Scalia on Natural Law

Share on facebook
Share on twitter
Share on linkedin
Share on reddit
Share on delicious
Share on digg
Share on stumbleupon
Share on whatsapp
Share on email
Share on print

I think Justice Scalia is right on target regarding his comments on the difficulty inherent in judges attempting to apply natural law in this country.  Natural law, as a legal concept to be used day to day by judges in the cases before them, only works if people are in agreement on basic morality.  Then a law writ by God on the hearts and minds of men and true for all times and true for all places is possible of discernment in application to particular cases.  Such a civilization Western Europe enjoyed from around 1000 AD to the time of the Reformation.  Our time bears little relationship to that period in history.  Now we live in a time of moral chaos, where even the right to life of an unborn child is denied by law.  In such a time of moral collapse, giving to judges the power to make determinations based on natural law is simply giving them the power to make it up as they go along, even more than they not infrequently do currently.  Bad enough results obtain when judges are supposedly bound by the text of written constitutions.  Give them a warrant to use something as vague and amorphous as natural law, and the results are completely predictable.

We see what we could expect by some of the wilder flights of fancy of Justice Anthony Kennedy, a Catholic, and the man who sits on the Court due to the ferocious and successful war waged by Senator Ted Kennedy and the other Democrats in the Senate against the nomination of Robert Bork, a man who doubtless would have been the fifth vote to overrule Roe.  Instead, Kennedy was part of the majority that affirmed Roe in Planned Parenthood v. Casey.  In that decision Justice Kennedy delivered himself of this piece of meaningless babble:  At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.   In legal circles this has become known as Kennedy’s sweet mystery of life rule of constitutional interpretation.

Scalia’s dissent in Casey was biting.  A small sample:

” [The American people’s] belief in themselves as . . . a people [who aspire to live according to the rule of law] is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. “

Ante, at 25-26.

The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges–leading a Volk who will be “tested by following,” and whose very “belief in themselves” is mystically bound up in their “understanding” of a Court that “speak[s] before all others for their constitutional ideals”–with the somewhat more modest role envisioned for these lawyers by the Founders.

“The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . .” The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982).

Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration (“There is a limit to the amount of error that can plausibly be imputed to prior courts,” ante, at 24), with the more democratic views of a more humble man:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 139 (1989).

To Scalia the legal issue was quite simple:  The Constitution does not restrict the right of the States to regulate abortion and therefore Roe was wrongly decided, and no amount of  blather from Kennedy and the others in the majority could alter the fact that they were merely enacting their view of what proper social policy regarding abortion should be.

Kennedy was, and I assume still is, proud of his mystery of life passage.  He repeated it in his majority opinion striking down the laws against sodomy throughout the United States:


Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:


“ These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.


Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

Scalia in dissent got to the nub of the issue and the actual rationale for what the majority did:


Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

    One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

    Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.

Without a moral and intellectual revolution, seeking to use natural law in judicial decisions in this country simply would be another tool for judges to enact their policy preferences into law.  The high handed contempt shown by numerous judicial opinions for laws enacted by elected representatives, laws that had no constitutional infirmity but simply ran afoul of the zietgeist of most judges, would only increase if judges assumed that they were not bound by statutes and constitutions, but could simply use the term natural law to hide what is, essentially, a simple naked power grab.




More to explorer

Quotes Suitable for Framing: Oliver Wendell Holmes, Jr.

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth

PopeWatch: AntiChrist

Sandro Magister minces no words:   While the controversy rages on in view of the synod on the Amazon, which in reality


Good video featuring noted Civil War historian Allen Guelzo on Reconstruction.  Once Lincoln was assassinated Reconstruction was probably doomed.  He wanted to


  1. Scalia’s positivist dissent is only admirable when it affirms or allows us to affirm what we know to be true in the natural law. Standing alone, his naked positivism would be scary in other hands.

  2. Standing alone, his naked positivism would be scary in other hands.

    I disagree that is naked positivism. It would be erroneous thinking to say the positive law is the law therefore it just. However, that is not Scalia’s position. Justice demands that laws not be arbitrary. This is where well crafted positive law in support of natural is important. If those two things are in place, then it is just to adhere to the positive law. The positive law includes many safeguards and defines the rules of evidence, etc. There are appeal processes defined, and even a process of last recourse (appeal to the Executive). If that fails it makes no sense to take it to an authority has no or defined jurisdiction over the matter. The Supreme Court has no more authority over the matter than the local dog catcher. It would be an injustice for them to act otherwise and for others to act on their decision.

    What if the Supreme Court had overstepped their bounds in the name of justice and decided on the guilt or innocence of Davis? And what if after weighing the evidence they decided he was guilty? Where would Davis go to proclaim his actual innocence and seek relief? What if when OJ Simpson was aquitted Marcia Clark petitioned the Supreme Court to convict OJ based on acual guilt? Should they have heard the case and passed sentence even though one could easily argue it was in the name of true justice?

    Adhering to the just positive laws is just even knowing that man is fallen and “actual” justice may at times be elusive.

  3. The problem is not that the natural law is vague and amorphous, it is only for liberals. Natural Law has been adequately expounded in Judeo-Christian societies for milennia, and is easily discernible.

    No, the problem really is that in our system of governance we do not invest judges with the duty of discerning, applying, or expounding upon the natural law. A legislature might properly do that.

    As I’ve explained here:, in our system, a judge, and particularly a Supreme Court Justice, is tasked with the straight forward and simple matter of applying the text of the Constitution as understood by it’s framers to the cases before the Court. Going beyond that mandate to engage in the business of discerning and applying the natural law is simply going beyond the competence and role of the judiciary in our system.

    Scalia cannot be faulted for declining to exercize a power which he has not been granted, is foreign to his role as a Justice, and is alien to the American system of separation of powers.

  4. “The problem is not that the natural law is vague and amorphous, it is only for liberals. Natural Law has been adequately expounded in Judeo-Christian societies for milennia, and is easily discernible.”

    I would heartily disagree with you on that Tom unless we are talking about fairly straight forward issues such as murder. Even then there would be a debate about degrees of culpability. Once natural law attempts to deal with items like medical malpractice, product liability, mechanic’s liens, etc, I think attempting to get a consensus from a natural law analysis would be an endless exercise in unending debate.

  5. “Scalia’s positivist dissent is only admirable when it affirms or allows us to affirm what we know to be true in the natural law.”

    What is admirable about Scalia’s dissents is that he understands the distinction between a court and a legislature, and he does not confuse his policy preferences as being Holy Writ, a very good thing for judges to understand in a democracy.

  6. Citing the musings of this so called Catholic sets evangelization back 100 years and greases the skid for Islam and its worldwide vision of evangelization. His opinions serve to maintain the jack boot of the corporatist welfare queens on the throat of the common man which of course is welcome news by the John Bircher racists and tea baggers within the American Catholic community. A man enslaved by the spirits of pride, gluttony and avarice is not worthy of Catholic accolades much less affiliation.

  7. Thanks for stopping by David as a dollop of spittle flecked commentary always helps to enliven the comboxes now and then. We will not keep you as I am certain you have many other venues to shine the light of TRUTH upon. Since I am a paid agent of the John Birch and Tea Bagger Alliance, I hereby ban you from this blog. If the Trilateralists reverse my banning, I will let you know.

  8. Those who engage in judicial activism demonstrate the truthfulness of the epigram; “The obscure we see eventually; the completely obvious takes a little longer.” Judge Scalia is the exception to the second part of that saying.

Comments are closed.