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The Natural Law and Conservative Judges Print E-mail
By Hadley Arkes   
Tuesday, 08 November 2011

A former president of my college once remarked that I had a “theory” of natural law. I noted, in response, that when people said things like that, they suggested a detached onlooker standing by, watching the theories whizzing past. And somehow they manage to make judgments on just which theories or fragments they find plausible or implausible, true or false. 

I told him then: take me to the grounds on which you make those judgments, on the things we can know as true or false. They would lead us back to the Laws of Reason and Nature as the ground of the law. 

One of the oddities of our time is how many Catholic lawyers look upon the natural law as a collection of hazy sentiments, hovering in the sky, having little practical bearing on the cases that come before them. They identify the natural law with “activist” judges on the Left, soaring off into the stratosphere, offering high-minded sentiments, untethered to anything in the text of the Constitution.   

And yet, if we can recognize the misuse or abuse of the natural law, that suggests we can tell the difference between a plausible and implausible, rightful or wrongful use. Why not get clear, then, on the rightful use, rather than abandon the natural law altogether?

What animates this movement, I fear, is that some Catholic lawyers and judges, recoiling from the misuse of moral reasoning in the law, have lost confidence in reason itself. They cling to the text, hoping to avoid any – gasp – moral arguments running back to first principles, even when that device has been persistently unavailing. For at almost every turn, they are forced beyond the text to explain the provisions in the Constitution. 


         Chief Justice John Marshall

Chief Justice John Marshall often made this move in the formative years under the Constitution. He pointed out once that, apart from the matter of punishing piracies and felonies on the high seas, the Constitution gave Congress no power to punish.  But if the Congress could establish the mails, surely it could preserve the mails against theft. 

Marshall had to draw the explanation from the logic of law itself:  A law was binding on everyone who came within the jurisdiction of the polity. If a law could not be enforced, how could it be made binding on those who would not obey it? And if people may not be punished for doing what the law forbids, how would the law be “law”?

One of the most critical parts of the Constitution is the clause that bars states from passing laws “impairing the Obligation of Contracts” – for example, in canceling debts (Art. I, Sec. 10). But that principle was not created by the positive law of the Constitution, the law posited or set down in the text.

As John Marshall and Daniel Webster argued, there was something natural and “universal” about contracts:  People abandoned on desert islands have made promises to one another; they staked their lives on the prospect that the promises would be kept; and those promises have been sustained by the courts when the survivors returned.


            Secretary of State (and Senator) Daniel Webster

I promise to pay the people painting my house and, on the basis of that promise, they forego other work necessary to support their families. It is simply part of our nature to understand what it means to make a promise – and the moral reasons for keeping a contract. But all that presupposes that we are dealing with contracts directed to legitimate ends. The law will not enforce contracts for prostitution or murders. 

If prostitution were legalized, of course, the matter would be notably different. The “Contracts Clause” of the Constitution represents one of the deep principles of lawfulness, but nothing in the Constitution distinguishes a legitimate from an illegitimate contract. We are thrown back upon the sense of the community about things that are rightful or wrongful, to the moral reasoning that should ever form the laws.

Only one kind of creature can make a contract – or a law.  For only one kind of creature understands what it means to bear an obligation that may no longer accord with his interests or inclinations. Any serious discussion of the law will have to lead us back to that one creature who must ever be the subject and object of the law. 

We must be led back, as John Paul II said, to that question of “the human person.” One of my favorite jurists remarked, in a case dealing with abortion, that the nine members of the Supreme Court were no more capable of judging when human life begins than nine persons selected at random in the local telephone directory. The question of what constitutes a “human life” has to be answered in the political arena. 

All that is prelude to the question of why even the conservative and Catholic jurists think they can do nothing more on abortion than overturn Roe v. Wade and return the matter to the states. The Supreme Court, in one stroke, removed small humans in the womb from the protections of the law. Is it really so clear that the Constitution offers no scheme of reasoning to protect this class of vulnerable human beings when the protections of the law are withdrawn in the states?  

To that question I will turn – next time.


Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.

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written by Michael Paterson-Seymour, November 08, 2011
As Blaise Pascal sourly remarked: "On what shall man found the order of the world which he would govern? Shall it be on the caprice of each individual? What confusion! Shall it be on justice? Man is ignorant of it.

Certainly, had he known it, he would not have established this maxim, the most general of all that obtain among men, that each should follow the custom of his own country. The glory of true equity would have brought all nations under subjection, and legislators would not have taken as their model the fancies and caprice of Persians and Germans instead of this unchanging justice. We would have seen it set up in all the States on earth and in all times; whereas we see neither justice nor injustice which does not change its nature with change in climate. Three degrees of latitude reverse all jurisprudence; a meridian decides the truth. Fundamental laws change after a few years of possession; right has its epochs; the entry of Saturn into the Lion marks to us the origin of such and such a crime. A strange justice that is bounded by a river! Truth on this side of the Pyrenees, error on the other side.
Men admit that justice does not consist in these customs, but that it resides in natural laws, common to every country. They would certainly maintain it obstinately, if reckless chance which has distributed human laws had encountered even one which was universal; but the farce is that the caprice of men has so many vagaries that there is no such law."

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