Natural Law vs. Positivism, Chapter 9

In which John Yoo gets the first of two fiskings from his favorite podcast interlocutors.

Let me begin this installment by partially blaming Steve for John’s abject confusion. Even though Steve promised to “blow out the fog,” his attempt to ground the natural law basis of our Constitution in an appeal to the Supreme Court’s decision in Lochner is rather foolhardy and entirely misses the point. John cleverly takes Steve back into the weeds, demonstrating how Justice Rufus Peckham’s “natural law” jurisprudence was wholly unreliable and uses the occasion to praise the execrable eugenicist, Oliver Wendall Holmes. It is my firm conviction that unless one returns to the early decisions of the Marshall Court, there is very little coming out of the Supreme Court that has shone any light on the natural law foundation of the Constitution. In other words, most of what the Supreme Court says about the Constitution is ultimately irrelevant to this discussion. Unlike either John or Steve, I am uninterested in what either Peckham or Holmes have to say about it.

John thinks he has us over a barrel. . .

For those of you patient enough to have slogged through our debate thus far, let me just offer a reminder of what it is that we are disputing. Does there exist a permanent, unchanging, and knowable through unassisted human reason natural law that informed and continues to inform our Constitution and which should continue to provide guidance to judges when interpreting the Constitution’s original intent? John insists that there is not; that the natural law articulated in the Declaration of Independence, to the extent that it informed the Founders in their creation of U.S. Constitution, is merely a theory that is no more relevant to our day and age than the horse and buggy. John believes that any appeal to the natural law foundations of our Constitution by judges is a mere pretense; and will inevitably result in a decision based upon a personal moral theory, through which judges are given “roving commissions to import their own moral views into the law.” Moreover, even if judges could issue decisions by appealing to the natural law theory embraced by the founding generation; such an effort would be not only anachronistic but illegitimate. Channeling Holmes, John argues that a constitution is “made for people with fundamentally differing views,” and since there are many different moral theories and views about right and wrong, it would be illegitimate for the Supreme Court to rely upon the outdated, 18^thcentury natural law theory as any guide to understanding the Constitution.

But to return to the first part of the question at hand....Does there exist a permanent, unchanging natural law that can be known through unassisted human reason? The answer, of course, is yes. Natural law is not some idiosyncratic view of right and wrong: it is the understanding of the fundamental and timeless aspects of human nature that instruct us on how human beings ought to live and how political societies ought to be constructed to fulfill that nature. The ongoing effort to answer these questions has been the animating dynamism of Western Civilization since at least the time of Socrates. However, only in the American experiment was their full expression realized in the first government to be founded upon, in the words of Alexander Hamilton in Federalist #1, “reflection and choice.” The structure of the Constitution, and the principles upon which it was based, were not merely the “moral sense of the majority” as it existed in 1787; rather, the people of America were founding a government based upon a true and timeless understanding of the inalienable natural rights of human beings, derived self-evidently from the fundamental understanding of human equality. As Abraham Lincoln noted, “The assertion that ‘all men are created equal’ was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that, but for future use. Its authors meant it to be, thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism.” Americans were the first to found a government based upon the proposition that all human beings are created equal, but it was also understood that a commitment to that proposition was necessary not only to Americans’ future safety and happiness but to the possibility that others around the world could enjoy the same blessings of self-government. Americans’ failure successfully to establish this experiment in good government would, according to Hamilton, “deserve to be considered as the general misfortune of mankind.”

John is correct that the Constitution is positive law, insofar as it was created and ratified at a particular time and in particular places by particular human beings. It did not come down to us from the gods or on tablets from Mt. Sinai. The question is whether there is anything more to it than mere agreement. To put the question another way: can the consent necessary to create the positive law that became the Constitution be divorced from the fundamental principle of human equality? What is the basis for consent? The people gave their consent to establish a Constitution for specific purposes: “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Our Constitution was indeed an act of the people agreeing to and establishing in written form the positive law basis of the new government, but what gave “the people” the right to do so? As Hamilton makes clear, all other governments up until that moment had been the result of “accident and force.” Why is “agreement” or consent any better than accident or force?

The answer of course is to be found in the natural law foundations of our “good government” in the Declaration of Independence. The self-evident truth that there are no natural rulers among the human species leads inexorably to the understanding that each human being has certain natural rights; including the rights to life, liberty, and property. Why? Because no other human being has been designated by God or nature or even evolution to be so superior over other humans that he or she is by nature the ruler over others. This is why a government based upon consent is the sine qua non of “good government,” and why consent cannot be divorced from the fundamental truth of human equality; why no person can rightfully govern another person without his or her consent. It is also why our Founders established the Constitution through mechanisms that not only secured the consent of the people in its establishment but provided for continuous means to secure consent. They also put in place protections against a government that would become “destructive” of the ends for which it was established: these protections include separation of powers; checks and balances, federalism, and other limitations upon government.

Alexander Hamilton, for whom John frequently expresses admiration, offers a reminder that the truth of natural law and natural rights is not timebound, nor is it inaccessible to human understanding:

The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of divinity itself, and can never be erased or obscured by mortal power.

This understanding of an unchanging human nature stands in direct contrast to the progressivism that did so much to destroy our constitutional system. It is the belief in the ultimate perfectibility of humans and human institutions that defines the progressive project. Constitutional devices such as separation of powers, check and balances, or protection for the rights of property can be dispensed with if such devices stand in the way of “progress” toward the perfect society. Indeed, protection for the natural rights of every human being is quite easily dismissed as an anachronistic relic; hence, the progressive embrace of eugenics to rid society of “undesirables” who might stand in the way of utopia.

John would have us believe that these self-evident truths articulated in the Declaration of Independence are all mere rhetorical flourishes from a bygone age; and that because a majority of American no longer embrace this “moral sense” it is not only futile but selfish to assert that the principles of natural law inform the Constitution. He ignores the historical record where the founding generation were in complete accord (including Alexander Hamilton) that the natural law principles of the Declaration of Independence were the principles upon which our Constitution was founded. Indeed, it was not until the Progressive Era that the natural law principles of the Constitution began to be questioned and then denied. The denial of the self-evident truths of the Declaration was necessary for the progressive project to succeed, because the principle of equality based upon consent placed prudential limitations on what was possible. The notion that government should be limited in both its means and ends had to give way to a more enlightened vision of what could be accomplished unrestricted by quaint, 18^th century notions of limited government. If the Constitution is considered to be based on 18^thcentury natural law principles—especially those designed to promote some antiquated notion of human happiness—how can it serve “as the means for a diverse nation to make decisions”? Is not that perspective by definition exclusive of those who do not believe in an unchanging human nature? What about those whose “lived experience” is that of a dog, or of a furry, or of a gender that is different from the biological sex into which he/she/they were born? A Constitution made for people of fundamentally differing views should certainly not impose limitations on our understanding of what human beings are and/or should be.

I do not think that John shares those kinds of radical, not to say laughable, views. I also think John would agree that progressivism has been a destructive force on our American constitutional system. The problem is that the positivism he embraces is merely a reductionist theory not at all dissimilar to progressivism, and as such can never be the antidote to the “living constitutionalism” he so rightly abhors. He wants to anchor our understanding of the Constitution—and especially the Court’s jurisprudence giving meaning to that understanding—in the fact that the Constitution was “positively enacted” as the “means for a diverse nation to make decisions.”

Over the course of our history, a diverse nation has positively enacted through constitutional means measures such as protection for chattel slavery, eugenics, abortion-on-demand, decriminalization of crime, and the abandonment of border sovereignty. I often wonder whether John would have any quarrel with these measures, insofar as they are the expression of the “operation of democracy itself.” John has argued many times that no appeal exists beyond the text of the Constitution with regard to border policy, regardless of the human suffering that might result. Indeed, John would go further: with respect to the question of whether the federal government has plenary power over immigration enforcement (or non-enforcement), to which neither the text of the Constitution or history give a definitive answer, the Constitution is what the Supreme Court says it is.

What I cannot seem to get John to see is that while the majority may choose to embrace these measures, they do not become right or just simply because a law was “positively enacted by the political bodies of government using the constitutionally-authorized processes to do it.” The majority acting through constitutional measures can choose to embrace any unjust measure but cannot do so consistent with the natural law principles of the Constitution.

I agree completely with John when he asserts that judges who decide important constitutional or legal questions must interpret the law, not what they believe the law ought to be. Courts must enforce the law because it is the will of the people as expressed through their elected representatives. Courts are never supposed to interpret the law according to the will of the individual judges or what they believe the law ought to be. But the essential question, which John refuses to answer, is what provides the ground of authority for the will of the people to rule, either by establishing a government through instituting a constitution or through the popular mechanisms created by that constitution? It is from the Declaration of Independence that we derive the moral authority for the will of the people to rule through the Constitution. Then, and only then, does the exercise of political authority consistent with the Constitution take on moral rightness. This is no less true today than it was in the 18^th or early 19^th centuries.