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

Abstract

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.