Fordham Law Review 70:2 (2001).
James Fleming says that I have misinterpreted him on several points. My essay, Fleming’s critique, and my reply to his critique’ are now before the reader. Happily, anyone who is interested in our debate can easily examine these texts and decide the question for himself.
Fleming states that I am trying “to wed natural law with Borkian legal positivism.” It is regrettable that he continues casually to toss around terms like “natural law” and “legal positivism” without clarifying what he means by them. I can do little more here than repeat my admonition that nothing but error and confusion comes of this.
Apparently, Fleming supposes that someone who believes in natural law and natural rights, and who acknowledges that the framers and ratifiers of the Constitution were believers in natural law and natural rights, should also believe that the meaning of constitutional provisions “turn[s] on what is morally right or wrong,” and that judges exercising the power of judicial review have the authority to enforce, in the name of the Constitution, their particular moral judgments.b This, I’m afraid, is a non sequitur.
Further, Fleming suggests that I have a stake or interest in something he is pleased to call a “natural law’ reading” of the Constitution. In this, too, he is mistaken. I do indeed believe that the framers and ratifiers of the Constitution sought to incorporate into the nation’s positive law key principles of natural justice. And I believe that to a remarkable degree they succeeded. What a judge is authorized to give effect to, however, when interpreting the Constitution is the positive law that the Framers created. It is not the prerogative of judges to alter or displace the positive law of the Constitution even when they believe that their own view of what natural justice requires is superior to the view embodied in the constitutional text.