Judges and Natural Law

Washington Post, August 12, 1991.

Supreme Court nominee Clarence Thomas has expressed a belief in natural law and natural rights. In the overheated, brightly lit arena of Supreme Court politics, that simple allegiance has caused consternation at both ends of the political spectrum.

Some conservatives, who insist that judges should stick to the “original understanding” of the Framers and ratifiers of constitutional provisions, wonder whether Thomas might eschew “judicial restraint” and look beyond the Constitution to natural law as a primary source of principles for resolving constitutional cases.

Some liberals, who applaud when judges of their own stripe purport to discover “unenumerated” rights in background principles not spelled out in the Constitution, worry about how Thomas might exercise that prerogative. They are concerned that his ideas about what natural rights people have and when they come to have them could turn out to be distressingly different from their own….

Washington Post