In his book about natural law, Prof. J. Budziszewski explains how this fundamental law is written on the hearts of everyone without exception. Indeed, natural law is so evident that he claims it is “what you can’t not know.” Hence, the title of his book.
Everyone-at all times and places-knows that lying, stealing and killing are evil. The Ten Commandments succinctly sum up the natural law making it easy for Christians to remember. From these basic tenets come more elaborate legal systems and applications.
Dr. Budziszewski explains how this set of moral truths, called natural law, is “a universal possession, an emblem of rational mind, an heirloom of the family of man.” Thus, no one has an excuse for not knowing what it is. No nation has an excuse for not being governed by its general tenets. It is the higher law upon which all law is based.
The Exception to a Universal Rule
This universal knowledge applies to everyone. However, one human category seems exempt from knowing about this moral treasure and the obligation to obey it: Supreme Court Justices.
It seems they must officially not know natural law. All the current justices claim not to orient their decisions according to its precepts. Court nominees dare not mention the term lest it dashes their hopes of confirmation.
The modern law establishment hates natural law because it highlights a moral perspective. It has long sought to expel it from the judicial system. Everyone, even Supreme Court Justices, must find some way to reject that which “you can’t not know.”
Such an attitude is something to be expected from the liberal side of the Supreme Court. These justices belong to a historical school of law that believes that law evolves. Theirs is a living Constitution that adapts to the latest cultural fancies. They believe their job is to sprinkle stale law with fresh interpretations, legislating from the bench to update the law to changing morals. From such jurisprudence, creative justices easily find things in the Constitution’s “penumbra” that were never there.
Others take the positivist vision of law, by which the State is the foundation of law. Positivism frees law from its metaphysical moorings and makes the State responsible for order, contracts and legal agreements. The State changes law according to its practical needs without considering moral principles.
The Reluctance of Conservative Justices to Embrace Natural Law
And then there are the conservatives, who find a way around the awkward question of natural law so hated by modernity. They adopt a “constitutionalist” approach to American law, based on a strict reading of the Constitution. “Originalist” and “textualist” judges interpret the law according to what they consider was the original intent of the Framers and thus avoid messy moral questions.
These conservative approaches to law do tend to conserve some tradition and morality. However, they are not anchored in an objective and higher moral law but fallible documents, opinions and intentions. Speculation about the original legislator’s intentions can also have disastrous consequences, as seen in the recent Bostock decision, in which originalist Justice Neil Gorsuch “discovered” homosexual and transgender equality in the word sex.
Thus, conservatives constantly face the disappointment of putting in some justices who appear to be conservative but later bow to pressure and find creative “originalist” interpretations that are not in the Constitution. Without the solid foundation of natural law, law will always be arbitrary and unstable. Those who uphold God’s law will always face disillusionment.
Founders Informed by Natural Law
What makes the “originalist” reading of law so frustrating to natural law advocates is that the Constitution’s Framers and the Founders were informed by natural law. The “constitutionalist” approach should channel natural law when interpreting cases through the prism of the founding documents. However, more often than not, their rulings become ill-advised detours around natural law that open the way for errors to sneak in through the backdoor. It is much better to go straight to the source where there is no danger of going astray.
A Strong Attachment to Natural Law
The evidence establishing a natural law source is compelling.
American law’s attachment to a natural law dates back before independence, as can be seen in the ultimate authority on both American and English common law, the renowned English jurist Sir William Blackstone (1723-1780). His reference is clear: “This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.”
Earlier, Sir Edward Coke (1552-1634), who strongly influenced American law, also recognized natural law as the foundation of all law. This strong view of natural law was widespread. The colonial lawyers that founded the nation were familiar with these ideas, circulated in those times before written constitutions or “constitutionalists.” Moreover, Americans tended to reject the later deviations of natural law by Grotius and Pufendorf in favor of the more Scholastic-minded Englishman Richard Hooker.
Natural Law Theory Written into the Constitution
This natural law outlook is infused into the Constitution. Law historian Harold Berman suggests that the judging of law, according to the Constitution, was merely a transposition for prior criteria of judging law according to the natural law. He writes that “One may compare it with the theory that accompanies the law of the United States, under which any positive law must conform to the constitutional requirements of ‘due process,’ ‘equal protection,’ ‘freedom,’ ‘privacy,’ and the like, or lose its validity. ‘Due process of law’ is, in fact, a fourteenth-century English phrase meaning natural law. Thus, natural law theory is written into the positive law of the United States.”
Robert Reilly, in his book, America on Trial: A Defense of the Founding, claims that those who wrote the Constitution and the founders were inserted into a “natural law tradition reaching back to Aquinas, Cicero, and Aristotle.” He further asserts that “The evidence is overwhelming that they expressed themselves in terms of this tradition and meant the same thing by it.”
Only later, in the nineteenth century, did the modern schools of law depart from this tradition and embrace historical and positivist innovations. This trend favored the emerging liberal order. Social theoretian Wilhelm Schwer takes note of a generalized hostility to natural law among all schools. The innovaters went so far as to see this cornerstone of Western law as “imagined law, a weed that deserves to be eradicated.”
The Orignial “Originalists”
If justices really want to be originalists, they will recognize that the original “originalists” who wrote “the supreme law of the land,” the Constitution, were informed by a higher law tradition. They should not second-guess the Framers’ intentions, replacing them with straying speculation. Rather, they should go straight to the source. America needs to recognize that the constitutionalist work-around is flawed and will eventually lead to ruin.
If America is to return to sound justice, Supreme Court nominees (and its justices) must embrace “what you can’t not know.” Until then, there will be no order in the Court.