Constitutional Illusions

& Anchoring Truths

The Touchstone

of the Natural Law

by Hadley Arkes

Cambridge, 280 pp., $25.99

In their 2008 brief arguing for the unconstitutionality of Proposition 8, the California gay-

marriage amendment, California attorney general Jerry Brown and his lawyers put forth an innovative natural law argument. The rights recognized as “inalienable” by the framers of the California constitution, they argued,

were so designated because it was generally believed as a matter of political philosophy that a constitution is not the source of these rights. The rights “antedate” the constitution as inherent in human nature. .  .  . These rights were not surrendered in the “social compact.”

By claiming that gay marriage was one of these rights “inherent in human nature,” Brown and his lawyers were making an appeal to natural law. But what, exactly, is the natural law? And which rights does the natural law specify as fundamental? In the brief, Brown recognized that gay marriage was not a natural right as understood by the authors of the California constitution. But, he added, the reason we may now consider gay marriage one of these natural rights is that “the scope of liberty interests evolves over time as determined by” the United States Supreme Court.

Therein lies the problem with applying natural law to constitutional interpretation: When judges are not bound to the texts they must interpret, and can expound new fundamental rights based on their novel understandings of natural law or some other moral standard, the new rights “discovered” may be moral but they may also be immoral; they may be good for society, or they may not. But certainly we can agree that judges do not have a monopoly on moral reasoning, on determining what is right and wrong.

None of this is to say that natural law does not exist. That judges disagree on what is right and wrong does not mean that there is no right and wrong, that there is no moral truth. Indeed, natural law is crucial for politics, and Hadley Arkes has done a service to its cause, particularly with his foundational book First Things. While he is right to point, in this new study, to the importance of natural law and morality in law, it is dangerous to conflate this issue with constitutional interpretation. Arkes argues that judges can never make judicial decisions without referring to natural law or some “canons of reason.” To the extent that natural law cannot be separated from positive law, Harkes is absolutely correct: Every law is created because its authors believe that it is serving some good purpose.

I am reminded of my local state assemblyman who used to have a competition in which his constituents submitted proposals for new laws. He and his staff would then choose three to introduce into the legislature. The contest was called “It Ought To Be a Law,” and while I don’t know what the assemblyman thought of natural law, his competition hits the nail on the head: Every law that exists, that is, points to what should be, an ought. This “ought” is a standard of good and bad, right and wrong, outside of the positive law. Arkes and many others take that ought to be the natural law.

Natural law is therefore inseparable from politics, and it is specifically necessary for legislators. Arkes goes further, however, and insists on its use in judicial decisions; he claims that judges, like Justice Antonin Scalia, should not use “legislative history” to establish the intent or principle of the law as though our fundamental rights would not exist if they were not written somewhere. But this is beside the point. Of course our fundamental rights would exist whether or not those rights were written down, just as the natural law would still exist whether or not people agreed on what that natural law was. What keeps Scalia strictly within the realm of judicial interpretation (and not of policymaking) is that Scalia recognizes that the original intent of the laws, or at least an original textual understanding, may not be consonant with natural law—and that this inconsonance is no reason to overturn laws that seem to be constitutional.

Arkes illustrates his argument that judges have to use moral reasoning with some examples. An 1825 act of Congress established penalties for any person who “shall knowingly and willfully obstruct or retard the passage of mail.” In a case that would strike all (excepting, perhaps, lawyers) as ridiculous, a sheriff who arrested a mail carrier on charges of murder was brought to court under this 1825 statute. Of course, the Supreme Court found that the sheriff acted “without any intent or purpose to obstruct or retard the mail,” and was therefore innocent. Arkes notes that any reading of the statute “detached from any sense of the moral purpose of the statute” would suggest that the sheriff could be prosecuted for his action.

In another example, Arkes notes an old law that prohibited the spilling of “blood on the streets.” Detaching any moral purpose from the statute, a doctor who spilled the blood of a man on the streets in an attempt to save his life would be open to prosecution. When conservative jurists attempt to discover the “original intent,” or original textual understanding, of the Constitution, the attempt must necessarily encompass discovering the moral principle at which the Framers of a particular provision were aiming.

In other words, original intent and an examination of legislative history do not preclude moral reasoning on any particular case. They are essential for informing that moral reasoning. How else can we know what the moral intent of the legislation, or the constitutional provision, is? If each judge appealed independently to natural law and his own canons of reason in order to impute moral purpose into law, decisions would be based on the whims of judges and their particular capacities for reason. On the other hand, seeking the original intent—the original moral principles behind the laws—gives judges a standard that is both moral and reliable. And because the Constitution was passed by an act of consent of the people, that standard is also fundamentally democratic.

All of this is to say that morality and natural law are undeniably part of the legislative process in any political body, and judges must understand the moral intent of laws in order to pass sound judgments. But it is not the role of judges to come up with new canons of reason and natural law; that is the role of statesmen and legislators. It is worth remembering, despite Arkes’s plea that natural law and moral judgment are based on a moral sense and are accessible to everyone, that the tenets of natural law are hardly accessible to all men. The greatest natural law thinkers—from Plato, Aristotle, and Cicero, to Hobbes and Locke—have disagreed on the content of natural law. So we should remember why we go back to original intent and the written text of the Constitution: because the founding was an act then and now consecrated for its unique confluence of great minds and great wisdom. The principles of the Constitution were rooted in historical experience and natural law, and judges must understand those principles to understand the Constitution.

Ilan Wurman is a student at Stanford Law School.

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