Supreme Court justices sometimes devise overly clever “tests” in their opinions to determine the constitutionality of a law or government action.
Here’s my one-pronged (and multi-part) Supreme Court minimal competency test, derived from Abraham Lincoln’s critique of Chief Justice Taney’s opinion in Dred Scot:
Was Lincoln right in making the Declaration of Independence the basis of constitutional government? Was he correct in objecting to Senator Stephen Douglas’s assertion that all who question the correctness of the Court in Dred Scott are “offering violent resistance to it”?
When does the Court go too far? What is the role of the Declaration in its decisions? Was the venerable Justice Holmes, beloved on the Left and Right alike, wrong when he declared, “If my fellow citizens want to go to Hell I will help them. It’s my job”?
The alternative to Holmes’s nihilism, his mockery of democracy, is the Declaration of Independence with its natural rights philosophy. But of course, both Holmes and his fellow Progressive Woodrow Wilson had nothing but contempt for natural law and the Declaration. And they taught that contempt to generations of scholars and lawyers. Today those lawyers populate Congress, in a bipartisan plague.
These long suppressed struggles over natural law became prominent again in 1987 when then-Senator Joseph Biden (D-Del.) attacked Robert Bork for scoffing at natural law and affirming the power of majorities. Then, switching gears, in 1991, Biden ridiculed Clarence Thomas for appealing to natural law for limiting the power of majorities. Thomas’s interest in natural law was spurred by his interest in advancing anti-slavery arguments like those of Lincoln.
More recently, in 2010, Senator Tom Coburn (R-Okla.) showed that Elena Kagan would not acknowledge the Declaration of Independence as the basis for the Constitution:
KAGAN: Senator Coburn, to be honest with you, I don’t have a view of what are natural rights, independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and other laws of the United States.
COBURN: So you wouldn’t embrace what the Declaration of Independence says, that we have certain inalienable and God-given rights that aren’t given in the Constitution, that are ours, ours alone, and that the government doesn’t give those to us.
KAGAN: Senator Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights preexisting the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.
COBURN: I understand that. I’m not talking about as a justice, I’m talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?”
We may see in this week’s Gorsuch hearings yet another twist of natural law. Gorsuch studied under “new natural law” scholar John Finnis and produced a remarkable 320-page treatise, The Future of Assisted Suicide and Euthanasia. The book is part of a series edited by America’s preeminent new natural law scholar, Princeton’s Robert George, who is likewise a student of Finnis.
Before proceeding, I should add here that I knew Gorsuch in 2006 when he was deputy associate attorney general at the Justice Department, where I was a speechwriter. Like his other colleagues, I was impressed with his intellect and collegiality and I strongly support his nomination to the Court. As will be seen I have some reservations about “new natural law,” which, however, do not diminish my support for Gorsuch for a seat on the Court.
My hesitation about “new natural law” amounts to this: Why does the world need a “new natural law”? What’s wrong with the old one, going back to Aristotle, Cicero, Thomas Aquinas, and Thomas Jefferson? Finnis’s Natural Law and Natural Rights made the case for the new natural law, which would appear to many scholars as an outgrowth of British analytic philosophy, with all its strengths, shortcomings, and dryness.
Advocates of the old natural law pounced on this break from tradition. Paleo-conservative legal scholar Bruce Frohnen complains, “What is lost in the process of reducing natural law reasoning to the derivation of rules of conduct from logical premises is historically grounded prudence.”
In fact, the new natural law may be more clearly understood by contrasting it with the old. The old was rooted in a teleological conception of human nature: man is understood by his purpose. Man was intended (by nature and/or creation) for a final purpose. Toward that end, our lives must hone certain human excellences or virtues, moral and intellectual. Duties rather than rights characterize human existence, which is by nature social and political, not radically autonomous. The common good struggles for recognition, urged on by visions of the best regime.
By contrast, the comparatively apolitical new natural law features a list of “basic goods” or “values,” which are essential for human life—knowledge, play, aesthetic experience, sociability, practical reasonableness, and “religion.” Such goods cannot be reduced to utilitarian instruments. Nor do they exist in a hierarchy, and “practical reasonableness” determines how they should be realized in particular circumstances.
The prudence of old natural law statesmanship is thereby downplayed. Contrast Gorsuch’s use of the Declaration of Independence with that of Clarence Thomas. While Gorsuch would use the Declaration to question termination of life issues, Thomas might well use it to attack the legitimacy of the administrative state. Gorsuch’s moderation should comfort critics of the older natural law, such as then-Senator Biden or other ill-informed critics of originalism such as Senator Dianne Feinstein (D-Calif.).
Natural law scholar Samuel Gregg is correct, however, to point out that “what matters is that [new natural law theory’s] understanding of the political common good underscores the necessity of limited and therefore constitutional government.” New natural law theory would limit judicial power, along with government power in general.
Gorsuch applies some of Finnis’s argument in chapter nine of his book where he offers reflections on the meaning of life as a “basic good.” Much of his argument can be found in article form in the Harvard Journal of Law and Public Policy, which encapsulates his book. By applying practical reasonableness in unpacking the meaning of life as a basic good, Gorsuch questions the shaky moral assumptions behind state-sanctioned assisted suicide and euthanasia. He brings the sagacity and the compassion of a Leon Kass to the bar. (Gorsuch never mentions Kass or Hans Jonas in his book.)
He does turn aside the sophisms of Judge Richard Posner and libertarian hero (and Biden villain) Richard Epstein on these issues. Against Epstein’s somewhat qualified defense of assisted suicide and euthanasia, Gorsuch responds: “[I]f laws absolutely proscribing slavery contracts and dueling can be defended as consistent with the libertarian ideal, why not also laws banning all forms of assisted suicide and euthanasia?”
One should add that this is also a remarkably courageous book, beginning as it does with a critique of the much-ridiculed sweet “mystery of life” passage in the abortion rights case, Planned Parenthood v. Casey (1992):
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.
This passage is said to have been authored by Justice Kennedy, for whom Gorsuch once clerked. Gorsuch’s book contrasts this formless due process clause meandering with the relative discipline of equal protection and shows how human dignity can be protected by a rich understanding of equal lives being protected even in the most trying conditions.
In any event, the hopes of George Will and others to the contrary, it is a circuitous route from the old natural law of Jefferson and John Marshall to Gorsuch’s new natural law—to extent that he chooses to advance it. This qualification is crucial, since Gorsuch’s jurisprudence, for example, his critique of the administrative state, relies far more on the construction in his cases than in any application of natural law.
A robust jurisprudence of natural law, however, requires that Thomas Aquinas and Thomas Jefferson meet and discover themselves in each other, as Harry V. Jaffa argues:
There is no patronage here of the notion, popular today, that the pursuit of happiness means “doing your own thing,” no matter what that “thing” is. Finally, we see Washington asserting that the boundaries of national policy, the actions of citizens and statesmen, whether private or public, must conform to “the eternal rules of order and right.” Wherein does this differ from Thomas Aquinas’s concept of the natural law, as the rational creature’s participation in the eternal law? This, freed from the obscurantism of historicism, relativism, and nihilism, is our true inheritance.
Jaffa portrays the power of the natural law as conceived by the twin Thomas’s. By contrast, scholar Gorsuch—while humanizing debate over the fundamental right to life, as applied to termination of life issues—does not require or even sanction old or new natural law standards directly intervening in American jurisprudence. In doing so, he displays the new natural law “basic good” of practical reasonableness, a much-needed virtue in a Supreme Court justice.
Whatever the great differences between old and new natural law, Lincoln bridged the difference in denying that courts could not use them to subjectively overturn settled statutory law.