Conservatives are rightly disappointed when judges they appointed betray their principles in favor of a legal model without a moral compass. They cannot understand how they find unknown “rights” and “freedoms” in the name of a misdirected constitutionalism that ignores the firm foundation of fundamental truths based on tradition and morals.
Modern law has a distaste for natural law. The legal establishment looks upon it like a weed cluttering the legal process that deprives modern law of its moral neutrality. It sees no reason to recognize a higher natural law, written on the hearts of men, valid for all peoples and places, providing the foundation of moral certainty.
Such recognition would clash with the individualist dogmas championed by Enlightenment thinkers. It contradicts the liberal notion that individuals should be allowed to do anything that does not hurt another. Individuals living in a social contract with others determine the validity of law, not a moral code. The State, not the Creator, is the only source of law.
Thus, law becomes merely the mechanical rules that keep society running smoothly, not the product of a divinely ordained order. Positive law drafted by individuals and confirmed by a strong government avoids messy moral absolutes and creates the illusion of a humanity in control of its destiny.
The Need for a Solid Law of the Land
Thus, conservatives are rightly disappointed when judges they appointed betray their principles in favor of this legal model without a moral compass. They cannot understand how they find unknown “rights” and “freedoms” in the name of a misdirected constitutionalism that ignores the firm foundation of fundamental truths based on tradition and morals.
Indeed, all law, even modern law, needs such solid foundations since it cannot function when constantly changing. An unchangeable or at least hard-to-change framework provides stability and certainty.
That solid foundation of law in Western civilization was once provided by natural law via classic philosophy and Church teaching. This set of broad guidelines urging all to do good and avoid evil formed the foundation of morals that must inform law. Elements of this natural law were also present at the time of the Founding.
However, nineteenth-century liberalism gradually destroyed the natural-law tradition that served as guidance. The legal establishment has adopted a positive law standard that relied on human judgment alone to make law outside any established moral framework.
While denying natural law, this new legal order gradually used the U.S. Constitution to assume the stabilizing functions of a natural law trumping all others. Thus, the Constitution stands as the supreme law of the land, and the Supreme Court is its interpreter.
The Limits of the Constitution
However, the Constitution has its limitations. While influenced by solid natural-law principles, there is nothing to guarantee that its interpretations will not err in defining justice. Indeed, the document has been amended twenty-six times. Court decisions regarding it have been overturned. Some of its interpretations failed the common good.
To function properly, the Constitution presupposes an ordered nation since it is only as good as those who uphold and interpret it. In virtuous times, the document could be counted upon to defend very basic Christian and family values.
However, in these decadent times, progressives have weaponized the interpretations of the Constitution to make it a “living” document reflecting immoral standards. Inside the “penumbra” of its clauses, judges are now finding bizarre “rights” and outlandish “freedoms” and imposing them on the nation.
Thus, the document becomes a double-edged sword since both parties use the same Constitution as a reference. When moral atrocities like procured abortion are approved, the text provides little protection for conservatives. Indeed, these aberrations become enshrined as “settled” law that is difficult to change.
A Higher Law Substitute
In the face of this failure, many conservatives adopt a rigid “Constitution alone” attitude toward the text. They reason that if the liberal reading of the document cannot guarantee order, then its interpretation must be limited to reflect the Founders’ original intent.
These “originalists” or “textualists” hold that the body of frozen wisdom of the Founders is enough to guide the nation through this period of tribulation. They claim that this interpretation of law will preserve the American order without changing any positivist premises.
The truth is different. The collection of these interpretations creates a cheap natural law ersatz substitute that further compounds the disastrous consequences of rejecting the genuine thing.
Today, reflecting the moral decadence of the times, this solution has broken down. The horrible decision of Justice Neil Gorsuch in Bostock v. Clayton County (2020) showed that something has gone awry with originalist logic. No one understands how the avowed “textualist” Justice Gorsuch (joined by Justice Roberts) extracted “transgender rights” from the original meaning of the word “sex” in the intent of the drafters and enactors of the 1964 Civil Rights Act. Such readings reveal that there is more penumbra and darkness than sunshine in the originalist camp.
A Firestorm About Truths
In this legal dilemma, many do not know where to turn. Some insist on “better originalism.” Others say it is time to change the legal paradigm.
Amherst Professor Emeritus Hadley Arkes ignited a firestorm on the right by affirming that some truths precede law. He claims that Nature has something to say about modern problems beyond the reach of the Founders. He even proves that the Founders recognized this moral foundation of law.
His proposal is not a change of paradigm but a return to a tradition of ordered liberty. Such primary truths are all within the ancient common law roots of American law. It is a return to the wellspring – an originalism much more original than modern efforts to define the intent of the Founding Fathers.
The Real Battle of Mentalities
The dilemma is not a choice between originalist and progressive readings of the Constitution since the two readings are now based on the same positivist premises. Without a stable foundation of objective norms, one reading holds no more authority than the next. The downward slide to legal chaos will prevail.
The real battle is one of worldviews. On one side is a naturalistic evolutionary system driven by human passion, without a special purpose or final end. It relies upon fallen humanity to chart its course. The other is a hierarchical order governed by God by which humanity progresses in accordance with human nature and virtue toward moral perfection and sanctity.
The Culture War is not about single issues but the clash of worldviews. It now rages in the field of law.
The Hobbesian Nightmare
The progressive interpreters of the Constitution have adopted a Hobbesian worldview that denies any higher end in life other than self-preservation. In this bleak secular and anti-metaphysical world, there is no transcendental reality, spiritual soul or summum bonum. Indeed, Thomas Hobbes held that society is a “war of all against all,” where individuals follow their passions and struggle to survive. The only solution is a strong unchallengeable government called Leviathan that imposes its law to keep society from falling into disorder.
Thus, free from the metaphysical restraints of human nature, the progressives hold that natural law is a body of poetic fantasies made up by those disconnected from reality. With no final end, they claim man needs no guiding framework like natural law since life is reduced to a struggle to survive amid the gratification of the passions. With no eternal life, natural law becomes an invention of the Church to restrain the unruly appetites. The omnipotent State is the supreme lawgiver, which interprets the will of the people.
Thus, modernity introduced the Hobbesian nightmare of a rationalist dog-eat-dog world fueled by the frenetic intemperance of the passions that have changed the external structures of society. Postmodernity has taken this process further by changing the internal structures of identity, being and sexuality of the individual human being today.
Radicals are now seeking to adapt law accordingly so that the imagination takes control. Thus, a return to “originalism” based on positivist premises will not lead to a return to order. It will not stop the progress of the cutting-edge radicals who deny human nature and seek to destroy anything that stands in the way of their exacerbated passions.
The Opposing Christian Worldview
The classical and Christian worldview could not be more different from the Hobbesian nightmare. Its metaphysical framework affirms the nature and causality that takes things toward their final end and purpose in life. Natural law derives from the nature of man and enshrines objective and moral norms of right and wrong behavior.
This law does not impose itself on individuals but serves to help them develop their full potential and avoid the destructive havoc of the unruly passions. The Church becomes not the inventor of this law but its gentle guardian, leading people to their sanctification.
Natural law is the only way to oppose the march toward the destruction of law and order. Its solid metaphysical foundation is connected to reality and the final end of salvation.
American Higher Law Tradition
Moreover, natural law is not something alien to American history. Indeed, America has a strong natural-law tradition. The nation’s attachment to higher law dates back before independence as can be seen in this reference from renowned English jurist Sir William Blackstone (1723–1780): “This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.”
Blackstone is the ultimate authority on both American and English common law and unequivocally defends a higher law. Such opinions can also be found in the works of Sir Edward Coke (1552–1634), who also strongly influenced American law and embedded the Magna Carta’s natural-law principles in colonial law.
Proof of natural law’s ancient past can be traced further to the Roman roots of law found in Cicero’s expressions, lex naturae, non scripta sed nata lex, lex caelestis, lex divina (“natural law, inborn or unwritten law, heavenly law, divine law”). Christian philosophers and canonists later adopted such universal formulations.
In addition, manifestations of natural law can be found everywhere because it is embedded wherever there is human action. Law reflecting it is found among the many places where God has planted it—in public opinion, the common conscience, the testimony of custom, the ancient charters and the legal sense of the people.
Far from an arbitrary set of religious rules, natural law works with human nature to provide legal frameworks that are connatural with it.
How different this vision is from the legal chaos now afflicting the nation! As the country’s legal infrastructure unravels, Americans must have the courage to proclaim that objective and inescapable truths, grounded in nature, precede and influence law and that even the Founders recognized them as anchors and axioms. Justices and judges can no longer afford to ignore the moral substance of modern cases in the name of an assumed textual reading. Conservatives will always be disappointed when there is no substantial foundation to interpret law.
It is time to return to tradition. It is time to return to God, the source of all authority and law. The only other choice is the irrational path to the chaos of postmodern law. Only the firm foundation of a higher law tradition will serve to oppose the legal shipwreck that looms on the horizon.
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The featured image is a photograph of the Justices of the Supreme Court of the United States, October 1894, and is in the public domain, courtesy of Wikimedia Commons.
“These “originalists” or “textualists” hold that the body of frozen wisdom of the Founders is enough to guide the nation through this period of tribulation. They claim that this interpretation of law will preserve the American order without changing any positivist premises.”
The quoted selection above demonstrates a lack of understanding regarding the textualist, often (incorrectly) called originalist, approach to statutory interpretation. The textualist approach is not used because it can solve the problems of society through procrustean application of the “frozen wisdom” of the Founders. Rather, Textualism approaches the language of statutes or constitutions as having a fixed meaning at the time they are signed into law or ratified. If the meaning of those words change over time or the provision in question needs to be expanded to meet current realities then such change needs to occur through the established amendment or legislative process. To allow unelected judges to change the law on their own in such circumstances is to invite them to inject their own subjective intent into the law and remove the elected representatives from the legislative process, thereby disenfranchising the citizens.
The role of judges isn’t to provide answers to the great moral questions of the day. That is the role of politicians, pastors, and priests. The judge’s role is to interpret the language of the law as passed or ratified through the appropriate process. To ask them to apply their own subjective ideas about natural law in place of, or in addition to, the law as written is to make them an unaccountable super legislature. Furthermore, if you advocate judges supplementing the written law with their own notions of natural law you have no grounds to object when other judges supplement their interpretation with their own concepts of right and wrong. Textualists seek to avoid disenfranchising the citizenry through unelected judges legislating from the bench by insisting that judges restrict themselves to interpreting the language of the law as passed.
As Blackstone said: “This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force,”
That is to say natural law is not subjective; it is an objective reality. A person’s application of that law may vary according to one’s judgment. However, that judgment cannot oppose this natural law.
Why not just have the legislature write laws that are in accordance with natural law, instead of forcing judges to act as legislators by making them browbeat laws into being compatible with natural law? I’m big on Thomism, and I agree we must order society towards its ultimate ends, but why must this occur through judges? Furthermore, we should restore social conservatism in America not by appointing judges who will enforce a conception of natural law that the vast majority of Americans have absolutely zero intellectual comprehension of, but by actually having Republican politicians refer to natural law when crafting policy, which will inspire genuine political debate because these individuals are directly representative of the public, and we must fully explicate our ideals to engender the support necessary to win elections. If we instead sneak in natural law precept through the force of the court, then the Democrats will obviously just settle on packing the courts any time they have the presidency and can muster at least 50 committed Democratic senators (just two more than they presently possess), which will spurr a dangerous cycle of court packing as Republicans will simply do the same when power flips to them, and on and on and on (precisely the sort of disorder natural law is supposed to restrain). Thus, I see no alternative path but putting in the hard work of truly changing the ideals of the American citizenry as a whole so they instinctively vote for candidates who promise to craft policy in accordance with natural law. And frankly, I think this vision is entirely reasonable, so long as Conservatives are committed to retaking the education system and crafting curriculum that teaches the principles of natural law and refutes the theory that evolution must mean a wholly materialist account of human nature and consequent equation of pleasure with “goodness”. It also means relying these concepts to adults through our political rhetoric, and not succumbing to notions of “big-tentism” via appealing to pro-degeneracy groups such as the anti-conservative Log Cabin “Republicans”; for once our political regime is truly predicated on nothing more than pursuing the good according to our nature, on realizing the ends evident by natural reason, then this system will be self sustaining, for it is solely in this sort of political arrangement human beings truly belong, and no sizeable part of the electorate would ever want to vote for someone who seeks to undermine such moral political order so as long as everyone in the society is fully educated in these metaphysical concepts. Ultimately, once Thomism commands an ironclad lock on the intellect of the public, once everyone understands the compatibility of an immaterial conception of the soul with material physical sciences, there’s no going back.
Also, why even have a constitution if the natural law is what judges should predicate their rulings on? If judges flippantly overturn constitutional clauses they deem as violating the natural law, then why not just scrap the Constitution altogether and simply have judges make law according to purely what is deemed to be the precepts of natural law? Seems to be “Natural Law Constitutionalism”, or whatever scholars like Vermeule label it, just inevitably results in there being no textually defined constitution whatsoever.
Natural Law is indispensable, yet, it too, raises problems.
Natural Law + human hubris asserts a clarity and certainty about natural law and its implications. But “nature” and what is “natural to human beings” is often ambiguous.
Natural Law + human humility seems more appropriate for intelligent but fallible human beings.
Marriage may be “natural” to humans, but is it a lifelong commitment? Is monogamy always required?
And for many issues, a cultural or practical assertion is needed: driving on the right side of the road or the left?
Is our legal system’s presumption of “innocence” “natural”? It is obvious that when the crime is committed, there is a criminal created., not, months or years later, when a jury of 12 renders its judgment. When should another system (such as in the military) be applied? Variations in understanding/interpretation of natural law is inherent in flawed human beings, as is implementation, which also requires judgments and prudence.
So true. And the health care sector is a major vehicle by which false morals are smuggled into law and culture under the guise of “current science.”
The American Medical Association and the American Psychiatric Association are leading figures in this ploy. Take “LGBTQ” issues. The psychological disorders in question have long been treatable psychodynamically. They are also preventable with better parenting. Republicans seem terrified of seeming mean, and making themselves even more unpopular, by saying so. They also seem to think that Leftist “progress” can’t be reversed. The leaders America needs know better.