Natural Law & Constitutional Jurisprudence

Interesting discussion yesterday (and continuing today) over at Amy Welborn's blog about the role of Natural Law in Constitutional Jurisprudence.

My Take:
Clearly, the Founding Fathers were influenced by Natural Law, and even appealed to Natural Law concepts in their Revolutionary writings (see, e.g. Jefferson's A Summary View of the Rights of British America and Thomas Paine's Common Sense) and in the founding documents of the Declaration of Independence ("the Law of Nature and Nature's God") and the Constitution and Bill of Rights ("Life, Liberty, and Property").

However, once the Natural Law principles that the Founders were most concerned about were enshrined in the Constitution and Bill of Rights, there is no indication that they intended the courts of this nation to use Natural Law as a continuing means of Constitutional jurisprudence.

The courts should look to Natural Law when trying to determine the "original meaning" that the Founders ascribed to the Constitution. After all, in my view, the Constitution means exactly what those who voted on it thought it meant; and if Natural Law shaped the Founders' understanding of Constitutional principles, the courts should give full weight to that particular understanding.

But that is a far cry from saying that the courts should utilize Natural Law as a means of Constitutional jurisprudence. When the courts have done that, they have involved themselves in some of the most egregious examples of activist judicial lawmaking in our history - Griswold v. Connecticut, the progenitor of the courts' abortion-related jurisprudence, being the worst such foray into Natural Law.

As you can see from my post about Roper v. Simmons (see below), I am not a big fan of raw judicial fiat. And Natural Law in the hands of these unelected and life-tenured judges is an awesome weapon to add to their activist arsenal. I'm certainly not willing to cede its use to them.

One more thing about the discussion over at Amy's blog yesterday: "al" did an impressive and admirable job stating the Catholic case for Natural Law. However, given the current activist mindset of the courts in America, it is far from certain that Natural Law would lead to objectively "right" outcomes. Indeed, in the history of American Constitutional jurisprudence, what Natural Law "requires" has tended to be in the eye of the judicial beholder who has in mind reaching a particular outcome.