The Illegitimacy of Appeals to Natural Law in Constitutional Interpretation

Natural Law, Liberalism, and Morality: Contemporary Essays, Robert P. George, ed. (Oxford: Oxford University Press, 1996, 2001), 181–94; reprinted in Democracy and the Constitution: Landmarks of Contemporary Political Thought (AEI Press, 2006).


I begin by stating the obvious: Federal judges are not in the habit of invoking natural law to support their constitutional decisions. Rather, they invoke one or another—and sometimes a handful—of specific constitutional provisions. This is not an accident. Their authority is limited to deciding cases and controversies—for my purposes here, cases arising “under the Constitution” or “the laws of the United States”—which they weigh in the balance with the relevant constitutional provision. And most of these provisions—or, at least, those most frequently cited—have to do with rights, which, again, is not by accident since, as we are taught by the Declaration of Independence, the purpose of government is the securing of rights.

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