American Jurisprudence,
Natural Law,
and Clarence Thomas

A study in constitutional theory and constitutional law

We will try not to be distracted by the three A's (abortion, affirmative action, and Anita) on the one hand, and on the other hand not delve too deeply into purely philosophical matters, and instead answer these questions: What is the theory of natural law? What, in particular, does Clarence Thomas mean by it? What bearing does natural law have on the activities of a Supreme Court Justice?

The concept of “natural law” finds its first clear formulation in the writings of Thomas Aquinas, a 13th-century philosopher and theologian, although its roots extend as far as Plato and Aristotle (ca. 500 BC) [1].

Natural law should not be confused with divine law, which is a theological concept and is considered, by Aquinas and others, to be binding upon “only the faithful” [14:35].

Aquinas describes natural law in six steps. First, that it is not a “habit” in sense of a learned behavior, but is rather discovered by rational inquiry. Second, that it is not a monolithic first principle which governs all spheres of human activity, but is rather a series of specific principles governing individual spheres of activity. Third, that every “virtuous” act is prescribed by natural law. Fourth, that because natural law is derived from reason, it is therefore the same for all people. Fifth, that although natural law may be applied to new cases or refined by rational consideration, it does not change. Sixth, “certain most general precepts...general principles, the natural law, in the abstract” is permanent and cannot be removed from the human mind, because both the natural law and the human mind are essentially rational; yet but it can happen that “in the case of a particular action...reason is hindered from applying the general principle to a particular point of practice” [2].

Based upon this six-fold description of natural law, Aquinas further explains how it is applied in the course of “human law,” which is a conglomeration of what is now called civil, common, constitutional, and other kinds of law. He says that the natural law implies that human law should be framed, that human law is derived from natural law, and that while human law prescribes all virtues, it does not belong to human law to repress all vices. Quoting an earlier author, Aquinas says that human law should be “just, virtuous, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful; clearly expressed, ...framed for...the common good.” Human laws, he tells us, may be changed from time to time, but only for the common good, and that over time, customs can obtain the force of laws. The authorities appointed by human law may, for the common good, grant exceptions to the human law [2].

Aquinas says other things about law which are not relevant to our discussion. Although he is first writer to clearly formulate the concept of natural law, the concept has undergone refinement since his statements.

“Other scholastic philosophers, ... John Duns Scotus, William Ockham, and, ... Francisco Suarez, emphasized the divine will instead of the divine reason as the source of law.” Thus we can say that there is a voluntaristic and a rationalistic version of the theory of natural law [1].

The contribution of Hugo Grotius, a Dutch jurist who lived from 1583 to 1645, represents the next major development of natural law. Grotius said that natural law is valid “even if we were to suppose...that God does not exist or is not concerned with human affairs.” It is noteworthy that Grotius, a firm and pious Christian, presented a theory which allows jurisprudence to proceed without reference to God. There followed a number of scholars who subscribed to what may be called the atheistic version of the theory of natural law, including Thomas Hobbes, John Locke, Montesquieu, and Rousseau. In particular, Locke re-cast “natural law” as “natural rights.” This distinction is not a large one, because laws prescribing behavior on the part of one party often create a right on the part of another party to expect that behavior, i.e., my right to free speech is the law restricting you from silencing me; but Locke's vocabulary of “rights” has been seminal. Some of these thinkers produced what may be called “weak” versions of natural law theory, e.g., Hobbes said that natural law might be limited to the role of prohibiting certain extreme cruelties on the part of a ruler; by contrast, the Thomist natural law is “strong,” prescribing legislation and individual actions [1].

Extending the tradition of natural law, Thomas Jefferson stated, in the Declaration of Independence, that “the laws of nature and nature's God entitle” the people to obtain a certain condition. He seems here to have covered both the theistic and atheistic versions of natural law, because these rights are given to people by both nature and God. As is well-known, Jefferson also wrote that:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness - that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed...

The declaration made in the French revolution, on the other hand, falls clearly into the atheistic school of natural law [1].

Finally, the purely philosophical works of Immanuel Kant revolutionized the field of philosophy at the end of the 18th century. Their effects, which took over a century to “trickle down” from the realm of true genius to such mundane matters as law, can be seen as working both to further and to stifle the influence of natural law. On the one hand, Kant produced an a priori justification of certain moral principles which can then be translated into law by legislation and reference to commonly held beliefs; this is consistent with rationally Thomistic natural law. On the other hand, Kant introduced the notion of the general and arbitrary rational being, whose judgements represent a disinterested rational evaluation, which has lead to the pervasive use of the word “reasonable” in current jurisprudence; what a “reasonable person” would do or say is a standard adopted without reference to what type of justification that person would give for such actions or words, i.e., the “reasonable person” is, in practice, not assumed to be an adherent to the theory of natural law [1].

Having summarized the history of the theory of natural law, we may say that it is primarily an ethical theory and only secondarily a legal theory. Put simply, natural law says that what is right or wrong is not so merely because it has been so legislated, e.g. murder is not wrong because it is illegal, but it is illegal (or should be) because it is wrong. If this theory is primarily ethical, then it seems that it can have no place in the workings of positive law. Yet natural law appears often in legal writings of various kinds. It remains to be discovered how the gap is bridged between a moral theory and the passionless application statutes and precedent.

Having examined the history and development of natural law, the question arises, whether this theory has any practical value. The theory could appear as being too abstract to have any observable effect in actual judicial proceedings. A judge's main work seems to consist in following the procedures laid down by statute or precedent, in order to reach a decision or verdict consistent with precedent or statute. Even the lofty concept of judicial review is “merely” the determination whether one document (a statute) is consistent with, i.e., falls within the limits of another document (the constitution). Therefore, it seems that whether or not a judge affirms the theory of natural law is as relevant to his work as which color necktie he may be wearing on a given day. The day-to-day business of the courts is largely the determination of facts, and the matching of facts to the appropriate words. There seems to be little place here for lofty speculations about God, man, and nature.

We can even conduct a “thought experiment” to see how little relevance this kind of theory has. Competing with the theory of natural law, there are other ethical theories, e.g. utilitarianism, each of which has a corollary legal theory. Let us then select a trial, e.g. a landlord-tenant case in a Michigan district court or a divorce case in a circuit court. Then we can ask the question, what observable difference will be made in the outcome of this trial, if the judge were a natural law theorist on the one hand, or if the judge were a utilitarian on the other hand? The verdict could well be the same in either case. It seems that such judicial philosophies contribute to no determination.

If the debate about natural law is to have any consequence for the law, it must be shown that this theory has some detectable effect in the outcome of particular and real legal questions. It seems that there is little place for any such effect in the application of statutory law or precedents. But there are several other types of legal consideration which may have connections to the natural law debate.

Professors Currie and Philbrick maintain that:

in a technical sense there is no American law. Except within a field constitutionally restricted, there is no national supreme tribunal to unify legal doctrine. Neither is there a common law of the United States... Each of the states has its own common law, unrestrained otherwise than by certain provisions of the federal constitution; and none of these necessarily tends to produce unity of law...the sense in which there does exist an American law - there is a great body of judicial tradition...and all this law presents broad features of unity...thus evincing popular convictions nationally dominant...[and] the...spread of a judicial doctrine...

It is in these “fuzzy,” i.e. ambiguous and inexact areas of legal thought, e.g. “traditions” and “convictions” embodied in “judicial doctrine,” that the concept of natural law might find an arena in which to affect the outcome of concrete matters. One such area is common law [9].

Common law, (ignoring some subtleties) can be roughly characterized as the use of precedents set by earlier courts. This type of law is not the ultimate tribunal, but none the less has real effects:

legislation is superior in strength to the common law...the characteristic hallmarks of the common law...[include] the tradition of a powerful and independent judiciary...the common-law judge...is...guided...by the principles declared in reports of previous decisions...he will be guided in his interpretation of [a] statute by...earlier decisions...

Clearly, there are “loopholes” here through which the concept of natural law can begin to seep into judicial decisions. A strong and autonomous judiciary which is guided by opinions written for previous decisions is more than just a mechanical application of precedent; rather, there is “a continual process of legal evolution...and flexibility.” Because common law is not merely a “cookie cutter” use of precedent, but rather a judicial philosophy, it allows for the effect of theories, such as that of natural law. Note that the common law judge consults not merely the decisions made in earlier cases, but also the opinions written by the judges in those cases. If common law were merely the machinelike employment of precedent, then it would not be necessary to have the opinions of the judges above and beyond their decisions. Further, if common law were only the routine utilization of precedent, then it certainly would not be necessary to record dissenting opinions. Hence, common law is a field in which theoretic and philosophical considerations are at work. It is by means of these opinions that various judicial philosophies may make themselves manifest [21].

Another conduit for legal theories to affect legal practice is through the field of constitutional law. Although constitutional jurisprudence is undertaken primarily by the U.S. Supreme Court and the supreme courts of the individual states, it both is pursued in and “trickles down to” lesser courts. On the simplest view, constitutional law is the process of determining whether particular bits of statutory and common law are allowed within the bounds of the constitution. Yet this rapidly becomes a complex question, e.g. when the matter in question is not explicitly mentioned by the constitution; the possibilities of such cases are numerous, because the constitution is a general and categorical document, rather than a specific one. In the history of U.S. Constitutional law, different schools of interpretation have formed, e.g. the “constructionists” who would have us refer to original intent of the framers and consult other documents relevant to the drafting of the constitution, or the “strict constructionists” who would have us refer only to the document itself. Again, there are those who interpret the individual words and phrases in a broad scope, and those who understand them narrowly. And there are those who favor the “elastic” clause (Article I, Section 8, authorizing the congress to “provide for the...general welfare”), but there are those stressing the 10th amendment (which gives to the states all “powers not delegated to” the federal government by the constitution). Here, then, where different readings compete, is an opening for legal theorizing to enter into action.

Whether or not the framers attempted to create a completely determining document,

no country's constitution can ever be compressed within the compass of one document and even where the attempt has been made it is necessary to consider the extralegal rules, customs and conventions that grow up around the formal document.

The field of constitutional law is those “customs and conventions” which are unavoidable when applying the constitution to particular cases. Further,

the constitution means what the judges say it means, as Charles Evan Hughes once said, and U.S. Constitutional law consists of a vast body of judicial rulings interpreting the constitution.

The congress, the president, and the political parties contribute to the interpretation of the constitution, but it is the seemingly more potent judicial understanding of the constitution which provides the most likely sphere for natural law. It is true that there is a role for the theory of natural law to play in the executive and legislative branches, as well as in the political parties, but such considerations are beyond the scope of the present investigation. The language of the constitution, however, is not as theoretical as that of the declaration of independence, causing the natural law proponent to search more arduously for the clauses in which natural law might be lurking, or into which natural law can be read. Locke's vocabulary of “rights” alerts us to look for discussions about the basis on which “rights” are accorded to individuals; in such discussions, arguments for or against natural law can be found. Let us then delve into some of these judicial rulings, and see what has been written in opinions [11].

Several cases were precedent-setting in the question of whether the “due process of law” to which all people are given the right by the 14th amendment implied that state and local governments were bound by the Bill of Rights, and by the first eight amendments in particular.

In Adamson vs. California, Hugo Black wrote (dissenting) that “the original purpose of the Fourteenth Amendment” is

to pass upon the constitutionality of statutes by looking to...the Bill of Rights and...the Constitution...[but] to invalidate statutes because of the application of “natural law” deemed to be above and undefined by the Constitution is...[to] roam at will in the limitless area of...beliefs as to reasonableness and actually select policies...

But in a separate dissent, Frank Murphy wrote that the 14th amendment did include the Bill of Rights, but

Occasions may arise where a proceeding fall so far short of conforming to fundamental standards of procedure as to warrant constitutional condemnation in terms of a lack of due process despite the absence of a specific provision of the Bill of Rights.

Murphy is saying that there is some standard by which we judge whether or not “due process” has been observed, beyond the stipulations set forth in the first eight amendments. Could that standard be natural law? In the majority opinion, Felix Frankfurter stated that

In the history of thought “natural law” has a much longer and much better-founded meaning and justification than such subjective selection of the first eight amendments for incorporation into the fourteenth.

It can then be claimed that, by standing precedent, the definition of “due process” is determined in part by natural law [18].

In Griswold vs. Connecticut, the Court created precedent by asserting a broadened form of the ”right to privacy.” The majority relied on arguments derived from the 1st, 4th, 9th, 14th, and other amendments, as well as citing previous cases. Dissenting, Hugo Black attacked the arguments of the majority, saying

none of the...cases...can be read as holding that judges have the power to use a natural law due process formula...to claim for this Court and the federal judiciary power to invalidate any legislative act it considers to be arbitrary, capricious, unreasonable, or oppressive, or this Court's belief that a particular state law under scrutiny has no “rational or justifying” purpose, or is offensive to a “sense of fairness and justice.” ...these formulas based on “natural justice” require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary....no legislative body ever does pass laws without believing that they will accomplish a sane, rational, wise and justifiable purpose...we are [not] granted power by the Due Process clause...to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or it accomplishes no justifiable purpose, or is offensive to our own notions of “civilized standards of conducts.” Such an appraisal of the wisdom of legislation is an attribute of the power to make laws...specifically denied to federal courts by the [framers].

Justice Black, and Justice Potter Stewart in a similar dissenting opinion on this case, tells us that to construct a “right to privacy” as broad as the majority indicated requires going beyond all textual evidence in the Constitution, and therefore relying on natural law. The majority must then say either that they are within the text of the Constitution, or that they are indeed relying on some form of natural law. In fact, they do both. With the majority, William Douglas wrote

The present case...concerns...the zone of privacy created by several fundamental constitutional guarantees...we deal with a right of privacy older than the Bill of Rights...

Concurring, Arthur Goldberg writes

Although I have not accepted the view that “due process” as used in the 14th amendment includes all of the first eight amendments, I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights...the ninth amendment shows...that fundamental rights exist that are not expressly enumerated in the first eight amendments...

John Harlan and Byron White also concurred with similar opinions. The majority appears to feel the tension which the dissenting opinions of Justices Black and Stewart place upon them. On the one hand, no clear textual support for this “right to privacy” can be found, but on the other hand, the majority does not want to support its verdict with a clear reference to natural law. The attempt is made to somehow combine natural law and constitutional text, or to find the former in the latter. We can find neither clear support for natural law nor strong arguments against it in the opinions of the majority on this case; rather we find ambiguity as the Court wrestles with, but fails to define, the role of natural law [18].

In Sugarman vs. Dougall and In Re Griffiths, the Court declared that a state law preventing resident aliens from being civil servants (in the former) or practicing law (in the latter) violates the “equal protection” clause of the 14th amendment. Dissenting, William Rehnquist argues both from the text, that the amendment does not cover non-citizens, and from rationality, that

It is not irrational to assume that aliens as a class are not familiar with how we as individuals treat others and how we expect “government” to treat us...Connecticut's requirement...reflects it judgement that something more than technical skills are needed to be a lawyer under our system. I do not believe it is irrational for a State that makes that judgement to require that lawyers have an understanding of the American political and social experience.

Is natural law lurking in Rehnquist's opinion? Indeed, it seems to be in both his dissent and the majority's decision. Rehnquist is clearly making an extra-constitutional reference to rationality, reminiscent of both Aquinas and Kant, which can be seen as an appeal to natural law. Yet the majority, in an opinion written by Harry Blackmun, makes a distinction, allowing aliens to be civil servants and practice law, but adding that

We do not hold that...an alien may not be refused...public employment, even on the basis of non-citizenship, if the refusal to hire...rests on legitimate state interests that relate to qualifications for a particular position or to the characteristics of the employee... This Court has never held that aliens have a Constitutional right to vote or to hold high public office under the Equal Protection Clause.

A distinction is here made between what an alien may and may not do; yet the majority tacitly admits that this distinction has no Constitutional basis. If the majority would wish to say explicitly that it is not relying upon natural law, its alternatives would be only other equally extra-constitutional philosophies, such as utilitarianism. Again the Court flirts with natural law, but cannot decide whether or not it will dance with it [18].

In Harper vs. Virginia Board of Elections, the Court struck down poll taxes as violating “equal protection.” Dissenting, Hugo Black said that one

reason for my dissent from the Court's judgement and opinion is that it seems to be using the old “natural-law-due-process formula” to justify striking down state laws as violations of [equal protection]...Congress has the power...to abolish the poll tax.

Justice Black's opinion is not too complex, yet it escapes the grasp of much popular commentary. He is not addressing the issue of poll taxes; rather he is speaking of jurisdiction. Because the question is neither specifically nor categorically addressed in the Constitution, it is not a matter for the Supreme Court. The majority must then produce a justification for a trans-constitutional decision, i.e. because the matter is not specifically mentioned in the Constitution, they must find a way to “read it into” the Constitution. Black diagnoses this as natural law in action; if one ascribes to the Framers a natural law theory, or if one subscribes to the theory, then natural law becomes the vehicle by which one can interpret the matter at hand “into” the Constitution [18].

The above-quoted opinions are from the recent history of the U.S. Supreme Court; earlier in the Court's history, justices were even bolder in their assertions of natural law. A few samples will suffice to illustrate this thesis.

In Fletcher vs. Peck, William Johnson wrote concurring that

I do not hesitate to declare that a state does not possess the power of revoking its own grants...I do it on a general principle, on the reason and nature of things: a principle which will impose laws even on the deity.

The case involved an attempt by the state of Georgia to reclaim a land-grant [18].

Joseph Story wrote for the majority in Terrett vs. Taylor, a similar case, that

We think of ourselves standing upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and letter of the constitution...upon the decisions of most respectable judicial tribunals...

Justice Story sees both the Constitution and natural law as part of a continuum, as different aspects of the same judicial coin, to which a court may refer and upon which a court may establish its opinion [18].

Numerous other such expressions occur in the opinions of the Court during the first two or three decades of its existence. One reason for the decline in the frequency and directness of such references is that, as the history of the Court developed, reference could be made to precedent rather than to natural law, but in as much as the precedent-setting decisions were made on the basis of natural law, this is merely a disguised reference to natural law. Another reason for the scarcity and obliqueness of these allusions in recent years is that, if they wanted to, later justices could find bits of natural law embodied in various amendments, especially the “due process” and “equal protection” clauses of the 14th amendment. Therefore, justices who see themselves as referring only to precedents (and the text of the Constitution and its amendments) and not to natural law may nonetheless be referring indirectly to natural law, if the precedents (or constitutional amendments) to which they refer were based upon natural law. As layer after layer of precedent-setting cases builds up, a Justice who cites one case directly may be indirectly citing several other cases upon which the one was based. In this way, a judge could unknowingly bring a natural law argument into play. For this reason, judicial opinions should argue “through” all the layers of precedent to “get all the way back to” the Constitution.

An early disagreement about the use of natural law is found in the opinions written in Calder vs. Bull. The Court upheld the right of a state legislature to interfere with the proceedings of a probate court of that state, but while the majority opinion based itself upon both natural law and the social contract, a concurring opinion by James Iredell stated

that some...jurists have held that a legislative act against natural justice must, in itself, be void; but...the court cannot pronounce it to be void, merely because it is, in their judgement, contrary to the principles of natural justice. The ideals of natural justice are regulated by no fixed standard: ...men have differed upon the subject...

Justice Iredell is here clearly asserting a thesis against natural law. But as Professor Corwin stated

The truth is that Iredell's tenet that courts were not to appeal to natural rights and the social compact as furnishing a basis for constitutional decisions was disregarded at one time or another by all of the leading judges and advocates...

We can see that the discussion of the appropriateness of natural law is by no means new, but goes back to the beginning of our constitutional history. The principle of natural law was not unanimously accepted by the Framers or the earliest Supreme Court justices. However, the principle of natural law was clearly supported by the majority of the earliest Supreme Court justices, as the early opinions show, and the majority of the Framers, although it is more difficult to show this. The early Court found natural law in the 4th amendment's demand for reasonableness, in the 5th amendment's demand for “due process of law,” in the 7th amendment's deference to common law, in the 8th amendment's open-ended definition of “cruel and unusual,” and in the 9th amendment's assertion that there are rights which are not enumerated in the Constitution. It can then be said that there is a strong tradition of natural law in the American judiciary since its inception, although it must also be admitted that there has also been some amount of opposition to natural law for just as long [18].

It must also be noted, even as it was seen in the pre-American history of natural law, that this tradition is equivocal. In those cases in which a natural law argument can be made, it is usually possible to make a natural law argument on either side, as we saw in the precedents above. It should be noted that clearly there are cases in which no natural law arguments can be made, e.g. simple applications of statute. Natural law can be used only in some types of controversies, e.g. where common law is equivocal, or constitutional questions, i.e., judicial review cases. Again, in these cases, natural law arguments can be made on either side of the case. Another way to state this is to say that natural law does not completely determine a decision.

Let us imagine a case in which a state legislature has made a law forbidding a certain activity; let us call that activity X. A lawsuit is brought against the legislature, the plaintiff claiming under the 9th amendment the right to X. Let us imagine two Supreme Court justices, A and B. Justice A can argue from natural law that every human has a right to X, but Justice B can argue from natural law that every government has the obligation to forbid X for the common welfare. Here we see the ambiguity of natural law, which is both its weakness and its strength. It is a weakness because it is not sufficient in and of itself to be an entire legal system, but it is a strength because those who would argue against the use of natural law, although they can argue against its ambiguity as a weakness, cannot argue that it poses the threat of an all-encompassing, omni-determinant authority which will pervade and smother all areas of law with rigid decrees. Rather, natural law, by its ambiguity, encourages lively debate within the legal system.

Having examined the tradition of natural law in the American legal system, let us turn to some accounts of natural law found in the popular press at the time during which Justice Thomas was nominated by President Bush. These reports are highly polemical, seeing natural law as either a threat or a hope, as either “conservative” or “liberal,” and ignoring most of the subtle distinctions we have striven to elucidate above. In the purely “popular press,” these misunderstandings reach their forté; in the so-called “journals of thought and opinion,” which still fall short of academic standards, there is occasionally a trace of sensitivity to the fine features of the arguments of natural law, but this is drowned by the onslaught of immediate and premature application of these principles to practical matters, before the purely theoretical aspects of the argument have had the chance to grow and strengthen.

During the time between his nomination and the beginning of the Senate's confirmation hearings, the press discovered several (not many) references to “natural law” in the writings of Clarence Thomas. The primary sample was an address in which Thomas remarked, in passing, that a certain article criticizing the Roe vs. Wade decision was a good example of natural law in action [30:17, 13:51]. Thus, in the popular imagination, the theory of natural law became linked to the abortion controversy. Those who opposed abortion therefore began to oppose the nomination of Thomas, claiming [13:50] that he

espouses a theory of “natural law” that in its most extreme form could influence him to turn to a “higher authority” than the Constitution when he casts his vote...

without asking to which particular variation of natural law Thomas subscribed; unfounded speculations [13:51, 29:6] about his future rulings on everything from homosexuality and birth control to the separation of Church and State raged: in one specimen of hysteria, a professor declared to Time magazine, “I'm scared.”

Calmer voices, mentioning that natural law

is a broad, somewhat nebulous framework that places high value on reason, human dignity and natural rights. “Under natural law” says Chester Gillis, “anything that goes against human dignity and reason is to be rejected.” “When he says 'higher law,' he is referring to what others would simply call values,” says William Wagner, “all justices bring values to their deliberations.”

were drowned and ignored in the political battle [13:51]. Few accounts recalled the role which natural law played in the framing of the Constitution and in the early Supreme Court decisions. As we noted earlier, even Thomas Aquinas, an advocate of “strong” and theistic natural law, said that natural law dictates that human law not prohibit all vices. Thus Aquinas (a “conservative” in the vulgar idiom) leaves “wiggle room” in natural law, a fact which should have calmed the blooming paranoia. But the controversy about the nomination was fueled by political, not philosophical considerations, and few would believe that [19:68]

Clarence Thomas may well be claiming no special authority for judges when he invokes natural law and natural rights. In that case, there is no problem.

It should also have been remembered, by those who feared a theocracy stemming from Clarence Thomas, that Aquinas had clearly separated natural law from divine law, a faint foreshadowing of the separation of Church and State. Both sides of the fight forgot that, as we saw earlier, a natural law argument can be constructed on either side of any case.

Similarly, those who reveled in the judge's alleged “conservatism” erred in assuming that the natural law of Clarence Thomas resembled the natural law of Thomas Aquinas. But as we saw earlier, it is possible to concoct atheistic and “weak” versions of natural law [13:51].

By the time he wraps up his judicial career well into the next century, Clarence Thomas could have many of today's conservatives spinning in their graves.

In the storm of polemics, a few interesting facts did come to light. Thomas said that, while he agreed with the Court's decision in Brown vs. Board of Education, he opposed the arguments given, finding that the majority opinion relied on “dubious social science.” Clarence Thomas [13:51] supports the verdict by citing John Harlan's dissenting opinion in Plessy vs. Ferguson, which argued from equal rights based on natural law. Thomas is not alone is such discourse. Traditional legal thought [1] draws a more general distinction between the “natural rights” posited by natural law theorists and

the assertion of human rights [which] was the product rather of an empirical search for common values

An accurate view of at least one aspect of Justice Thomas can be gained here: he asserts “natural rights” where other justices have either attempted to make empirical determinations of fact (i.e., whether or not it is possible to truly have “separate but equal” facilities) or asserted “human rights” or “civil rights.” Apparently, Thomas finds a firmer foundation for rights in natural law than in merely positive law or social science. We can “read into” these words that Justice Thomas holds a rationalistic position, which finds that any result obtain by empirical science is dubious because it is subject to the errors of incorrect observation, incorrect generalization, and incorrect interpretation. A result obtained by rational introspection, on the other hand, is incorrigible. (This holds true from either a 13th century Thomist/ Scholastic position or a 16th century Cartesian position.) Clarence Thomas therefore finds our rights to be more secure if they are founded upon incorrigible rational reflection, than if they were based upon empirical conclusions. Indeed the latter possibility creates the spectacle that an anthropologist, working in some obscure corner of a university supported by a government grant, could make a discovery that would cause the Supreme Court to declare void the rights we have enjoyed since 1791. This spectacle would be in principle possible if the Court holds that our rights are founded upon empirical conclusions from the social sciences. Of course, this spectacle seems silly, and I can be accused of alarmism, yet the scenarios created by those who opposed the nomination because Justice Thomas espoused natural law were equally silly and alarmist, if not more so.

It was earlier noted that the ambiguity of natural law was both its strength and weakness. Similarly, it was said [14:35] that natural law

often has been that basis of civil disobedience and conscientious objection. It is at once the strength and the weakness of natural law that the individual conscience, not the courts, determines what its commands are.

As we have already seen, this ambiguity vindicates natural law from the dreadful accusations that it would lead to totalitarianism and theocracy. Ironically, the political idols of those who opposed the Thomas nomination - civil disobedience and conscientious objection - are founded upon the very theory which Clarence Thomas espouses. But there is also the weakness of natural law in its ambiguity [14:36]:

For judges, moral arguments...become relevant only when the positive law gives no clear guidance. They must then resort to general principles generally accepted...natural-law ideas only seem to address the problem...[natural law] supplies dubious arguments to both sides.

Natural law will always be liable to the charge that it is too ambiguous to determine a decision. In defense of natural law, it may be said [14:36] that those who have pointed to this weakness in natural law

such as Oliver Wendell Holmes and Robert Bork...cannot themselves offer a solution either

The only solution, for those who would oppose natural law, is a strictly constructionist definition of the jurisdiction of the court system as a branch of government [14:36]:

it is hard to refute Bork's argument that, since the Constitution nowhere mentions... privacy, the...Court had no...basis...for depriving the states of the right to...regulate these matters. Where the Constitution is silent, the Court should not speak...it is for legislators to fill the lacunae left by existing laws, not for judges.

The alternatives are either natural law, as advocated by Clarence Thomas, or strict constructionism, as expounded by Robert Bork. The irony is apparent to anyone who is familiar with the recent history of the Senate's confirmation hearings, and exposes finally and certainly that the motives of those who opposed or supported both Bork and Thomas were political. I leave it to the reader to understand that the adjective “political” is and must be pejorative. The only logically consistent positions are either to support Bork and oppose Thomas, or to oppose Bork and support Thomas.

This bears a second explanation. Bork maintains that when the Constitution or other statutes do not speak clearly on a given matter, a judge should refrain from judging. Thomas adheres to a theory which tells us, if we generalize slightly from the specific form of the theory to which Thomas adheres, that if the Constitution or other statutes do not speak clearly on a given matter, then a judge should consider extra-constitutional matters when making a decision. In fairness, it must be said that there are possible positions between Bork and Thomas. One could, e.g., make an extra-constitutional reference (against Bork's theory) and yet not refer to the natural law (against the views of Justice Thomas), but rather refer to, e.g., history or sociology or anthropology or public opinion. But if a judge did indeed choose to take this route between Bork and Thomas, he would then have to justify his choice, and would have to do so by either appealing to the Constitution (with Bork) or by referring to a Higher Authority (with Thomas). So it seems that Bork and Thomas do, after all, represent the only two alternative judicial theories.

It is to be noted that Justice Thomas has not been as precise or forthcoming in expressing his views as has Judge Bork. I have had to creatively sketch in parts of his views which he has not explicitly stated in creating the above argument about Bork and Thomas. In fairness, I must admit that I have used Clarence Thomas as a Platonic character to represent the natural law theory. The probability of Justice Thomas being the ideal opponent to Bork's views is slight, which leads us to the following observation: having noted that there exist many different versions of the natural law theory, and given the scarcity of his statements about natural law, it is to be doubted whether we can clearly define what Thomas believes about natural law. We can make some definite statements about his views, because we have some pieces of evidence; but a total picture is beyond our reach, given the evidence. Positively stated, it can be shown which of the numerous natural law theories Clarence Thomas does not hold, based upon, e.g. his remarks about Brown vs. Board of Education. But his view is still under-determined, because there is more than one version of natural law theory left after we have eliminated all the rival versions which can be eliminated on the basis of available testimony.

In Cross-Sound Ferry vs. ICC, Thomas opined [24:14] that

When federal jurisdiction does not exist, federal judges have no authority to exercise it, even if everyone - judges, parties, members of the public - wants the dispute resolved... the truistic constraint on the federal judicial power, then, is this: a federal court may not decide cases when it cannot decide cases, and must determine whether it can, before it may.

We can see here that Thomas defines jurisdiction as entirely determined by positive law, and not at all determined by natural law. Hence, if Thomas holds that it is permissible to use natural law, then he holds that a judge may do so only after it has been decided by positive law that the case is within his jurisdiction. A judge, according to Justice Thomas, may not “stretch” the boundaries of his jurisdiction on the basis of any natural law argument. This opinion, then, contains another piece of the puzzle.

It has been suggested [22:869] that one reason that is such a puzzle is because “Thomas has not thought deeply about the concept at all.” Indeed, if natural law were the centerpiece of his judicial philosophy, then one would expect to see more references to it in his writings. This is not necessarily an insult to him, because we do not infer that he has not thought deeply about other legal concepts merely because he has not thought deeply about this one. This ad hominem argument suggests then, that natural law is not a central concept in his judicial philosophy, and that it only appears to be such because of a few highly-publicized times when he referred to it. It is suggested that the media have diverted attention away from other facts about his judicial philosophy toward the “red herring” of natural law.

If we allow this argument, we could respond that, on the contrary, his Roman Catholic education makes Justice Thomas a person who is likely to have thought deeply about this matter and who probably has studied significant texts related to this matter. But rather than so respond, we shall merely say that it is best not to enter into such ad hominem arguments on either side, for they will lead us far astray.

If one looks for signs of the natural law theory in the opinions, concurrences, and dissents written by Justice Thomas since he has joined the Supreme Court, then one will be disappointed. Indeed, far from a natural law theorist, it seems to be a Bork-style strict constructionist who writes these opinions. Thomas has been compared [16:30] to Justice Scalia:

Both take a narrow view of the Constitution. Rights not spelled out explicitly in the text... are not recognized

and in a case regarding the treatment of prisoners and the 8th amendment, Thomas wrote [16:30] a dissent, stating that the majority of the Court was

yet another manifestation of the pervasive view that the Federal Constitution must address all ills in our society...the Eighth amendment is not...a National Code of Prison Regulation.

Surveying all the opinions written by Thomas on the Court, one finds a jurist who is usually rather cautious, especially in his rather dry majority opinions which are workmanlike and seem to deliberately avoid any areas of controversy, and sometimes fiery, as the robust tone of his concurrences and dissents show, but never a natural-law theorist. Neither the phrase “natural law,” nor any of the other phrases behind which natural law sometimes lurks, is to be found in the writings of Supreme Court Justice Clarence Thomas. He seems to have earned the appraisal [12:84] that

So strong is his allegiance to law and precedent that his closest admirers believe he is more likely to fit the Felix Frankfurter than the William Rehnquist mold, refusing to join conservative activists...

One could well conclude that the Clarence Thomas who underwent the notoriously antagonistic confirmation hearings in the Senate bears no relation to the Justice Thomas who currently sits on the bench. Whither did the natural law theorist go? Indeed, whence did he come? As we noted, before his nomination to the Supreme Court, his references to the concept seem to have been few in number, not necessarily an expression of his own view, and indeed perhaps even politically motivated and calculated.

This assertion is justified, that the theory of natural law has not played a determining or observable role in any judicial act by Clarence Thomas.

Time spent reading a representative sampling of Supreme Court opinions yields an enlightening insight into the day-to-day work of the Justices. Rather than headline-grabbing cases about Church and State, abortion, and freedom of the press, we find predominately cases about bankruptcies, interpretations of statutes regulating damage awards for negligence, decisions about which party will pay court costs, enforcement of laws regarding health insurance benefits from employers, and computations of the length of sentences given to prisoners. These are the topics about which Clarence Thomas has written opinions since he his confirmation to the Court. Only slightly more interesting are cases concerning the circumstances under which transcripts of previous court proceedings may be admitted as evidence, the reading of a statute governing timberlands inhabited by spotted owls, and re-trial of a thief for reasons which are not obvious. It is to handle such matters that Judges are appointed to the Court.

If we grant for a moment the improbable proposition that intelligible discussion about natural law is possible in the U.S. Senate, we are then faced with the question as to whether there is any benefit to allowing such discussions to occur. The vast majority of cases are of the kind which we may call, for lack of a better phrase, “strictly legal.” Those very few cases which call for any kind of moral or philosophical judgement quickly become so ambiguous that any statements about whether a Justice is or is not a natual law theorist do not allow us to predict or understand how he will decide in a given case.

I will attempt to state clearly below the conclusions which are justified by the textual evidence given above:

(1.0)

Natural law is an ethical theory which states that right and wrong are not legislation.

(1.1)

Natural law is not a religious theory, and is equally supported by atheists and members of various religions.

(1.2)

Natural law arguments can be created for or against any thesis, i.e. on either side of any case.

(1.3)

Most people do, in fact, hold some kind of natural law belief.

(2.0)

Natural law finds its place in legal thought when there is ambiguity or silence on the part of positive law, i.e. statutes.

(3.0)

A judge's statements about his judicial philosophy do not predict how he will rule, because of a pervasive subjectivity in ambiguous cases.

(3.1)

Hence any questions, and their answers, directed to a nominee by the Senate's judiciary committee in confirmation hearings about judicial philosophy are meaningless.

(3.2)

The primary duty of a judge is to resolve questions on strictly legal and textual bases and to avoid as much as possible any use of subjective judgement.

(4.0)

Justice Thomas is a natural law theorist.

(4.1)

Exactly what he means by this is not known, because he has not spoken sufficiently on the matter.

(4.2)

His decisions and opinions show no trace of natural law, and indeed appear to the work of a positivist or constructionist.

(4.3)

Whether this is because of his judicial philosophy or because the appropriate cases have not presented themselves cannot be known at this point, if ever.

(5.0)

Therefore, the issue of natural law was over-emphasized in his confirmation hearings.

Senators who supported and opposed Thomas did so for political reasons, not for philosophical reasons, and showed no clear insight into the issue.

As a final postlogue, I say that politics and jurisprudence make a poor mix. Judges should be insulated from political pressure as far as possible. For this purpose the Constitution has appointed, not elected, judges.

[1] Anonymous “Natural Law” Encyclopedia Britanica 1973.

[2] Aquinas, Thomas Summa Theologica Regnery Gateway, Chicago, 1979

[3] Arkes, Hadley “Who's the Laissez-Fairest of Them All?” Policy Review Spring 1992, pgs. 78 - 85.

[4] Atkins, Anselm “Human Rights are Cultural Artifacts” The Humanist March/April 1990, pgs. 15 - 16.

[5] Baer, Donald “Asking the Questions that Really Matter” U.S. News & World Report October 21, 1991, pg. 16

[6] Borger, Gloria “Judging Thomas” U.S. News & World Report October 21, 1991, pg. 33

[7] Borger, Gloria “Danforth is the Key” U.S. News & World Report July 15, 1991, pg. 26

[8] Buckley, William F. “Judge Thomas at the Bar” National Review August 26, 1991, pg. 54

[9] Currie, Brainerd and Philbrick, Francis Samuel “American Law” Encyclopedia Britannica 1973

[10] Dias, Reginald Walter Michael “Jurisprudence” Encyclopedia Britannica 1973

[11] Forrest, Gilbert Alexander and Fellman, David “Constitution and Constitutional Law” Encyclopedia Britannica 1973

[12] Gergen, David “The Brief on Clarence Thomas” U.S. News & World Report July 15, 1991, pg. 84

[13] Gest, Ted & Sheler, Jeffery L. “A Higher Law for the High Court” U.S. News & World Report July 22, 1991, pg. 50-51.

[14] van den Haag, Ernest “Not Above the Law” National Review October 7, 1991, pgs. 35 - 36

[15] Jaffa, Harry V. and van den Haag, Ernest “Of Men, Hogs, and Law” National Review February 3, 1992, pgs. 40 - 41.

[16] Johnson, Julie “Judging Thomas” Time July 13, 1992, pg. 30

[17] Kaplan, David A. and Cohn, Bob “Court Charade” Newsweek September 23, 1991, pgs. 18 - 20.

[18] Lockhart, William B., Kamisar, Yale, and Choper, Jesse H. Cases and Materials on Constitutional Rights and Liberties West Publishing Co., St. Paul, 1975.

[19] Kinsley, Michael “Judges, Democracy, and Natural Law” Time August 12, 1991, pg. 68.

[20] Konvitz, Milton R. “Civil Rights and Liberties” Encyclopedia Britannica 1973

[21] Legg, Thomas Stuart and Plucknett, Theodore Frank Thomas “Common Law” Encyclopedia Britannica 1973

[22] Lovin, Robin W. “The Persistence of Natural Law” The Christian Century October 2, 1992, pgs. 869 - 870.

[23] MacHan, Tibor R. “Are Human Rights Real?” The Humanist November/December 1989, pgs. 28 - 36.

[24] McDowell, Gary L. “Doubting Thomas” The New Republic July 29, 1991, pgs. 12 - 15.

[25] McKown, Delos B. “Demythologizing Natural Human Rights” The Humanist May/June 1989, pgs. 21 - 34.

[26] Roberts, Steven V. “Washington Rerun” U.S. News & World Report September 23, 1991, pg. 18

[27] Spretnak, Charlene “Abortion and 'Natural Law'” Utne Reader May/June 1992 pgs. 134 -135.

[28] Sracic, Paul “We Doubt these Truths” Commonweal October 25, 1991, pgs. 596- 598.

[29] Sullum, Jacob “Natural Mistake” Reason October 1991, pgs. 6 - 7.

[30] Thomas, Evan “Where Does He Stand?” Newsweek July 15, 1991, pg. 16

[31] Thomas, Clarence “U.S. vs. Salerno” Supreme Court Reporter vol. 112, pgs. 2503 - 2509.

[32] Thomas, Clarence “Wright vs. West” Supreme Court Reporter vol. 112 , pgs. 2482 - 2493.

[33] Thomas, Clarence “Taylor vs. Freeland & Kronz” Supreme Court Reporter vol. 112 , pgs. 1644 - 1649.

[34] Thomas, Clarence “Robertson vs. Seattle Audubon Society” Supreme Court Reporter vol. 112 , pgs. 1407 - 1415.

[35] Thomas, Clarence “U.S. vs. Wilson” Supreme Court Reporter vol. 112 , pgs. 1351 - 1356.

[36] Thomas, Clarence “Connecticut National Bank vs. Germain” Supreme Court Reporter vol. 112 , pgs. 1146 - 1150.

[37] Thomas, Clarence “Holywell vs. Smith” Supreme Court Reporter vol. 112 , pgs. 1021 - 1028.

[38] Thomas, Clarence “Molzof vs. U.S.” Supreme Court Reporter vol. 112 , pgs. 711 - 715.

[39] Thomas, Clarence “Farrar & Smith vs. Hobby” Law Week December 15, 1992, pgs. 4033 - 4037.

[40] Thomas, Clarence “District of Columbia & Kelly vs. Board of Trade” Law Week December 15, 1992, pgs. 4039 - 4041

[41] Walsh, Kenneth T. “Scouting Thomas” U.S. News & World Report July 15, 1991, pg. 22

[42] Woodward, Kenneth L. “'Natural Law': an Elusive Tradition” Newsweek September 23, 1991, pg. 20.

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