Supreme Court
Nominees and Justices: The Only People “Exempt” from The Natural Law
By John Horvat II
In his book about natural law, Prof. J. Budziszewski explains
how this fundamental law is written on the hearts of everyone without
exception. Indeed, natural law is so evident that he claims it is “what you
can’t not know.” Hence, the title of his book.
Everyone–at
all times and places–knows that lying, stealing and killing are evil. The Ten
Commandments succinctly sum up the natural law making it easy for Christians to
remember. From these basic tenets come more elaborate legal systems and
applications.
Dr. Budziszewski explains how
this set of moral truths, called natural law, is “a universal possession, an
emblem of rational mind, an heirloom of the family of man.” Thus, no one has an
excuse for not knowing what it is. No nation has an excuse for not being
governed by its general tenets. It is the higher law upon which all law is
based.
The Exception to a Universal Rule
This
universal knowledge applies to everyone. However, one human category seems
exempt from knowing about this moral treasure and the obligation to obey it:
Supreme Court Justices.
It seems they must officially not
know natural law. All the current justices claim not to orient
their decisions according to its precepts. Court nominees dare not mention the
term lest it dashes their hopes of confirmation.
The
modern law establishment hates natural law because it highlights a moral
perspective. It has long sought to expel it from the judicial system. Everyone,
even Supreme Court Justices, must find some way to reject that which “you can’t
not know.”
Different Schools
Such
an attitude is something to be expected from the liberal side of the Supreme
Court. These justices belong to a historical school of law that believes that
law evolves. Theirs is a living Constitution that adapts to the latest cultural
fancies. They believe their job is to sprinkle stale law with fresh interpretations,
legislating from the bench to update the law to changing morals. From such
jurisprudence, creative justices easily find things in the Constitution’s
“penumbra” that were never there.
Others take the positivist
vision of law, by which the State is the foundation of law. Positivism frees
law from its metaphysical moorings and makes the State responsible for order,
contracts and legal agreements. The State changes law according to its
practical needs without considering moral principles.
The Reluctance of Conservative Justices to
Embrace Natural Law
And
then there are the conservatives, who find a way around the awkward question of
natural law so hated by modernity. They adopt a “constitutionalist” approach to
American law, based on a strict reading of the Constitution. “Originalist” and
“textualist” judges interpret the law according to what they consider was the
original intent of the Framers and thus avoid messy moral questions.
These conservative approaches
to law do tend to conserve some tradition and morality. However, they are not
anchored in an objective and higher moral law but fallible documents, opinions
and intentions. Speculation about the original legislator’s intentions can also
have disastrous consequences, as seen in the recent Bostock decision,
in which originalist Justice Neil Gorsuch “discovered” homosexual and
transgender equality in the word sex.
Thus,
conservatives constantly face the disappointment of putting in some justices
who appear to be conservative but later bow to pressure and find creative
“originalist” interpretations that are not in the Constitution. Without the
solid foundation of natural law, law will always be arbitrary and unstable.
Those who uphold God’s law will always face disillusionment.
Founders Informed by Natural Law
What
makes the “originalist” reading of law so frustrating to natural law advocates
is that the Constitution’s Framers and the Founders were informed by natural
law. The “constitutionalist” approach should channel natural law when
interpreting cases through the prism of the founding documents. However, more
often than not, their rulings become ill-advised detours around natural law
that open the way for errors to sneak in through the backdoor. It is much
better to go straight to the source where there is no danger of going astray.
A Strong Attachment to Natural Law
The
evidence establishing a natural law source is compelling.
American law’s attachment to a natural law dates back before independence, as
can be seen in the ultimate authority on both American and English common law,
the renowned English jurist Sir William Blackstone (1723–1780). His reference
is clear: “This law of nature, being coeval 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.”
Earlier, Sir Edward Coke (1552–1634), who strongly influenced American law,
also recognized natural law as the foundation of all law. This strong view of
natural law was widespread. The colonial lawyers that founded the nation were
familiar with these ideas, circulated in those times before written
constitutions or “constitutionalists.” Moreover, Americans tended to reject the
later deviations of natural law by Grotius and Pufendorf in favor of the more
Scholastic-minded Englishman Richard Hooker.
Natural Law Theory Written into the
Constitution
This
natural law outlook is infused into the Constitution. Law historian Harold
Berman suggests that the judging of law, according to the Constitution, was
merely a transposition for prior criteria of judging law according to the
natural law. He writes that “One may compare it with the theory that
accompanies the law of the United States, under which any positive law must
conform to the constitutional requirements of ‘due process,’ ‘equal
protection,’ ‘freedom,’ ‘privacy,’ and the like, or lose its validity. ‘Due
process of law’ is, in fact, a fourteenth-century English phrase meaning
natural law. Thus, natural law theory is written into the positive law of the
United States.”
Robert Reilly, in his book, America on Trial: A Defense of
the Founding, claims that those who wrote the Constitution and the founders
were inserted into a “natural law tradition reaching back to Aquinas, Cicero,
and Aristotle.” He further asserts that “The evidence is overwhelming that they
expressed themselves in terms of this tradition and meant the same thing by
it.”
Only
later, in the nineteenth century, did the modern schools of law depart from
this tradition and embrace historical and positivist innovations. This trend
favored the emerging liberal order. Social theoretian Wilhelm Schwer takes note
of a generalized hostility to natural law among all schools. The innovaters
went so far as to see this cornerstone of Western law as “imagined law, a weed
that deserves to be eradicated.”
The Orignial
“Originalists”
If
justices really want to be originalists, they will recognize that the original
“originalists” who wrote “the supreme law of the land,” the Constitution, were
informed by a higher law tradition. They should not second-guess the Framers’
intentions, replacing them with straying speculation. Rather, they should go
straight to the source. America needs to recognize that the constitutionalist
work-around is flawed and will eventually lead to ruin.
If
America is to return to sound justice, Supreme Court nominees (and its
justices) must embrace “what you can’t not know.” Until then, there will be no
order in the Court.
