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PERSPECTIVES ON THE SUPREME COURT : Unnatural Brawl Over Natural Law : What Clarence Thomas’ critics object to are his values, not his natural- law views, which are mainstream.

<i> Michael Moore is Leon Meltzer professor of law at the University of Pennsylvania and author of "A Natural Law Theory of Interpretation."</i>

In the current debate about the nomination of Judge Clarence Thomas to the Supreme Court, there has been an increasing focus on his natural-law philosophy. A nominee’s judicial philosophy is a proper area of concern for the Senate Judiciary Committee as it considers confirmation, for that philosophy tells us how the nominee conceives of the office for which he is being considered. Unfortunately most of what has recently been written about a natural-law philosophy either deliberately misstates it, or is ignorant of its nature. Since we must judge Judge Thomas mainly by his judicial philosophy, it is important that we get it right.

Some of the least accurate characterizations of the philosophy have come from someone who should know better, Laurence Tribe, one of America’s most respected constitutional scholars. According to Tribe, belief in natural law today is both as rare as belief in ghost, and about as credible.

Only someone who misunderstands natural law as a judicial philosophy can make such charges. The philosophy has two distinct parts. One is the view that values like equality and liberty are as real as the natural qualities of heat, color or mass. The existence of such values means that it is morally wrong to treat people unequally or to violate their liberty, even in a society in which most people do not think it is morally wrong. The moral truth about such behaviors no more consists in what most people think than do scientific truths about planetary motion.

Second, the philosophy conceives of law, including constitutional law, as intrinsically connected to objective moral truth. One might think, for example, that the legal right to equal protection of the laws under our Constitution derives its content from the pre-existing moral right to equal treatment that all persons possessed before the 14th Amendment became the law of the land.

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There is nothing about a natural-law view that ties it to praising supposedly “natural” human behavior, functions or capacities. That non-heterosexual relations cannot serve a reproductive function, for example, or that women have a reproductive capacity that men lack, commits a natural lawyer neither to condemn homosexuality nor to consign women to a child-rearing function.

Further, there is nothing intrinsic to a natural-law view that commits it to devaluing the liberal goods of pluralism, tolerance and autonomy. Indeed, a clear-headed natural lawyer should see that because values are objective, any view he holds about them might be in error, so he has reason to tolerate the differing (and potentially correct) moral views of others.

Is this view of law and morality hopelessly old-fashioned or otherwise “troubling?”

According to Tribe, Thomas “is the first Supreme Court nominee in 50 years” to hold these views, and “the last time a Supreme Court majority invoked natural-rights theories (was) some 80 years ago.”

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This is untrue. Take one well-known example from our very recent past: At the confirmation hearings on Supreme Court nominee Robert Bork several years ago, Sen. Joseph Biden (D-Del.) aptly asked Bork whether he did not believe in the existence of a right to privacy, a right, as Biden put it, “that is older than our Bill of Rights.” One of the main criticisms of Bork’s judicial philosophy was that he did not believe that citizens possessed natural rights such as those to liberty or privacy. For this skepticism, Bork was characterized as being outside the mainstream of American legal theory.

Moreover, the line of U.S. Supreme Court decisions that both liberals and Libertarian conservatives applaud are paradigms of natural-law philosophy in action. Griswold vs. Connecticut, upholding a married couple’s right to use birth-control devices, and Roe vs. Wade, upholding a woman’s right to choose whether to abort her fetus, are decisions grounded in the view that judges must interpret the meaning of legal words like “liberty” in the 14th Amendment via their own best theories of the nature of the moral right to liberty that all persons possess.

It is no accident that in our constitutional practices, the natural-law view has predominated. For on any other judicial philosophy, it is difficult to justify why nine non-elected bureaucrats should have the power to overturn the decisions of the democratic, legislative process.

It is only on the supposition that individuals have rights that even democratic majorities cannot suppress that judicial review makes any sense. If those rights do not have a status and a content independent of social consensus--if they were not natural rights--when would a court ever be justified in overturning the kind of social consensus a statute presumptively represents?

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The real reason that liberals oppose Thomas’ nomination cannot lie with a judicial philosophy that links law to moral values. Rather, the liberal objection to Thomas is to his values. What values Thomas holds is also a legitimate matter of concern. After all, given the intimate tie of values to law in the natural-law view, we are entitled to know what sort of values we might be empowering by Thomas’ confirmation. Assessing these values openly will only be possible if we get rid of the ploy of pretending that Thomas holds some antiquated, suspected judicial philosophy last held by theologians in the Middle Ages.


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