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Two questions senators should ask Neil Gorsuch about natural law

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It is my impression from reading Mr. Gorsuch’s published work as a legal scholar and a judge that he is a thinker who carefully considers the nuances and implications presented by the actual FACTS in a case before the bench before he arrives at an opinion. FACTS consist of material that comes to bear in applying the discipline of legal reasoning to the FACTS.
Regardless the opinion reached, the rationale he provides connects point A with B and point C, etc., until he reaches the conclusion.
IMHO, This manner of legal reasoning is not, cannot be, driven by a political ideology. It is, jurisprudentially speaking, the only respectable and acceptable mode of legal reasoning.
Ideally, this mode is also the essence of the job of a Justice. A justice ought not be taken as, or expected to be, the mouthpiece for any type of popularism - be it left, right, liberal or conservative. Like the weather, that sort of stuff changes as surely as the seasons change. What is hot for one latitude is cold for another.
Otherwise, a justice is but another politician.
I think we have enough of those in the other 2 branches of government. Let’s give this third branch its autonomy. After all, that is the purpose for which it was created in the beginning.
Mr. Gorsuch's written legal opinions always present a rationale easily digestible as it is written in a clear enough language, relatively rid of jargons, and accessible to an average responsible thinker. I stress “responsible”. “Responsible” means honest, not an ideologue.
Whether you agree with his conclusion or not, he is convincing. That is a very important attribute for a USSC Justice.
His relative youngish age adds to his strength. He is old enough to be mature, young enough to NOT be at risk of premature senescence of the sort that cuts the sufferer/owner off from the continuing evolution of REALITY. A judge who is cut off from REALITY is by definition an incompetent judge, if not incompetent anything to start with, including a politician.


After reading the comments, I am convinced that most people have no clue what is actually meant by "natural law". It is a pity that the classics are not taught in American schools anymore.
The notion of natural law is both ancient and widespread, and in fact is part of the founding of the United States and its legal principles. If anyone has read the Declaration of Independence, and agreed with the sentence “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”, then you are agreeing with a statement of natural law.
The concept of “natural law” is not inherently a Christian (or even religious) concept. The idea pre-dates Christianity by several centuries.
In his Nicomachean Ethics 5.7. Aristotle distinguishes between natural (phusikon) and legal or conventional (nomikon) justice within the sphere of political justice as a whole, and he objected to those who treat the whole of political justice as merely legal or conventional. According to Aristotle, the content of “natural” justice (or sometimes referred to as “universal law”) is set by nature, which renders it immutable and valid in all communities. In contrast, “conventional” justice comprises rules devised by individual communities to serve their needs. Aristotle argued that “conventional justice” is subject to change by human beings, and is therefore subordinate to “natural justice”.
For the Roman philosopher and politician Cicero (a proponent of stoicism), “natural” or “true” law was based on “right reason in agreement with nature” ("true law" is equivalent to Aristotle's "universal law"). Cicero proposed that True Law applied across all communities and he identified God as both the law-maker and law-enforcer.
Thomas Aquinas expanded on these notions in his Summa Theologica. He subdivided “law” into four concepts: lex aeterna (eternal law), lex divina (divine law), lex naturalis (natural law), and lex humana (human law). For Aquinas, there was an equivalence between lex naturalis and lex aeterna – he postulated that human beings, at least in part, do not make law but rather discover it and appropriate it for themselves. In other words, “natural law” is the process of humans discovering the “eternal law” that already exists and is universal. This is analogous to Aristotle’s explanation of “natural justice”. Lex humana, in contrast, is much more banal and ministerial – it is human beings setting up an ordered regulatory state, but those laws may or may not comport with lex naturalis or lex aeterna (for example, a speed limit that is set at 35 MPH is not an aspect of natural law, but is merely a legal convention to regulate behavior in a predictable way). This is analogous to Aristotle’s explanation of “conventional justice”.
Thus, for philosophers like Aristotle, Cicero, and Aquinas, true law/universal law/natural law/eternal law exists independently of humans, and can only be discovered and appropriated by humans (at least, any human with a properly functioning intellect and a modicum of experience in the world).

LexHumana in reply to HopefulObserver

I've already long since graduated from law school (cum laude), so I will take your analysis of the law and debunk it as I see fit. Your understanding of English law is grossly flawed -- the majority of English jurisprudence at the time of the founding of the United States was (and actually still is) common law. This common law relied heavily on the idea of natural law, as opposed to statutory pronouncements. The very notion of a court of equity is almost exclusively premised on the idea of natural law (i.e. that there is something inherently fair and equitable that can be used as a benchmark for decision-making).

Your assertion that there is no room for natural law in the Constitution because of the existence of the Establishment Clause is fundamentally flawed, because natural law is not inherently religious (you may disagree, but the notion of a pre-existing natural state of fairness or justice does not require the existence of a deity or organized religion). The Bill of Rights also did not create the exclusive rights that citizens enjoy, contrary to your assertion: the fact that the 9th Amendment specifically states "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" makes it clear that there are rights the people possess that are NOT granted to them by the government.

Finally, the Declaration of Independence is listed in Title 1 of the U.S. Code as part of the "organic laws of the United States". It is not a statute itself, but is retained as a foundation principle to help explain how the rest of our statutes historically evolved and should be understood. Thus, the Framers of the Constitution and the First Congress understood that natural law principles were being relied upon as founding principles that the rest of our laws are built upon. If you bother to do your legal research, you will find the Declaration cited frequently in judicial opinions, not as controlling law, but as guiding context. For example, the recent Supreme Court decision in Ariz. State Legis. v. Ariz. Indep. Redistricting Comm'n, 135 S. Ct. 2652 (2015) cites to the Declaration and to John Locke. Hundreds of other federal cases can be found easily if you bother to look. See, e.g., Stern v. Marshall, 564 U.S. 462 (2011).

Swiss Reader

How can we justify the universality of human rights without some recourse on natural law? Uncritical, positivist acceptance of any and all laws passed by politicians can have evil consequences. That's what during Nazi times led apolitical jurists (including some perfectly decent persons) to apply the Nuremberg laws and other monstrosities.
It's not a bad thing to have a justice who believes in human rights. If that means in the end that some fundamental decisions about abortion and other matters have to be taken by the legislative, well that's their job, isn't it?

ashbird in reply to LexHumana

Re your Mar 22nd, 15:06 comment and the rest, very very nice. Thank you for taking the time to write and post the material.
I thought the seminal work of Socrates should be added to the list of Greek philosophers in discussing the subject of Natural Law (Aristotle was Plato's prized student and Plato was Socrates' prized student; while Aristotle disagreed with Plato on some points as teacher and student, the intellectual lineage is unmistakable) -
Always enjoy your posts. Totally under-appreciated and underrecommended.
Also, if you have time, take a look at Gorsuch's Dissertation at Oxford. The bibliogpahy is extensitve and impressive. As a lawyer and someone who also wrote a doctoral dissertation, I'd like to think I have a good eye for work that is carefully construed. Again, thanks for your posts.

LexHumana in reply to HopefulObserver

"Common law is is not recognized in the Constitution"

It certainly is. Every state in the Union has a body of common law that governs its proceedings, and federal courts not only recognize it, they will enforce it if a case in diversity comes before them to adjudicate. Also, if you do a quick Lexis search for "federal common law" just in federal court cases, you will come up with thousands of results -- there is an extensive body of "federal common law" used in the federal judiciary. For example, see Kiobel v. Royal Dutch Petro. Co., 133 S. Ct. 1659 (2013) (discussing federal common law claims), and Mohamad v. Palestinian Auth., 566 U.S. 449 (2012) (same). See also, Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011).

I observe that your comments have a lot of conclusory "legal" pronouncements, but very little citation in support of them.

Swiss Reader in reply to HopefulObserver

HopefulObserver, you mention approvingly the use of civil disobedience. Now when exactly do you think that civil disobedience would be justified? You can't allow anybody to disobey the law just on a whim; otherwise it wouldn't be a law anymore. There must be some rules to specify under what circumstances certain laws could or should be disregarded. So, since you accept engaging in civil disobedience in certain cases, you have already accepted the existence of some rules beyond the positive law. In other words, you too seem to believe in natural law.

ashbird in reply to LexHumana

The scope of the discussion on the subject of Natural Law is so vast even a minimally responsible coverage in breadth and depth is an impossibility in a cyberspace blog in the nature of DiA of a publication such as TE and its corresponding readership. I would like to merely mention here the inclusion of *Phenomenology* in Sartre's philosophical thought, the spokesperson of which is, of course, Satre himself. [Compare and contrast Emmanuel Kant's fundamental ideas on this]. Again, I refrain from going into any details for lack of time, and even had I the time and I did my best, my best would not be anywhere near 10% sufficient on the subject. In class time, it is 2 semesters class hours to cover what needs to be covered. And people spend a whole life time (assuming a life-span of 100 years, such as Bertrand Russell's - 2 yrs short ) developing the "right" Q's, let alone reaching the "right" A's, except the only one that, IMHO, is good enough: "Nobody knows everything." An interesting anecdote about Sartre - he was arrested for disorderly conduct once while participating in a protest march. De Gaulle personally pardoned him, saying, "You don't arrest Voltaire". Some directly relevant works o fhis on the subject of Ethics: Search for a Method (1957), Critique of Dialectial Reason (1960), Notebooks for an Ethics (1983), Truth and Existence (1989) . Sartre died in 1980. Works subsequent to that date are postumous.

A. Andros

The Economist has reservations about a possible justice who believes that human life is inherently valuable.

This tells us more about TE's current editorial staff than it does about Judge Gorsuch.


Since J. Gorsuch is being touted as a conservative successor-in-interest to the originalist chair on the Court once held by J. Scalia, where J. Scalia was supposedly not at all fond of injecting his personal philosophy into his decisions, it's worth noting, then, how desperately hypocritical and disingenuous J. Scalia was, in fact, about such things. His dissent in Lawrence v. Texas (US 2003), the case which definitively put paid to the criminalization of private sexual relations, including homosexuality and bisexuality, in America, is instructive.

J. Scalia wrote: "I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence — indeed, with the jurisprudence of any society we know — that it requires little discussion.

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” — the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers [v. Hardwick, US 1986, rev'd in Lawrence] held that this was a legitimate state interest. [sic, criminalizing homosexuality.] The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual”. The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review."

It is well-known that J. Scalia was a life-long conservative Catholic, who deeply disrespected the LGBT community in the US. He permitted his private homophobia REGULARLY to influence his judicial decisions, particularly, where these went to the rights of "sexual minorities".

The problem for all originalists is that the words used by the Founding Fathers to write the Constitution do not always mean the same thing, today, as they did, then, some 220 years ago. And the context in which those words were used, then, has been revolutionized in the interim. Modern society is so very different than what obtained when George Washington entered office that the Founders would scarcely have recognized it, today. In order, then, to apply the principles encapsulated in the Constitution to the modern context, the Court must go beyond the mere text of the Constitution, particularly where the Founders had not anticipated the full breadth and extent to which those constitutional principles might apply.

As an example, during the oral argument in US v. Windsor (2013), J. Scalia asked the US Solicitor General when it was that the US Constitution could first be read to ensure "the right to be homosexual". This textualism framed the question before the Court then, as in 1986, in the wrong terms. The Majority held in Lawrence and again in Windsor that the proper framing of the question was whether the Government had had the power to discriminate between and among the People based on this most deeply personal, intimate, immutable and defining characteristic -- one's sexual orientation -- whether in regulating their private sexual conduct (Lawrence) or in determining how to impose federal estate taxes on them (Windsor).

The Court determined, based on its reading of the US 5th and 14th Amendments, that the Government simply had no interest, whatsoever, in using sexual orientation for such purposes. Not only was there no "clear and compelling" interest, nor any "important and substantial" interest, there was simply NO LEGITIMATE INTEREST, AT ALL. Hence, no rational basis for the law.

J. Scalia was so aghast at this outcome, being so contrary to his private moral worldview, that he completely dismissed even having to address it. In truth, originalism is very much bound up with the desire on the part of religious conservatives to justify a return to the ante-bellum period, when the US Federal Government was very weak, when WASPy men of property and means dominated everyone else, and when the rich could abuse the rest, often holding them in slavery or indentured servitude, justifying this outcome as founded on "natural law" and "God's law".

Such advocates of "natural law" are invariably self-serving hypocrites. The Government has no business inculcating or enforcing "morality" on anyone, but only in legislating a code of conduct which maximizes the utility of society for the greater good of all.

LexHumana in reply to FlownOver

"the arrogant view that a life is not exclusively held by the person living that life"

This is not an arrogant view at all. Concepts of rights and justice and equity have historically been viewed as both individual AND communal, going back to the ancient Greeks and forward into the Enlightenment. The rights of the individual had traditionally been viewed as co-relative with the rights of others in the community. The atomistic reduction of the evaluation of rights as being exclusively individual is a very modern phenomenon, probably exemplified most starkly by philosophers like Jean Paul Sartre.

LexHumana in reply to ashbird

It is difficult to attribute ideas to Socrates, given that he himself never wrote anything. Plato was the recorder of Socrates' thought, but what ideas are Socratic versus Platonic is often guesswork. It is clear that Plato had a transcendent view of both ontology and epistemology, given that everything we could perceive or even think about was (he believed) merely an aspect or reflection of eternal forms. However, it is not hard to believe that Socrates had reflections on what we would refer to today as "natural law". Even among the surviving fragments of the pre-Socratics, it is clear that the nature of being and the nature of knowledge were extensively debated. The debate between law/custom (nomos) and nature (phusis) was a central theme of philosophical and sophistic thought in ancient Greece. To what degree is law natural? Is morality simply law and custom, or is it natural? These were the initial seeds of the ongoing discussion in philosophy as to whether virtues like justice are purely relative or somehow more transcendent. The Enlightenment, however beneficial in other ways, really marked the start of the deterioration of philosophy, as so-called "realists" and "empiricists" attempted to conclusively explain the nature of essence solely via empirical observations of existence. This eventually lead to philosophers like Heidegger and Sartre to flip the notion of being from essence preceding existence, to existence preceding essence. Thankfully, these schools of philosophy eventually undermined themselves (Heidegger backtracked on his own philosophy, Wittgenstein eventually accused all of philosophy as merely being word games, etc.). Sartre stuck by his views to the bitter end, but thankfully existentialism has effectively died out as a philosophy in its most extreme forms, although it still pops up randomly from time to time in various guises.

A. Andros in reply to Tokarian

Yeah . . . Fifty Shades of Gray. That DOES sum-up TE.
If life is not "inherently valuable" then all the Nazis did with the Jews is waste a good work force.
If life is not "inherently valuable" then Pol Pot just had some flawed economic theories.
The Nazis parsed life -- the tens of thousands of retarded children they "euthanized" were referred to as "life unworthy of life" or, even, "useless eaters.
The evil always believe that they are just more "sophisticated" on moral questions.

JKPbody64 in reply to bharati k

"This means NO MORE WAR?"

Apparently you missed this part "...he wrote, the “intentional taking of human life by private persons is always wrong”.

Nothing about governments killing people

LexHumana in reply to HopefulObserver

"'Natural law' is a religious ideology, debunked centuries ago, and deliberately omitted as a source of law in the framing of the U.S. Constitution."
Nothing could be further from the truth. (1) The concept of natural law goes back to the ancient Greeks -- Aristotle wrote about it extensively, as did many other pre-Christian philosophers. (2) the Declaration of Independence (which is found officially in the U.S. Code at Title 1), states in one of its most famous lines "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" -- this is about as clear an enunciation of natural law as you will ever find. Likewise, (3) the Constitution DOES enshrine particular natural law liberties in its Bill of Rights. For example "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" is not a statement of a right granted by a statute somewhere -- it is a right inherent in the people that cannot be infringed by the government. I would also note that if you believe in some sort of "right of privacy" (which defenders of Roe v. Wade should be advocates of), then you are advocating a natural law position.