In defense of natural law

IF THEY'RE HONEST with themselves, both supporters and opponents of Clarence Thomas' nomination to the Supreme Court will admit that Thomas' confirmation hearings were less than enlightening.

For the most part, Democratic senators asked loaded questions designed to get Thomas to say something that would hurt his chances. For the most part, Republican senators asked softball questions designed to make Thomas look good.


And, for the most part, Thomas avoided answering all of them, walking away from his own past and statements and reinventing himself to such a degree that no one is now sure who he is.

The hearings were particularly disappointing when they focused "natural law" and "natural rights." A thorough discussion of those concepts would have provided a very useful national civics lesson.


"Natural law" became an issue because Thomas had actively supported the concept in a number of highly visible speeches throughout the '80s. Historically, "natural law" holds simply that civil law should reflect a "higher law" with principles that value human life and freedom. The theory also holds that human beings can understand those principles by applying reason.

The Catholic tradition, as expressed by Thomas Aquinas in the 13th century, supports natural law. But so does the secular, Enlightenment philosophy of John Locke and Thomas Jefferson. America is built upon belief in natural law. The Declaration of Independence says, "We hold these truths to be self-evident; that all men are created equal."

Four years ago, the chairman of the Senate Judiciary Committee, Joseph Biden (D-DE), was concerned that another Supreme Court nominee, Robert Bork, didn't believe in natural rights. Biden told Bork, "As a child of God, I believe my rights are not derived from the Constitution. . . . My rights are because I exist. They were given to me and each of my fellow citizens by our creator, and they represent the essence of human dignity."

Today, Biden is concerned that Thomas does believe in natural law. Biden and others had two particular concerns. First, they oppose a more recent, conservative use of natural law language that supports increased rights for property, presumably at the expense of people.

The second concern comes from those who don't want to see the Supreme Court's rulings on abortion overturned. Thomas refused to talk about that decision -- he denied he even had an opinion about it -- and Democratic senators wanted to see if Thomas' support for natural law would translate into a position against legal abortion.

Thomas had praised an article by conservative Lewis Lehrman that used natural law to defend the fetus' right to life. But those who speak of the rights of the mother are also using natural law language. Natural law provides the framework; it doesn't provide all the answers, and it's often cited by people on both sides of an argument.

Thomas was clearly scared off by criticism of his belief in natural law. He repeatedly told the Judiciary Committee "I don't see a role for the use of natural law in constitutional adjudication. My interest in exploring natural law and natural rights was purely in the context of political theory. I was interested in that. There were debates that I had with individuals, and I pursued that on a part-time basis."

Buried in Thomas' denials and evasions, however, was a pretty good linkage between the "political theory" of natural law and a Supreme Court justice's job of interpreting the Constitution. "Our founders, the drafters of the 13th, 14th amendments, abolitionists, believed in natural law," he said, "but they reduced it to positive law. The positive law is our Constitution. And when we look at constitutional adjudication, we look to that document.


"We may want to know, and I think it is important at times to understand what the drafters believed they were doing as a part of our history and tradition in some of the provisions such as the liberty component of the due process clause of the 14th Amendment. But we don't make an independent search or an independent reference to some notion or a notion of natural law."

That's not bad. The facts are simple. American civil law is based on the existence of a "self-evident" higher law. That law provided principles for the U.S. Constitution. The fact that people can cite those principles to support their positions on either side of an issue doesn't lessen their importance. The natural law theory reminds us that while governments must protect rights, they are not the source of rights.

It's sad that neither the Senate Judiciary committee nor a man likely to sit on the U.S. Supreme court could say that clearly -- or indicate that it's a good thing.