The Natural Law vs. Positivism Debate, Round Four

John Yoo responds to "Lucretia" in our latest installment of "Are You Positive About That?"

Editor’s note: Now were starting to get somewhere! Following “Lucretia’s” spirited response to John Yoo’s critique of natural law jurisprudence, John now returns with some specific interrogatories (which is fancy academia-speak for “cross-examination”). I’ll have my own interrogatories in response in a few days, after the election dust settles.

—Steve

P.S. Of course, it is not hard to guess how “Lucretia” will respond:

Anyway, here’s John:

I would like to start where Linda ends.  In the penultimate paragraph of her post, she writes:

"To take up John’s final, mistaken assertion, that ‘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.’  Again, speaking only for myself, my answer is that nothing in my belief that the founding natural law principles of the Declaration of Independence can be taken to mean that I think judges should impose their own ‘single moral views.’ At the same time, I do not believe that that whatever ‘a majority of the people today agree’ upon should be the deciding factor in any given judicial decision.  The natural law principles which inform the Constitution and give it meaning are not complicated, nor are they obscure, nor do they require years of philosophical study."

It is not clear to me where Linda (and Steve) come out on cases that lie between a judge imposing their "single moral views” and not necessarily accepting the views of the majority.  I should clarify that when I said a judge’s "moral views," I was proposing that this judge would be one who believes, like Linda and Steve, in the natural law.  I assume that they and this judge believe natural law is a value system that sits higher in the moral hierarchy than the Constitution.  If natural law does not sit higher than the Constitution, then there really is no dispute between us.  I think it is perfectly acceptable to use the constitutional rules of lawmaking to enact the natural law into statutory or regulatory law.  

But I take Linda’s view to be that the Constitution must be subordinate to a higher natural law.  This must be the meaning of her paragraph that no originalist argument could be brought to bear against constitutional amendments that removed the Free Speech and Free Exercise Clauses from the First Amendment, repealed the right to bear arms, and re-instituted slavery.  I believe her theory is that such constitutional changes would violate the purpose of government itself, which she says is “to protect the natural rights to life, liberty, and the pursuit of happiness of ever citizen.”  By breaking the social contract in this manner, Linda indicates, a Constitution without the First, Second, and Thirteenth Amendments would have to give way to natural law.

Thus, I do not see why Linda claims that I am putting words in her mouth when I read her and Steve to say that a judge should place the natural law first and the Constitution and written law second.  She only provides more proof for my view when she says that judges should not make the views of the majority the “deciding factor” in any given decision.  I take it that she would accept that the Constitution is enacted by the majority, and that a law passed under the Constitution’s procedures, and which violate no other provision of the constitutional text (such as the Bill of Rights), would represent the view of the majority.  On what ground, therefore, would a judge be justified in setting aside such an Act of Congress?

The only answer that Linda provides is the natural law.  Suppose that a majority, nay a supermajority, of Americans reject the natural law as their moral theory.  Or suppose they reject the idea that there should be any moral theory entrenched in the Constitution.  The Constitution itself does not establish or refer to a moral theory — that is why she must refer to the Declaration of Independence, rather than the constitutional text, for the claim that the Founders did intend to recognize the superiority of natural law in our government.  Linda would say, I believe, that it does not matter what the views of the majority or of the supermajority are — those views must give way before the natural law, even if a tiny proportion of the population still believe in it.  Note here that I am not basing the argument on whether the natural law should be the universal moral theory, though I happen to agree with Bentham that natural rights is a sort of nonsense built on stilts, in the sense that it is not historically true and in fact one could say that the majority of human beings in history, and even today, do not live under regimes governed by social contract theory and natural rights.

So to avoid putting words in Linda’s mouth, let’s ask her some questions about how she would apply this approach to constitutional law to discrete cases.

a. Take slavery.  Does she believe that a federal judge, before the ratification of the 13th Amendment, could have found slavery to violate the Constitution in states where it existed, or in territories where Congress allowed it to spread?  Unfortunately, I believe that the antebellum Constitution did not prohibit slavery, so that states decided whether they were to be free or slave.  I believe this even though I agree that slavery is one of the greatest, if not the greatest, deprivation of natural rights.  But I think Linda’s post must point to the opposite conclusion: that a federal judge could find that natural law prohibited slavery, and that therefore he would be free to read into the Constitution such as ban even though the text contained none.

b. How about abortion.  I take it — though I am certainly no expert — that natural rights philosophers now believe that human life begins at conception, and that therefore abortion constitutes the taking of a human life.  If there are no counter-vailing considerations, such as preserving the life of the mother, it seems to me that natural rights believers must think that discretionary first trimester abortions constitute murder.  They must think this is the case even if state law permits such abortions.  I, on the other hand, think that Dobbs reached the correct result: the Constitution does not have a rule prohibiting abortion or requiring abortion, and so the matter is left to the states.  Does Linda think that the 5th amendment and 14th amendment due process clauses, or perhaps the 14th amendment’s privileges or immunities clause, require federal judges to strike down first trimester abortion laws?  Going further, does she think that Congress could legitimately enact a law prohibiting abortion throughout the nation under the claim that it is using its Section 5 power to enforce the 14th amendment’s protection for “life” in the Due Process Clause?  I think not, but I think Linda must say yes.

In both of these cases, I think that a judge who struck down slavery before the ratification of the 13th Amendment, or a judge today who struck down a state abortion law as violating the 14th amendment, would indeed be elevating their moral views — based in natural law — over that of the majority as expressed in statutory law and the Constitution.  I wait to hear how this is consistent with our idea of constitutional government, and how it is not just an approach to constitutional interpretation that the Left would just as easily use to import their own progressive theories of morality upon the nation.