Our next question must be whether we can reconcile our natural law past with our textualist present--and whether we even want to.
INTRODUCTION: THE NATURAL LAW REVIVAL
We are in the midst of a natural law revival. Not since the Hart-Fuller debate(2) in the wake of Nuremberg has legal academia witnessed such interest in the topics of natural law and natural rights.(3) While this development may be only the most recent aspect of the now several decades old revival of normative legal philosophy that I chronicled some ten years ago,(4) the immediate cause of this interest was, of course, the nomination of Clarence Thomas to the Supreme Court of the United States. The influence of this event on the academic imagination grew out of what were actually a series of events.
First came the criticism of Supreme Court nominee and former Judge Robert Bork--most forcefully pressed by Senate Judiciary Chairman Joseph Biden--for failing to take seriously the background rights of citizens. Exhibit number one for Biden was Bork's now-famous comparison of the Ninth Amendment to an "ink blot" which appears on the Constitution.(5) Subsequent Supreme Court nominees were required to pledge their fealty to the constitutional principle that "[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."(6) These events unleashed a scholarly excursion into the meaning of this neglected provision that was unprecedented in American legal history.(7) As a result, we can no longer ignore this unrepealed constitutional injunction on the grounds that it is a complete mystery.(8)
Before the dust from this interest in the "rights retained by the people" had settled, President Bush nominated for the Supreme Court Judge Clarence Thomas--a man who, in his speeches and writings, seemingly favored using natural law when interpreting the Constitution.(9) As a result three rather startling events occurred in rapid succession. First, in complete contrast to the arguments used in opposition to Robert Bork, critics of Judge Thomas immediately reacted by characterizing his interest in natural law as kooky and outside the mainstream.(10) Second, this fledgling campaign was then completely undercut by Chairman Biden's ringing endorsement of natural law in his opening statement during the hearings. Remaining true to his stance during prior hearings, Senator Biden endorsed the priority of natural law but said, for him, the important question to be answered by the hearings was which version of natural law the nominee adopted.(11) By taking this stance, the other Democratic senators were effectively disabled from ridiculing the natural law position. Then, with the stage so dramatically set, Judge Thomas emphatically rejected the position he had seemingly endorsed and maintained that natural law had no role to play in constitutional adjudication,(12) thereby depriving Senator Biden of his debate over the proper version of natural law. Thus in a matter of weeks the natural law issue was forcefully laid upon the table for national consideration, and scholars then proceeded to continue the debate in the law reviews.(13)
In my view, this discussion has now reached a critical juncture. It has been established beyond any reasonable doubt that adjudication based on natural rights (as distinct from natural law(14)) is excluded neither by "textualist" nor by "originalist" approaches to constitution interpretation. The labored textual and historical arguments that have been presented to the contrary(15) can be persuasive only to those who have not been exposed to the competing interpretations based, in part, on evidence omitted by the skeptics.(16)
Still, the fact that adjudication based on natural rights is not refuted by text or history does not mean that it is therefore constitutionally justified. The time has come, therefore, to lay these important historical and textual debates to one side and face squarely the two questions posed by Suzanna Sherry at the conclusion of her most recent contribution and with which I began this essay:(17) is it possible today to include natural rights in the process of constitutional adjudication and is it desirable? In short, it's time to get normative.
Professor Sherry's questions can be viewed as posing two distinct challenges. The first--"Can we take natural rights into account today?"--might be considered pragmatic or practical; the second--"Do we want to?"--might be viewed as more purely normative. I think this possible distinction is overdrawn. If we could not take rights into account, we surely would not want to. And the alleged reasons why we cannot are largely normative, not really practical in nature. Moreover, many would concede that we would naturally want to take natural rights into account if we could. At any rate, I intend to address both questions here. In this paper, I shall maintain that the correct answers to Suzanna Sherry's questions are "yes" and "yes." Constitutional adjudication both can and should take natural rights into account.
My argument can be summarized as follows:
(1) Those who enact laws to govern the conduct of citizens(18) claim that (a) their laws are not unjust and (b) citizens have at least a prima facia moral duty to obey these laws.
(2) To assess whether these claims of lawmakers are warranted, it is appropriate to ask whether their enactments have the qualities that are requisite to being both just and binding.
(3) One of these qualities is that laws not infringe the background or natural rights retained by the people.
(4) Because citizens cannot assess every law to see if it has this rights-respecting quality, there must be some procedural assurance that someone sufficiently impartial has attempted such an assessment.
(5) To be legitimate, law-making processes established by a constitution must (among other things) provide such an assurance.
(6) In our constitutional scheme, the responsibility for providing this sort of scrutiny of enacted legislation falls to the judiciary.
(7) Therefore, background or natural rights should figure in judicial review of legislation.
(8) However, there are methods for performing this task that do not require judges to specify all the background or natural rights retained by the people. Each step of this argument is contestable, and I shall not be able to establish all of them in this essay. My main purpose is to introduce the argument and defend its cogency.
THE PROBLEM OF LEGITIMACY
Getting normative requires a point of entry. We need to expose the largely hidden problem that normative analysis is intended to address. In the case of a normative analysis of the Constitution, a document that has achieved near mystical status in the United States, this question is almost taboo. It is a question based on an undisputed fact: the constitution is simply a piece of "parchment under glass." The question is: why should we or anyone else care about what it says? The need to answer this question is what I shall call here the problem of legitimacy.
"Legitimacy" can have many different meanings, so it is important for me to clarify how I am using this term. By "legitimacy," I do not mean the question of whether a particular law is "valid" because it was enacted according to the accepted legal process--e.g. the Constitution specifies that to be valid a law must be enacted by majorities of both houses of Congress and signed by the President--though some may use the term in this way. Nor do I equate the legitimacy of a law with its "justice," though these two concepts are closely related, or with the mere perception that a law is just. Rather, the concept of legitimacy that I am employing refers to whether the process by which a law is determined to be valid is such as to warrant that the law is just. That is, was a particular law made in such a manner as to provide some assurance that it is just? A law produced by such justice-assuring procedures is legitimate.
Thus, according to my usage, a valid law could be illegitimate;(19) and a legitimate law could be unjust.(20) Nonetheless, the problem of legitimacy that I raise here links the process that determines legal validity in a particular legal system to the issue of justice. Although a constitutional process by which legal validity is determined need not (as a conceptual matter) take justice into account, legitimacy suggests that (as a normative matter) it ought to do so.(21) For, as I shall explain in the balance of this paper, the problem of legitimacy is to establish why anyone should care what a constitutionally valid law may command. The answer I shall give is that we should care and, consequently, may owe a prima facie duty to obey a law, only if the processes used to enact provide good reasons to think that it is just.
THE FUNCTION OF THE CONSTITUTIONAL ENTERPRISE
So why should anyone care about what is written on one particular document that lies under glass in Washington, D.C. One reason--and the reason I shall focus on in this paper--is that the terms of this document are used to regulate an enterprise that will have a direct effect on those who live in the territory known as the United States of America.22 In particular, this document is used to regulate an enterprise which produces commands that others act or refrain from acting in a particular way. Certain human beings referring to themselves as members of a "duly constituted government" are going to be telling you and me what to do. Drive on the right side of the road. Don't kill or rape anyone. Pay a percentage of your income in "taxes." Don't smoke marijuana or inhale cocaine.
Most important, these persons not only threaten to sanction us in some way for disobedience, but they also claim that (a) they are justified in imposing sanctions coercively upon us and (b) we have a moral duty to obey their "lawful" commands--that we would be acting wrongly by...