If I had the chance to ask just one question at the Senate confirmation hearings on Elena Kagan’s fitness to be a justice of the Supreme Court, it would be this: “What do you think of the natural law?” I’d ask that question because it’s more important than most, even all, of the questions that will get asked, not because I have any doubt what the answer would be: “Not much.”
I say this not to the individual discredit of Kagan, solicitor general of the United States, but precisely because she’s a prominent representative of the Harvard-Yale law school axis now dominating the Supreme Court.
As such, it’s safe to say, natural law is simply not a part of her intellectual universe. And that is worth putting on the record, if for no other reason than to dramatize the sorry straits in which American jurisprudence finds itself these days.
Natural law theory is the conceptual backbone of the West-ern legal tradition. It guided the framers of the American Constitution. Despite what some imagine, it isn’t a doctrine of the Catholic Church, though Catholic thinkers were largely responsible for its elaboration for centuries. A thumbnail sketch of it might be along these lines:
Human rights and duties arise from human nature. The conceptualization of this body of principles expressing fundamental conditions for individual and communal human fulfillment (not instant gratification but long-term happiness) is called natural law. Man-made laws don’t create these rights and duties but are meant to express and defend them.
When man-made law fails to do that — when rights and duties are products only of the ideological preferences of lawmakers — society is ruled by a curious mix of relativism and power politics.
Natural law theory began to pass out of favor well over a century ago under the influence, among others, of that eminent relativist Justice Oliver Wendell Holmes (1841-1935). Now, practically speaking, in elite law schools and generally on federal courts peopled by their alumni, it is as dead as the proverbial dodo.
That is a very serious matter. For, as Jesuit John Courtney Murray, the eminent American thinker on church-state matters, remarked 50 years ago, “public consensus” on fundamentals is what held a diverse and pluralistic nation like the United States together, and the basis of the American consensus up to then had been natural law. The Civil War was fought largely to test that proposition. When Father Murray wrote in 1960, it was slipping away.
Today it has all but disappeared from sight. Hence the culture war. Consider the sort of questions Americans, lacking a healthy public consensus, often argue about now: whether abortion is allowable simply as an expression of individual choice; whether homosexual relationships should be recognized as marriages (answerable only on the basis of some definition of marriage); whether elderly, sick people should be helped to commit suicide — or put away quietly if they’re too out of it to decide for themselves.
It goes without saying that Elena Kagan is a liberal like the president who nominated her. She is pro-choice and has a disquieting interest in gay rights issues. Barring some astonishing disclosure, she will undoubtedly be confirmed.
I don’t suggest she be asked the specific questions above as part of the confirmation process. I simply wish the process would shed light on her basis for answering them — including her stance toward natural law.
She and the other members of the Supreme Court are likely to be called on to answer those questions in the years ahead.
Russell Shaw is an OSV contributing editor.