At Liberty Law Blog, David Upham (guest blogging): The Propriety and Necessity of Natural Law to Originalism. From the core of the argument:
In one important, but limited respect, commentators generally acknowledge that natural-law considerations belong to, and are thus proper to, the originalist inquiry. The originalist seeks to know what the authors of a constitutional provision understood, meant, or intended by that provision; and some provisions of the Constitution were understood to (partly) instantiate and secure certain principles of natural right. Therefore, to understand these provisions, the originalist must understand these principles, even if he deems those principles erroneous or even ridiculous. So, for instance, whether he was a Lockean or not, Justice Benjamin Curtis was probably correct in Dred Scott to interpret the word “property” in the Due Process Clause to not encompass any “property” prohibited by the Founders’ natural-right principles; that is, the alleged property in human beings.
But besides this occasional role, natural law may be necessary, in a broader sense, to the entire originalist enterprise. For a century now, judicial fidelity to the Framers’ intent/meaning/understanding has been subject to withering, sustained criticism by progressive jurisprudence. Perhaps not coincidentally, the rejection of originalism happened roughly contemporaneously with the American academy’s nearly unanimous repudiation of natural law. In the face of the progressive critique, a plausible natural-law theory may be necessary (in the Hamiltonian sense of expedient, not absolutely necessary) to bolster the theoretical justification of originalism.
Posted at 6:28 AM