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10/31/2019

Bruce Frohnen on Originalism and Natural Law
Michael Ramsey

At Law & Liberty, Bruce Frohnen (Ohio Northern): Originalism Is Beside the Point.  From the introduction: 

Originalism has gained wide acceptance, at least in the limited sense that most academics and judges feel constrained to signal respect for the original meaning and generalized intentions of the Constitution. Unfortunately, this “acceptance” has done little to slow the pace of judicial law making that undermines our constitutional order. The reason is not hard to find, though it has become so deeply ingrained in the legal profession as to generally escape examination: lawyers share the prejudice that law is the product of judicial will, such that judges have a duty to pursue (or impose) justice by making and re-making rather than finding law. 

Alternative views among lawyers are hard to find. Few judges or academics today are willing to encounter elite derision by defending traditional natural law; few even are willing to risk such derision by defending Lon Fuller’s softer version of natural law, holding that law has an internal morality such that decrees that are self-contradictory, impossible to obey, continually changing, or secretly enacted cannot fairly be deemed “law,” no matter their pedigree. But these understandings lay at the heart of our constitutional order; they were shared almost universally by the founding generation and shaped the drafting and interpretation of the Constitution, as well as its Amendments and legal decisions, for generations—indeed up until quite recently, historically speaking.

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Not coincidentally, natural law remains an object of derision and/or manipulation. For some lawyers today natural law is simply a sham—nonsense used to cover policy preferences, best ignored by interpreters even though it was constantly invoked during most of our history. For others, natural law is a code of conduct dictating specific, logically derived laws and policy provisions. For still others, natural law equals natural rights, which, despite the vast wealth of evidence to the contrary, dictates radical individualism as a relentless goal of constitutional government. 

Philip Hamburger gets us much closer to the truth when he points out that, during the founding era, “natural law typically was assumed to be the reasoning on the basis of which individuals adopted constitutions and a means by which the people could measure the adequacy of their constitutions.” As used by the people in public discourse this characterization seems indisputable. But we must look further, or deeper, for the grounds of proper constitutional interpretation.

The deep structure of constitutionalism in the United States lies in the traditions of common law and chartered rights brought over from England. It also lies in what I would call the natural law mind. This natural law mind embodies an understanding of our nature and natural goals that not so long ago was almost universally accepted in the United States and remains deeply powerful outside the halls of academe and of politicized justice. 

I get nervous when originalists talk about natural law (even though the framers believed in natural law), because I suspect it means they are going somewhere other than where the text's original meaning indicates.  But I confess I do not understand this post's title, so likely I don't understand other aspects of it as well.