Natural Law A Fuzzy Concept With A Long History

Posted: September 11, 1991

Clarence Thomas' confirmation hearings yesterday sounded like an advanced jurisprudence seminar as Thomas was questioned about the "natural law" method of constitutional interpretation.

Thomas has gained national attention in legal circles for invoking ''natural law" or "higher law" as a key principle in the Constitution.

Natural law is a fuzzy and malleable concept that has been endorsed by liberals as well as conservatives.

In contrast to the strict constructionist view that the Constitution must be interpreted by sticking closely to its text, proponents of natural law hold that the Constitution also protects rights that are not specifically enumerated, or set out, in the words of the document. Though the notion that people had "natural rights" was popular in the 18th and 19th centuries, it was rejected by most legal scholars and judges in the 20th century because it could be easily abused.

The Supreme Court in the 19th century, for example, upheld both slavery and the exclusion of women from practicing law by invoking the laws of "nature." Under the current prevailing view, law is only what is written into statutes or the Constitution; there is no natural law that stands above written laws.

However, in dozens of speeches, Thomas has cited his belief in natural law. But with few exceptions, he has used this notion only to endorse the principle that "all men are created equal."

Not only does the phrase appear in the Declaration of Independence of 1776, the same belief was cited by Abraham Lincoln during the 1860s and Martin Luther King Jr. during the 1960s, Thomas says.

Thomas' version of natural law closely resembles that set out by one of its most prominent conservative adherents, political theorist Harry V. Jaffa of Claremont College in California.

Much of Thomas' discussion of natural law repeats Jaffa's views that the Constitution must be interpreted in light of the Declaration of Independence and its reference to the inalienable rights of life, liberty and the pursuit of happiness.

Natural law has proven to be something of a wild card.

Liberals fear that Thomas would use natural law to narrow the rights of women, minorities, workers and consumers, all of whom suffered under past notions of "human nature."

Conservatives worry that natural law would allow Thomas to become an activist willing to extend government powers or individual freedoms beyond constitutional bounds.

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