The Return of Natural Law

Article excerpt

Ordinarily, it should not be left to judges to say what natural law requires, the late Russell Kirk, author of The Conservative Mind (1953), argues in Policy Review (Summer 1994). Natural law is "derived from divine commandment; from the nature of humankind; from abstract Reason; or from long experience of mankind in community."

Not since Associate Justice Joseph Story adorned the Supreme Court of the United States, early in the 19th century, has any member of the Supreme Court had much to say about natural law. Nevertheless, in recent decades a number of Supreme Court decisions seem to have been found upon natural-law notions of a sort. I think, for instance, of the Warren Court's decision (the opinion written by Chief Justice Warren himself) that congressional districts within the several states must be so drawn in their boundaries as to contain so nearly as possible the same number of persons within the several districts--a matter previously left to the discretion of state legislatures....

As [Orestes] Brownson remarks, the natural law (or law of God) and the American civil law are not ordinarily at swords' points. Large elements of natural law entered into the common law of England--and therefore into the common law of the United States--over the centuries; and the Roman law, so eminent in the science of jurisprudence, expresses the natural law enunciated by the Roman jurisconsults. …