This essay is part of a series of advice for Judge Gorsuch. See related articles here.
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.
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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?
Power Maps or Normative Ends?
Answering such questions requires clarification of the purpose of constitutions. Constitutions are usually regarded as (1) the written documents that outline the powers of different political institutions as well as (2) the legal rules, customs, and conventions that define the system and workings of government.
But in his 1998 book An Introduction to Constitutional Law (published in the same series as Natural Law and Natural Rights), Eric Barendt notes that constitutions are more than a type of power map. For if this were the sole purpose of constitutions, it would be possible for a tyrannical regime to comply formally with constitutional law while carrying out fundamentally unjust policies.
In other words, constitutions have purposes that go beyond saying who may do what. In the American Constitution’s case, one such goal is to limit the exercise of political authority. At the time of its drafting, a major focus was on limiting the powers of the states. But the Constitution also seeks to establish barriers to despotism through dividing power, establishing checks and balances, and specifying protections for particular liberties, especially through the Bill of Rights.
At no point, however, does the Constitution guarantee the realization of happiness by any Americans. Instead it helps to promote what NNLT describes as an instrumental common good rather than a common good that is an all-encompassing end in itself. This instrumental common good concerns particular conditions that must prevail in a community if people are to flourish. When the rule of law, for example, is absent from a community, it becomes much more difficult for all individuals and associations in that community to pursue their legitimate ends.
The Political Common Good and Limited Government
How then does NNLT view the relationship between this instrumental common good and the state? In a succinct introduction to NNLT, Christopher Tollefsen explains that the three primary NNLT thinkers—Finnis, Germain Grisez, and the late Joseph Boyle—“converged on an account of political authority and the common good” over time.
In the first place they rejected, as Finnis writes, the view that “government should command whatever leads people towards their ultimate (heavenly) end, forbid whatever deflects them from it, and coercively deter people from evil-doing and induce them to morally decent conduct.” Rather, NNLT holds that government serves “the political common good.”
This political common good, Finnis explains, consists of “the whole ensemble of material and other conditions, including forms of collaboration, that tend to favor, facilitate, and foster the realization by each individual [in that community] of his or her personal development.” Here “personal development” is shorthand for integral human flourishing: the free choice of, and coherent participation in, basic goods like truth, work, and beauty, which are self-evidently good for all humans.
The conditions that might facilitate everyone’s ability to make free choices for such goods are extensive. They range from protecting the community from external aggression to deterring and punishing community members who act in what Tollefsen calls a predatory manner.
But NNLT also specifies that the carrying out of these responsibilities should never involve government taking over the proper responsibilities of natural societies (such as families or religious associations) and only exceptionally calls for the state taking over the responsibilities of instrumental associations (such as businesses). Assisting individuals and associations in a given political community means precisely that: helping. The state does not assist people by usurping or annulling their ability to make the free choices that actualize human flourishing.
More could be said about NNLT’s view of how the state seeks to realize the political common good. The most recent iteration may be found in Finnis’s response to Leslie Green’s critique of his conception of limited government in the same collection of essays in which Judge Gorsuch published a paper entitled “Intention and the Allocation of Risk.” For our purposes, however, what matters is that NNLT’s understanding of the political common good underscores the necessity of limited and therefore constitutional government.
Designing Constitutions and Configuring Judicial Power
This leaves unanswered the question of what natural law theory says about how we limit the state’s powers. As Robert P. George writes, natural law theory holds that positive law, including constitutional law, is always derived in some way from the natural law. Sometimes this is relatively direct: the wrongness of murder, for instance, translates quickly into the laws that prohibit and punish murder.
But to an extent perhaps greater than other natural law theories, NNLT has stressed Thomas Aquinas’s point that the derivation is not always so direct. We cannot, for instance, determine the one unique constitutional arrangement that (1) successfully restricts the scope of government action by dividing executive, judicial, and legislative powers and (2) gives effect to those fundamental protections we call rights.
Instead, constitutional design occurs by way of what Aquinas called in his Summa Theologiae “determination [determinatio] of certain generalities.” The constitutions of the United States, France, and Australia all involve, for instance, the separation of powers. But they do not realize this goal in exactly the same way. Each, however, is a reasonable way of realizing the same end.
A similar point can be made about the scope of judicial review accorded by a constitution to judges. Take the case of a constitution being developed in a community in which natural law and natural rights are self-evident to those drafting and ratifying the constitution. Let’s also assume that the drafters expect the community’s political life to continue to reflect a commitment to natural rights and natural law.
Yet even when devising constitutional arrangements in such a context, the drafters cannot directly decide on the basis of the natural law itself the extent to which, for example, judges may review legislation from the standpoint of natural rights. This is very much a question of determinatio.
The constitution’s designers may determine that the legislature rather than the judiciary should have the primary responsibility for assuring that laws do not violate the logic and morality of natural law or the freedoms embodied in natural rights. This would mean that judges who presumed to take such a primary role upon themselves, rather than confining themselves to acting according to the constitution’s intent and text, would be acting in a lawless manner.
This would still be the case if the cause—such as protecting innocent life—were good. George reminds us that all public officials in a reasonably just regime have “a duty in justice to respect the constitutional limits of their own authority,” not least because respect for the rule of law (which includes respecting a community’s just determinatio of constitutional order) is itself a requirement of natural law.
What might all this mean for a Justice Neil Gorsuch? If NNLT has exercised some influence over his thought, those who desire greater attention being given to natural rights in Supreme Court deliberations shouldn’t assume that Gorsuch believes a robust concern for natural law permits him to go beyond what the Constitution’s intent and text allow Supreme Court justices to do.
On the contrary, it points to a justice who would operate strictly within the boundaries of that great determinatio adopted by the Founders in 1787, ratified by the states in 1788, and modified by subsequent amendments. Certainly, that still leaves scope for a justice who wants to protect those natural rights that he believes are to be found in the Constitution. But it would occur in a way consistent with the Constitution’s commitment to limiting state power—including that of the judiciary—and a natural law understanding of constitutional design.