Justices Often Use Natural Law Concepts; Constitution’s Vagueness May Require It : Hearings: A view of morality was cited in the Supreme Court decision that legalized abortion. But such an argument also could undo the ruling.

When the Supreme Court struck down all state laws forbidding abortion 18 years ago in Roe vs. Wade, Justice Byron R. White angrily dissented. The liberal majority, White said, was putting its own view of morality ahead of the strict words of the Constitution--in other words, using notions of “natural law” to decide a case.

Four years ago, when then-Judge Robert H. Bork went before the Senate Judiciary Committee, he destroyed his chances for a seat on the Supreme Court by expressing skepticism about whether the Constitution includes a right to privacy. As a conservative, he said, he opposed judges’ using natural law.

Now, it is Clarence Thomas’ turn before the committee, and natural law is at issue once again. But this time, it is the conservative, Thomas, who has expressed sympathy for natural law and the committee’s liberals who are accusing him of harboring troubling views.

Americans trying to follow the debate could be excused if they find it confusing. Just what is “natural law,” and why are Thomas’ opponents so keen to use it as an argument against him?

“What a judge’s view on this issue is is of phenomenal consequence to the future of this country,” Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) said Wednesday. “It is tantamount to understanding how you approach constitutional interpretation.”

For example, although natural law-type arguments were key to the court’s decision that established a right to abortion, they also could be used to undo that right. And since the Ronald Reagan Administration years, some conservative activists have put forward natural law arguments that would invalidate many, if not all, federal environmental health and safety laws on the grounds that they go too far in interfering with individual property rights.

Biden appeared to concede, however, that his warnings about natural law have yet to catch on as a political issue. His argument, he acknowledged, “is going to be impossible to communicate to the people.”

In fact, natural law is not that complicated. With roots in Western civilization that reach back as far as Socrates, Plato and the writers of the Bible, the idea is simply that fundamental rules for society exist independently of legislatures and writers of constitutions. If a legislature contradicts what Thomas Jefferson called the laws of “nature and nature’s God,” then that legislative act cannot lead to a good or just society, natural law theories argue.

But turning natural law into a confirmation issue is difficult for reasons that have nothing to do with complexity. Behind the rhetoric lies one of the truths of the American legal system: Natural law concepts have been used by nearly every Supreme Court justice of any note, although many have denied it.

In practice, the justices have had little choice. For the Constitution is often most vague where it is most important. The Fourth Amendment, for example, forbids searches that are “unreasonable” but offers no definition of reasonableness. The Eighth Amendment bars punishments that are “cruel and unusual” but says nothing about what that means.

Some judges, such as Bork, have insisted that the judiciary should limit itself to interpreting the Constitution’s text the way the people who wrote it would have done.

But as numerous historians and legal scholars have demonstrated, that approach seldom works. The intentions of those who wrote the Constitution are rarely clear, and often the writers differed among themselves. On many legal questions of the current day, the men of the late 18th Century had no intentions at all. And on others, they obviously did not want their ideas to bind future generations.

Indeed, immediately after the Constitution was adopted, Supreme Court justices had heated arguments over whether to use natural law to interpret what the document meant, noted University of Virginia constitutional law professor A. E. Dick Howard. “The debates sound quite modern,” he said.

At the time, and for years later, conservatives associated natural law with the French Revolution’s ideas of equality, and therefore opposed it. But, although the conservatives abandoned the label, they eventually evolved their own equivalent practice, using the 14th Amendment’s guarantee that a person may not be deprived of “liberty” without “due process” to strike down federal or state laws that restricted business.

Arguing that liberty included the right to make contracts without interference, conservative courts using the rubric of “substantive due process” struck down numerous social regulations, such as minimum wage laws and much of Franklin D. Roosevelt’s early New Deal.

In this century, justices generally have avoided the labels of “substantive due process” and “natural law.” But their practices have been similar.

Retired Justice William J. Brennan Jr. argued that in interpreting the “majestic generalities” of the Constitution, justices should look at “evolving standards of morality.” Justice Benjamin N. Cardozo in a 1934 case wrote of rights that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Justice Felix Frankfurter in the 1940s and 1950s directed his attention to the “canons of decency” underlying English and American institutions.

That basic approach was the underpinning of the court’s abortion decision. In 1965, the court decided that one of the liberties protected by the 14th Amendment was the right of a married couple to use birth control. Because of that, the court struck down a Connecticut law forbidding the sale of contraceptives. “We deal with a right of privacy older than the Bill of Rights,” Justice William O. Douglas wrote.

Eight years later, the justices expanded that decision, ruling that the right of privacy covers not only contraception, but also abortion.

Many conservatives who claimed outrage then have changed their tune now that conservatives command the judicial branch. In an article that Thomas at one time praised but now says he disagrees with, conservative politician Lewis Lehrman argued that the 14th Amendment did cover abortion, after all. The amendment’s guarantees should be extended to protect fetuses as well as those who have been born, he argued, and all abortions should be outlawed.

The one common thread in the conservative and the liberal arguments is that natural law ideas are powerful tools in the hands of a judge who desires to take an activist role in shaping society.

Thomas, in his testimony, has insisted that he has no desire to be such an activist.

“I have no agenda,” Thomas testified. “I don’t have an ideology to take to the court to do all sorts of things.”

His questioners, however, remain skeptical.

“We don’t know if the Judge Thomas who has been speaking and writing throughout his adult life is the same man who is up before us for confirmation,” Sen. Howard M. Metzenbaum (D-Ohio) said. “Frankly, it gives me a concern.”