Natural Law and Its Discontents
Despite suggestions that natural law theory is on the decline, recent press and political statements have suggested that the opposite is true: natural law theory is alive and well in American politics.
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Justice Clarence Thomas was nominated and appointed to the United States Supreme Court in 1991. During his confirmation hearing, then-Senator Joe Biden, as chairman, began by saying: “Judge Thomas, you come before this committee in this time of change with a philosophy different from that which we have seen in any Supreme Court nominee in the 19 years since I have been in the Senate. For as has been widely discussed and debated in the press, you are an adherent to the view that natural law philosophy should inform the Constitution. Finding out what you mean when you say that you should apply the natural law philosophy to the Constitution is, in my view, the single most important task of this committee and, in my view, your most significant obligation to this committee.”
Senator Biden’s apparent misgivings towards natural law philosophy represent a much larger cultural impulse within the American social imaginary. The term “natural law”––generally associated with conservative political thought, grounded in religious teachings, and originating with the Roman Catholic Church––is thought by some to be outdated and by others superfluous. To Senator Biden, for example, it was clearly surprising that a federal judge, such as Thomas, held to a natural law theory at the dawn of the 21st century. But, as this article will suggest, natural law philosophy is neither a dead ideology nor a wholly un-American one. In fact, natural law is woven throughout the Declaration of Independence, case law, and modern works of political theory that continue to influence judges, professors, and students. Despite suggestions that natural law theory is on the decline, recent press and political statements have suggested that the opposite is true: natural law theory is alive and well in American politics.
A Traditional Explanation of Natural Law
St. Thomas Aquinas (c. 1224/25–1274) is the primary source of natural law theory. In his Summa Theologica, Aquinas wrote extensively on theology, philosophy, and law, and many of these ideas are still referenced in modern legal scholarship. In Aquinas’ view, law could be separated into four distinct categories: eternal law, natural law, human law, and divine law. Aquinas’ first tier, eternal law, is derived from the existence and providence of God. In Aquinas’ words, eternal law is based on the idea that “the whole community of the universe is governed by divine reason.” He calls this concept of “divine governance” eternal law.
From this first tier, Aquinas reasons that humans, as partakers of the eternal law, experience a “share of the eternal reason” by which we receive “a natural inclination” toward our proper end. This telos, or ultimate purpose, is called natural law: a belief that divine, perceivable principles orient one towards true goodness. Aquinas explains that “we know immediately, by inclination, that there are a variety of things that count as good and thus to be pursued—life, procreation, knowledge, society, and reasonable conduct.” Alexander Hamilton alludes to this natural law idea in Federalist Paper 31, saying, “There are certain primary truths, or first principles, upon which all subsequent reasonings must depend.” Natural law theory posits that (1) those first principles exist in the natural world and (2) humans can perceive them.
The third category of law, human law, is the product of those “subsequent reasonings” mentioned by Hamilton. In Aquinas’ view, natural law principles are broad and insufficient to answer the particular problems presented by human society. Thus, human law is necessary to answer those lesser issues. But human law is not entirely separate from natural law; rather, it is a product of it. Natural law provides the general (often called the first or indemonstrable) principle from which a lawmaker can deduce specific principles. Thus, human law does not conflict with natural law but is the application of natural law’s larger principles to temporal needs.
The final category is divine law, which are the moral commandments presented in Scripture––and more specifically, the Decalogue. Aquinas views this final category of law as a “check” to the citizen and the lawmaker to ensure that their actions align with God’s principles. Aquinas’ separation of law into eternal, natural, human, and divine has been preserved in Roman Catholic social teaching and has influenced numerous political philosophers––not least among them, the Founding Fathers.
Examples of Natural Law in American Jurisprudence
Justice Thomas’ claim that natural law theory plays a role in interpreting the Declaration of Independence can be traced back to the Declaration itself. The Declaration of Independence famously provides a statement of human rights––life, liberty, and the pursuit of happiness. But more importantly, the Declaration identifies the source of these rights. This justification is presented in the first few lines:
“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them . . .”
Thus, it may be reasonable to employ natural law in attempting to understand the Declaration of Independence. The text itself seems to evidence that the Founding Fathers had natural law theory in mind while drafting America’s inaugural documents. It is no surprise, therefore, that the idea of a natural law theory extended beyond the Declaration of Independence in American jurisprudence––seeping into caselaw and developing legal theory.
For example, in Ogden v. Saunders, Chief Justice Marshall stated: “I admit that men have, by the laws of nature, the right of acquiring, and possessing property . . . and the right of contracting engagements. . . . [and] other natural rights, brought with man into society; and, although they may be controlled, are not given by human legislation. . . . This natural obligation is founded solely in the principles of natural or universal law.” Seventeen years earlier, in the famous case of Fletcher v. Peck, Chief Justice Marshall made a similar statement: “[Y]et there are certain great principles of justice, whose authority is universally acknowledged, that ought not to be entirely disregarded.” While Justice Marshall’s rulings were not based entirely on natural law, since he provided alternative justifications for his decisions, he certainly entertained a natural law theory during his analysis.
The Adherents
To return to 1991, after Senator Biden’s question, Justice Thomas responded that––while natural law did not have a place in constitutional adjudication––natural law philosophy is necessary to understand the Declaration of Independence and other founding documents. This should come as no surprise considering the presence of the words “Laws of Nature” in the Declaration and Justice Thomas’ originalist philosophy. Further, Thomas argued that natural law was the basis for further advances in civil rights––such as the abolition of slavery. This, too, is unsurprising. Natural law’s influence on civil rights has had a long precedent in American politics, such as John Quincy Adams’s oral argument in U.S. v. Cinque and Dr. Martin Luther King’s Letter from Birmingham Jail. Thus, in Justice Thomas’ view, natural law is a necessary tool in constitutional interpretation but does not extend to adjudication or application.
Other members of the Supreme Court, besides Justice Thomas, are also affiliated with natural law theory. Certain journals have examined Justice Gorsuch’s book and dissertation as evidence of his belief in natural law. In these writings, which Gorsuch wrote under the supervision of natural law philosopher John Finnis, Gorsuch argues against the use of assisted suicide, basing his argument on “a moral imperative” and the fundamental principle of the “inviolability of life”––linking him to a long history of natural law theory using similar terminology.
Additionally, Justice Breyer, a politically liberal judge, is thought to have held natural law principles. An analysis of Justice Breyer’s judicial philosophy shows his steady reliance on two fundamental natural law principles. First, that human law is “subject to a body of unwritten background principles,” and second, that the government is to “act for the common good.” Both of these concepts are clearly present in Aquinas’ writings.
It is important to note that these Justices are not vocal adherents to natural theory, possibly because natural law theorists have been associated with judicial activism, something Justice Thomas forcibly renounced during his confirmation hearing. These connections between the Supreme Court and natural law simply evidence that discourse among legal scholars regularly relates back to natural law theory. Whether certain Justices fully adhere to the theory, or, more likely, in what manner they adhere, is unclear.
The purpose of this article is to show that a basic understanding of natural law theory is an invaluable tool in legal study. And to lawyers and judges, the concept of natural law is particularly relevant. If one accepts the position asserted by natural law––that all human lawmaking can be defined as deductions from first principles––then it matters a great deal to those in the legal profession whether those first principles do, in fact, exist.
The “Discontents”
Somewhat ironically, the concept of a universally discernable natural law has been rejected by many modern legal theorists. Famously, Oliver Wendell Holmes pioneered a different theory: legal realism. Legal realism rejected a belief in natural “first principles,” viewing them as an attempt to “make [one’s] own preferences into a transcendent standard.” Holmes, writing for Harvard Law Review, defined truth––not as a concept rooted in divine nature––but derived from societal majorities working toward similar goals.
While strict adherents to legal realism have dwindled, the objections to natural law haven’t. In 1965, Justice Black, writing for the dissent in Griswold v. Connecticut, opined that judges may not use a theory of “natural justice” in their adjudication, lest the judicial branch intrude on the role of the legislature. The judiciary’s role, in Justice Black’s opinion, was to apply the plain text of the Constitution, and a reference to outside authority was a violation of the judiciary’s jurisdiction.
This sentiment is echoed, quite surprisingly, given his conservative and Roman Catholic affiliations, by Justice Antonin Scalia. When Justice Scalia was asked, “Does natural law have a place in interpreting the Constitution?” He resolutely responded, “No.” Notably, Amy Coney Barret, the most recent appointee to the U.S. Supreme Court and mentee of Justice Scalia, has espoused the same position. Justice Barrett said, “I interpret [the Constitution’s] text as text, and I understand it to have the meaning that it had at the time people ratified it.”
However, the question still remains: if the Founding Fathers held to a natural law theory, does that implicate natural law in an originalist’s analysis of the Constitution? Clearly, for Justice Scalia, the answer was no. However, recent publications have not been so easily satisfied by Justice Barrett’s answer. One news outlet published a popular piece entitled, “Originalism is Dead. Long Live Catholic Natural Law,” where it expressed its concern over Justice Barrett’s (and other Justices’) ties to Roman Catholicism. Another news publication insinuated that Justice Barrett was a part of a historical trend aimed at resurrecting natural law.
A Tool for a Legal Scholar
While these reports merely speculate at the influence of Roman Catholic social thought on Catholic judges, they illustrate the presence of natural law theory in the public arena. Clearly, the long-standing influence of natural law theory has not been entirely erased from American legal thought. In fact, as this article represents, the battle between natural law theory and its discontents may be as prominent as ever. One scholarly publication articulates that natural law has lost a significant amount of prominence in legal education, mostly due to the decline in its prominence in emerging legal theory. However, considering the current configuration of the Supreme Court, the deep roots of natural law in American jurisprudence, and current public attention, a thorough understanding of natural law is certainly an invaluable tool to a modern legal scholar.
