At Law & Liberty, John McGinnis: A Dialogue Between Originalism and Natural Law? (reviewing Hadley Arkes, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution (Simon & Schuster 2023)). From the introduction:
Hadley Arkes’ latest book, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, contains much common sense about natural law, but much less insight into either originalism or contemporary Supreme Court jurisprudence. In short, his thesis is that originalist interpretation needs to be supplemented by the truths of natural law to avoid a slide into relativism. But originalism does not need Arkes’ infusion of natural law to beat the charge of relativism. The judicial doctrine arising from originalism reflects the appropriate place to include moral reasoning in our political system.
And from the conclusion:
There may be some role for natural law in originalism. But it does not resemble the function Arkes promotes. He understands natural law to provide free standing axioms which may decide cases, but he has not provided evidence that, however much the Founding generation believed in natural law, its jurists incorporated this approach into judicial review. Arkes does refer to Gibbons v. Ogden, where Chief Justice John Marshall demonstrated “propositions that would have been thought to be axioms.” But the axioms in this case are not appeals to natural law, but instead to rules of textual interpretation. In that passage, for instance, Marshall observed that it did not matter that steamboats moved by steam rather than by sail, because the text of the Commerce Clause leaves questions like that to discretion of Congress.
Nevertheless, it is possible that natural law may prove useful within the interstices of originalism. First, natural law might be used to resolve ambiguities of the original meaning in the Constitution. Certainly, the Constitution was written against a background where natural law was familiar to enactors. But there would need to be evidence that the principle mandating the interpretation of ambiguities in light of natural law was one that they deemed applicable.
Second, the original meaning of some provisions of the Constitution might require natural law for their definition. In Tyler v. Hennepin County, a decision rendered just last month, the Supreme Court unanimously held that a state retention of the entire value of a home in forfeiture—going beyond what was necessary to satisfy a person’s tax obligation—was a taking of property in violation of the Fifth Amendment. Minnesota argued that state law permitted it to retain these excess proceeds and therefore it was not a taking. Chief Justice John Roberts summarily rejected the argument, noting that if state law were permitted unlimited discretion to decide what was property, the Taking Clause would become a dead letter. Instead, the Court would define property by looking to “traditional property law principles plus historical practices and this Court’s precedent.” Roberts found some of his key traditions in the Magna Carta, but it might be argued that natural law could help provide a definition as well.
Thus, a fruitful dialogue to be had between natural law and originalism may well have a future. But Mere Natural Law, despite its interesting insights about natural law, does not yet provide a framework for that conversation.
Posted at 6:27 AM