Natural Law vs. Positivism Debate, Round 6

I which John Yoo delivers the smack on Steve

Editor’s note: In between computer crashes and multiple chianti tastings over in Italy, John Yoo managed to make out this response to my last installment in our unfolding debate on natural law and jurisprudence. “Lucretia” will have her own sequel up shortly.

—Steve

Readers of Political Questions may know that Steve and I have been in Italy, where we participated in a discussion on common good constitutionalism. For interested listeners, Steve posted a podcast of our debate, held in a millennium-old Tuscan farmhouse. The debate I had with Steve and Linda at the end of the episode, and our exchanges about common good constitutionalism, has helped me better understand the nature of this argument between positive and natural law.

Before turning to these deeper issues, let me respond to Steve’s post on Dred Scott, Lochner, and Dobbs. His response reveals the weakness of his version of natural right, once we try to apply it. As I understand Steve, natural rights do not require us to apply them as all-powerful principles, something like trump cards, that override competing claims of government power. Instead, according to Steve, they result in presumptions that courts will balance against need for regulation.

I am not making this up. Here it is straight from his post:

My general proposition is that the point of anchoring jurisprudence in the basic principles of natural law and natural right is that it establishes what the presumptions should be, to be applied on a case-by-case basis—presumptions that can be overcome by circumstantial reasoning that is itself an application of natural law concepts. (Isn’t this what we normally call “rebuttable presumption” in many statutes and other legal procedures?)

Steve then illustrates his argument with Lochner! He says that Lochner is in fact an example of my misconception of natural right — the state’s police power to set minimum working conditions must fall before the right to contract between bakery and bakers. But instead Steve says that Lochner did no such thing — instead, it is an example of courts starting with a presumption in favor of liberty of contract, then balancing it against the state’s right to regulate to protect public health, safety, and morals. Lochner is correct, it suggests, because in that case the Court found that the right to contract outweighed the state’s public health imperative.

I find this difficult to understand as anything other than the cost-benefit balancing that I often favor. If natural rights only require that the courts adopt presumptions in favor of rights, which can be outweighed by public health and safety legislation, then Steve has found himself in the place where today’s courts live. Further, Steve gives no sign of how he would resolve this balancing approach. In Lochner itself, how was the Court to decide whether limiting the hours worked by bakers would advance public health and safety or not? David Bernstein’s work has shown that the New York legislation at issue was promoted by established bakers who sought to limit competition by new entrants in the market who were employing immigrants willing to work longer hours. But suppose instead that the New York legislature believed, in good faith, that bakers would harm themselves and even make worse bread if they worked more than 60 hours a week? Steve does not tell us how a court is supposed to balance a natural right to contract against public health justifications. Could the state have won if it had limited maximum hours to 55 hours a week instead of 60 hours of week? How would the courts even measure a liberty to contract and how its narrowing would still be acceptable against one set of health regulations, but not others?

I am not making this up either. These were in fact the problems faced by the courts when they adopted Steve’s approach of balancing natural rights against health and safety justifications — the two sides of the equation, when framed as an issue of moral right, becomes incommensurable (to use one of Steve’s fancy philosophy words). Rights and public health are not even measured on the same spectrum, so they cannot really be balanced against each other. This is what led the New Deal Court to ultimately give up in reviewing health and safety regulation that allegedly violated the liberty of contract.

Another problem with Steve’s Lochner example is that he implies that following natural law would not be a large change to our law, and that in fact what he proposes is what the Lochner Court was doing. But he misses the point of Holmes’s famous dissent. Holmes was not just criticizing the Court’s mistake in refusing to balance rights against public health and safety. More importantly, he was criticizing the majority for invoking a right to contract that did not appear in the text of the Constitution. Instead, the Court had to find the right in the Fourteenth Amendment’s guarantee that states could not deprive Americans of life, liberty, or property without due process of law. That is exactly the same place where the Roe Court found the right to abortion, which the Dobbs majority properly rejected as unsupported by the text and history of the Constitution. Holmes’s point was that judges should not import the popular political theories of the day — social Darwinism in this case — through the due process clause to defeat the wishes of the majority.

Holmes’s dissent would apply equally to natural rights theories as well. But in our podcast, and in the past, Steve and Linda have said that natural rights should not fall prey to the criticism that Holmes launched against Lochner, or that Justice Alito launched against Roe, because natural rights is the true and correct moral system while others are not. But that brings me to the point I made in earlier posts, which I repeated in our podcast episode. How do they know that natural rights are the true and only correct way to make moral judgments? It certainly is not by the consent of Americans today — it seems to me that the great majority of philosophers are Rawlsian or Marxists, and that Americans do not agree on a single moral philosophy, just as they do not agree on a single religion. Without popular approval, and clear support in the text, they would have to be willing to impose their minority views on the whole nation, which has passed no constitutional or statutory text to show their agreement. This tyranny of philosopher-king’s seems to me to run counter to the American constitutional tradition.

This is where I found myself agreeing with Adrian Vermeule’s forceful argument in favor of common good constitutionalism and against originalism — at least halfway. He is right to say that originalism is not morally neutral; no theory of interpretation truly is. If we are to adopt originalism, it must be based on a moral theory. I agree with this criticism, as I think Steve and Linda do. It is at this point that Vermeule would adopt the common good as the lodestar of our legal system, while Steve and Linda would insert natural rights. But they have much more work to do to explain why their moral systems should replace positivism, which has the virtue of allowing the American people, with all of the different moral views and messy politics, to decide through a political process. My approach, which is not fully cost-benefit positivism (but close), has the virtue of not assuming it has a monopoly on moral virtue or of imposing on all Americans a single moral system.

Before ending, I wanted to address Steve’s points on slavery and abortion, because I think they show a desire to evade the fundamental questions with this effort at presumptions and balancing. He says that judges should have followed the positive law when it conflicted with the natural right against slavery (although he would have judges reject the positive law when it comes to working conditions, which I find an inexplicable misordering of priorities). But they he says that the Supreme Court should have found Dred Scott to be a person, which he says would have properly disposed of the case. But that is not quite right. If the Court had found Dred Scott to be a person, then the Court would have had federal jurisdiction over the suit (by finding the slave not to be a person, Chief Justice Taney concluded that no suit could be brought by a slave). But then the Court would still have confronted the question whether Congress could use its power over the territories to bar slavery there and in new states. Steve’s presumptions and balancing would not have avoided the constitutional question, either before the Court or the nation.

I also find his answer on abortion unpersuasive. Steve says that if a fetus becomes a constitutional person at the moment of conception, courts might still recognize a narrow right to abortion for the life and health of the mother under a self-defense theory. But this does not answer the question that is truly the source of political and legal conflict — what about abortions that are not undertaken for the life and health of the mother, which I assume constitutes the majority of abortions. Under Steve’s view of natural rights, it seems to me, the courts must find that all abortions are prohibited — regardless of state law — because they violate the 14^th amendment right of the fetus, except only in cases of the life and health of the other. It seems clear to me that many Americans do not agree with this, as evidenced by the progress of abortion laws in the states after Dobbs, and even by Donald Trump’s effort to defuse this line of attack by Democrats by saying the issue should be left to the states. What gives Steve the right to impose his moral view on when life begins on the rest of the nation, which does not share his philosophy? If it is a commitment to a minority philosophical view, he has to prove to others that his view is superior and gives him the right to pre-empt the policies of his fellow citizens as expressed through the regular political process. The virtue of adopting a cost-benefit approach that is generally deferential to the legislature, except in cases where the text of the Constitution clearly protects a right (as with freedom of speech and religion) is that it allows Americans of different views and faiths to decide policy for themselves.