As discussed at ß 3.4, the natural law approach agrees with the formalist approach that law ultimately should be able to be expressed as a system of logically related, universally valid rules. Thus, law is not just a means to the end of some social value, regardless of what that does to the symmetry of rules. On the other hand, natural law theorists disagree with the positivist conclusion of the formalists and Holmesian judges that law and morals are separable, believing instead that judges should be sensitive to how the law advances standards of natural justice. Under this approach, which predominated during the 18th century and early-to-middle 19th century, as discussed at ß 8.4.1 nn.62-111, a judge should pay attention to such principles as reasoned elaboration of the law in light of the law's history and purposes (its "mischief to be remedied"), fidelity to a considered and consistent legislative, executive or social practice, and, most importantly, fidelity to precedent.
This natural law approach toward purpose, history, practice, and precedent was summed up by James Madison discussing constitutional interpretation. It has been noted, "'[A]mong the obvious and just guides to [interpreting] the Const[itutio]n,' Madison listed: '1. The evils and defects for which the Constitution was called for & introduced. 2. The comments prevailing at the time it was adopted. 3. The early, deliberate, and continued practice under the Constitution, as preferable to constructions adapted on the spur of occasions, and subject to the vicissitudes of party or personal ascendencies.'"1
A more complete elaboration of this style of interpretation appears in Justice Joseph Story's Commentaries on the Constitution of the United States.2 Building on Madison's insights, who had nominated him to the Supreme Court, Justice Story discussed the natural law approach toward separation of powers and federalism, embracing sharing of powers, checks and balances, and the need for a strong federal government. He also indicated an abiding faith in the Anglo-American common law system and its preference for clearly defined legal tests, coherence and consistency in legal categories, and deciding cases on narrower grounds where possible. His faith in the common law also meant he was suspicious of the 19th-century legislative codification movement. It has been noted, "Among the American lawyers and judges of [the early 19th century], Justice Story stands out as possibly the most learned and influential defender of the natural law tradition. To Story it was imperative that American lawyers understand natural law in interpreting and applying the principles of the Constitution and the common law. Being 'a philosophy of morals', natural law was to Story the substratum of the legal system, resting 'at the foundation of all other laws.'"3 Page 355
As discussed at ß 8.4.1, in general there were two competing natural law approaches in the 18thcentury to which the framers and ratifiers would have turned for guidance. One approach was the classic/Christian natural law tradition that developed from Aristotle, through Aquinas, and affected such writers as Blackstone and the mature Edmund Burke. The second natural law tradition of the 18th century was the Enlightenment natural rights tradition of the English, Scottish, and French Enlightenments. As discussed at ßß 8.4.1 & 12.3.3, while there are a number of differences between these two traditions, both the classic/Christian and Enlightenment natural law traditions share many aspects of the common-law methodology of judicial decisionmaking. Thus, any differences between natural law and natural rights generally, or between any particular version of natural law or natural rights, is not critical in terms of general interpretive methodology.4 A cognitively advanced version of natural law/natural rights theory, based on rational principles of justice, is developed at ß 16.2.
Professor Ernest Young discussed many of the similarities between Burkean and Enlightenment natural law decisionmaking in an article entitled, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation.5 He noted that the 18th- and 19th-century natural law judicial decisionmaking tradition utilized a wide range of arguments regarding constitutional interpretation, including consideration of constitutional text and purpose, constitutional structure, the history of the framing and ratifying period, judicial precedents, and legislative and executive practice under the Constitution. As discussed at ßß 22.214.171.124-126.96.36.199, under a natural law approach arguments of practice and precedent are held to constitute a gloss on meaning that alters what the Constitution means, consistent with a "living" model of constitutional interpretation.
The basic elements of the natural law approach are discussed at ß 12.2. This natural law approach was the predominant approach to interpretation at our Nation's founding, and was adhered to by such notable early Justices as Chief Justice Marshall and Justice Story. In the 20th century, as discussed at ßß 12.3-12.4, a few Justices on the Court have similarly approached constitutional interpretation from this natural law perspective: Justices Powell, O'Connor, Kennedy, and Souter. Among these Justices, there are variations concerning the extent of the Justice's commitment to the natural law emphasis on precedent, discussed at ß 12.3.2. There are also variations in terms of which 18th-century natural law theory the judge mostly believes the framers and ratifiers adopted, classic/Christian natural law or Enlightenment natural law, discussed at ß 12.3.3.
Finally, as exists with respect to each style of interpretation, a judge who predominately follows one style of interpretation may have an affinity for another style. As discussed at ß 12.4, Justice Kennedy occasionally demonstrates an affinity for a formalist interpretation style. Justice O'Connor Page 356 occasionally demonstrated an affinity for the Holmesian style, as, to a limited extent, did Justice Powell. Justice Souter occasionally demonstrates an affinity for instrumentalism.
The 18th-century natural law style of interpretation predated Immanuel Kant's focus on subjective will, discussed at ß 188.8.131.52 nn.13-17. Thus, as has been noted, for Chief Justice John Marshall and the founding generation, the "intent" of the Constitution is not the subjective "intent" of the minds of the framers, but rather the "intent" gleaned from applying traditional modes and canons of construction to the document's text. These modes and canons of construction are what define the natural law method of interpretation.6
This natural law decisionmaking style emphasizes the importance of understanding a provision's purpose. As Professor Michael Moore wrote in A Natural Law Theory of Interpretation,7 "Once a judge determines the ordinary meaning of the words that make up a text and modifies that ordinary meaning with any statutory definitions or case law developments, there is still at least one more task. A judge must check the provisional interpretation from these ingredients with an idea how well such an interpretation serves the purpose of the rule in question. The necessity for asking this question of purpose Lon Fuller made familiar to us in his famous 1958 debate with H.L.A. Hart."
The rules of interpretation ordinarily followed in the 18th century and early 19th century reflected this approach. As Professor William Crosskey wrote about interpretation in the 18th century, "[T]he over-all purpose of a document was stated carefully in general terms; details were put in, only where, for some particular reason, details seem required; and the rest was left to the rules of interpretation customarily followed by the courts."8 This focus on a provision's purpose was most famously stated in "The Rule of Heydon's Case" in 1584. In Heydon's Case,9 Lord Coke stated that a judge should inquire into the "mischief and defect" that the drafter was seeking to remedy and "the Page 357 true reason for the remedy," and the judge should "make such construction as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief . . . and to add force to the cure and remedy, according to the true intent of makers of the act."
The Supreme Court addressed this approach toward interpretation in a number of early 19th-century cases. For example, in McCulloch v. Maryland,10 Chief Justice Marshall stated, "A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be...