The Propriety and Necessity of Natural Law to Originalism

It is frequently alleged or assumed that a tension exists between natural-law theory and constitutional originalism. The tension is undeniable if originalism is a naked form of democratic positivism—that, e.g., law is simply the expressed will of the sovereign, and the sovereign people have expressed their supreme will through the written Constitution.  In such a case, the tension may even represent a contradiction.   Originalism, thus understood, would indicate simple obedience to the Constitution’s text, as understood by its authors, while natural “law” would encourage judicial entrepreneurship: to go beyond, outside, or even against that text, in the name of some law that is allegedly prior or higher.

The American Founders, however, seemed largely unaware of this opposition.  American jurists in the Founding era frequently invoked both natural-law concepts and an “originalist” interpretive method.  The latter method was so widely accepted that there was no need to designate it as a peculiar “ism.”    Originalism’s coexistence with natural law seemed uncontroversial and even peaceful.

Perhaps this non-opposition, this coexistence, was not mere historic accident.  Perhaps there is something complementary.    Indeed, in some respects, natural-law theory might be both proper and necessary to constitutional originalism.

In one important, but limited respect, commentators generally acknowledge that natural-law considerations belong to, and are thus proper to, the originalist inquiry.  The originalist seeks to know what the authors of a constitutional provision understood, meant, or intended by that provision; and some provisions of the Constitution were understood to (partly) instantiate and secure certain principles of natural right.  Therefore, to understand these provisions, the originalist must understand these principles, even if he deems those principles erroneous or even ridiculous.  So, for instance, whether he was a Lockean or not, Justice Benjamin Curtis was probably correct in Dred Scott to interpret the word “property” in the Due Process Clause to not encompass any “property” prohibited by the Founders’ natural-right principles; that is, the alleged property in human beings.

But besides this occasional role, natural law may be necessary, in a broader sense, to the entire originalist enterprise.  For a century now, judicial fidelity to the Framers’ intent/meaning/understanding has been subject to withering, sustained criticism by progressive jurisprudence.  Perhaps not coincidentally, the rejection of originalism happened roughly contemporaneously with the American academy’s nearly unanimous repudiation of natural law.  In the face of the progressive critique, a plausible natural-law theory may be necessary (in the Hamiltonian sense of expedient, not absolutely necessary) to bolster the theoretical justification of originalism.

To apprehend this necessity, it should be recalled that natural-law theory affirms not only that the existence of certain universal norms, but also the capacity of human beings, by natural reason, to apprehend these norms (to some extent).  Natural law is a theory of recognition as well as validity.  For all their differences, Aquinas, Locke, and Blackstone each agreed on this point.

As a theory of recognition, natural-law theory helps rebut three of the leading progressive arguments against originalism.  First, against the claim that the Constitution’s original understanding is unintelligible, natural law indicates the following: (1) that human beings, even across a large population and an extended territory, can understand one another’s moral purposes sufficiently to establish a bona-fide popular consensus, a consensus commonly known by the people and promulgated in a written constitution; (2) that this shared understanding can span not only a large republic, but also across time, so later generations can indeed know the meaning of prior generations; and (3) that judges, no less than other citizens, can know the content of this law.

Second, against the claim that originalism frustrates progress—that improvement that “naturally” comes with time–natural law answers that novelties are to be mistrusted.  Although recognizing the possibility of progress in moral knowledge, natural-law theory asserts that regress is just as likely.  To cite one prominent example, Aquinas insisted that human beings generally apprehended that theft was unlawful, but that at times reason can be “distorted by passion, or by evil habits, or by bad natural relations” such that individuals or communities can “fail to recognize theft as contrary to natural justice.”  This caution hinders judicial entrepreneurship, including disregard for long-established interpretation of the Constitution’s text.

Third, against the claim that judicial obedience to the original understanding is unreasonable, natural law indicates that this consensus not only is knowable, but obedience to it is reasonable.  Natural-law theory identifies this common apprehension of moral truths as not merely as a general sense or feeling, but as something pertaining to reason.  The existence of this common rational faculty suggests (1) that the people’s consensus reflects genuine knowledge (and not mere opinion or raw will—so-called “policy preferences”); and (2) that therefore the people, though uncredentialed, have a politically relevant knowledge to which judges, no matter how credentialed, can reasonably defer.  The people have the right to rule in part because they have some reason.  They have some capacity to write a constitution that is worthy of obedience.

Moreover, as a theory of validity as well as recognition, natural law helps to answer an argument that is frequently implied in progressive jurisprudence: that the obedience of the originalist judge is dishonorable.  Naked democratic positivism tends to reduce the judge to a mere discerner and follower of popular will; his simple and unattractive virtues are accuracy and humility before the masses.  Although the masses may embody the zeitgeist—a subrational will popular “reason” is not reason at all, and cannot compare with the genuine reason of the expert.  Why should the judge, with all his education and credentials, defer to the laws written by the subrational many?

Progressives offer the judge a far more glamorous role:  Consider, for instance, Justice Cardozo’s criticism of Justice Story: despite Story’s “vast erudition,” he lacked a “creative imagination.”  Rather, Cardozo argued, progressive judges should facilitate progress “with insight into social values and suppleness of need;” they should be “molders of policy instead of impersonal vehicles of revealed truth,” for “constitutional adjudication has always been statecraft.” [1]  As Cardozo asserted in a famous dissent, judges should read the Constitution not with “pedantic rigor”—that is, simple obedience—but with “elasticity of adjustment, in response to the practical necessities of government.” [2]

Consider also the words Justice Frankfurter, the alleged friend of “judicial restraint”:

“[D]ue process” cannot be imprisoned within the treacherous limits of any formula. Representing a profound attitude of fairness between man and man, and more particularly between the individual and government, “due process” is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess. Due process is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process.[3]

The progressive jurist can thus be the bold entrepreneur, the skilled scientist, the creative artist, and even the revaluer of values—all rolled into one.

Frankfurter’s one-time adversary, Justice Brennan, said as much decades later: The Constitution consists in “majestic generalities and ennobling pronouncements” that are “both luminous and obscure.”  In the face of all this impressive light and darkness, the judge becomes both suffering servant and supreme ruler: he must accept the “lonely, troubling” task: to “resolve public controversies” so that “the present society change in a fundamental aspect.”  The progressive judge is not to obey the written record of the people’s own resolution of their controversies—that is, the Constitution and other law—but to resolve, and continuously re-resolve, the people’s controversies for them.

In contrast, Publius, in Federalist 78, assigned the judge a humble, even boring role.  The judge would be “inflexible and uniform” in interpreting the Constitution, and “bound down by strict rules and precedents.”  Fidelity, not creativity, would be the judicial virtue.

Natural law theory, if true, affords nobility to such uncreative fidelity.  According to the theory, the will of the many, as defined in law, can represent a participation, albeit imperfect, in Divine reason.  Judicial fidelity to a popular Constitution, then demands not humility before the masses, but piety before nature’s Author.  The piety of the faithful originalist might thus represent a virtue that can rival the glamorous creativity of the judicial artist.


[1] See, e.g., Felix Frankfurter, Twenty Years of Mr. Justice Holmes’s Constitutional Opinions, in Felix Frankfurter on the Supreme Court: Extrajudicial Essays on the Court and the Constitution 112, at 119–21 (Philip B. Kurland ed. 1970).

[2] Panama Refining Co. v. Ryan, 293 U.S. 388, 440 (1935).

[3] Joint Anti-Fascist Refugee Comm. v. McGrath, 341 US 123, 162-63 (1951).

David Upham

David Upham is assistant professor of politics at the University of Dallas.

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Comments

  1. says

    The above piece provides a fine analysis from a Thomist perspective but loses traction on the terrain of “there is no such thing as Divine reason,” and”natures Author is a myth.” At a certain point the concept of natural law struggles under the weight that it is expected to carry. When natural law is invoked for the purpose of executing Divine Will it creates a prerequisite to validity that is not universally recognized.

    That there is such a thing as natural law is beyond dispute. The less religiously or mystically inclined simply refer to it as “inescapable facts.” Such acts include, for example, that the concept of property is a natural consequence of resources being consumed when put to useful purposes. Even the classical Marxist formula “from each according to his ability, to each according to his need” recognizes this fact. When the conditions for “to each according to his need” have been satisfied one of the cardinal characteristics of property has been recognized. Other examples of natural law or “inescapable facts” include that each discrete society must have some generally accepted conventions in common; that human progress is inevitably in the direction of more efficient use of resources; and that all societies contain within them elements that are supportive of and detrimental to the common good.

    This notion of natural law is inherently compatible with originalism, because it requires only the assumption that the founders were aware that there were some significant facts of life that would not change, and which a constitutional republic would have to accommodate. The role of judges described in the Federalist is one of an disinterested referee whose judgment and objectivity are protections against the often unpleasant and frequently tragic consequences of “inescapable facts.” Conversely, freed of such real-world constraints,the progressive jurist is free to indulge fancies and fantasies, with the inevitable burdens and inequities simply the price to be paid for “progress.” One of the reasons progressives reject originalism is that they refuse to accept the founders’ view that human life is subject to some constraints beyond human control.

    Concepts of natural law form a spectrum, at one end of which is the notion that natural law is a divine riddle, the pursuit of which is a spiritual pilgrimage. The other extreme views natural law as a medieval superstition that impedes the never-quite-clear ambitions of the progressive. This latter view is dismissive of natural law, regardless of whether it is the elegant theory of Aquinas or the more rudimentary “inescapable facts.” The progressive jurists, no less than the progressive street radical, believes they can escape the inescapable by virtue of their own wonderfulness.

  2. David Upham says

    Thank you very much for taking the time to reply. I should clarify that by the “natural law” I did not mean something peculiarly Thomist. The natural law that is proper, if not necessary, to originalism is primarily the laws of nature and nature’s God, as set forth in the Declaration of Independence. Each of the natural-law notions I mentioned here have some elaboration in 18th century American jurisprudence, even though I think Aquinas states some of them more persuasively.

    As to whether this concept depends on some God, I think the answer is yes, or at least depends upon non-atheism. Nature is an authority, I think, only insofar as nature has an Author. If nature simply provides “inescapable facts,” then it has no moral authority whatsoever, and it becomes permissible, if not laudatory, to find the escape. Holmes himself famously said that certain moral orientations represented “can’t helps,” but these can’t helps had no moral claim. If we could re-engineer humanity, perhaps we could remake a sustaining society where murder, theft, and adultery were universally deemed praiseworthy.

    You list a number of alleged inescapable facts that actually seem entirely avoidable if one denies any transcendent/prior/higher principles–principles that have never met with universal assent: First, you say that “each discrete society must have some generally accepted conventions in common.” Perhaps you mean here that a society, to thrive, must have such consensus. But that requires some notion of a flourishing community; further, it’s probably untrue that consensus is required when effective brute force can do the trick–unless there’s something wrong with a preponderance of fear. And technology promises an all the more effective, even if more humane, methods of coercion.

    Second, you write “that human progress is inevitably in the direction of more efficient use of resources.” Really? Efficiency is an incomplete concept: efficient for what? Transcendent human ends? Further, I doubt that societies “inevitably” move in any direction, still less any progressive direction.

    Finally, you write “that all societies contain within them elements that are supportive of and detrimental to the common good.” Common good? Now who’s being Thomist? :)

  3. says

    Thanks for your reply to my response. I do not want to turn this into a volley of quibbles,but for the sake of brevity allow me to state:

    1.) The claim that “[n]ature is an authority, I think, only insofar as nature has an Author” has a rhetorical symmetry but is unnecessary to the concept of authority as”the power to enforce obedience.”

    2.) The conclusion that “nature has no moral authority” could as well serve as a premise. If nature has an authority it is that nature provides consequences, without deliberation, without malice and without sympathy.

    3.) “…finding the escape,” is incompatible with the notion of “inescapable.”

    4.) The notion that all societies must have some shared conventions is not limited to positive ideas such as consensus. It also does not imply a particular view of coercion. A trivial example is that there must be some conventional understanding of the meaning of significant words, such as those that indicate “no,””stop,”and “of course I don’t mind if your mother stays for a week.” Nearly all societies have traditions, institutions, and those negative traditions that we regard as taboos.

    5.) I intentionally left the concept of efficiency open. The fact is however is that all progress is in the direction of greater efficiency, where efficiency is defined as the unit of something that is produced per unit of something else. You are correct that a specific measure of efficiency requires identity of the expendable item, but such is not necessary to the general proposition. The notion of efficiency driving progress is sometimes only apparent after the fact, but examples are not hard to find: bushels per acre, income per capita, years per life, college administrators per unit of diversity, etc. Perhaps I should have made clear that, while I believe that progress entails changes in efficiency, not all progress is good or desirable.

    6.) While “common good” is a Thomist notion, it is not an exclusively Thomist notion. The term is easily understood by those who have never read a single passage of the “Dumb Ox.” So as not to create confusion however, let me affirm that I consider myself very much a Thomist.

  4. Peter Lawlerpeter lawler says

    It’s hard to disagree or disagree with what you say without the benefit of examples of the use and the abuse of natural-law jurisprudence.

  5. David Upham says

    Professor Lawler,

    I can think of a few instances where consideration of the Framers’ natural-law principles yielded good results in interpreting the Constitution: (1) Justice Curtis’s construal of the word “property” in his Dred Scott dissent, as mentioned in the article.; (2) as Hadley Arkes has emphasized, Marshall’s explication of the Contracts Clause in Fletcher v. Peck; (3) Justice Story’s elaboration of the limits of the freedoms of speech and press in his Commentaries–limited to speech involving truth, good motives, and justifiable purposes.

    Here is one instance of an improper–contra-textual–use of natural law: Twining v. New Jersey, and similar cases. The original meaning of “due process of law” in the 14th was probably reflected in the Court’s unanimous opinion in Murray’s Lessee: that it required conformity with the well established usages of Anglo-American procedure. With Hurtado v. California and Twining, the Court effectively said, don’t worry about that, as long as the procedures are consistent with natural law, the states don’t need to conform with these usages. Another bad usage is the invocation of natural right to assert the existence of a liberty of contract in the Constitution.

    A third category is bad constitutional interpretation arising from a failure to attend to the Framers’ natural-rights understanding: the examples are many: Justice Taney’s interpretation of “property,” Justice Blackmun and Kennedy’s interpretation of “liberty,” come to mind.

    The focus of my post, however, was on the ways in which adherence to natural law, especially its claim of a common human rational moral apparatus supports the claims that the original intent is knowable, and obedience to it is reasonable and even honorable. The conscious rejection of natural law, however, undermined each of these claims of originalism.

  6. Andrew Hyman says

    Professor Upham said:

    ” Justice Benjamin Curtis was probably correct in Dred Scott to interpret the word ‘property’ in the Due Process Clause to not encompass any ‘property’ prohibited by the Founders’ natural-right principles….”

    I’m not sure that’s 100% correct. Curtis wrote:

    “Is it not more rational to conclude that they who framed and adopted the constitution were aware that persons held to service under the laws of a State are property only to the extent and under the conditions fixed by those laws, that they must cease to be available as property when their owners voluntarily place them permanently within another jurisdiction, where no municipal laws on the subject of slavery exist, and that, being aware of these principles, and having said nothing to interfere with or displace them, or to compel Congress to legislate in any particular manner on the subject, and having empowered Congress to make all needful rules and regulations respecting the territory of the United States, it was their intention to leave to the discretion of Congress what regulations, if any, should be made concerning slavery therein?”

    So, Curtis did not deny that slaves could be “property” under state law, nor that Congress could replicate that status in federal territory.

  7. David Upham says

    Mr. Hyman, I think you’re right. Curtis’s argument was that slavery was contrary to natural right, and therefore, was wholly dependent upon local positive law, so it ceased being property, in the constitutional sense, the minute the slave entered the federal territories where no such perverse local law existed. His argument leaves open the possibility that such contra-natural “property” would be protected, against federal deprivation, in the slave states. I don’t think he addresses that issue directly though.

  8. Andrew Hyman says

    Thanks for the reply. Even in the federal territories, Curtis said that people COULD be property if Congress said so:

    “The purpose and object of the [territories] clause . . . being to enable Congress to provide a body of municipal law for the government of the settlers, the allowance or the prohibition comes within the known and recognized scope of that purpose and object. . . . Regulations must be needful; but it is necessarily left to the legislative discretion to determine whether a law be needful.”

    Justice McLean and Justice Curtis differed on this point. McLean said that Congress had no power to make people into property in the federal territories. McLean based his opinion not so much on natural law, as on the limited power of Congress to make “needful” rules.

  9. David Upham says

    Mr. Hyman,

    Right, for McLean was the sole Republican, and Curtis a northern Democrat. But as to whether certain contra-natural “property” would be protected by the Due Process Clause, was a question left open, I believe.

  10. Andrew Hyman says

    I don’t think Curtis McLean suggested that something might be “property” for purposes of federal statutes, but not “property” for purposes of the Takings Clause or the Due Process Clause.

    Curtis said, “Slavery, being contrary to natural right, is created only by municipal law.” To the extent he was willing to rely upon natural law in addition to the text of the Constitution, he was not willing to place his understanding of natural law above that text, or even above federal statutes (which reflect the people’s determinations about natural law).

    Thanks for the discussion!

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