Originalism and Natural Law
Originalism and Natural Law
Brian T. Fitzpatrick 0
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Brian T. Fitzpatrick*
I am grateful to Judge O’Scannlain for his thoughtful discussion on the
role that natural law has played in American legal history. I share Judge
O’Scannlain’s understanding that those who wrote and ratified the U.S.
Constitution were believers in natural law—by that, I mean they were
believers in a body of rules that could be derived by reason, that existed
outside the rules enacted by a sovereign government.1 But it is also true
that the belief in natural law has waned considerably over time. In my
mind, this raises an interesting question for those who embrace the
“originalist” method of constitutional interpretation: what is the originalist
view of federal judicial power in light of the fact that the very conception of
what the law is has changed significantly since the founding?
At the time of the founding, both private and public law were understood
to embody natural law and judges were expected to consult it in the cases
before them. As Justice Scalia has noted, “the prevailing image of the
common law was that of a preexisting body of rules, uniform throughout
the nation . . . that judges merely ‘discovered’ rather than created.”2 As
Justice Holmes put it more derisively, common law was thought of as “a
brooding omnipresence in the sky.”3 Even in constitutional cases judges
were expected to consult natural law.4 Indeed, many people believe that the
reason the original Constitution did not contain a Bill of Rights was that it
was thought to be redundant: judges were expected to rely on natural law
to protect individual liberties even in the absence of constitutional
commands.5 This view did not become obsolete once the Bill of Rights
was adopted. The Ninth Amendment to the U.S. Constitution—the one that
says that “[t]he enumeration in the Constitution of certain rights, shall not
be construed to deny or disparage others retained by the people”6—
presupposes a body of natural rights that existed outside of positive law.7
Other provisions of the Constitution are so vague and open-ended that they,
too, may have presupposed a body of natural law that judges could invoke
to fill out the broad principles.
Most people no longer see the law in this way. The Legal Positivist and
Legal Realist movements that Justice Holmes helped shape one hundred
years ago fundamentally reoriented things. Today, many of us believe, as
Justice Holmes did, that law is not “a brooding omnipresence in the sky, but
the articulate[d] voice of some sovereign.”8 That is, many of us believe that
law is a choice to be made by distilling our values and experiences, not a set
of preexisting rules to be discovered by reason.
But as the conception of law has changed, so has it created a tension with
the original expectation of the federal judicial power. When it was thought
that judges could consult a preexisting body of rules when deciding cases,
the original judicial role was less threatening to both democratic values and
the constitutional design of separation of powers. But now that most of us
believe that there is no preexisting body of rules and that ambiguities in
legal texts require judges to make choices as to what should or should not
be the law, the role originally expected of federal judges encroaches
democratic values in general and separation of powers in particular. As
Justice Scalia has noted, “[o]nce we have taken this realistic view of what
common-law courts do, the uncomfortable relationship of common-law
lawmaking to democracy (if not to the technical doctrine of the separation
of powers) becomes apparent.”9
How can originalists resolve this tension? What is the originalist view of
the federal judicial power in an age when consulting natural law is
understood to create law rather than merely discover it? How can the
founding-era expectation of natural law judging, on the one hand, be
squared with the founding-era embrace of the principles of democratic
lawmaking and separation of powers?
It strikes me that originalists might confront this tension in any number
of ways, and scholars more expert on this subject than I am have set forth a
number of possibilities. For our purposes here, however, I would like to
briefly discuss three of the more obvious options.
The first option is to favor the original expectation of the judicial role to
the detriment of the original embrace of principles of democratic
lawmaking and separation of powers. That is, the first option is to let
judges continue in their role as expositors of natural law despite the fact that
we now understand this to mean that unelected judges will be “making”
rather than “discovering” that law. This option gives judges a license to
distill their own values and experiences—willfully—into rules that will
6. U.S. CONST. amend IX.
7. See, e.g., RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION:
PRESUMPTION OF LIBERTY (2004).
8. S. Pac. Co., 244 U.S at 222 (Holmes, J., dissenting).
9. SCALIA, supra note 2, at 10.
NATURAL LAW COLLOQUIUM
govern the rest of us. Needless to say, this option will be just as
unsatisfying to many originalists as it is to Judge O’Scannlain. After all,
perhaps the most dominant functional justification for originalism is that it
minimizes the policymaking role of federal judges. The first option fails
badly at furthering this objective.
The second option is at the other extreme: to favor the original embrace
of the principles of democratic lawmaking and separation of powers to the
detriment of the original expectation of the judicial role. That is, the second
option is to require federal judges to defer to the democratic process as
much as possible. This is the course we have largely taken when it comes
to private law cases,10 but it may not be as satisfying in public law cases
because it could broadly limit the federal judiciary’s role in reviewing the
constitutionality of legislation. Although judicial review was not embraced
at the founding like it is today,11 the support for it now is so wide and so
deep that the second option may not be appealing to very many people,
Hence the third option, the middle course, the course embraced by Judge
O’Scannlain. This option asks federal judges to discern what the framers
believed the natural law encompassed circa 1787, and then incorporate
those tenets into public and private law today. This middle course has the
merit of preserving judicial review, but it is less clear how well it minimizes
the policymaking role of the federal judiciary. Trying to figure out what
most people in the framing generation thought the natural law encompassed
is fraught with ambiguity, and, as they do when confronted with
ambiguities in other legal sources, judges may turn, consciously or
unconsciously, to their own policy preferences.
Indeed, a good example of the difficulties with this historical inquiry can
be found in the very Supreme Court case relied upon by Judge O’Scannlain
in his defense of the middle course: District of Columbia v. Heller.12
Judge O’Scannlain relies on Heller as an example of the Supreme Court
properly discerning one tenet of the natural law circa 1787 and using it to
fill out the ambiguous text of the Second Amendment. But the historical
inquiry into what the natural law encompassed in 1787 appeared to be just
as ambiguous as is the text of the Second Amendment itself. The vote in
Heller was 5-4 and the principal dissenting opinion, I think it is fair to say,
was just as steeped in historicism as was Justice Scalia’s majority
opinion.13 Despite the historicism in the Heller opinions, the Court split
along perfectly ideological lines: the five more conservative justices
interpreted the history consistently with the conservative policy outcome
against gun control, and the four more liberal justices interpreted it
consistently with the liberal policy outcome in favor of gun control. This
10. See, e.g., Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
11. See LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM
AND JUDICIAL REVIEW (2004).
12. 128 S. Ct. 2783 (2008).
13. See Jeffrey M. Shaman, The End of Originalism, 47 SAN DIEGO L. REV. 83, 101
may have been a mere coincidence, but it also may be that judges tend to
resolve historical ambiguities like other legal ambiguities: consistent with
their own experiences and world views. To the extent the third option
routinely presents judges with such historical ambiguities, judges practicing
the third option may end up deciding cases in accordance with their own
values and experiences quite often. Although drawing upon such
considerations might not be willful (as it would be under the first option), as
a matter of case outcomes, there may be less difference between the third
and first options than initially meets the eye.14
In short, I think Justice Scalia was quite right when he said that the
original expectation of the federal judicial role sits “uncomfortabl[y]” today
with the original embrace of the principles of democratic lawmaking and
separation of powers.15 How to resolve this tension will continue to interest
originalists for years to come.
* Associate Professor of Law, Vanderbilt University Law School. J.D., 2000 , Harvard Law
School . Law Clerk to the Honorable Diarmuid O'Scannlain , 2000 - 2001 . I am grateful to
Jim Ely for helpful comments. 1 . See James W. Ely , The Marshall Court and Property Rights: A Reappraisal , 33 J.
MARSHALL L. REV . 1023 , 1048 ( 2000 ) (“Under natural law theory, certain rights were
deemed so basic as to be beyond the reach of governmental authority . ”) . 2. ANTONIN SCALIA , A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW
10 ( 1998 ). 3. S. Pac . Co. v. Jensen, 244 U.S. 205 , 222 ( 1917 ) (Holmes , J., dissenting) . 4. See, e.g., Ely, supra note 1, at 1048-55 . 5. See, e.g., Frederick Mark Gedicks, An Originalist Defense of Substantive Due
Process: Magna Carta , Higher-Law Constitutionalism , and the Fifth Amendment, 58
EMORY L.J . 585 , 667 ( 2009 ) (noting that “the Federalists had expressly argued that the entire
of any textual enumeration”) . 14 . See Richard H. Fallon, Are Originalist Constitutional Theories Principled, Or Are
They Rationalizations for Conservatism?, 34 HARV . J.L & PUB. POL 'Y 5 ( 2010 ). 15. SCALIA, supra note 2, at 10.