Why Have Liberals Abandoned a Moral Reading of the Constitution?

What is law and where does it come from? Several years ago at Harvard Law School, where I am a professor, L.G.B.T.Q. student groups reported that, at an event that hundreds of students attended, a student made “patently homophobic and transphobic comments rooted in ‘natural law.’ ” The organizations published a statement demanding that the school treat the incident as misconduct or hate speech, explaining that “the antiquated and parochial belief in a so-called ‘naturally ordered society’ has long been used to justify and allow the deprivation of certain groups from access to meaningful human experiences and participation in public life.” It then dawned on me that, among a swath of our country’s future lawyers, endorsement of “natural law” was viewed as a form of hate. How had we managed to so narrow and antagonize a concept that had underwritten our country’s most important rights to equality and liberty?

The Declaration of Independence presupposes a notion of divinity; it asserts that the point of government is to secure rights ordained by “the Laws of Nature and of Nature’s God.” The oft-recited passage “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” was the premise for breaking with a government that became “destructive of these ends,” so that a new one might be formed, with consent of the governed, to implement these higher principles. The purpose of a man-made government was to enforce God-given rights.

More than a decade later, the charter creating that new government lacked mention of natural law and God, stating that it is “We the People of the United States” who “do ordain and establish this Constitution.” Disagreement about whether the Constitution should be taken to presuppose the authority of natural law, or to displace it, emerged among early Supreme Court Justices. In the 1798 case Calder v. Bull, Justice Samuel Chase, a Declaration signer, said that any legislation violating “the great first principles of the social compact” would not be a law at all. Chase’s position was backed by a long tradition of natural justice, stretching to Aristotle’s advice to “appeal to the law of nature” if there was “no case according to the law of the land.” Justice James Iredell, however, rejected the notion that the Court could declare a law void “merely because it is in its judgment contrary to the principles of natural justice.” His concern was that “the ideas of natural justice are regulated by no fixed standard”—unlike the “precision” and “settled boundaries” of the written Constitution. Iredell’s position that courts could not use natural law to invalidate statutes was consonant with the philosopher Jeremy Bentham’s view that natural law was nonsense and an excuse “to rise up in arms against any law whatever that he happens not to like.” The Constitution’s language ruled out neither of those understandings. The Chase-versus-Iredell debate embodied an instability, from the beginning of the country, regarding the fundamental question of what law is, which has never been fully resolved.

Lon Fuller, a legal philosopher and a prominent proponent of a secular form of natural law, observed in 1948 that “for many the term ‘natural law’ still has about it a rich, deep odor of the witches’ caldron, and the mere mention of it suffices to unloose a torrent of emotions and fears.” That is still true today. For many liberals, those fears are provoked by an apprehension that “natural law” may be a way to justify homophobia, promote religious nationalism, or subordinate women. But liberals should have confidence in meeting those fears with arguments about natural-law principles of equality and dignity underpinning our legal tradition. The content of natural law has been contested throughout our history, but, over the long haul, liberals have fared well in reading the Constitution in light of the higher principles of fundamental justice. The semiquincentennial of our country is the perfect time for liberals to reclaim natural law and not cede it to their antagonists.

Whatever the most contested issue is in a particular time—slavery, segregation, miscegenation, gender equality, abortion, gay sex, same-sex marriage—the clash regarding natural law and positive law, or, to put it another way, our unwritten and written constitutions, has tended to resurface. It is a skeleton key to each era’s culture wars. The most unbearable clash was between the Declaration’s principle of equality and the Constitution’s provisions on slavery—the three-fifths clause, the fugitive-slave clause, and the slave-trade clause. The ubiquity of natural-law thinking soon led to both antislavery and pro-slavery arguments invoking it. In 1841, John Quincy Adams, a President turned congressman and Supreme Court advocate, appeared before the Court, seeking the freedom of people kidnapped from Africa who mutinied en route to America on the slave ship Amistad. Adams argued to the Justices, “I know of no other law that reaches the case of my clients, but the law of nature and of Nature’s God on which our fathers placed our own national existence”; the Court explicitly relied on natural law in deciding in favor of the captives.

Defenders of slavery claimed that the institution was required by the natural hierarchy of humans reflected in the Constitution’s provisions. A wing of abolitionists, including Frederick Douglass, invoked the Declaration to assert that, properly interpreted in light of natural justice, the Constitution was really an antislavery document, notwithstanding its terrible compromises. Resistance to that reading animated the Supreme Court’s opinion in Dred Scott v. Sandford, which concluded that the Constitution meant that Black men could not be citizens and that Congress could not disallow slavery in federal territories. The opinion pointed out that the Declaration’s signatories, most of whom enslaved people, would have been rank hypocrites had the document’s principle of equality included those whom they enslaved. Blasting the Court’s conclusions, Abraham Lincoln explained that the proposition that all men are created equal with God-given rights had been placed in the Declaration “for future use.” On the eve of the Civil War, Lincoln wrote that this principle was an “apple of gold” for which the Constitution, the “picture of silver” framing it, had been made, and not the other way around. His address at Gettysburg, in November, 1863, opening with “Four score and seven years ago,” referred not to the Constitution but to the Declaration.

One way of thinking about the post-Civil War amendments—which banned slavery, guaranteed equal protection of the laws, and prohibited denial of the vote based on race—is that they wrote into the Constitution the natural-law principles for which the war had been fought. But the written text did not halt passionate disagreement about what natural law required pertaining to racial equality. The Supreme Court, in Plessy v. Ferguson, upheld segregation, reasoning that, “in the nature of things,” the Fourteenth Amendment “could not have been intended to abolish distinctions based on color.” Advocates for and against women’s equality similarly argued in terms of natural law. The Seneca Falls declaration deemed all laws that place women in an inferior position to men “contrary to the great precept of nature.” But, in a case upholding the exclusion of women from the practice of law, an infamous concurring opinion by Justice Joseph Bradley (which law students might cite to condemn natural law) claimed that “nature herself” recognized “different spheres and destinies for man and woman.”

In his 2src21 book, “The Decline of Natural Law,” the legal historian Stuart Banner observed that the recruitment of natural law by opposing sides on contentious social issues contributed to increasing doubt about its existence. By the early twentieth century, lawyers and judges considered natural law to be irrelevant to the legal system, and the language all but disappeared from legal arguments and decisions. Justice Oliver Wendell Holmes, Jr., bitingly mocked people’s belief in natural law as a “naïve state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere.” But the rise of totalitarianism and fascism in Europe in the nineteen-thirties, in constitution-bound states, provoked American lawyers to revisit the question of whether an unjust law was to be considered law at all. Many reflected, in particular, on the evil that Nazi Germany had accomplished through legalism. Lon Fuller argued, after the Second World War, that the Nazi regime’s violation of law’s “inner morality” had made it cease to be a true legal system.

When the Supreme Court, in Brown v. Board of Education, unanimously reversed Plessy, in 1954, it conspicuously avoided mentioning natural justice, higher principles, or moral values. Yet it admitted that Brown’s central holding, that “separate educational facilities are inherently unequal” and thus unconstitutional, did not flow from the Fourteenth Amendment’s original meaning. The same Congress had approved both the amendment’s text and the segregated schools of Washington, D.C. The civil-rights struggle was shot through with natural-law thinking, as Martin Luther King, Jr., made clear in his “Letter from Birmingham Jail.” He identified Thomas Aquinas as his source for the idea that “an unjust law is a human law that is not rooted in eternal law and natural law,” and that “a just law is a man made code that squares with the moral law or the law of God.”

As Congress passed landmark civil-rights legislation in the nineteen-sixties, the contest in the Supreme Court over natural law moved to concepts of autonomy and privacy. In 1965, the Court held, in Griswold v. Connecticut, that the application to married couples of a criminal ban on contraceptives was unconstitutional because of a fundamental right to privacy that was not laid out in specific words of constitutional text. Justice William O. Douglas, largely regarded as one of the most liberal Justices in history, wrote for the Court, which found the right in “penumbras, formed by emanations” from a number of Bill of Rights provisions. His fellow-liberal Justice Arthur Goldberg pointed to the Ninth Amendment, which provides that “the enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Justice John Marshall Harlan II, a conservative, took a more moral-philosophical approach, saying that a law that “violates basic values ‘implicit in the concept of ordered liberty’ ” violates the Fourteenth Amendment’s due-process clause. In an earlier case, Harlan had explained that “due process has not been reduced to any formula; its content cannot be determined by reference to any code.” The meaning of “liberty,” he wrote, “cannot be found in or limited by the precise terms of the specific guarantees.” The meaning of the Constitution, in his view, was found in its broader purposes, not its text.

In the Griswold majority, the splits among Justices about the legal basis for the right to privacy revealed how contested it was from the start. In a dissent, the liberal Justice Hugo Black, who had prefigured modern originalism by several decades by championing plain text and original intent, rebuked his colleagues for relying on a “mysterious and uncertain natural law concept”—much as Justice Iredell had critiqued Justice Chase in the eighteenth century. But the right to privacy flourished. Justice Harlan’s approach to substantive due process became the foundation for Roe v. Wade, which declared that, although “the Constitution does not explicitly mention any right of privacy,” the right in the Fourteenth Amendment was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

The conservative legal movement’s reaction to the fundamental-rights decisions of the sixties and seventies was to cry foul—accusing the Court of declaring those rights to be based on judges’ moral values rather than a neutral and fair reading of law. The concern was not limited to conservatives. One of the most important liberal constitutional scholars, John Hart Ely, who was pro-choice, called Roe “a very bad decision” because “it is not constitutional law and gives almost no sense of an obligation to try to be”—a line that became useful fodder for Justice Samuel Alito in overruling Roe, in 2src22.

During his 1991 confirmation hearings, Clarence Thomas—who had trained for the Catholic priesthood and praised the use of natural law to support a fetal right to life—told the Senate Judiciary Committee that he did not “see a role for the use of natural law in constitutional adjudication.” Senator Joseph Biden, the Democratic chair of the committee, and also a Catholic, said the quiet part out loud, stating approvingly that the Supreme Court’s due-process cases protecting rights to contraception and interracial marriage were natural law. Those cases exemplified what the liberal legal theorist Ronald Dworkin defended as a “moral reading of the Constitution.” Though natural law was considered a “particularly dreaded” label, Dworkin wrote, he admitted that if “any theory which makes the content of law sometimes depend on the correct answer to some moral question is a natural law theory, then I am guilty of natural law.”

Liberals kept faith with the Court’s unfolding progression of liberal rights, but they grew more defensive about trafficking in natural law. This was aggravated by the florid language of Justice Anthony Kennedy, the Republican-appointed Justice who authored decisions which often sounded mystical, metaphysical, or downright cheesy. In Planned Parenthood v. Casey, which reaffirmed the core of the abortion right, a line attributed to Justice Kennedy waxed: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” In Lawrence v. Texas, striking down a law criminalizing gay sex, Kennedy extolled the “liberty of the person both in its spatial and more transcendent dimensions.” In Obergefell v. Hodges, which required states to recognize same-sex marriage, he leaned even more heavily on language resembling nineteenth-century opinions expounding the nature of things. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality,” he wrote, adding, “Marriage responds to the universal fear that a lonely person might call out only to find no one there.” In dissent, Justice Antonin Scalia assailed Kennedy’s “showy profundities” as “profoundly incoherent,” and declared that “the world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law.”

Justice Scalia’s defining “shtick” (as he called it) was the original public meaning of the plain text of the law. In one of his last speeches, in 2src16, Scalia alleged that Justices in the Obergefell majority were acting as they believed natural law required. A famous Catholic, Scalia attacked the Catholic theologian Aquinas’s statement that, “if the written law contains anything contrary to the natural right, it is unjust and has no binding force.” “Horrors!” Scalia said. He recoiled at “human judges setting aside positive law because they believe it contradicts natural law”—precisely what he thought the Court did in striking down democratically enacted laws as violating fundamental rights not in the written Constitution.

Scalia and other conservatives’ insistence that a sine qua non of legal interpretation was leaving moral values at the door made many lawyers loath to admit that morality was central to legal interpretation, lest they confirm allegations of lawlessness and illegitimacy. Some prominent liberal legal scholars even attempted to defend substantive-due-process rights using originalist and textualist methods. In a speech in 2src1src, Justice David Souter (for whom I clerked) rightly emphasized how “egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments.” But performing fealty to that naïve and impoverished picture of judging had become nearly de rigueur for both liberals and conservatives. Elena Kagan stated, during her Supreme Court confirmation hearing later that year, “We’re all originalists now”—signalling at least some acceptance of conservatives’ preferred judicial constraints. In 2src23, Justice Kagan disclaimed the line as a “stupid sound bite” that had been taken out of context; she hadn’t meant that the Constitution should be forever bound to the original meaning of its plain text, but rather that the view that “constitutional meaning evolves is consistent with the actual, original meaning of what the document is meant to do.” Kagan went on to say, in 2src15, “I think we’re all textualists now,” but, in 2src22, wrote, “I was wrong,” in a dissent in West Virginia v. E.P.A, chastising the conservative Court for being “textualist only when being so suits it.” Many liberals had been disciplined to adopt methods that purported to strictly confine legal interpretation, only to discover that their most prominent adherents, whether covertly or unconsciously, had other plans.

So, it was deeply refreshing when, in his 2src2src essay “Beyond Originalism,” and his 2src22 book, “Common Good Constitutionalism,” Adrian Vermeule (a colleague of mine at Harvard Law School, and a friend) urged conservatives to ditch originalism and embrace the classical legal tradition of Aquinas; he made no bones about the central role of natural law in legal interpretation. Now that legal conservatism has “the upper hand” in the courts and is no longer “a beleaguered and eccentric view,” he deems originalism to have “outlived its utility,” and calls for a constitutionalism “less tied to tendentious law-office history and endless litigation of dubious claims about events centuries in the past.” Vermeule—a former clerk for Scalia—proposes that conservatives should read the Constitution’s ambiguous phrases and general structure in an openly moral way, drawing on principles grounded in the nature and purposes of government.

Vermeule draws, in part, on Dworkin’s view that constitutional standards are explicitly moral, and that phrases like “liberty,” “due process,” and “equal protection” should be interpreted in light of moral principles of justice and fairness embedded in the law. What Dworkin called a “moral reading of the Constitution” has upheld principles of privacy and autonomy and justified rights to abortion and same-sex intimacy, as requirements of fundamental justice. But in “Common Good Constitutionalism,” Vermeule rejects the “conventionally left-liberal and individualist bent” of those liberal commitments. His constitutional interpretation opposes what he called “the relentless expansion of individualistic autonomy” represented in the cases championed by liberals; it supports unborn children’s right to life and recognizes that marriage is only between a man and a woman. Under Vermeule’s vision, he writes, Casey’s right to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” would be “stamped as abominable, beyond the realm of the acceptable forever after.”

The stark disagreements over the moral values underlying our legal tradition are no reason for liberals to disavow a moral approach to legal interpretation. Quite the opposite. Liberals should take a page from Vermeule just as he has taken a page from Dworkin, and reclaim the interpretation of law explicitly in terms of moral values. Despite the abundant criticism of the Trump Administration’s actions as unconstitutional, many of the Administration’s most disturbing policies have conformed to the law. Claims about unconstitutionality are often arguments about what the law should be in light of our legal tradition’s higher principles of justice. This is not a time for liberals to cede the field of disputation over natural law’s meaning or “the common good.” A moral reading of legal obligations and rights should not become a conservative monopoly, any more than it was ever alleged to be a liberal one.

In April, in a speech in honor of the two-hundred-and-fiftieth anniversary of the Declaration, Justice Thomas laid claim to the document’s foundation of natural, unalienable rights, “the moral principles by which Frederick Douglass, Abraham Lincoln, and Martin Luther King, Jr., could criticize the institutions of slavery and segregation.” We should remember that the American natural-law tradition belongs to all of us—including progressives and conservatives, religious and secular readers of Aquinas, advocates and skeptics of liberal rights. Our struggles for justice, from the Declaration to today, have been fights over natural-law principles. That is the ghost in the machine. Whether or not we acknowledge it, the nation’s birthday is a timely celebration of natural law. Reading words in legal texts divorced from fundamental moral values will not save us from tyranny. ♦