When Clarence Thomas was nominated by George Bush to replace Thurgood Marshall, everyone knew the liberals had a problem. It is hard to reject out of hand an articulate black man who had the gall to overcome the ravages of poverty and despair in his personal life without the welfare state.
Now, it appears some conservatives have a problem too. Not because of Thomas` demonstrated self-reliance but because of his belief in the natural-law tradition that underlies the Declaration of Independence and the Constitution. Apparently, conservatives have been sermonizing about judicial restraint so long that they are no longer able to differentiate genuine fundamental rights from counterfeit ones.
Curiously, in a recent New York Times essay, liberal Harvard law professor Laurence Tribe has joined the nascent conservative lament against judicial enforcement of ”the inalienable rights `given man by his Creator.`
” Surely wires have been crossed somewhere.
What exactly is the natural law? It is the straightforward view that men and women are created by God and impressed with certain qualities, a specific makeup. Just as the manufacturer of a car designs a car to perform as one, so too, it is said that the Creator provided all of us with a well-defined nature, where some activities and courses of action promote our well-being and others clearly do not. Motor oil is just fine for a car`s engine, but it`s hell as an after-dinner drink. Moreover, human law cannot trump natural law, so were Congress to mandate human oil consumption, it could not make it safe or tasty.
Now from the natural law comes a significant principle, accepted universally at the time of the founding, but now highly disputed: namely, that there is an objective right and wrong. It is objectively wrong to kill, to steal. The prospect of objective truth does not sit well with a culture that likes to rationalize misbehavior. It does not sit well with Professor Tribe. After all, reasons a Tribe, if murder is inherently wrong, the legal mask that we know as ”abortion” might be pulled from the frightening face of a nation judicially committed to disposing of its unborn. And if that isn`t scary enough, rattles Tribe, Justice Thomas` natural law might occasionally prompt the protection of ”economic liberties” since the endowments of ”life, liberty and property” predate the government itself.
If this parade of horribles is not sufficient to convince the Senate to reject Thomas, Tribe levels one more blow-this time below the legal belt. Like the ugly, blatantly anti- Catholic comments of Virginia Gov. Douglas Wilder of Virginia, Tribe raises the specter that belief in natural law is the imposition of a ”theological belief” that would justify ”moralistic intrusions on personal choice.”
How much this reveals. First, it discloses how little, if anything, Tribe actually knows about natural-law jurisprudence. When the Holocaust had set the world adrift without a moral anchor, a great jurisprudential conclave of Eastern and Western traditions was assembled. Religious and ethnic differences were put aside and it was readily concluded that natural law provided a
”solid foundation for the establishment of basic human rights for all men, everywhere.”
Second, from a separation-of-powers standpoint, natural law is a constraint, not an invitation to judicial usurpation. This is something to which the Bork conservative crowd ought to wake up. As my colleague Charles Rice has observed, natural law does not invite judges ”to roam at large over the constitutional landscape.” Rather, it is a discoverable, defined body of thought that has been written about for centuries from the time of Cicero to Jefferson to the present day.
Judges are not free to impose their own personal conceptions of the good, be it in the service of homosexual sodomy or economics. In this, the natural law upon which our nation`s founders relied has always made it clear that it speaks at the level of basic precept, not detailed code. The important day-to- day specifics are left to the contingent facts and investigations of majoritarian, legislative bodies-not Professor Tribe`s judicial activists.
With or without natural law, the law cannot avoid moral choice. Abraham Lincoln knew this when he applied natural law to repudiate slavery and the positivism of Chief Justice Taney`s opinion in Dred Scott confining the nature of black men to that of chattels. While a Justice Thomas might have written more explicitly, Earl Warren also understood the shared nature of black and white school children when he threw over the specious interpretation of equality found in the pernicious doctrine of ”separate but equal.” Finally, there is ample natural law eloquence in Martin Luther King`s hope for a day when a person is judged by the content (the nature) of his character, rather than the color of his skin.
Tribe`s essay once again proves the insight of Alexander Hamilton that
”the fundamental source of all errors, sophisms and false reasoning is a total ignorance of the natural rights of mankind.” An appreciation for the natural or ”higher” law background of the Constitution is both the warrant for, and only meaningful limitation of, judicial review. The real question for Laurence Tribe, his new conservative pals and the Senate is: Will Clarence Thomas be judged by the triumphant content of his nature and character, or will he be rejected-this time, not ostensibly because of the color of his skin but because he has the temerity to acknowledge, as did Jefferson, ”the laws of nature and nature`s God”?
