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Judges, Democracy, and Natural Law

(1) Though people on both sides regret for them, these annual summer disputes over Supreme Court nominees can be valuable exercises in civic education. The Robert Borkathon of 1987 forced millions of Americans to think about the role of a constitution in a democracy: the proper way to interpret 200-year-old phrases, the conflict between majority rule and individual freedom, and so on.

(2) This summer President Bush鈥檚 ______ of Clarence Thomas has unexpectedly plunged the nation even deeper into the pool of first principles. America finds itself debating natural law. An enthusiasm for something called 鈥渘atural law鈥� is one of the repeated themes in Thomas鈥� slim collection of writings and speeches. What he means by natural law and what uses he would put it to as a life-tenured? Supreme Court Justice are not clear. This justifiably alarms some people, who are worried that 鈥渘atural law鈥� could become an excuse for a conser-vative judge to impose his political agenda — just as conservatives have accused liberal judges of using 鈥減ri-vacy鈥� to do the same thing.

(3) In fact, though, the two questions can be separated. Is there something called natural law? And is it a le-gitimate basis for judges to overrule the wishes of the majority as expressed in laws of a less elevated sort?

(4) At this point in American history, the answer to the first question is beyond challenge. Yes, as far as the U.S. is concerned, natural law exists. The 鈥淟aws of Nature鈥� are right there in the first sentence of the Declara-tion of Independence. The second and most famous sentence provides a perfect definition of natural law: human beings are 鈥渆ndowed? by their Creator with certain inalienable Rights,鈥� including 鈥� Life, Liberty and the pursuit of Happiness.鈥�

(5) Where do these rights come from? Some may have trouble with the concept of a divine creator. Others may find it overly metaphysical? to insist that every human being has these rights in a world where most people are plainly unfree to exercise them. But few can doubt that life, liberty and the pursuit of happiness are what a civilized society ought to strive to provide its members. As the Declaration says, that is the reason 鈥淕overn-ments are instituted.鈥� It is 鈥渟elf-evident.鈥� That鈥檚 good enough for me.

(6) But just because rights exist, this does not mean it is the role of judges to enforce them. The ______ of ju-dicial review — the power of unelected judges to overrule the democratic branches of government — is a funny business. Judges do not have that power in other major democracies, and it is not explicitly authorized in the U.S. Constitution. It emerges, rather, from the structure of our government. As Justice John Marshall first reasoned in Marbury vs. Madison (1803): faced with a conflict between a law and a constitutional provision, judges must honor the Constitution. All government officials should do the same. The Supreme Court鈥檚 inter-pretation of the Constitution is definitive only because procedurally it comes last.

(7) The Constitution lists certain rights, and others (such as the right to vote) are implied in the structure of government it sets up. But nothing in the constitutional structure of the government gives the Supreme Court authority to overrule the other branches on the basis of unwritten natural law. Judicial review, a bold claim at first, is now so well established that we鈥檝e come to feel that a right doesn鈥檛 exist unless a judge can enforce it. But enforcing a right means interpreting it, and exclusive power to interpret a concept as vague as natural law should not be given to the unelected branch of government. The job of protecting our nonconstitutional rights belongs to those who most directly 鈥渄erive their just powers from the consent of the governed,鈥� as the Declara-tion has it: elected officials.

(8) The Declaration speaks of 鈥淟ife, Liberty and the pursuit of Happiness.鈥� The Constitution refers more lit-erally to 鈥渓(f膩)ife, liberty, or property.鈥� It鈥檚 an illuminating difference. Furthermore, the Constitution does not guar-antee these values in absolute terms. It protects them only from deprivation by the government itself, and even in that regard it promises only procedural fairness and equal treatment. The authors were surely wise to narrow the focus. What would be left of democracy if judges could roam the landscape striking down anything that — in their opinion — interfered with somebody鈥檚 pursuit of happiness?

(9) All this is not to say that natural-law concepts have no role to play in constitutional interpretation. Many people, for example, find it hard to understand why freedom of speech must be extended to Nazis and others who do not believe in free speech themselves and would deny it to others if they could. The answer is that the Bill of Rights is based on the theory of natural law, not on the alternative theory of a social contract. You are ______ to these rights simply because you are a human being, not because you have agreed, literally or meta-phorically, to honor them.

(10) Majestic phrases like 鈥渄ue process of law鈥� require analysis. Even the strictest constructionists would ac-cept that the natural-law thinking of the 18th century is useful in divining the framers鈥� 鈥渙riginal intent.鈥�

(11) Some enthusiasts see the Ninth Amendment — which provides that the list of rights in the Constitution 鈥渟hall not be interpreted to deny or disparage others retained by the people鈥� — as a direct incorporation of natural law. The fact that these enthusiasts include would-be judicial activists of both the left and the right ought to dim the enthusiasm of both groups. The point is that the people do have rights not derived from the Constitu-tion — natural rights, if you will — but judges have no special authority to enforce those rights.

(12) Clarence Thomas may well be claiming no special authority for judges when he invokes? natural law and natural rights. In that case, there is no problem. If he has more ambitious notions, there is a serious problem. And the fact that liberal Justices may have had overreaching notions of their own in the past is mere irony.