all, Lochner itself, though in gross disrepute, had never been
expressly reversed. Although most commentators were (and are) of the view that
Lochner had been implicitly overruled in West Coast Hotel v. Parrish , 300 U.S.
379 (1937)–a case officially overruling the decision in Adkins v. Children’s
Hospital , which, in turn, had relied on Lochner –the Griswold majority
could, presumably, have invoked the basic principle of Lochner while arguing
that the court in Adkins had misapplied it to the facts in that case. Indeed,
they could have argued that the Lochner court itself had erroneously applied
a perfectly sound principle of constitutional interpretation to the facts before
it. However that may be, Douglas plainly wanted no part of such a strategy:
"Overtones of some arguments suggest that Lochner v. New York should be
our guide. But we decline that invitation just as we did in West Coast Hotel
v. Parrish ." In the very next paragraph he introduced the "penumbras
formed by emanations." Interestingly, Douglas’s original proposal
was to invalidate the Connecticut statute on the ground that it violated the
First Amendment right to freedom of association. He could not, however, put
together a majority for that remarkable proposition.
14 ~ One suspects that the "penumbras formed by emanations" rhetoric
was designed to suggest that the alleged marital right to use contraceptives
is somehow derivable from the "logic" or "structure" of
the Constitution, and does not depend on any independent moral-political judgment
that married couples ought to be free from legal interference in deciding whether
to use contraceptives. But this suggestion is dubious. Someone who happens to
believe that contraception is morally wrong and damaging to the institution
of marriage, and that the legal permission of contraception would harm public
morals and exacerbate various social ills, simply has no reason to affirm a
constitutional right to contraception. It is only by bringing belief in a right
to marital contraception (with all that it presupposes and entails) to the enterprise
of constitutional interpretation that one can find such a right in the "logic"
or "structure" of the constitution.
15 ~ Edward S. Corwin, "The Debt of American Constitutional Law to Natural
Law Concepts," Notre Dame Lawyer 25 (1950): 195. Corwin’s lecture
builds on his famous essay "The ‘Higher Law’ Background of
American Constitutional Law," Harvard Law Review 42 (1928): 149—185
(parts. 1—2) and 365—409 (part. 3).
16 ~ Corwin, "The Debt of American Constitutional Law," p. 196.
17 ~ Ibid., p. 197.
18 ~ See John Finnis, "The Truth in Legal Positivism," in The Autonomy
of Law: Essays on Legal Positivism, ed. Robert P. George (Oxford: Clarendon
Press, 1996).
19 ~ Corwin, "The Debt of American Constitutional Law," p. 198.
20 ~ Ibid., p. 199.
21 ~ Ibid., p. 200 (emphasis in the original).
22 ~ Ibid., p. 201.
23 ~ Ibid. (emphasis in the original).
24 ~ Corwin cites Federalist No. 78.
25 ~ Corwin cites Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (1803).
26 ~ 3 Dall. 386, 1 L. Ed. 648 (1798).
27 ~ Corwin, "The Debt of American Constitutional Law," p. 202.
28 ~ Ibid., p. 203.
29 ~ See Robert P. George, "Natural Law and Positive Law," in The
Autonomy of Law: Essays on Legal Positivism , ed. Robert P. George.
30 ~ St. Thomas Aquinas, Summa Theologiae 1—2, q. 95, a. 2c., see John
Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp.
284—289, and Aquinas (Oxford: Oxford University Press, 1998), pp. 266—274.
31 ~ Robert H. Bork, The Tempting of America: The Political Seduction of the
Law (New York: Free Press, 1990), p. 66. Of course, some people, including,
it seems, Chief Justice William H. Rehnquist, reject what Black condemned as
natural law jurisprudence precisely on grounds of skepticism about the existence
of natural law and natural rights. The statement by Bork was evidently intended
to make clear to those who had interpreted his earlier writings as grounding
his rejection of "judicial activism" in skepticism about natural law
and natural rights that he is not of this view.
32 ~ See Ronald Dworkin, Freedom’s Law: The Moral Reading of the American
Constitution (Cambridge: Harvard University Press, 1996), Introduction. See
also Ronald Dworkin "’Natural’ Law Revisited," University
of Florida Law Review 34 (1982): 165—188.
33 ~ See Stephen Krason, "Constitutional Interpretation, Unenumerated Rights,
and the Natural Law," Catholic Social Science Review 1 (1996): 20—31.
34 ~ Ibid., pp. 25—27.
35 ~ See Scalia, "Of Democracy, Morality and the Majority," Origins
26 (1996): 82—90.
36 ~ Krason, "Constitutional Interpretation," p. 26.
37 ~ See Robert P. George, "The Tyrant State," First Things , November
1996; reprinted in The End of Democracy? The Judicial Usurpation of Politics,
ed. Mitchell S. Muncy (Dallas: Spence, 1997), pp. 53—62; and "Justice,
Legitimacy, and Allegiance," Loyola Law Review 44 (1998): 103—118;
reprinted in The End of Democracy II: A Crisis of Legitimacy, ed. Mitchell S.
Muncy (Dallas: Spence, 1999), pp. 86—104.
38 ~ See Robert P. George, "Free Choice, Practical Reason, and Fitness
for the Rule of Law," in Social Discourse and Moral Judgment, ed. Daniel
N. Robinson (New York: Academic Press, 1992), pp. 123—132. I am assuming
that the question at hand is that of the obligation of judges and other officials
to respect the constitutionally established limits of their authority in reasonably
just regimes. I do not here address issues of the rights and responsibilities
of judges and others operating in regimes so unjust as to warrant subversion.
Natural Law, the Constitution, and Judicial Review by Robert P. George Source: