Natural Law and the United States Constitution
The concept of natural law was the prevailing philosophy of law throughout the formative period of modern nation states. The idea was that law occurs naturally. Nature, of course, includes human nature and the nature of human society. In general the created order of nature provides some solutions to problems that are better than others. Under natural law theory, the task of courts and legislative bodies is to find that law and declare it.
At about the time the United States came into existence, a philosophy of law called legal positivism asserted itself. Here the idea is that law originates purely in human intellectual activity. Humans simply invent law. When the United States Constitution was adopted; the idea was that the Congress (and state legislatures) would create laws. The Courts would decide cases. The executive branch would carry out enforcement of the law and provide government. All of that was embedded in the United States Constitution with its treasured concept of a separation of powers. Theoretically the branches of government would hold each other in check, preserving liberty to the people.
Early in the history of the United States, the question arose as to which branch-legislative, judicial or executive-would have the power to ultimately declare the meaning of the United States Constitution. In the landmark case of Marbury v. Madison the United States Supreme Court decided that it had the authority to examine federal legislation (obviously produced by Congress) to determine whether that legislation is consistent with the Constitution. From that time forward the Supreme Court asserted the right to declare legislation that is inconsistent with the Constitution unconstitutional and unenforceable. That issue was intensely debated during the Great Depression when the conservative Supreme Court of the United States declared New Deal legislation unconstitutional. Roosevelt even threatened to stack the Supreme Court with new members in order to allow his legislation to be declared constitutional.
More importantly, during his 13 years in office he appointed a much more liberal Supreme Court that made decisions much more to his liking. In the second half of the 20th century, a new era arose in constitutional law under the direction of that liberal Supreme Court. Up to that point, the Supreme Court had limited itself to overturning federal legislation and if it were inconsistent with the constitution. However, during the second half of the 20th century the court began to declare positive law based on its interpretation of the Constitution. For instance in the case of Miranda v. Arizona, the Supreme Court spelled out exactly what a police officer had to say to a suspect in a criminal case before interrogating that suspect. The now famous Miranda Warnings were not statutes enacted by Congress, but were requirements declared by the Supreme Court of the United States. Note the huge difference between declaring legislation unconstitutional on the one hand, and declaring positive law based on what the Supreme Court thinks that the constitution means on the other.
The Supreme Court of the United States now appears to select cases for the express purpose of declaring positive law, a function which most of us thought the Constitution reserved to Congress. That assigns to the Constitution an oracle-like quality. What does the Constitution have to say about abortions or gay marriages? I suspect that the writers of the Constitution would be shocked to find that anybody believes that the Constitution had anything to say about either of those topics or other topics for which the Supreme Court has used the Constitution as a theoretical basis for the declaration of positive law.
One of the problems for the natural law theory was the question as to who declares the natural law. At one point in time, the church assumed that role. When the positivist movement began, courts were severely criticized for declaring positive law under the guise of “finding” natural law. By any reasonable standard it would certainly appear that the oracle-like approach to the United States Constitution by the federal courts is subject to that same criticism today. With natural law the courts could look to the entire wisdom of the culture. The legislative branch could change the law to reflect the will of the people. But when the United States Supreme Court makes declarations of positive law in the name of the Constitution, their decisions cannot be reversed by the legislative branch. This is a far cry from Marbury v. Madison and review of legislation to determine if it is constitutional. When Congress was creating law, it made sense for courts to review. But who can review the positive law declared by the court? What happened to the checks and balances insofar as the court system is concerned?