Judges, Democracy And Natural Law

• Share

Though people on both sides deplore them, these annual summer brawls over Supreme Court nominees can be valuable exercises in civic education. The Robert Borkathon of 1987 forced millions of Americans to think about the role of a constitution in a democracy: the proper way to interpret 200-year-old phrases, the conflict between majority rule and individual freedom, and so on.

This summer President Bush's nomination of Clarence Thomas has unexpectedly plunged the nation even deeper into the pool of first principles. America finds itself debating natural law. An enthusiasm for something called "natural law" is one of the repeated themes in Thomas' slim collection of writings and speeches. What he means by natural law and what uses he would put it to as a life-tenured Supreme Court Justice are not clear. This justifiably alarms some people, who are worried that "natural law" could become an excuse for a conservative judge to impose his political agenda -- just as conservatives have accused liberal judges of using "privacy" to do the same thing.

In fact, though, the two questions can be separated. Is there something called natural law? And is it a legitimate basis for judges to overrule the wishes of the majority as expressed in laws of a less exalted sort?

At this point in American history, the answer to the first question is beyond challenge. Yes, as far as the U.S. is concerned, natural law exists. The "Laws of Nature" are right there in the first sentence of the Declaration of Independence. The second and most famous sentence provides a perfect definition of natural law: human beings are "endowed by their Creator with certain inalienable Rights," including "Life, Liberty and the pursuit of Happiness."

Where do these rights come from? Some may have trouble with the concept of a divine creator. Others may find it overly metaphysical to insist that every human being has these rights in a world where most people are patently unfree to exercise them. But few can doubt that life, liberty and the pursuit of happiness are what a civilized society ought to strive to provide its members. As the Declaration says, that is the reason "Governments are instituted." It is "self-evident." That's good enough for me.

But just because rights exist, this does not mean it is the role of judges to enforce them. The institution of judicial review -- the power of unelected judges to overrule the democratic branches of government -- is a funny business. Judges do not have that power in other major democracies, and it is not explicitly authorized in the U.S. Constitution. It emerges, rather, from the structure of our government. As Justice John Marshall first reasoned in Marbury vs. Madison (1803): faced with a conflict between a law and a constitutional provision, judges must honor the Constitution. All government officials should do the same. The Supreme Court's interpretation of the Constitution is definitive only because procedurally it comes last.