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Judge Thomas and 'Natural Law'

THE BALTIMORE SUN

Washington. -- If Americans have the patience to listen to the often highly abstract debate that already surrounds the legal views of Supreme Court nominee Clarence Thomas, they will hear the modern echoes of a controversy that goes back well over two centuries.

It is no less than a debate over where Americans get their rights: the source of their fundamental rights as human beings and the origins of their legal rights as citizens of this country.

The debate got started after President Bush picked Judge Thomas, of the U.S. Circuit Court of Appeals for the District of Columbia, to replace retiring Justice Thurgood Marshall. Liberal groups poring over Judge Thomas' writings and speeches soon discovered that he is an apostle of "natural law" and "natural rights."

That approach to the meaning of the law, and of the U.S. Constitution, has an ancient pedigree. And, while it may appear to be an academic abstraction debated seriously only by speculative scholars, both its adherents and its critics say that it could provide the key to a judge's vote on one side or the other of a very real legal or constitutional dispute.

Judge Thomas has proclaimed often, with no apology, his attraction to "natural law" as a political and judicial philosophy. When the discovery of that led to an immediate barrage of criticism, however, Judge Thomas and his supporters began to offer public assurances that his views along those lines did not mean he was prejudging any issues that he might confront as a justice.

Last month, his chief Senate sponsor, Sen. John C. Danforth, R-Mo., said it had been only "a throwaway line" when Judge Thomas in a speech had praised a magazine article by conservative businessman Lewis Lehrman using "natural law" as basis for criticizing the Supreme Court's abortion-rights decision.

Liberal analysts of Judge Thomas' views had fixed on that very line as proof that the "natural law" approach to the definition of rights under the Constitution would lead him, as a justice, to overturn many modern court rulings protecting women and minorities, especially Roe vs. Wade, the 1973 abortion ruling.

But some conservative analysts have chimed in with criticism, too, saying that the "natural law" approach would lead Judge Thomas into the error of writing his own views of the rights people should have into the Constitution -- the error those analysts have long found in the work of liberal justices, including Justice Marshall.

In general, the "natural law, natural rights" view suggests, at least to some of its adherents, that Americans' most basic rights actually come from God and that the moral order of the universe is a good place to start looking for the meaning of rights under the U.S. Constitution.

It is a view that, for some, has a good deal of religious belief behind it

Its critics say it would turn judges loose to make decisions that suit their own personal beliefs or fears, but its adherents -- including, in this instance, Judge Thomas himself -- say that it is the real clue to judicial restraint and "limited government" in general.

To critics, it would imprison American policy in stingy, traditional notions of "goodness" and morality, and would hold women and minorities down to subordinate levels of social rank or status. To its adherents, including Judge Thomas, it would liberate Americans to develop on their own, without intrusive government meddling.

It is clear that those who claim to understand the "natural law" or "natural rights" concept do not agree on just how it would come out in the specific actions of a judge or a court stirred by that philosophy. No one can predict with assurance how a Justice Thomas would vote if he put "natural law" to work on the Supreme Court.

One thing is clear, though: There is no "natural law" adherent on the court right now, and thus Judge Thomas' capacity to use theories based on the concept to influence his colleagues might be quite limited. Even so, those theories might well lead him to support some far-reaching future decisions fashioned by a conservative-dominated court, even if the reasons he gave for his vote were his alone.

"Natural law" theory, for example, might well lead Judge Thomas to cast his vote to overrule the Roe vs. Wade decision creating a woman's right to abortion, because he has argued that judicial restraint is a cardinal virtue of "natural law" theory. He has spoken harshly of "run-amok judges."

On the other hand, some constitutional right of privacy -- the core doctrine beneath the Roe decision -- might survive a "natural law" analysis, because it might be traced to abiding notions of "natural right" instead of to the words of the Constitution.

In fact, a scholar whose work is often cited in Thomas speeches, Harry V. Jaffa, a political philosophy professor at Claremont McKenna College, has developed an argument for keeping intact the Supreme Court ruling in 1965 (in the case of Griswold vs. Connecticut) that developed the privacy right that later led to the Roe ruling.

A 1988 magazine article by Mr. Jaffa, specifically cited with approval by Judge Thomas, suggested that the Connecticut law struck down in that decision -- a law making it a crime for anyone, including married couples, to use birth control -- could well have been nullified on a "natural law" theory.

Mr. Jaffa wrote that, while the Constitution might not contain any "right of privacy" as such, the theory of "limited government that underlies the whole Constitution" puts in doubt "any invasion of privacy by government." The professor added: "The burden of proof for the justification of an invasion of privacy -- certainly an invasion in the area of marital relations -- lies with the government."

Judge Thomas himself has criticized the Griswold decision as an "invention," but he did so because the court had based that ruling upon a concept of constitutional privacy it found within the Constitution's Ninth Amendment. Judge Thomas' approving reference to the Jaffa article at least raises the possibility that he might look at it differently through the prism of "natural law."

Judge Thomas has used his "natural law" beliefs frequently as the premise for scathing criticism of an old Supreme Court ruling that virtually everyone today agrees was one of the court's worst-ever mistakes. That was the decision 134 years ago, in the case of Dred Scott vs. Sandford, ratifying slavery by declaring that black slaves and former slaves had absolutely no constitutional rights because they could never become citizens even after they were freed.

That ruling was wrong, nominee Thomas has written, not because it violated anything that was then written explicitly in the Constitution. The fundamental wrong of the Dred Scott ruling, according to him, was that it violated the idea of "natural rights": It broke the "higher law" that mandates "inalienable rights" as natural to all humans.

Rather than looking to the words of the Constitution at the time, Judge Thomas has suggested, the court in 1857 should have looked back to the grand phrases of the Declaration of Independence in 1776, declaring all people to be equal and proclaiming their "inalienable rights" as human beings.

"With the Declaration as a backdrop, we can understand the Constitution as the Founders understood it -- to point toward the eventual abolition of slavery," Judge Thomas has written. "Nonetheless, emancipation had to be made explicit through a constitutional amendment." (Slavery was abolished by the 13th Amendment, ratified in 1865, eight years after the Dred Scott ruling.)

The uncertainty about the effect of using "natural rights" theory in explaining the Constitution's meaning, however, is well illustrated by another view of that theory as it might bear upon the Dred Scott ruling.

This contradictory view has been expressed by a noted conservative constitutional theoretician -- former federal judge and one-time Supreme Court nominee Robert H. Bork. In a book he wrote after the Senate rejected him as a justice four years ago, Mr. Bork lambasted "the theory that there is an unwritten law, a natural law, that judges should enforce."

The Dred Scott decision, according to Mr. Bork, was a "manifestation of the natural law." Anyone defending "natural law" as a key to the Constitution, the former judge wrote, must contend with the very real doubt that those who wrote the Constitution originally ever contemplated that courts would be allowed to make decisions based on "an unmentioned natural law."

Judge Bork's approach, and the approach now favored by at least some of the current Supreme Court's conservative justices, is that the Constitution should be understood according to the "original intent" or "original meaning" of its words.

But that approach was sharply challenged -- and Mr. Bork was challenged personally for following it -- in the 1988 magazine article by Mr. Jaffa that Judge Thomas has several times relied upon favorably in speeches.

Judge Thomas and Mr. Jaffa both have criticized the Senate for not approving Mr. Bork for the Supreme Court, but the 1988 article attributed some of Mr. Bork's problems with the Senate to his failure to embrace "natural law" theory.

Aristotle to Thomas

Natural law," a concept that can be traced all the way back to Aristotle in fourth century B.C. Greece, was "Americanized" before the Revolutionary War when Colonial thinkers were seeking ways to justify the planned break from England.

Thus, the Declaration of Independence of July 4, 1776, cites "the laws of nature and of nature's God" as the basis for claiming rights for colonists independent of any rights they had under English law. The Declaration says that it is "self-evident . . . that all men are created equal, and that they are endowed by their creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness."

The theory that the meaning of the U.S. Constitution can be found in concepts of "natural law" or "natural rights" is traced to the Declaration of Independence as one of the nation's founding documents.

To those who believe in "natural law," the understanding is that it involves a system of right and justice common to all humankind, beyond any written law or constitution, and that it can be discovered by human reasoning or perhaps by revelation from God.

A well-known expert on the Declaration, the late Carl L. Becker, Cornell history professor, described the "national rights philosophy" held by many of the Founders as a theory that "there is a 'natural order' of things in the world, cleverly and expertly designed by God for the guidance of mankind; that the 'laws' of this natural order may be discovered by human reason; [and] that these laws so discovered furnish a reliable and immutable standard for testing the ideas, the conduct and the institutions of men."

For Example. . . .

One of the most-cited examples of "natural law" as a basis for a court ruling was the opinion of three justices in the majority in the Supreme Court's 8-to-1 ruling in April 1873 in the case of Bradwell vs. Illinois, denying women an equal right to become lawyers:

"Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator."

Lyle Denniston covers legal affairs and the Supreme Court for The Sun.

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