There is currently a debate raging in American society and legal circles about the proper role of judges in our constitutional democracy. In 1988, Judge Robert Bork’s nomination to the Supreme Court was defeated by a coalition of liberal activists who claimed that he would “turn back the clock” in such areas as civil rights and abortion. President Bush’s recent nomination of Judge David Souter rekindled these concerns, and there is little doubt that the retirement of Justice William Brennan and the likely change in the composition of the Court will heighten the debate.
This controversy involves two hostile schools of thought. On the one hand, the legal activism school, epitomized by the recently retired Justice Brennan, holds that a judge should interpret such constitutional provisions as the “due process” and “equal protection” clauses in light of his own evolving consciousness of the needs of American society. For example, certain justices claim to find a right to privacy, including a right to abortion, in the “penumbras” of certain provisions, even though the Constitution says nothing directly on the subject. On the other hand, the “original understanding” school, epitomized by Judge Bork, holds that except where the Constitution has placed reasonably clear limits on the legislative will of the majority, the legislature must be accepted as practically absolute, regardless of the justice’s subjective view as to what is “reasonable” or “due process.” This approach requires that the judge interpret laws according to the understanding of those who passed and ratified such laws. This is also, to use the same example, why the advocates of “judicial restraint” can argue that the legal right to abort is illegitimate because the Constitution’s text cannot be reasonably construed to include a general, undefined “right to privacy.”
As a second-year student at a Catholic law school, I have often wondered what the implications of this debate are for Catholic legal education, or conversely, what the contributions of Catholic thought could be to this debate. In 1960, John Courtney Murray, S.J., in We Hold These Truths: Catholic Reflections on the American Proposition, pointed to perhaps the most profound question facing the American Catholic. He noted that the grounds on which Catholics participate in the American way of life depend upon the content of our public philosophy. For Murray, the motive for the Catholic’s allegiance to the established polity was the evident coincidence of American principles with those of Christianity. Murray said that the first question for the Catholic, therefore, must be whether American democracy is compatible with Catholicism, not whether Catholicism can be squared with American democracy. This question is of special interest and immediacy for the Catholic jurist because it will determine the nature of his allegiance to, and participation in, American legal norms and institutions.
Yet, today the curricula of Catholic law schools seem indistinguishable from the curricula of their secular counterparts, and Catholics as Catholics seem to have no distinctive role in this constitutional debate. This is especially ironic because Catholics on the Supreme Court, such as Justices Brennan, Scalia, and Kennedy, have played a decisive role in fashioning the contours of modern constitutional law. Moreover, it is odd that at a Catholic law school students and faculty so commonly assume that they need not concern themselves with matters of right and wrong, just and unjust, natural right and natural law, and deans acquiesce in the view that these issues have no place in the professional formation of effective lawyers and statesmen.
Even so, the natural law tradition is a fundamental part of Catholic teaching. In today’s academic and professional atmosphere of positivism and moral skepticism, a renewal of this teaching in our legal academies is essential for both patriotic and catechetic reasons. The Catholic law school can have no more distinctive mission than to work for the retrieval of the moral consensus which Murray believed to be at the heart of the American public philosophy. In particular, contrary to liberals who advocate an activist jurisprudence of variable and politically progressive content, and contrary to certain conservatives who deny the existence or intelligibility of the natural law tradition, Catholic law schools should bear witness to the timelessness of the natural law tradition, one which Catholics hold to be grounded in human nature and in objective notions of man’s true good.
Are Bork and Brennan Allies?
The chief feature of this “original understanding” debate concerns how much authority a judge has to translate his conceptions of “natural law” or “natural justice” into written law by nullifying legislative acts which he believes to be unconscionable, unreasonable, or out of keeping with due process. The constitutional debate is intimately related to the natural law debate because judicial speculation as to what process is “due” or what legislation is “reasonable” depends upon the type of “higher” or “natural” law which, in the judge’s mind, controls the written and positive law.
Although they are considered contradictory and implacably opposed to each other, the legal activism approach championed by Justice Brennan, and the judicial restraint approach advocated by Bork, have one crucial element in common. Both share the opinion that the American Founders did not believe in a natural law—in enduring moral principles that govern human nature and human conduct—which is both immutable and judicially cognizable. Brennan’s relativism and historicism surface when he says that the Constitution’s “overarching principles” are part of an evolutionary process whose meaning only the judge can discern. In a 1985 speech at Georgetown University, for instance, Justice Brennan, speaking of his supreme constitutional principle, “human dignity,” said that on the issue of the death penalty, “I hope to embody a community striving for human dignity, although perhaps not yet arrived.” To Justice Brennan the true meaning of the Constitution is not to be found in the text as understood by those who ratified it, but rather in a personal understanding of dignity rejected by most citizens and itself subject to future modification.
Contrary to Justice Brennan, Bork holds that the rule of self-government requires that majorities make the laws the people live under. In addition, minorities have specific constitutional protections. The function of the Supreme Court, then, is to reconcile these competing principles by properly defining the spheres of majority and minority freedom according to the principles of the constitutional framers and legislative bodies. For Bork, judicial reference to “higher” restraints on legislation, such as Justice Chase’s invocation of “reason and justice” in Calder v. Bull and Justice Blackmun’s “right to be let alone” in Bowers v. Hardwick, are equally illegitimate since they reflect unelected judges usurping the prerogatives of democratic majorities to govern themselves. For Bork, our form of government prohibits judicial enforcement of extra-constitutional principles such as “human dignity,” “reason,” “justice,” or “substantive” due process. The principles of the written Constitution, says Bork, “make the judge’s major moral choices for him. When he goes beyond such principles, he is at once adrift on an uncertain sea of moral argument.”
Thus on the liberal or activist side, Justice Brennan believes that the Constitution’s provisions, especially the due process and equal protection clauses, should be progressively interpreted in light of the judge’s subjective and evolving conscience. To the activist, the “higher law” lies in an uncertain and subjectively revealed future. On the conservative or judicial restraint side, Bork holds that our republican form of government leaves no place for judicial reference to natural law. Justice Brennan and Bork, who both deny the judicial intelligibility of objective natural law, only differ as to the preferred agent for implementation of the positivist paradigm. For the former, when the text is silent the judicial conscience (as “higher law”) rules, whereas for the latter, when the text is silent the majority’s morality (as “higher law”) must be granted.
What is this unusual state of affairs, one in which not only liberals, but also many conservatives seem to share historicist or relativist notions of the “higher law”? Although Bork’s view has become largely the accepted judicial theory for the political right, some interesting critics of his approach have emerged. Professor Harry Jaffa, in a controversial 1987 law review article, argued that the original intent of the Founders must be found in the “laws of nature and of nature’s God” cited by the Declaration of Independence. Jaffa believes that these principles of the Declaration, its “self-evident truths,” agree with the traditional natural law of eternal principles based on an unchanging human nature created by God. The chief purpose of Jaffa’s essay is to criticize certain liberal and conservative versions of “original intent,” versions which reject the natural law foundation of the American system.
According to Jaffa, for example, the Massachusetts Bill of Rights of 1780 affirms the doctrine of the Declaration by stating that our body politic is based upon a voluntary association of individuals, a social compact by which “the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good.” The premise of this compact is that all men are born free and equal and are endowed with certain unalienable rights. As a result, men may incorporate themselves into civil societies, but “only for purposes which are lawful by ‘the laws of nature and of nature’s God.”‘ The framers of our Constitution, says Jaffa, “clearly and wisely believed that there must be a lawfulness antecedent to positive law itself.” Jaffa believes that the Declaration is the source of the principles of the Constitution and that the authority of the people is subject to the moral law. To Jaffa, the Founders, including Justice Marshall, never imagined that morality was a function of “social acceptance.” On the contrary, the Founders believed a constitution was adopted because of the prior acceptance of a morality whose foundation was in the reason that recognized certain truths as self-evident. “The will of the people was a rational and moral will, not a mere will.”
Jaffa believes that the natural law as understood by the Founders was in substantial agreement with the revealed teachings of Christianity. Leaving aside the question of morality as the revealed will of God, Jaffa argues that the majority of Americans at the time of the founding believed that morality could be known by unassisted human reason as well as by divine revelation. Whatever the genesis of morality, Jaffa argues that the moral consensus is an “absolutely necessary” condition for the idea of self-government. According to Jaffa, therefore, original intent properly understood refers to a larger, but nevertheless knowable and enduring tradition of natural law proclaimed in the Declaration and established in the Constitution. Presumably, judges can enforce these “higher” or “natural law” bases of the regime. Even if the text of the Constitution is silent; the majority will is always subject to “the laws of nature and of nature’s God.”
The prominent religious freedom attorney, William Bentley Ball, also defends a natural law basis for constitutional law. Ball observes that Bork’s judicial philosophy is not really conservative because it is not rooted in the belief in a “transcendent order, or body of natural law, which rules society as well as conscience.” Ball echoes Jaffa’s reference to the Declaration of Independence and its “nature and nature’s God” as the transcendent preamble to the Constitution, and he argues that in our constitutional history the Supreme Court has always recognized that judges should occasionally invoke principles outside the Constitution. These extra-constitutional principles are the principles of “natural justice” which may also legitimately control legislative authority. Throughout our history such “higher law” has been referred to in various ways, such as “the fundamental theory of liberty,” “certain immutable principles of justice,” and rights “implicit in the concept of ordered liberty.” Ball notes that as early as 1819, in Bank of Columbus v. Okely, the Court identified the source of the American “due process” concept as Magna Carta, and said that it was “intended to sever the individual from the arbitrary exercise of the powers of government.”
Ball cites cases such as the 1925 decision Pierce v. Society of Sisters and the 1971 case Wisconsin v. Yoder as examples of proper reference to “higher law” concepts. In Pierce, the Court held that Oregon schools may not force all children to attend public schools on the ground that “the fundamental theory of liberty excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only,” and that “the child is not the mere creature of the state.” In Yoder, the Court held that Wisconsin could not, in criminal proceedings, enforce its truancy law by compelling, contrary to their faith, Amish children to attend high school. The Court held that the state interest in universal education was superseded when it “impinged on fundamental rights” such as religious liberty and “the traditional interest of parents with respect to the religious upbringing of their children.” Ball concedes that in Pierce there is no textual basis for “parental rights” in the due process clause; nevertheless, he defends Pierce as a triumph of natural law jurisprudence.
Ball admits that to espouse such “higher law” jurisprudence is also to risk espousing the kind of jurisprudence that produced cases such as Griswold v. Connecticut and Roe v. Wade, since, as Bork clearly shows, substantive due process, whenever it appears, is usually nothing other than “a pretense that the judge’s views are in the Constitution.” According to Ball, the solution is not Bork’s view that the majority’s will is the ultimate source of rights, but rather the installation of justices who believe in the objectively moral basis of our form of government. “The remedy… is not to deprive the judiciary of its power to do right, but to install in it justices who espouse the moral principles of our tradition.”
Lord Coke in America
Regardless of one’s view of the proper role of the judiciary, there is evidence that throughout the history of American constitutional law state and federal courts have consistently employed “natural justice” reasoning. American courts since the colonial period have been much more willing to rely on Lord Coke’s “natural law” dictum than their British counterparts. In 1610, in Bonham’s Case, Lord Coke said in dictum that
it appears in our books that in many cases the common law will control acts of Parliament and sometimes adjudge them to be utterly void; for when an act of Parliament is against common right or reason, or repugnant or impossible to be performed, the common law will control it and adjudge such act to be void.
There seems to be general agreement among legal authorities that fairly frequent use was made of natural law concepts in England, though most English authorities also agree that there are few, if any, specific cases in which an English court directly overruled or disregarded the plain meaning of an act of Parliament on natural justice grounds. The real link between the medieval doctrine of natural law and the principles of the common law seems to have been the use of the words “reason” and “reasonable.” Commentators have noted that the “reasonable man” standard, the “unconscionability” standard, and the “due process” standard are not very different from the law of nature which the Romans identified with “jus gentium” (“law of the nations”) and which the medieval jurists accepted as being divine law revealed through man’s natural reason.
To the eighteenth-century American the dictates of reason and natural law were familiar, and believed to be quite consistent with the common law. The first clear example of an act of the legislature being voided by the judiciary in America seems to be Giddings v. Browne, where a town meeting had voted funds to provide a house for a minister, and Mr. Browne refused to pay his share. Justice Symonds of Boston, holding that positive law cannot prevail against fundamental law, said that “it is against a fundamental law in nature to be compelled to pay that which others doe give.” Some other examples of early American cases which cited Coke were Paxton’s Case (1761), Bowman v. Middleton (1792) and Trevett v. Weeden (1786).
Early American courts, unrestrained by the doctrine of parliamentary supremacy, found themselves opposed to legislatures just as the English courts of the sixteenth and seventeenth centuries had been opposed to the Crown. Colonial judges frequently indicated their belief in natural laws, and legislation was considered binding only to the extent it agreed with these laws. For example, a resolve of the Massachusetts General Court in 1636 requested the government to draft laws “agreeable to the word of God” as the fundamental laws of the commonwealth. The courts were to decide all cases under established law, and where there was none, “then as near the laws of God as they can.” In the early years, prior to the firm reception of the common law, and clearly facilitated by the presence of a morally homogeneous Puritan population, colonial courts found the nature of law to be a method of reasoning rather than a code of rules, or the rule, “live honestly, hurt nobody, and render to every man his due.” Indeed, as late as 1772, in the case Robin v. Hardaway, George Mason argued against a slavery statute before a Virginia court and said that all laws apparently contrary to natural right and justice are, in our system, void. “The laws of nature,” said Mason, “are the laws of God,” whose authority no earthly power can supersede. “A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict his laws, we are in conscience bound to disobey. Such have been the adjudications of our courts of Justice.”
Scholars such as Charles Grove Haines, Benjamin Fletcher Wright, and Edward Corwin present compelling evidence that American state and federal courts have historically employed natural law concepts as the direct basis for invalidating legislation. Haines, for example, traces the development of natural law usage from the early state court decisions through the development of the economic substantive due process decisions of the Supreme Court. While he was critical, in language foreshadowing Bork’s, of such “capricious” subjectivism, he recognized that when this doctrine was absorbed in the general phrases “due process of law,” “equal protection of the laws,” “public purpose for taxation,” “public use for eminent domain,” and “reasonableness,” it was given the semblance of express constitutional sanction.
A Fractured Consensus
However, even if we accept that at our Founding such a natural law tradition existed and was accepted, Bork is surely correct that today there no longer seems to be any such moral consensus in our public philosophy. In our present society, it is common to hear people of good will advocate the recognition and protection of radically divergent rights and duties without sufficient reflection upon the profoundly incompatible visions of man’s nature and good which these claims presuppose. As Bork says, there is no objectively “correct” tradition of moral norms to which the judge can refer, so that the only democratic solution is to allow the majority its way, or “higher law,” when the Constitution is silent. As long as provisions such as the due process and equal protection clauses, and terms such as “liberty,” “equality,” “fundamental,” “rights,” “general principles of law and reason,” and “reasonable,” are considered as empty vessels into which each succeeding generation can pour the particular content of its evolving conscience, constitutional law will indeed remain fickle and ideologically motivated.
Of course, it is possible to reconcile ourselves to this breakdown of consensus and to entrust responsibility for the enforcement of norms to enlightened judges a la Brennan or to popular majorities a la Bork. Another option worth considering, however, is a serious public reflection leading to a revival and restoration of the lacerated American consensus. It is here that a re-examination of the relationship between positive law and natural law would be most urgently necessary and useful.
This is the special mission of the Catholic university, and the one task for which it is, as compared with its secular counterparts, best equipped. It is likely that debates over the natural law tradition are today the strongest, if not the only, link to the original moral consensus of our Founding. As long as America’s law students and jurists remain unacquainted with the timeless political and philosophical questions attendant to their legal reasoning, we will indeed remain unable, as Bork has noted, “to articulate a system of morality upon which all persons of good will and adequate intelligence must agree.” This system is none other than what Leo XIII called the “patrimonium generis humani,” or what John Courtney Murray termed a “heritage of an essential truth, a tradition of rational belief, that sustains the structure of the City and furnishes the substance of civil life.” It would seem that what for Father Murray was but a possible irony has indeed become a very real paradox. “The guardianship of the original American consensus based on the Western heritage [may have] passed to the Catholic community, within which the heritage was elaborated long before America was.”
The natural law tradition was first developed within medieval scholasticism and philosophy. Unlike the Islamic and Jewish worlds, where the religious science was the science of the law, it was only within the Christian tradition that the doctrine of natural law appeared. What distinguishes this tradition is the fact that it does not rely on supernatural revelation but on reason operating on the workings of nature (including human nature). Among all creatures, in the words of St. Thomas Aquinas, man is subject to divine providence in a more excellent way because he is provident for himself and for others. Man, therefore, has a share of the eternal reason, whereby he has a natural inclination to his proper end. For Aquinas, “this participation of the eternal law in the rational creature is called the natural law.” As Leo Strauss said, classical natural right is “connected with a teleological view of the universe, one in which all beings have a natural end which determines what kind of operation is good for them, and it is the province of reason to determine what is by nature right for this end.”
Yet, as John Courtney Murray notes, the Catholic natural law tradition has no specifically “Roman Catholic presuppositions.” It only assumes that man is intelligent, that reality is intelligible, and that reality, as grasped by the intelligence of men of good will, imposes on our will the obligation that it be obeyed in its demands for action or abstention. The natural law is, as Aquinas said, “promulgated by the very fact that God instilled it into man’s mind so as to be known by him naturally.” To the extent that the natural law tradition reflects the ability of natural reason to apprehend objective moral norms, Catholic law schools can become the privileged defenders of the possibility of the moral and political education of reasonable men and women of all faiths.
The real legal divide in our time is not between activism and restraint but between positivism and natural law. Essentially, the positivists take the position of Thrasymachus, Socrates’ antagonist in the Republic and proponent of the view that the just is the legal; law students must be able to recognize the timeless voice of Thrasymachus weaving its way through our seminars and judicial opinions. In this era of pervasive, if unspoken, legal positivism and moral skepticism in our law schools, Catholic law schools should, in addition to their present curricula, provide their students with the intellectual equipment needed to detect and confront these dangers in their various and subtle forms.
Indeed, besides John Courtney Murray, other Jesuits, for example, have also played such a vigilant role in our legal history. The philosophical implications of the legal realism of Justice Oliver Wendell Holmes, Jr., were first singled out in America in the 1940s by three Jesuit legal commentators, Francis E. Lucey, John C. Ford, and Paul L. Gregg. Contrary to the pervasive view that law is “whatsoever pleaseth the sovereign,” Aquinas taught that law must accord with reason. If Catholic education, including legal education, is grounded in a philosophical-theological view of the universe, and dependent upon laws of human nature, Catholic law schools should teach their students to recognize and criticize the various modern versions of “natural law” and “natural justice” which are ultimately incompatible with man’s true good and happiness.