Is Belief in Natural Law An "Embarrassment?"

JB

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.