Natural Law vs. Positivism, Chapter 8

In which John Yoo goes full Holmes, ignoring the sound advice "Never go full Holmes..."

Steve’s cartoon in his latest installment proves my point: he desires to elevate a minor political theory over the view of the majority by judicial fiat. He valorizes Peckham – points for anyone who knew his first name was Rufus – over Oliver Wendell Holmes. Peckham, the author of the majority opinion in Lochner, has receded into historical obscurity, while Holmes is widely considered one of the greatest Justices of the Supreme Court.

In which John borrows a side-eye from J.D. about our continuing stubbornness over natural law.

Holmes deserves that reputation because of his dissents in Lochner and in a series of free speech cases. In Lochner, he famously declared: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics. This was not because, as Steve believes, the Constitution enacts a different moral theory. It was because, in Holmes’s view, “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Instead, Holmes portrayed the Constitution as the means for a diverse nation to make decisions. The Constitution, Holmes continued, “is made for people of fundamentally differing views.”

More points for anyone who can quote Peckham from memory. Also, before arguing that Peckham’s natural rights approach in Lochner was superior to Holmes’s positivism – as notoriously displayed in Buck v. Bell’s approval of eugenic sterilization – Steve should recognize that Peckham voted with the majority in Plessy v. Ferguson. Even for Peckham, it seems natural rights only went so far.

That is the root of the problem for Steve. He would gladly hand power to Supreme Court Justices to enforce their moral views. With Lochner, Steve approves of Peckham’s version of natural rights. With Plessy, Steve must reject Peckham’s version of natural rights. Steve does not explain why his theory of natural rights should take precedence over Peckham’s, or why their natural rights should trump other moral theories.

On this point, Steve quotes Corwin’s Higher Law Background of American Constitutional Law, which may no longer be taught in law schools but is well known to legal historians and originalists. I fail to see how Corwin proves much in this debate. Corwin may accurately describe how those who wrote the Constitution or the Reconstruction Amendments thought about natural law. But Corwin does not show, I believe, that those Framers intended to write into the Constitution the whole corpus of natural rights – as opposed, for example, using natural rights thinking of the 18^th or 19^th Centuries to understand what the drafters and ratifiers meant by specific constitutional terms. Nor do I find Corwin providing any compelling reason why we the living must accept natural law as the moral theory implemented by judicial interpretation of the Constitution.

Nor does the common law provide much help to the argument in favor of including non-textual natural rights in the Constitution, a la Lochner. I am puzzled, in fact, why Steve relies on the example of the common law. It is true that the common law, in Blackstone’s view, represented a broad effort to use reason to decide legal disputes. And I can see that Steve likes the example of the common law because it proceeds solely from judges with few, if any, statutory or constitutional texts. Judges simply decided on the rules of contract on their own without any orders from the legislature.

But the common law of the Blackstone variety does not graft onto the problem of constitutional interpretation. The common law governed the rules applied by English courts to the basic issues of human life: contracts, torts, crime, property, and so on. They did not settle the great matters of constitutional significance, such as the questions surrounding the Civil Wars, which were ultimately settled by Parliament in its favor and codified in the Bill of Rights and the Acts of Settlement. English courts, despite some stray comments here and there, had no authority to invoke the Constitution to block written laws in a world of Parliamentary supremacy and an unwritten, customary Constitution.

The common law’s transfer to the United States removed even further any idea that it supported the moral supremacy of natural law in the American legal system. Upon independence, the new states enacted positive laws adopting the common law within their legal systems – the common law did not bear any authority on its own because of the operation of natural law. In fact Jefferson, Steve’s great natural rights hero of the Revolutionary period, led the cause for codification precisely because he did not believe judges should have a roving commission to import their own moral views into the law. Ever since, the common law has operated as a form of policymaking authorized by statute – if it were otherwise, as Steve thinks, then state legislatures should be unable to override judicial common law, which in fact they do all the time. Even Swift v. Tyson, Steve’s great judicial north star, did not claim that the courts had the right to devise a federal common law because of the moral imperative of the natural law. Instead, the Court believed that Congress had authorized it in the Rules of Decision Act to adopt federal common law in a narrow set of cases – the diversity jurisdiction in cases between citizens of different states where no federal law existed. Erie RR v. Tompkins properly found that the Swift Court had misinterpreted the Act, which instead instructed courts to apply state law to such cases.

So stripped of appeals to the common law, or to the higher law background of American constitutional thought in the 19^th Century, Steve’s claim remains the one he started out with: that natural law is the only true moral theory, and therefore judges are correct to apply it to strike down acts of the executive and legislative branches or of the states. I still have yet to Steve explain why a moral theory held by a smaller and smaller minority of the American people is the one that must be applied by judges. It might be the case, as Steve suggests in his latest post, that he is now arguing only that the natural law should be made into positive law first. If that is the case, then we are closer to agreement: I too believe that if the elected branches choose to enact natural rights through statutes or the constitutional text, those rights should govern. But that is not because it is natural law, but because it has been positively enacted by the political bodies of government using the constitutionally-authorized processes to do it. If Steve thinks that natural law requires positive enactment to become the law enforced by judges, he has given away the game.

Let me also return on this point to something I believe that both Linda and Steve have said. They have said, if I recall correctly, that even though natural law thinking has fallen out of favor among political philosophers, it remains the most popular view of morality held by most Americans. They would point, I presume to the preamble of the Constitution, the Bill of Rights, the Reconstruction Amendments, and generally supportive patriotic statements made by our popular leaders about the equality of all men. The popular adoption of a certain moral theory, I think they would agree, does not make it the correct or best moral theory. But I also have to say that I don’t think the American people any longer widely share natural rights morality. If they did, they would not elect leaders who have, generation after generation, expanded the welfare state; they would not support by overwhelming numbers the entitlement programs that are bankrupting the nation; they would not approve of the easy expansion of regulation in the name of public health and safety.

One last point on the role of judges. Steve’s attractively characterizes our debate as between his judges-as-philosophers versus my judges-as-economists. I am glad he concedes that this is what he wants judges to be – philosophers in robes. But I should make clear that I am not arguing in favor of judges themselves conducting their own cost-benefit analyses and imposing that upon the acts of the President and Congress. Instead, judges should exercise modesty and humility and accept the cost-benefit analyses of the elected branches (that is where I locate the authority to conduct the cost-benefit decisions that guide public policy). There may be cases where the courts exercise this kind of policymaking, but only when Congress orders it to.

It is on this understanding where Steve’s questions about the primacy of some rights find their answer. Steve argues that there are some rights – such as those in the First Amendment – that courts don’t seem to subject to cost-benefit analysis. In application, the Court’s approach to these rights may actually amount to a type of cost-benefit balancing: witness intermediate scrutiny’s comparison of the government’s interests against the intrusion into the right, taking into account whether a better means could be chosen. But even if the Court were applying a more absolutist approach to speech, and now after the Harvard case against all forms of racial discrimination, it has been argued by John Hart Ely and Jesse Choper that these rights are fundamental to the operation of democracy itself. The reason why Holmes, with whom we started, could be both an absolutist on free speech protections but a denier of natural law is because the former are the rights necessary for a Constitution “made for people of fundamentally differing views.” Steve, by contrast, would not accept a Constitution for such a people; rather, he expects a people that share only a single moral view.