Since the 1980s, the American conservative legal movement has been increasingly dominated by originalism and textualism. The theories have taken many forms over the years, starting with a focus on interpreting law by finding the original intent of the lawmaker. Today, the most popular view seems to be that judges should interpret the law according to the original public meaning of the words at the time the law was enacted. In any event, originalism remains the dominant jurisprudence within the conservative legal movement today.
But the conservative legal movement faces a practical problem: an affinity for mainstream originalism has lost its hold on a critical portion of the upcoming generation of conservative law students and lawyers. There are many possible reasons for this shift, but a simple hypothetical (an intentionally extreme hypothetical, which helps reveal the principle at issue) shows the heart of originalism’s tension with the natural law.
What if, tomorrow, the American people amend the U.S. Constitution to state that abortion is a right through all nine months of pregnancy, that a baby is not a human with rights until two years old, and that any baby with an IQ under 70 must be aborted or killed for the good of the nation? Such a law would be higher than any statute, a part of the Constitution, and therefore part of the highest positive (written) law in the nation. It could not be held unconstitutional because it is now part of the Constitution itself. Such a positive law clearly violates the natural law precept to preserve human life unless a person has “deprived himself of the right to live,” a circumstance that can justify capital punishment of a felon but certainly not the murder of a baby. If a judge presided over a case where he was asked to interpret and apply this infanticide mandate, what is the proper response?
This example is intentionally quite extreme to highlight a key point: the argument is not about how often it would be proper to use natural law to overrule a positive law in practice. This is a question of legal principle. Even if judges rarely (if ever) encounter a positive law so obviously contrary to the natural law that the situation would warrant a judge invalidating the positive law (and I maintain that such application would be exceedingly rare), the extreme example is theoretically possible and is helpful to answer the question of whether American judges may, at least in theory, have recourse to this use of natural law.
When an originalist judge (who is also a Catholic and believes that natural law exists) is faced with this extreme constitutional provision, which was enacted through the proper amendment process, what is he to do?
The most common originalist answer is that, because the judge’s role is to interpret the law and because the Constitution is the highest law in the land, if a judge believes a written law conflicts with the natural law, he cannot properly interpret the law before him in good conscience. That judge has no other choice but to recuse himself from the case or resign his office. This seems to be a modern and novel proposition, but it predominates in conservative legal circles today. And if natural law is law (which is how law has been understood from Cicero to Aquinas up until the last century) rather than some abstract, subjective, extra-legal method of philosophizing, then the proper role of natural law in American jurisprudence is worth examining seriously.
If one rejects that there is a universal natural law, written on every human heart and remaining valid regardless of time, place, or culture, one adheres to a strictly positivist view. While such a theory will have a very hard time explaining why there is any reason to call it “wrong” for statutes or constitutional amendments to allow for slavery, for example, such a theory appeals to many lawyers in our own day who accept only the positive law as law. But, thankfully, many originalists do accept the existence of natural law and therefore demand of the positive law a deeper alignment with the natural law. And it is to such originalists that I address the remainder of this article because I think that is where the conversation can be most productive.
Can a Constitutional System Prohibit Judges From Applying Natural Law?
First, it is helpful to distinguish two different questions that are often confused. The first is whether the natural law allows for a constitutional system where judges may only interpret the positive law and not the natural law when rendering decisions. The second is whether America is such a constitutional system.
Professor Joel Alicea makes perhaps the strongest originalist argument for the first position: that it is indeed possible for a constitutional system to acknowledge the natural law and yet restrain judges to interpreting the positive law without recourse to whether the positive law is in accord with the natural law.
According to Alicea, the American system has a good and adequate answer for situations when the positive law conflicts with the natural law: statutes can be enacted to fix statutes that violate the natural law; constitutional provisions can be amended through the amendment process. The U.S. Constitution provides a solution when a positive law conflicts with the natural law, but that solution need not (and does not) include judges invoking natural law to invalidate or declare unenforceable a positive law that contradicts the natural law.
I find a practical inadequacy here: the proposed remedy to a positive law that violates the natural law requires reliance on the very system that has enacted the problematic positive law. The fix is the exact mechanism that was just used to create the positive law that violates natural law. If the United States passes a constitutional amendment that contradicts natural law, stating that the proper remedy is to amend the Constitution again is no practical fix. If the legislative branch is creating laws that violate the natural law, claiming that the same legislative process is the only legitimate solution hardly seems like a solution that will ever remedy the problem in actual practice. It is true that, from St. Thomas Aquinas to the Declaration of Independence to Abraham Lincoln, we find the principle that revolution against a fundamentally unjust regime can be legitimate. But it is worth asking if there is a legitimate (and less drastic) remedy available.
Does the American System Prohibit Judges From Applying Natural Law?
Even if one grants Alicea’s thesis that such a constitutional system is in accord with the natural law, there is a separate question: whether the American system actually was created with such a restraint on judges. It is not at all clear that it was.
Certainly, natural law jurisprudence applied by judges is not an alien concept: “In the broadest sense, ‘natural law jurisprudence’ involves a judge’s resort to a “higher law,” one anterior and superior to the written constitution.” From Cicero through St. Thomas Aquinas, a legal system where the natural law was part of the body of law applied by judges was clearly not a foreign concept. And the American Founders were quite aware of the existence of natural law: the argument that there are self-evident and God-given rights that transcend positive law pervades the Declaration of Independence.
But the acknowledgment of natural law at the time of the American Founding does not preclude the possibility of Professor Alicea’s argument that natural law was not the domain of American judges and that its application was left to other branches of government. The practical, historical question is whether American judges were entrusted with the ability to apply natural law, not simply as a tool to interpret positive law, but as a higher law that could actually invalidate or render unenforceable positive laws that contradict the natural law. Early American court cases contain many examples of judges considering and articulating precepts of natural law when interpreting positive law.
In Chisholm v. Georgia (1793), for example, Justice Wilson held that a South Carolina citizen could sue the state of Georgia, not just because Article III of the Constitution gave the federal courts jurisdiction in “controversies between a state and citizens of another state,” but because of what he believed to be the “principles of general jurisprudence” upon which the Constitution rested. (The decision was ultimately overturned by the Eleventh Amendment in 1795.) In the same term, the Court, interpreting both the federal and state constitutions, noted that “the right of trial by jury is a fundamental law, made sacred by the Constitution,” and that “the right of acquiring and possessing property, and having it protected, is one of the natural, inherent rights of man” (Vanhorne’s Lessee v. Dorrance).
In the two cases cited above, the judge reasoned that certain natural rights are enshrined or bolstered by, rather than created by, the Constitution. Early American judges took natural law into account as a body of law that could not be contradicted by positive law. Critics of a natural law jurisprudence will point to early American cases like Calder v. Bull and join with Justice Iredell in holding that “the court cannot pronounce [a positive law] to be void merely because it is in its judgment contrary to the principles of natural justice.” But Iredell’s contention rests on the assumption that, first, there can be no clarity about what the natural law is. That is by no means clear; there are certainly cases, however rare, where a positive law can be objectively judged as contrary to basic principles of natural law.
Second, Iredell’s contention assumes that even if such a positive law may run contrary to the natural law, a federal judge may not rest his holding solely on that positive law’s incompatibility with first principles. Yet Justice Samuel Chase, who opposed Iredell in Calder, was well within the long Anglo common law tradition of judges seeking recourse to the natural law when the positive law lacked coherence. For many years, American legal scholars have lived under the fiction that judges in the American system, uniquely among the three branches of government, are heirs to Iredell’s holding and lack the capacity to resolve statutory ambiguities or direct clashes between natural law and positive law with recourse to those general principles of natural justice, rather than viewing the presence of this debate in the founding era as historical indicia of natural law’s relevance to the role of the judge as a live issue. Indeed, there is no reason Iredell’s view alone ought to represent the complete, settled, and authoritative sense among the founders on this question, especially as a historical matter. Yet this has become the base assumption of positivist originalists.
The existence of early American judicial opinions grounding rights in the natural law rather than solely in constitutional text, and even using natural law principles to limit positive law, is quite meaningful. This trend ebbed and flowed throughout American history and eventually such natural rights-arguments became grounded in substantive due process claims rather than natural law itself. This history does not preclude the idea that natural law was part of the body of law early American judges applied when deciding cases involving positive laws. In fact, the acknowledgment by early American judges that principles of natural law are part of the body of American law strengthen the claim for an American natural law jurisprudence.
A Proposal
The idea that judges may use the natural law to render a positive law unenforceable when it contradicts the natural law is not a mere novelty, nor is it the exclusive domain of Common Good Constitutionalism. What follows is a modest proposal to consider, one that generally restrains judges to interpreting the original meaning of positively enacted law.
It should be stated clearly that this proposal comes from a place of great respect for the uniqueness of the American legal tradition. In a civil law government or in the British common law tradition, the use of natural law by judges could be quite different. But the United States enacted a written Constitution, which lays out the structure of the federal laws and government. That cannot be taken lightly. A flippant preference for natural law or other classical law traditions is in no way what is being advanced here. In nearly all cases in American courts, a statute or constitutional provision will be properly assumed by the judge to be in accord with the natural law and in furtherance of the common good. I am confident that the current U.S. Constitution does not have a single provision that contradicts the natural law. So originalists need not fear that the natural law jurisprudence proposed here would enable judges to ignore or downplay constitutional text in favor of a judge’s understanding of what the natural law requires.
The proposal for what I am calling a restrained natural law jurisprudence, then, would mean only this: a judge’s job is to interpret the law. Because the American system gives the authority to enact positive law to legislators (and in the case of constitutional amendments, to either the legislature or a constitutional convention), the role of the judge is to defer to the lawmaker as having made a law consistent with the natural law whenever possible. While natural law may be more regularly invoked to resolve a statutory ambiguity, I propose it is only when a law is clearly contrary to the natural law that a judge may invoke the higher law (natural law) to declare the lower (positive) law unenforceable.
Just as judges should interpret statutes as consistent with the higher law of the Constitution whenever possible, judges should do the same and invoke natural law over and against a positive law only when there is no way to avoid the conflict. Just as the constitutional avoidance doctrine prevents judges from deciding constitutional issues whenever a case can be decided on other grounds, so something of a “natural law avoidance doctrine” should be in place to avoid application of natural law against positive law whenever possible. In addition, if there are multiple interpretations of a positive law, the law should always be interpreted to be consistent with the natural law. With such guardrails in place, the judge’s role would be indistinguishable from what is advocated by originalists: to interpret the original public meaning of the words of the positive law. Only in the most rare and extreme circumstances, such as the hypothetical infanticide provision mentioned earlier, would this natural law jurisprudence ever come into play.
This proposal may make originalists uncomfortable. But it is important to start with the question of whether a jurisprudence that can apply natural law in this way is correct as a matter of principle before working out the details of its application. And as the work of natural law scholars and Common Good Constitutionalists continues to capture young legal minds, and as originalism and textualism have created concern among conservatives in the wake of cases like Bostock and now Trump v. Barbara, it is time for conservative legal thinkers to do more to address the reality that natural law is law and that it may have some place in the American judicial system.
Originalist critics of the role of natural law in American jurisprudence worry that there would be as many theories of natural law as there are judges. This is indeed a problem. Many of today’s judges and legal theorists are not equipped to interpret and apply the natural law. But this is a problem of education, not a problem of natural law jurisprudence itself. Natural law as a concept is foreign to most American lawyers. It is also often general and under-determined–which is why the positive law is necessary in the first place to concretize the natural law’s application to the specifics of a given locality. A properly educated lawyer has tools available to understand objectively what the natural law is and when a positive law is clearly inconsistent with the natural law. This is not a matter of philosophy or the policy preference of the judge. It is an objective reality. Until natural law reasoning and jurisprudence are taught as a matter of course in law schools, it is indeed the case that judges will be unable to apply natural law appropriately. But just as originalism requires judges to understand the history of legal texts, so does a jurisprudence of natural law require judges to understand those operative principles that must underlie any legitimate legal order.
This situation is not hopeless; a proper education can remedy the concern. The starting point is to understand the primary precepts of the classical natural law: no positive law may contradict the natural law requirements to preserve human life, natural human reproduction, education, harmonious and ordered life in society, and the worship of God. Of course, these are broad, under-determined principles. That is why they need to be further articulated in positive law. And any positive law should always be interpreted by a judge as being consistent with these principles whenever possible. But if a positive law is so unnatural, so contrary to the principle of allowing the worship of God or preserving human life, that no interpretation can save it, the natural law comes into play.
This article attempts to begin a discussion, neither dismissive nor uncritically accepting of non-originalist jurisprudential systems. By asking honestly what role natural law should have in the work of American judges and providing starting points for discussion, the hope is to pave a way forward that can unite the conservative legal movement, explore the proper role of natural law, and bring lawyers and scholars together in good faith. If the natural law has a role in American jurisprudence, that has to be acknowledged honestly and carefully, not dismissed out of hand as “judicial activism” nor embraced without respect for the U.S. Constitution.
The opinions expressed in this article are those of the author and not his employer.
