The Natural Law vs. Positivism Debate, Round Five

Are you positive about that?

John Yoo poses two specific questions for Linda (“Lucretia”) and me in his latest installment of our unfolding series on natural law versus positivism, which I repost here so readers needn’t click back to the previous piece to take in:

1. 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.

2. 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.

I’m going to let Linda give her responses separately, but I am going to form my response with a general proposition before giving one possible answer to these useful direct queries.

John persists in the view that the attempt to ground jurisprudence in natural law and natural right is somehow supposing that this tradition is supposed to provide a magic decoder ring for contentious legal issues. Instead, he believes law is more coherently grounded in positive but consistently rational utilitarianism of some kind, such as cost-benefit analysis and/or maximizing a social welfare function, along with a presumption in favor of legislative majoritarianism (essentially Blackstone’s parliamentary supremacy),.

Both of these contentions are attempts to build a straw man that can easily be set ablaze with the smallest of flints, which sometimes comes to sight with an impatience over reductio ad Hitlerum analogies. I partly share this frustration with automatic default to the extreme (and therefore rare) case, which in any case whose remedy will always require an application of force—the ultimate positivist action!—rather than a seminar on political right. I go further, though, and assert that a jurisprudence anchored in natural law and natural right will yield superior results in a much simpler fashion that the elaborate and labored method of the positivist law-and-economics approach that depends on complicated calculations of costs and benefits, which has the defect of turning law into mere economics.

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?)

A good example of this is the case we often tangle over—the infamous Lochner case. All of the history books misrepresent this case, portraying it as a simple-minded assertion of free-market ideology over a sensible legislative limit on the maximum hours for workers in the hot, dusty, and therefore supposedly dangerous conditions of bakeries.  (These “facts” remain in dispute.) And everyone celebrates two sentences of Justice Oliver Wendell Holmes’s flamboyant dissent: “This case is decided upon an economic theory which a large part of the country does not entertain. . . The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics.” Boom!

Of course, Justice Rufus Peckham’s majority opinion in the 5-4 vote does not assert any such thing. Rather, it is anchored in the rebuttable presumption that the individual’s liberty of contract should not be abridged in the absence of a clear and compelling police power case to protect the “health, safety, and morals” of the people—a principle derived from the common law, which is applied natural law. Justice Peckham himself wrote in the majority opinion that

I take it to be firmly established that what is called the liberty of contract may, within certain limits, be subjected to regulations designed and calculated to promote the general welfare, or to guard the public health, the public morals, or the public safety. “The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import,” this court has recently said, “an absolute right in each person to be at all times and in all circumstances wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.” . . .

It must, of course, be conceded that there is a limit to the valid exercise of the police power by the state. There is no dispute concerning this general proposition. Otherwise the 14th Amendment would have no efficacy and the legislatures of the states would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health, or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be.

The opinion is clear that most regulations for health and safety, such as building code requirements, ventilation, workspace specifications, and so forth, are clearly legitimate, but do not intrude on an individual’s right to contract with an employer. The factual dispute of the case is whether the legislature’s justification of the hazards of long hours in a bakery were in fact dangerous. (There is strong evidence that the New York legislature’s reasons for the statute included anti-Semitism, anti-immigrant sentiment, and labor union favoratism.) The bare majority of the Court thought not. But a few years before nearly the same Court (Holmes was not yet a member) that ruled in Lochner had no difficulty upholding a maximum hour law on behalf of underground hardrock miners (Holden v. Hardy), where the inherently hazardous conditions were not a close call or subject to factual dispute.

While Lochner was a 5-4 vote, in one sense it was an 8-1 vote, because the principal dissent, written by Justice John Harlan and joined by two other justices (no justice joined Holmes’s dissent, significantly), actually agreed with Peckham’s presumption in favor of liberty contract in the absence of compelling facts that the health and safety of workers justified statutory intervention. And Harlan thought the legislature got the facts right, though the trial courts and the New York state legislature arguably used safety information about baking that was 20 years out of date.

Can judges make these kind of calls instead of legislatures? They did in other cases, and both sides in this case agreed that it was a close call; the case could have gone either way. Increasingly federal appellate judges today are reviewing the facts of cases de novo, as the saying goes.

The important point remains the presumption of liberty at the beginning point for the judicial analysis. Holmes was the outlier in this case, yet somehow has become the authority for the positivist view rejecting wholesale the presumptions of individual liberty, giving us by degrees the modern view that there is no discernable limit to the valid exercise of the police power/

What does that presumption of the individual liberty of contract derive from? From the same Lockean natural law and natural right principles of the acquisition and protection of private property. And if we consider the judicial treatment of property regulation in recent decades we can see how the presumption of property rights, if more robustly protected, would yield the kind of benefits that positivist law-and-economics reasoning today aims for. As is now widely conceded, excessive regulation of property is a primary cause of the scarcity of accordable housing and other commercial activity (the empirical evidence suggests excessive land use regulation has been a significant drag on economic growth for the last several decades).

This is a long subject (see Richard Epstein’s Takings for the full-gospel account), but the excessive regulation of property has grown because our courts declined to protect the basic presumptions of property rights for decades. There have been a few salutary reversals in recent years, but we are far from recognizing that the government should have to meet a much higher burden of proof for the conditions and regulations it imposes on property owners. Our economy would be much more efficient—and our aggregate social welfare much higher than it is today—if there was more robust protection against arbitrary and excessive land use regulation. Economists are nearly unanimous on this point today, but too many jurists say, “This is too hard for us to figure out!”

Now, back to John’s two queries, about slavery before the Civil War, and abortion today. My answer on these questions may differ from Linda’s and I’ll let her file separately.

In the case of slavery, I answer that a federal judge did not have the constitutional authority or jurisdiction to outlaw slavery where it existed by the positive law of a state or territory (assuming Congress had allowed a territory to make such a permissive law). It would require a long, separate excursion to explain why the constitutional obligation to respect the positive law of the several states might trump the moral sense of the matter derived from natural law. Such an extended treatment would draw both from modern Lockean compact theory, but also Thomas Aquinas’s axiom in his Treatise on Law that not everything that is immoral should be illegal.  (In one sentence, Aquinas’s view on this is an exercise in classical prudence—another idea that John is allergic to.)

But this is not to concede that natural law principles cannot be applied in any case or controversy involving slavery. The actual case that did present itself was Dred Scott, and the natural law could have properly disposed of this case without difficult or extended Jesuitical hermeneutics.

First, recall that the holding in Dred Scott was that Scott was not a “person” for legal purposes. All the Taney Court had to do was recognize Scott as a “person,” and it is of crucial significance that to reach the holding of the case, Taney had to contort the plain meaning of the “self-evident truth” of the Declaration that “all men are created equal,” which clearly included Scott. After all, the euphemism for slave property in the constitution was “other persons,” which would have been sufficient without recourse to the Declaration for deciding that states and territories were able to ban slave property, just as states today ban certain categories of property from entry into their states. (Especially on my mind right now are states that allow squirrels to be pets and those that don’t. Justice for P’nut! California, incidentally, bans ferret ownership; don’t bring your pet ferret to California. Though I am tempted to suggest someone name their squirrel “Dred Scott” and test the state laws.)

It is just here, incidentally, that jurisprudence intersects with prudence understood politically; had the Taney Court not implicitly legitimized slavery on the national level, presumptively invalidating all state and territorial laws banning it, we might have avoided the Civil War.

The question of abortion is harder, but not without some latitude for legitimate natural law application.

First, even if you land with the idea that life, and therefore personhood for legal purposes, begins at conception, it does not automatically follow that all first trimester abortions should be illegal, because the potential mother does have the first natural right of self-preservation to weigh in the balance, like every other legitimate exception to the basic prohibition “thou shalt not kill.” A pregnancy that genuinely threatens the life of a woman, rare though they are, clearly falls in such a category.

Second, as science and moral philosophy divides on when human life meaningfully begins, it is arguably arbitrary for a judge to pick a point certain and ban abortions before that point. Blackmon’s reasoning in Roedid the opposite, holding that because science and moral philosophy cannot settle on when life begins, no legislature could proclaim on the issue. I think the lowest common denominator of natural law should lead judges to defer to a legislative determination, as Dobbs correctly does. In other words, the principles of natural law sometimes—and this is one of those times—must find their vindication in the minds of the legislature rather than the minds of judges. But that in no way diminishes natural law as the guiding authority on how to think through the question.

As a to whether Congress can rightly enact a nationwide ban on abortion I am agnostic.