Balkinization  

Monday, December 13, 2004

Is Belief in Natural Law An "Embarrassment?"

JB

Kevin Drum opines that Justice Thomas is an embarrassment because he believes in a natural law theory of the Constitution. Thomas Kannawitter, by contrast, argues that Thomas is a great Justice because he believes in a natural law underlying the Constitution that comes from God and that does not change.

I don't think that one's position on natural law matters one way or the other about whether one is doing one's job as a judge well or badly. The real question, it seems to me, is what you think natural law ideas mean for Constitutional interpretation as a practical matter.

Kannawitter seems to assume that belief in natural law is the same thing as belief in original understanding which is belief in the conservative opinions that Justice Thomas espouses, and he further assumes that disbelief in natural law (which he equates, mistakenly with legal realism) is equivalent to belief in a living constitution, which is equivalent to belief in lefty positions on constitutional issues.

He is wrong to assume this. It's quite possible to take the view that the best interpretation of the Constitution is one that which comports with natural law, and that the Framers' understandings are defective, because the Framers supported a wide variety of practices that are inconsistent with natural justice. Similarly, it's entirely possible to believe in natural law and in the idea that the application of moral principles must change with changing circumstances, and hence, that the best interpretation of the Constitution must also change accordingly. Finally, it's possible to be a legal realist about the mechanics of judging-- that is, that judicial decision is inevitably influenced by surrounding historical, political, and social conditions, and that judges are sensitive to underlying facts rather to abstract doctrinal formulas-- and still believe that the best interpretation of the Constitution is one which conforms to one's notion of what natural law requires.

So if Clarence Thomas is, indeed, an "embarrassment," or, to the contrary, a great jurist, it's not because he (a) believes or does not believe in natural law; (b) embraces or rejects legal realism; (c) adheres or does not adhere to original understanding as the touchstone of all constitutional interpretation; or (d) believes that the best interpretation of the Constitution changes or doesn't change over time. For all of these positions can be held (and have been held) by constitutional interpreters with very different political views.

Having seen his work over the course of more than a decade, I have no reason to think that Thomas is appreciably better or worse in terms of his lawyerly skills than many other Justices who have sat on the Supreme Court. The positions he takes are often quite striking, almost to the point of being "off-the-wall," but sometimes ideas once thought "off-the-wall" become orthodoxy later on depending on how the political winds blow. If I have an objection to him, it is that his constitutional vision is very different from mine, and so I think he interprets the Constitution in ways that lead to very unjust and uncalled for results. I think his arguments are often wrong and his assumptions misguided, but that does not make him an embarrassment. It makes him a powerful person who is using his power to move the law in what I consider to be the wrong direction. I would oppose appointing more Justices to the Supreme Court who agreed with him not because they believed in natural law, or original understanding, or disagreed with legal realism, but because they would be likely to push the practical meaning of the Constitution in very unjust and inappropriate directions.


Comments:

Thomas is an embarassment for the same reason the early 20th century natural law jurists were embarassments: as soon as their formalist ideologies conflicted with their political views, the formalism vanished.

"General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law."

Could the same not be said about Thomas in Grutter v. Bollinger? Years of originalism and yet not a single word on the race-affirmative measures clearly intended by the Congress which adopted the 14th Amendment, but instead pious quoting of Frederick Douglass. Bush v. Gore, as I'm sure I don't have to remind you, is yet another example. Years of formalism and federalism, and suddenly the Supreme Court is fine-tuning the intent of the Florida legislature to match their expectations.

Non-formalist judges, whether pragmatic or of another philosophy, do not have this problem. Does that mean they refrain from interjecting their politics into their decisions? Not necessary--but the damage when, say, Breyer goes with an arguably less efficient outcome is far less than when Scalia openly contradicts his own philosophy. The former results in questionable caselaw; the latter undermines public confidence in the rule of law and results in an incomprehensible, arbitrary constitution.
 

What is natural law? How well is natural law defined? What are its sources? Has natural law evolved over the centuries? Who determines today what constitutes natural law? The Oxford Handbook of Jurisprudence & Philosophy of Law edited by Coleman and Shapiro starts off with John Finnis' "Natural Law: The Classical Tradition" followed by Brian Bix's "Natural Law: The Modern Traditions". Can these chapters be relied upon for an understanding of natural law? Or are there other readily available resources defining what is natural law? I feel like I am in the middle of a course on Hermeneutics. Do we start with the Declaration of Independence in considering natural law as underlying the Constitution, whether as coming from God or otherwise? Or perhaps the Old and New Testaments? Where is Justice Holmes when we need him?
 

What is natural law? How well is natural law defined? What are its sources? Has natural law evolved over the centuries? Who determines today what constitutes natural law? The Oxford Handbook of Jurisprudence & Philosophy of Law edited by Coleman and Shapiro starts off with John Finnis' "Natural Law: The Classical Tradition" followed by Brian Bix's "Natural Law: The Modern Traditions". Can these chapters be relied upon for an understanding of natural law? Or are there other readily available resources defining what is natural law? I feel like I am in the middle of a course on Hermeneutics. Do we start with the Declaration of Independence in considering natural law as underlying the Constitution, whether as coming from God or otherwise? Or perhaps the Old and New Testaments? Where is Justice Holmes when we need him?
 

Natural law means certain self-evident Truths, grounded in nature and ascertainable by man's reason, unaided by Revelation. Some of these are that we have certain unalienable rights: life, liberty, property, equality, conscience, the pursuit of happiness.

There are different understandings of what natural law is. Many would argue that Finnis's is biased towards a Thomistic, hence a Catholic viewpoint, whereas our Founders represented more of an Enlightenment understanding that attempted to break with the traditional Christian understanding of nature.

The God part is played up a little too much. "Nature's God" may have given the rules, but they are ascertainable wholly by man's Reason, not by Revelation. That deserves to be stressed.
 

Natural law need not be 'self-evident' though the Declaration does speak of self-evident truths. One view that seemed to me interesting is that "natural rights" are those that arise from our natures.

Anyway, it bears noting that Justice Stevens view of the Due Process Clause references "liberty" not coming from the state only, but a higher source. For instance, his dissent in MEACHUM v. FANO:

"If man were a creature of the State, the analysis would be correct. But neither the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws either create property rights, or they curtail the freedom of the citizen who must live in an ordered society. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source.

I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations."

He reaffirmed this thought in later cases and articles. What follows from this principle is unclear, though it might suggest a libertarian viewpoint that Justice Thomas does now and again suggest is different from the views of Justice Scalia. See, e.g., Troxel v. Granville (parental rights).
 

The characterization that Justice Thomas could somehow be an "embarrassment" to someone depends on who the someone might be. I suppose his mother, his constitutional law professor and the President who appointed him to the Supremes might legitimately claim a right to be either embarrassed or alternatively made proud by his professional performance. The rest of us don't fall into that category. So it would seem odd to apply that term except that in our racially permeated society, black people are burdened with the expectations of white people that they perform a certain way. Many a Supreme has been a lesser judicial light than the pantheon of great justices. I am not embarrassed by Justice Thomas. I am afraid of him and the cohort of gender biased judges and legislators of which he is a member. That is quite a different characterization.
 

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