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03/12/2017

Eric Claeys on Judge Gorsuch and Natural Law
Michael Ramsey

In the Weekly Standard, Eric Claeys (George Mason): Neil Gorsuch and Natural Law.  Fromt he introduction:

Later this month, the Senate Judiciary Committee convenes hearings on the nomination of Judge Neil Gorsuch to replace Antonin Scalia on the Supreme Court. Although the Committee will have a lot of legitimate issues to consider, some outsiders are trying to interest it in two unusual topics: natural law, and the writings of a professor named John Finnis. These topics are distractions. The committee's main business is to see whether Judge Gorsuch is qualified to apply the law impartially as a judge. And if the committee does decide to explore natural law or Finnis's writings, those sources will point the committee back to its main business.

Finnis is now a professor emeritus at Oxford and a professor at Notre Dame Law School. After clerking at the Supreme Court, Gorsuch earned a Ph.D. at Oxford, and Finnis supervised Gorsuch's dissertation there. In the last few weeks, some court-watchers have suggested that Finnis's political views provide clues about how Gorsuch will behave as a justice. George Will hopes that Gorsuch's studies under Finnis will help him "correct" some of Scalia's views on the Constitution. (Scalia denied that the Constitution explicitly recognizes natural law or protects natural rights.) Several bloggers and news articles have noted that Finnis opposes abortion and non-conjugal and/or contracepted sex. Some hope, and more are alarmed, that Finnis's views on those subjects may have rubbed off on Gorsuch.

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More fundamentally, though, the suggestions being made about Finnis and natural law are confused about the judiciary committee's job. The suggestions imply that judges vote on cases before them as members of Congress vote on bills—by what they think of a given bill on the merits. Judges shouldn't vote that way; they should figure out what legal sources control and apply those sources impartially. If the committee wants to explore how the natural law or Professor Finnis relate to being a Supreme Court Justice, it should ask what both have to say about adjudication—not any hot-button voting issue.

And here, traditional natural law teachings reinforce what common sense already suggests. "Natural law" is a way of saying that there are objective standards for right and wrong guiding politics. But natural law principles don't supply cookie-cutter solutions to political problems. Reasonable people often disagree about how general objective standards apply to specific problems. To resolve such disagreements, natural law justifies elections and constitutional government—but it also requires the government's officers to follow the Constitution and the laws made pursuant to it. ...