Is 'Natural Law Jurisprudence' Just Warren-Style Activism of the Right?

John Yoo responds to an attack!

Editor’s note: It’s on! John Yoo offers here a spirited reply to my criticism (which “Lucretia” fully joins) of his legal positivism. Like the World Series, this is just the first inning of Game 1. We’ll have more installments here, and eventually a podcast debate. (By the way, he has the wrong decoder ring.)

—Steve

Steve’s trolling here (in “Thomas Jefferson Versus Jeremy Bentham”) of his co-instructor demands a response. Plus, I have to explain why I don’t understand Steve's and Lucretia’s arguments even though I think I have their Strauss de-coder ring set to the correct settings and pointed at the right constellations in the sky.

Steve and Linda believe that their moral views, which they call the natural law, must come first, and the laws as written come second.  They believe that judges, lawyers, and citizens must bend the second to comply with the first, even to the point where written law which is inconsistent with their moral views are no laws at all.  They invoke the Declaration of Independence and Lincoln for these propositions, at least at those points during their lectures when I was awake.

This could only be true if a) they are utterly certain that their moral views are the correct ones; and b) they have no problem imposing their moral views upon their fellow citizens, even if a vast majority of them believe differently.  

I think this is at odds with our constitutional system.  Our Constitution sets out a system for making laws; it does not establish a specific moral view for our society.  That is not to say that the Framers were not mostly, if not entirely, Christians who believed in natural law (there being no competing schools of moral philosophy in existence at this time, unlike today).  But they established a freedom of speech, a freedom to exercise religion, and a prohibition on established churches, rather than declaring in the Constitution a specific moral code (unlike the Code of Hammurabi or the Ten Commandments, which Steve actually cited in class as authority for his right to interpret the Constitution along his moral lines).  Most of the Constitution’s provisions are protections for process and rights to due process and equal treatment.  It leaves up to the people, acting through legislation, the decision on most life and death issues (such as the death penalty, euthanasia, and most of the issues of the criminal law).

Citizens and legislators, of course, can and should consult their own moral beliefs when they decide what policies to enact in legislation or to enforce through regulation.  But the legislative process itself allows people of different moral views to negotiate and compromise.  Steve and Lucretia, it appears to me, think instead that the job of the legislature is to implement their natural law views, and if they do not, courts and executives should ignore them or misread written law to cohere with them.  Steve and Linda believe, for example, that Presidents should refuse to carry out regularly-enacted legislation passed by Congress, which do not violate any clear constitutional provision, because it violates the natural law.  They also believe, I think, that federal judges are free to strike down legislation for violating the natural law, even if the congressional act does not transgress any written provision of the Constitution.

Here is an example.  In their view, Dobbs was wrong because it did not go far enough.  I believe from our debates that Steve and Linda think that life begins at conception. Dobbs should not have said only that Roe was wrong to create a federal right to abortion.  Instead, Dobbs should have said that there is a constitutional right to life — which is guaranteed by the 14th Amendment against deprivation without due process — protected against all state laws from the moment of conception.

To me this is judicial lawmaking of the same kind that the Warren Court invented, and which liberal academics have spent many careers defending, just in a conservative rather than a progressive direction.  I think the better view is that the Constitution takes no position on abortion but instead leaves the question to the states.  It does the same for the death penalty, euthanasia, gay rights, crime, family, and most of the other most important social and moral questions of our time.  Federalism allows our broad, diverse country to have different policies for different communities, cabined of course by the lines set by the Bill of Rights.  Steve and Linda, it seems to me, would rather have judges today impose single moral views, derived from their reading of the natural law, upon the whole nation, regardless of whether a majority of the people today agree.  I suspect that many Americans today might agree with some parts of the natural law, and many might agree that it and our morality come from God, but that they might also say that this moral view should not be imposed on the nation as a whole without going through the legislative process rather than being constitutionalized by judicial fiat.

I think Justice Scalia expressed the view well in his 1988 Taft lecture, to be found at 57 University of Cincinnati Law Review 849:

The principal theoretical defect of non-originalism, in my view, is its incompatibility with the very principle that legitimizes judicial review of constitutionality. Nothing in the text of the Constitution confers upon the courts the power to inquire into, rather than passively assume, the constitutionality of federal statutes. That power is, however, reasonably implicit because, as Marshall said in Marbury v. Madison, (1) "[ilt is emphatically the province and duty of the judicial department to say what the law is," (2) "[i]f two laws conflict with each other, the courts must decide on the operation of each," and (3) "the constitution is to be considered, in court, as a paramount law." 24 Central to that analysis, it seems to me, is the perception that the Constitution, though it has an effect superior to other laws, is in its nature the sort of "law" that is the business of the courts-an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law. If the Constitution were not that sort of a "law," but a novel invitation to apply current societal values, what reason would there be to believe that the invitation was addressed to the courts rather than to the legislature? One simply cannot say, regarding that sort of novel enactment, that "[i]t is emphatically the province and duty of the judicial department" to determine its content. Quite to the contrary, the legislature would seem a much more appropriate expositor of social values, and its determination that a statute is compatible with the Constitution should, as in England, prevail.

Take that Steve and Lucretia!