A Government by Men, Not Nature: A Natural Law Case for Limits on The Judicial Enforcement of Natural Law and Unenumerated Rights under the Constitution

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Trinity Law Review


It has been rightly said that the quarrel over the relation between natural law and implied rights under the Constitution is ultimately one of whether law consists only of power, as well as a function of our debates over human nature. Although the lesser question of whether the Supreme Court of the United States can make use of natural law reasoning in discerning the existence of a right not expressly enumerated in the Constitution is as old as the instrument itself, the many concerns that motivate it are older than the very republic. Yet, different and often contradictory answers continue to be given both from inside and outside the very natural law tradition. This paper almost exclusively addresses the debate within that tradition. In what follows, my aim is to make a plausible argument for the following proposition, to wit: that a certain natural law conception of the rule of law in the United States allows for-but does not require-the judicial enforcement of those natural law principles that are reasonably traceable to the text of the Constitution, but not of those that are not so traceable. As I will show, a first necessary corollary of this conclusion is that, from such a natural law perspective, only a version of originalism is appropriate as a method of judicial interpretation and construction. A second corollary, however, is that only a moral reading of the Constitution does justice to its language, structure, purpose, and underlying values. Although this paper is concerned with natural law reasoning as the preferred type of moral reading, the proposition I defend and its corollaries are not compatible with this tradition alone, but also with other moral reasoning schools-the comparative merits of which vis-a-vis natural law lie beyond the scope of this paper. I treat natural law reasoning as preferred only because my aim is to assess and develop the arguments found within the intramural debate on these issues. Supporting this proposition will require that I first appropriately frame the issue and focus my inquiry. As seen below, the framing of this issue presupposes the validity of two propositions: (1) that some version of natural law reasoning is correct; and (2) that such a version of natural law reasoning both legitimizes and limits the power of judicial review generally. Although these two propositions are analyzed, their overall truth is generally the work of postulation for purposes of this paper. Moreover, purporting to critically develop the work of Robert George in this context, I also resort to three questions to narrow the problem addressed: (1) Can the power of judicial review generally be grounded in natural law reasoning?; (2) Does the Constitution allow for the judicial enforcement of natural law principles and rights as part ofjudicial review?; and (3) Are there any limits to such an enforcement? Although the answers to these questions are the building blocks of my thesis, they do not explain or translate into the structure of the paper. In Part II, I introduce the issue by framing it by the concept of rule of law, as illustrated by the debate between two natural law writers: Robert George and Joseph Cascarelli. In Part III, I consider the relationship between the natural law tradition and the Constitution as it was framed. In Part IV, I explore the relationship between natural law and the concept of rule of law, focusing on Aquinas' definition. In Part V, I explain why I believe that a natural law conception of the rule of law necessitates that the Judiciary subscribe to some form of textualism and originalism in its interpretation of the Constitution. Finally, in Part VI, I offer some concluding remarks, observing that it is in the best interest of natural lawyers to limit any judicial enforcement of natural law principles.

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Spring 2019