by Samuel Gregg, published at Public Discourse March 15, 2017
Samuel Gregg (shown above) is Research Director at the Acton Institute.
What does natural law say about the power of judges in constitutional systems of government?
When President Donald Trump announced his first nominee to the Supreme Court, many observers quickly noted that Neil Gorsuch wrote his doctoral thesis under the supervision of the Oxford legal philosopher John Finnis. Some immediately asked whether Gorsuch’s approach to constitutional interpretation might be shaped by the “New Natural Law Theory” (NNLT) pioneered by Finnis and others.
The columnist George Will, for instance, expressed the hope that Gorsuch might “effect a philosophic correction” to what Will regards as a lacuna in Justice Antonin Scalia’s theory of originalism. In his 1997 book A Matter of Interpretation: Federal Courts and the Law, Scalia wrote, “there is no such philosophizing in our Constitution, which, unlike the Declaration of Independence and the Declaration of the Rights of Man, is a practical and pragmatic charter of government.”
Will takes a different view. Natural rights, he claimed, may be “independent of the Constitution” insofar as they “are grounded in [human] nature.” But natural rights are also, Will stated, what the Constitution exists to protect. Will concluded by suggesting that the fact the Gorsuch studied under the author of Natural Law and Natural Rights (1980)—the book which some believe single-handedly revitalized natural law theory in jurisprudence and philosophy more generally—might foreshadow more attention to natural rights in Supreme Court deliberations.
No one can predict with certainty Gorsuch’s take on any question on which he might be called to deliberate if he receives Senate confirmation. But before too much ink is spilled speculating on whether natural law in general or NNLT in particular will influence Gorsuch’s thought, it is worth reflecting on two important prior questions. How does natural law theory view constitutionalism? And what does this mean for the exercise of judicial power? READ it HERE.