Getting Normative: The Role of Natural Rights in Constitutional Adjudication

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Our next question must be whether we can reconcile our natural law past with our textualist present--and whether we even want to.

--Suzanna Sherry(1)

INTRODUCTION: THE NATURAL LAW REVIVAL

We are in the midst of a natural law revival. Not since the Hart-Fuller debate(2) in the wake of Nuremberg has legal academia witnessed such interest in the topics of natural law and natural rights.(3) While this development may be only the most recent aspect of the now several decades old revival of normative legal philosophy that I chronicled some ten years ago,(4) the immediate cause of this interest was, of course, the nomination of Clarence Thomas to the Supreme Court of the United States. The influence of this event on the academic imagination grew out of what were actually a series of events.

First came the criticism of Supreme Court nominee and former Judge Robert Bork--most forcefully pressed by Senate Judiciary Chairman Joseph Biden--for failing to take seriously the background rights of citizens. Exhibit number one for Biden was Bork's now-famous comparison of the Ninth Amendment to an "ink blot" which appears on the Constitution.(5) Subsequent Supreme Court nominees were required to pledge their fealty to the constitutional principle that "[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."(6) These events unleashed a scholarly excursion into the meaning of this neglected provision that was unprecedented in American legal history.(7) As a result, we can no longer ignore this unrepealed constitutional injunction on the grounds that it is a complete mystery.(8)

Before the dust from this interest in the "rights retained by the people" had settled, President Bush nominated for the Supreme Court Judge Clarence Thomas--a man who, in his speeches and writings, seemingly favored using natural law when interpreting the Constitution.(9) As a result three rather startling events occurred in rapid succession. First, in complete contrast to the arguments used in opposition to Robert Bork, critics of Judge Thomas immediately reacted by characterizing his interest in natural law as kooky and outside the mainstream.(10) Second, this fledgling campaign was then completely undercut by Chairman Biden's ringing endorsement of natural law in his opening statement during the hearings. Remaining true to his stance during prior hearings, Senator Biden endorsed the priority of natural law but said, for him, the important question to be answered by the hearings was which version of natural law the nominee adopted.(11) By taking this stance, the other Democratic senators were effectively disabled from ridiculing the natural law position. Then, with the stage so dramatically set, Judge Thomas emphatically rejected the position he had seemingly endorsed and maintained that natural law had no role to play in constitutional adjudication,(12) thereby depriving Senator Biden of his debate over the proper version of natural law. Thus in a matter of weeks the natural law issue was forcefully laid upon the table for national consideration, and scholars then proceeded to continue the debate in the law reviews.(13)

In my view, this discussion has now reached a critical juncture. It has been established beyond any reasonable doubt that adjudication based on natural rights (as distinct from natural law(14)) is excluded neither by "textualist" nor by "originalist" approaches to constitution interpretation. The labored textual and historical arguments that have been presented to the contrary(15) can be persuasive only to those who have not been exposed to the competing interpretations based, in part, on evidence omitted by the skeptics.(16)

Still, the fact that adjudication based on natural rights is not refuted by text or history does not mean that it is therefore constitutionally justified. The time has come, therefore, to lay these important historical and textual debates to one side and face squarely the two questions posed by Suzanna Sherry at the conclusion of her most recent contribution and with which I began this essay:(17) is it possible today to include natural rights in the process of constitutional adjudication and is it desirable? …