The History of Natural Law in American Law Transcript

Speaker 1 (00:10):
Ladies and gentlemen, welcome to our program, the History of Natural Law in American Law. Please welcome Paul Ray, director of Heritage’s Thomas A. Roe Institute for Economic Policy Studies.

Paul Ray (00:30):
Hello, everyone. Thank you for joining us today. In 1960, John Courtney Murray reported the news that, “The tradition of natural law is dead.” He hoped for its resurrection, seeing in that the potential to provide the “structural foundations of the political, social, and economic orders” that were being most anxiously questioned in his day. Murray died in 1967. Had he lived a bit longer, he would doubtless have been elated to see his hopes realized. As our search for foundations in public life has continued and perhaps grown more anxious, lawyers and scholars have placed the natural law at the front and center of today’s debates. Today’s panel will make a tremendously important contribution to those debates by shedding light on the role of natural law in our political system before its reported demise. That is at the time of the founding and in the early Republic.

To address this vital topic, we are privileged to have here with us three distinguished scholars. I’ll ask them to come up to the stage as I introduce them. Jud Campbell is a professor at Stanford Law School whose faculty he joined in 2023. He previously served as a professor of law at the University of Richmond School of Law, and as a visiting professor of law at the University of Chicago and at Harvard. After completing his JD at Stanford Law School, he clerked for Judge Diane Sykes on the Seventh Circuit and for Judge Cabranes on the Second Circuit. He holds a bachelor’s degree from the University of North Carolina at Chapel Hill, and two master’s degrees from the London School of Economics, where he studied as a Marshall scholar. His recent articles include the Emergence of Neutrality and Natural Rights in the First Amendment, both published in the Yale Law Journal.

Dick Helmholz is the Ruth Wyatt Rosenson Distinguished Service Professor Emeritus at the University of Chicago Law School. He joined Chicago in 1981 after teaching for 10 years at Washington University in St. Louis, a graduate of Harvard Law School. He also received an A.B. in French literature from Princeton and a PhD in medieval history from the University of California at Berkeley. He’s a fellow of the American Academy of Arts and Sciences, a fellow of the Medieval Academy of America, a member of the American Law Institute, and a corresponding fellow of the British Academy. His most recent books include Christianity and the Criminal Law, the Profession of Ecclesiastical Lawyers and Natural Law In Court.

J. Joel Alicea is an associate professor of law at the Catholic University of America’s Columbus School of Law, and co-director of the law school’s project on Constitutional Originalism and the Catholic Intellectual Tradition. Prior to joining the CUA faculty, Professor Alicea practiced law for several years at the law firm of Cooper and Kirk. He previously served as a law clerk for Justice Samuel Alito Jr. on the U.S. Supreme Court, and for Judge Diarmuid O’Scannlain on the U.S. Court of Appeals for the Ninth Circuit. Professor Alicea’s scholarship focuses on constitutional theory. His recent articles include the Moral Authority of Original Meaning published in the Notre Dame Law Review, and Liberalism and Disagreement in American Constitutional Theory in the University of Virginia Law Review. Please join me in welcoming our distinguished panelists.

Jud Campbell (03:35):
All right, thank you so much. When James Madison introduced the Bill of Rights in 1789, he said that it included some natural rights retained, and today, I want to explore what he meant by that. So, I’ll split my discussion of the history up into three parts. First, I’ll define natural rights, how the founders thought that they related to natural law, where they came from, and then I’ll turn to the relationship between natural rights and judicial and legislative power. Then lastly, I’ll talk about how the founders generally understood the relationship between natural rights and constitutional text. Then to conclude, I’ll briefly reflect on how this history might inform some ways of thinking today.

So, let’s start by defining natural rights. Natural rights are understood to be human capacities, things that we can do without a government in a proverbial state of nature. So for instance, natural rights include the ability to speak, to think, to pray, to enjoy the fruits of one’s labor, basically anything you can do as a human without needing the intervention of a government. These natural rights relate to natural law in two ways. The first is that the natural rights are human endowments. They’re things that are granted by God, and therefore in a sense are inherent in your humanity. Then second, even in a state of nature, natural rights didn’t mean that people could do whatever they wanted. People in a state of nature are still supposed to be limited in the way they exercise their natural rights, and they have to do so in accordance with the law of nature, essentially the requirements of reason, justice and morality.

So, we’ve got these rights in an imagined state of nature, but what makes them retained in the sense that Madison is referring to in 1789? This is where Lockean social contract theory comes in. The basic idea is that individuals upon leaving a state of nature retain many or all of their natural rights in an imagined social contract, which creates the political society. Notably, all of this is thought to occur before the creation of a government through a constitution. So generally speaking, people didn’t get their fundamental rights from the Constitution or from the government. Rather, those rights are guaranteed before the adoption of a constitution grounded to some extent in natural law, but also in an imagined social contract.

Okay, so I want to switch now, and talk about the way in which natural rights relate to governmental power and particularly to legislative and judicial power. So today, we tend to think about fundamental rights as limits on governmental power. But at the founding, the idea of natural rights principally serve to justify and to shape how the government exercised authority. So, the founders widely thought that we need government both to protect our rights against being violated by private actors, and also that we need government to regulate our rights in promotion of the common good. So, protecting and regulating natural rights serves as principle rationales for leaving a state of nature and joining together in a political society. Then the idea of retaining natural rights also shapes how the founders think about what government needs to look like, how the government needs to be structured.

In particular, the basic idea was that people, because they’ve retained their natural rights, need to maintain control over those rights through representative institutions, so in other words, preserving retained natural rights principally entailed maintaining self-rule. Notice that this way if thinking about natural rights didn’t impose firm limits on legislative authority. Now, there are some more determinant limits at the founding that come from the common law. These are things like the rule against prior restraints on publishing, the right to a trial by jury, the right to confront witnesses and so on. These common law limits are often thought of as specifying and helping to secure natural rights.

But for the most part, natural rights didn’t impose firm limits on legislative power in the way we typically think of today. Rather, it instructed that the polity could only restrict rights in promotion of the common good, and with the consent of the people through their representatives. Because natural rights are legally under-determined and could be regulated in promotion of the common good, the authority to determine the boundaries and how those rights should be regulated did not belong to judges. So, it’s true that to some extent in some cases, judges asserted an authority to help secure natural rights either by construing statutes equitably as Dick will discuss, or as a limit potentially on legislative power being exercised in extreme cases where there are obvious abridgments of natural rights.

This is the position of Justice Chase in Calder v. Bull. But the key point here is that the founders didn’t think of natural law and natural rights in the way that we tend to think about constitutional law and constitutional rights. They didn’t think that natural law and natural rights established a detailed legal code that judges could enforce as trumps against ordinary legislation. So, the last historical point I’ll make is about the relationship between natural rights and constitutional text. Madison mentioned in 1789 that the text of the Bill of Rights refers to some “natural rights retained.” So, what’s the point of enumerating rights in a constitution? What function does it serve?

Well, because of our positivist inclinations today, we tend to think about constitutional enumeration as ensuring that certain rules and principles become constitutionalized, and thus become judicially enforceable as trumps. In other words, we tend to think that the rights that we have as a matter of constitutional law come from the constitution, but the founders generally thought about enumeration differently. They actually had two different modes of enumeration, and in thinking about the legal upshot of enumerated rights, it’s really important to distinguish these. So, the first mode was simply to declare the existence of a right that remained grounded in nature or custom without converting that right into a textual object. So on this way of thinking, an enumerated right didn’t have frozen legal content, and enumerating it didn’t change its grounding or its meaning.

It didn’t convert that right into a judicially enforceable trump. Rather, enumeration just serves to mark the existence of a right that remains grounded in nature or custom. That’s a declaratory mode of enumeration, but there’s another mode of enumeration that’s available at the founding. The founders also thought that constitutional texts could help to determine rights by specifying their boundaries, or specifying how they could be regulated. Two examples of this include the Article VI test oaths clause, a ban on religious test oaths, and the establishment clause in the First Amendment, both of which are arguably applications of a principle of free exercise, but applications that needed to be specified in constitutional text, because as a matter of customary law, no such limits on governmental authority existed in 1789.

So, it’s possible to textualize new rules, but for the most part, Madison and his colleagues in the First Congress opted for declaratory rights provisions, what Madison refers to as simple acknowledged principles and not ones of a doubtful nature. So for instance, they reaffirm that Congress shall not abridge “the freedom of speech or of the press,” and they didn’t attempt to say anything about what those rights entailed. So, what does that mean for us today? Well, I’ll end with just two thoughts. The first is that using history requires grappling with profound shifts in the way that the founders thought about rights, and the way that we think about rights. So for the past century or so, American jurists have broadly grounded their rights claims in constitutional text, and have for the most part rejected nature and custom as sources of fundamental rights. Then since the 1960s, we’ve generally come to see constitutional rights as judicially enforceable trumps against ordinary legislation.

So, pieces of those ideas are present in the past, but for the most part, the founders thought about fundamental rights in an entirely different way, and in order to figure out what to do with history, we need to grapple with that gulf. My second point is we also need to recognize that the Supreme Court is way off base when it says that the First Congress struck the balance when it adopted the Bill of Rights, and there’s simply no more balancing to do. The founders did reject the idea that judges should be engaged in balancing rights, but the idea that the Bill of Rights was designed to eliminate any further ends means balancing is not what the founders thought when they declared rights through provisions like the First Amendment speech and press clause.

So in my view, figuring out what to do today is incredibly tricky. I don’t have a neat and tidy solution, but it seems to me a problem that we ought to think about honestly and openly rather than pretending that the founders provided all the answers. Thanks.

Dick Helmholz (13:54):
Well, I was tricked into coming here. I thought it would be possible for me to talk about a little research project that I’m doing, and it seems that that might not be entirely appropriate, but here goes anyway. You’ll remember that in Calder against Bull, which was decided in 1798, the justices had a choice between applying natural law or constitutional law in dealing with an act of the Connecticut legislature. Justice Chase chose a natural law approach. Justice Iredell rejected it. If any act of Congress or of the legislature of a state, Iredell wrote, violates constitutional provision, it’s unquestionably void. Otherwise, it wasn’t. So much for the law of nature, and that has been a common view.

Better to stick to the U.S. constitution, and it’s caused natural law to disappear from the curriculum of our law schools, and even to be reviled by some. Oliver Wendell Holmes wrote, “I’m so skeptical as to our knowledge about the goodness or badness of laws that I have no practical criterion except what the crowd wants.” Now, Adrian Vermeule, as you know, has recently published an important book, Common Ground Constitutionalism, in which he concluded that although it may be true that the term natural law has passed out of fashion or had passed out of fashion in the second half of the 19th century, cases in which moral purposes traceable to natural law had remained. Natural law went underground as it were. Its purposes were applied in American case law, but without making any mention of the law of nature.

He didn’t give much detail, much chapter and verse on the point, so I decided to have a look myself. I can say that the search for natural law is now possible, even easy, by using Westlaw, a stroke of luck. So, I picked the end of the Civil War as a dividing line as it’s both convenient and commonly accepted as a true dividing line. You may be surprised to learn that between 1865 and 1900, the phrase law of nature or laws of nature appeared in 793 different cases in American judicial opinions. This is probably an understatement since I didn’t search the equivalent natural law. I just used law of nature as my search to discover the reality, and it wasn’t buried. The total number of times in which the law of nature was used in the 793 cases I found came to 7,801, a fantastic number almost 10 times in the average of opinion.

Now, very likely, you’re now thinking, “I bet he didn’t read 793 cases,” and of course I didn’t, but I did read through 201 of them enough I thought to see the patterns that were emerging. That’s what I want to talk about. I took the note of how the term law of nature was used in each case, and by doing so, I could draw some tentative conclusions, at least, about what purposes it served in the American case law. The first conclusion was that its traditional function of allowing courts to act in response to natural law principles when a positive or statutory law either didn’t exist or been forgotten still was useful, for instance, in a remedy in a main case where a party’s testimony caused incidental injury to a man who was not a party to the lawsuit in which the perjury occurred.

Sorry, when the declaration that’s legal for the cause of action discloses an injury cognizable by law though there be no precedent the court held, the common law will judge according to the law of nature and the public good, nor was the natural law’s opposition to slavery forgotten. It still mattered. For instance, it furnished a rule of decision where a contract had been made at a time when slavery had been legal, and was sued upon after the passage of the 13th amendment in order to enforce a collateral position in the original contract. I think it was something for the payment of wages for the slave. The court’s opinion held that contracts which are against… This is a quotation. “Contracts which are against good morals, religion, and natural right were themselves nullities once the positive law upon which slavery rested had been abolished.”

On a different subject, the U.S. Supreme Court itself ascribed the violation of the rule against self-incrimination. The privilege against self-incrimination is having been “established as resting on the law of nature, and was embodied in that system as one of its great and distinguished attributes.” In one case of relevance today, today’s hotly disputed question, it was held that no payment needed to be made on an insurance policy of a woman’s life, because she died as a result of an abortion, an act which the judge described as “a voluntary act on her part, condemned alike by the laws of nature and by the laws of all civilized states.” These cases with their explicit reliance upon the law of nature in unusual situations were not frequent in my discovery, more frequent appearing in several of the cases I looked at were three.

The first of them was an invocation of the law of nature in favor of men and women on trial for murder who had claimed they’d acted in self-defense. “The right of self-defense is founded upon the law of nature,” wrote a judge in a Virginia Case from 1884. That was not a disputable assertion, although its application did raise questions about the necessity and the extent of the right under the circumstance of original cases. Another relatively common use of natural law I found occurred in cases involving parents and children. Fathers had a duty to provide for their young children “not only by the laws of nature, but by the laws of the land.” So, it was held in an 1897 case from Ohio, citing the opinion of Chancellor Kent.

The same reference was made in a question of a status of a child who’d been born of an American-Indian mother and a Negro father. Quoting Vattel, an 1890 California case, it was held that “by the law of nature alone, children follow the condition of their father.” A third example of regular invocation involved abortion. It was in the words of a Pennsylvania case “the destruction of gestation by wicked means and against nature.” There was disagreement on the question of whether it was a punishable crime if done before quickening, an illustration, I think, of the law of nature’s lack of authority in the world of legal practice, but on its violation of natural law, there was no doubt.

Finally, the most common use of the term law of nature in judicial opinions turned out to be one I wasn’t prepared for. It’s used to describe an ordinary phenomenon, invocation of the laws of gravity or the laws of thermodynamics. Water flows downhill. Soil gives way if unsupported. An object thrown into the air must come down and the like. Those were all described as part of the law of nature in the cases. Such use is served often to deny recovery in a suit brought by an employee against his or her employer for injury sustained on the job. They should have reckoned with the law of nature the courts held, and if they did not, there could be no recovery of damage.

Well, that’s a short, I think, introduction to what you find if you look in the case law. It seems to me to contradict Adrian Vermeule’s finding that the law of nature had passed out of fashion, out of use in judicial opinions. I have further to go with this research, and I hope you’ll encourage me in doing so, because I think the finding that the disappearance of natural law from the work of American lawyers is way overstated when you look at the actual evidence in the cases. Thanks.

J. Joel Alicea (24:00):
Well, thanks to the Heritage Foundation for hosting this event. As Paul said, I’m Joel Alicea. I’m the co-director of the project on Constitutional Originalism and the Catholic Intellectual Tradition or CIT at Catholic University of America. We are a co-sponsor of this event. CIT focuses on the relationship between the Catholic Intellectual Tradition and American constitutionalism. We do that by putting on events like this one, seminars and fellowship programs, courses at CUA. You can learn more about us at We’re very grateful to the Heritage Foundation for agreeing to co-sponsor this event which was designed to bring to public attention a lot of this revival of historical interest in the natural law tradition and its influence in American law that Professor Campbell and Professor Helmholz’s work are just exemplars of.

My task as a non-legal historian but as a constitutional theorist is instead to discuss the ways in which the history of natural law in American law that we just heard about might have a relationship to constitutional theory and specifically to originalism. I’m going to assume originalism for purposes of my remarks. I’m not arguing here for or against originalism. I’m just going to assume that perspective, and ask to what extent would this history of natural law in American law have potential implications for originalism as a methodology? I’m going to highlight four potential ways in which that history could slot in to an originalist methodology. I won’t say these are the only four potential ways. These are just four that immediately come to mind.

So, one is as historical context for understanding the original semantic meaning or the original intent. I’m going to remain agnostic on that debate of the constitution. A second would be as a source of a law of interpretation in interpreting the constitutional text. A third would be as a way of understanding the original meaning of the judicial power rooted in Article III. The final will be as a source of guidelines for constitutional construction. So, let me go through each of those four with you. I’m not going to be taken a position on these various disputes and these various implications as I go through them. My purpose here is just descriptive to give you a topology of, “Here are some ways in which this might interact with the history we just heard about.”

I will bracket one thing, which is the point that Professor Campbell just made about towards the end of his remarks, which is there is this huge translation issue between the founding and today if you’re an originalist about both conceptions of rights and potentially conceptions of legislative role. Some of what I’m going to say in terms of implications directly relates to that problem, and some of it doesn’t. I’m just not going to try to distinguish between those two here, but we can definitely get into that in the conversation. So on the first point, first potential implication would be that you could think of this history of natural law in American law as providing context for understanding the original meaning of the constitutional text. There, I think that that implication won’t be that controversial among most originalists. It’s pretty straightforward, right?

There might be some provisions of the Constitution that are really hard to understand if you don’t understand the natural law concepts that undergird those provisions. So, Professor Campbell’s groundbreaking work on the First Amendment and the free speech clause in particular, which he was referencing in his remarks, I think is exactly on point for this, and that he argues there are some concepts behind the free speech clause that you can only really understand if you understand the full natural law backdrop to the free speech clause. I think he makes a compelling argument for that. So, to the extent that you want to understand the free speech clause as an originalist accurately as a historical matter, you’re going to have to take on board some of these natural law concepts.

At least that would be the argument, and I think that there are very few originalists who I think would disagree with that at that level of generality. The second potential implication, which is a little more controversial, is that this history of natural law in American law might serve as a source of what we might call the law of interpretation as Steve Sachs and Will Baude have called it, or as Mike Rapaport and John McGuinness have said in a kind of similar vein original interpretive methods. The idea here is with the law of interpretation is that there are specific canons of interpretation, ways of interpreting legal texts that existed at the time that the constitution was enacted, and that those ways of interpreting the text are themselves baked into the positive law.

They’re part of the law of interpretation. So if you’re going to interpret legal texts at that time according to law, you also have to take on board some of the canons of interpretation that existed at that time, and use them to interpret that legal text that was enacted. Well, if you take that perspective on originalism, you take an original law of interpretation approach, then it becomes relevant to discover what are some of those canons of interpretation at the time of the founding. So, if Professor Helmholz is right, as he has argued in one of his books, that at the time of the founding, it was generally though not universally understood that you would not interpret a positive law to contradict the natural law unless the positive law was quite clear on that. Well, that sounds like a can of interpretation.

That might very well be part of the original law of interpretation that judges would have to take on board if they’re going to be original law originalists, right? Now, that view is still controversial among originalists, because some don’t take on board original interpretive methods as originalists. They might reject them, for example, because they think that the constitution is more of a document written for the general public, not for lawyers, and therefore they’re reluctant to take on board canons of interpretation at the time that require very sophisticated and difficult and complex legal analysis. They might say, “Well, that’s just not actually how the constitution was supposed to be understood at the time.”

But if you do take a sort of original interpretive methods approach, original law approach to the constitution as an originalist, then you do need to look into some of these questions about, “Well, what cans of interpretation might’ve been natural law infused and present at the time?” A third potential implication of this history would be as a way of thinking about the original meaning of the judicial power. This was touched on a little bit in the remarks that preceded me. So, if you think as an originalist that the judicial power of Article III was designed to say, “Go forth and act the way judges are acting right now at the founding,” that’s what federal judges are supposed to do. If that’s your understanding of judicial power in Article III, well, then it matters how those judges were adjudicating cases.

If they were enforcing natural law directly, even if not picked up by the positive law and even to the point of setting aside the positive law as Justice Chase argued in Calder versus Bull, then that would be a significant point in terms of interpreting the judicial power of Article III. Now of course, Justice Iredell disagreed with Justice Chase in that case, and Professor Helmholz and several other historians have argued that while there was disagreement on this point, the majority of you seem to favor Iredell’s view that the natural law could not be used to set aside the positive law of its own force. But irrespective of how you come down on that historical question as a theoretical matter, if you take the view that the judicial power should be understood the way it was understood in 1789, and that that means that judges today, federal judges today, should adjudicate cases the same way that they would have in 1789, then this historical dispute about the extent of judicial enforceability of natural law directly without it being pecked up by positive law becomes quite important, right?

Now, some originalists don’t take that view of Article III. So, Sai Prakash, for example, has argued that while we’re bound by the original meaning of the… You would say, original intent of the constitution, that doesn’t mean we’re bound by the way that judges at that time adjudicated cases. So, that’s another theoretical dispute that you’d have to resolve. But nonetheless, if you do take this view about Article III, then it does become important to resolve this historical question of how did judges use natural law at the founding? Final potential implication is that this history could provide a guide towards constitutional construction. So, constitutional construction is perhaps the most controversial potential implication that I’m going to list, because it is itself a controversial concept among originalists.

There are many ways of defining constitutional construction, but one way is the way that Larry Solum defines it. That’s probably the most common way, so I’ll just use that. Constitutional construction would be the process of giving legal effect to the original meaning. So, a paradigmatic example of constitutional construction would be if you have an under-determinant legal text, so a vague legal text. It’s not really clear whether what the federal government has done violates the constitution or not on this point. In that situation, originalists who subscribe to constitutional construction would say, “Well, the original meaning actually doesn’t tell you what to do.” So, the way you resolve those issues of construction is through normative theories of construction.

If that’s the approach you take, then it matters a great deal what normative theory you have of construction in terms of potential relevance of this history of the natural law. For example, Randy Barnett and Evan Bernick’s theory of constitutional construction is that judges should be guided by the spirit or purpose underlying the original meaning of the constitution in resolving these issues of under-determinacy and construction. Well, if you take that view and if the constitution is indeed an attempt to implement natural law concepts, then maybe those natural law concepts serve as the spirit or purpose of the constitution, and therefore act as a mode of construction to resolve underdeterminancy. That’s at least one potential way in which you could think about this history entering in.

But again, constitutional construction is a controversial topic among originalists, so some of them would reject this as a potential implication. Again, my point here is not to resolve any of these potential implications, even though I’ve spoken to some of them in my own writing. I just wanted to lay out that there are different paths by which a historical understanding of natural law at the founding in particular, or in 1868 with the 14th Amendment, might enter into an originalist analysis. But one thing I think should be clear from my discussion is that there’s no straightforward way in which originalism just implements natural law history at the founding precisely because of these theoretical disagreements. Thank you very much.

Paul Ray (35:10):
All right, well, I have a few questions for our distinguished panelists, but first, I want to throw the floor open to see if any of them want to comment on each other’s presentations. Any thoughts? Rebuttals?

J. Joel Alicea (35:21):
I can take your questions.

Paul Ray (35:22):
Vigorous fights about to break out? No. All right. My first question is for Professor Campbell. Professor, you said that even in the state of nature, natural rights don’t allow them to do what everyone wants, right? Obligations of some sort attach in the state of nature, and so my question is about the role of consent given that view of the state of nature. So, since we’re all law professors, I can’t resist a hypothetical. Suppose a kidnapping victim wakes up and finds himself in a state with respect to which he’s never consented to anything about the state, either the existence of the state or its form of government. So, he escapes his kidnappers, and drives off somewhere.

Presumably he has some sort of obligation to obey the rules of the road. He should drive on the right, not just for his own sake, but for the sake of the other drivers involved. So, that obligation attaches even though he’s never consented in any way. What does consent add exactly? Does consent… I mean, of course, usually, theories of consent say consent is important because of the obligatory of the obligation that is imposed upon the citizens by merit of the act of consent. So, I guess, so what role does consent play?

Jud Campbell (36:44):
For the founders, consent is mostly entering the picture as a way of addressing the problem of the source of political authority, and the relationship between different governmental institutions. It’s less about the individual’s obligation to obey law. That’s just not the theoretical problem that people are grappling with. So, it’s really interesting when they come around to grappling with that problem that they end up dividing, so the idea of expatriation whether or not you can voluntarily choose to leave a state, and if so, how you do that puts a lot of pressure on this. That ends up being a debate that they have in the 1790s and into the 1800s. But for the most part, what they’re concerned about is the idea that consent as a alternative to divine right offers an account of governmental authority that places sovereignty in the people themselves rather than having a government that is sort of divinely created.

So for the most part, that’s what the purpose of the Lockean social contractarian account is. I think that it’s best to understand the type of consent that you give in the Lockean account as a constructive consent. So, it’s not so much. I mean, certainly, there’s a notion of tacit consent. There’s some thread in the founding or sources of express consent through the act of creating a colony, for instance, the Mayflower Compact and so on. But for the most part, the idea of consent here is that in the nature of things, we need to have government. So, we will presuppose as the origins of that government an account of what it is that you would consent to as a matter of proper authority being vested in a political society.

So, it really is functioning mostly as a thought experiment, a way of addressing what it is that the government ought to be doing, what aims it ought to be pursuing, and what structures it ought to embrace as opposed to being about a theory of obligation.

Paul Ray (38:56):
So, would it be fair to say that rather than supporting the obligations of the citizens, it’s enabling or authorizing the acts of the rulers? [inaudible 00:39:08]

Jud Campbell (39:08):
I mean, primarily, what this is doing is it’s legitimating certain types of governmental authority and certain moves within constitutionalism. So, the idea of Lockean social contract theory becomes very important in the late 17th century in England as a way of justifying parliamentary authority and fights with the king. Then it becomes especially important in the American revolutionary context, because Americans assert their natural rights partly as a way of claiming that whatever it is the Brits claim the British constitution to entail, it cannot entail unrepresentative colonial rule over another people. So, the claim of natural rights here bolsters the constitutional case that the revolutionaries make about the need for representative self-governance.

We have to control our own rights. Therefore, we have to tax ourselves. We cannot have taxes imposed on us. That’s mostly a claim about the authority of the polity as opposed to being a claim, and the structure of the British constitution as opposed to being principally a claim about individualistic autonomy from impositions of law. That’s just not the problem that they’re addressing.

Paul Ray (40:21):
Perhaps that’s one reason so many of the American pamphleteers expressly prescind from the substance of the legislative measures at issue, right? They say, “We actually might well vote such measures ourselves, but we should be the ones to vote them.”

Jud Campbell (40:34):

Paul Ray (40:35):
Okay, that’s really helpful. Thank you. Professor Helmholz, a question for you. Well, I’ll begin by saying I’m so grateful for this event for giving me an excuse to read your book, Natural Law in Court, which was just a joy to read. So, you have a line in there. In actual cases, the law of nature was almost always treated as a source of positive law, not as a rival or alternative to it. So, the point seems to be that if we focus just on the role of natural law in the most dramatic judicial decisions striking down positive law and invoking natural law in support of that decision, we might be missing the more important role, perhaps a more important but also understated role of natural law precisely in informing the positive law that the courts ordinarily enforce.

So, natural law is relevant to jurisprudence, perhaps most all on account of the way it shapes the positive law of the jurisprudence applies. So, my question is many of today’s debates about the appropriate role for natural law focus on the role of natural law in court. So, my question is does this bypass the central issue? Should we be talking more in our current debates about the need for legislators to take the natural law into account, and less on whether in what ways judges should take natural law into account?

Dick Helmholz (42:03):
Well, yeah, I think that’s one of the strengths of it is it defines pretty much what the legislators must have meant, and it allows you to interpret the statutes that the legislature adopts according to the understanding brought to the table by natural law principles. I think that makes a good deal of sense. Don’t most legislators want to do right? Don’t they want to enact something which follows good sense and principled behavior? I think they do. If that’s the function that natural law serves, we do a disservice to it by looking only at the cases where there’s a conflict between natural law and the enacted law. It helps us to understand what the legislature meant, and what they did.

Paul Ray (42:53):
My experience is similar to yours. I do think that most legislators would like to do justice when they can as they see it.

Dick Helmholz (43:02):
I guess that’s a controversial point, but make sense.

Paul Ray (43:06):
I think it is. Actually, has your research… You’ve done a ton of research about the way judges thought about their relation to the natural. Have you done, or are you aware of anyone doing research on how legislators have thought of themselves as related to to natural law?

Dick Helmholz (43:21):
That’s a good question. How would you do that?

Paul Ray (43:24):
It’s a fine question. I don’t…

Dick Helmholz (43:24):
I don’t know.

Paul Ray (43:24):
Over to you.

Dick Helmholz (43:25):
Well, maybe something will occur to us.

Paul Ray (43:30):
That’s right. Professor Alicea, question for you. A couple of years ago, you published an article that I mentioned in my introduction, arguing that the natural law lends moral force to originalism. At bottom, the reasons to be an originalist are natural law reasons, or at least many of the reasons to be an originalist are natural law reasons. So, my first question for you is does your argument about the moral authority of originalism from that article, does it have any implications for some of the methodological questions that you teed up? But you very hopefully diagnosed a number of different strains of originalism in your remarks just now. If we agree with you that the reasons to be originalists are principally natural law reasons, does that shape the debate among originalists in any way?

J. Joel Alicea (44:22):
I think so, and I do want to remain as neutral as possible in some of these interesting disputes, but I did take a position on some of these questions in that article, so for example, the question about how we Understand article III in light of the history of natural law in American law. My argument for originalism based on the natural law tradition emphasizes the fact that in the natural law tradition, the law is an ordinance of reason for the common good promulgated by a legitimate authority. I emphasize that that makes it very important to identify who is the legitimate authority. Who has the authority to promulgate the constitution? There’s a long tradition in the natural law tradition of arguing that that is the people of the particular society, and I try to argue as to why that actually makes sense as a matter of natural law reasoning.

Well, if the people are the legitimate authority, then it becomes very important to obey their commands and understand their commands as they themselves understood those commands as long as those commands are consistent with the common good. That also means that it matters a great deal what limits they have placed on particular offices that they have established as an exercise of their legitimate authority, including the judicial office under Article III. The way to understand then those limits would be to look at, “Well, how did the people at the time understand the judicial office as a general matter?” So, I argue in the piece that based on the work of Professor Helmholz and others, it was generally understood at the time of the founding though with some disagreements for sure, that judges were not authorized to just set aside a positive law in light of the natural law directly, that it had to be picked up by positive law in some way.

It seems to me that’s an important limitation on federal judicial power, and therefore has implications for methodological questions like the ones between Justices Chase and Iredell, right? But as I said in my remarks, there are reasons to potentially disagree with that understanding of Article III, and someone like, I think, Professor Prakash might very well disagree with me on that question.

Jud Campbell (46:49):
Can I jump in on?

Paul Ray (46:49):
Oh, yeah, please.

Jud Campbell (46:51):
I just want to make an observation about the role of judicial authority in American history here, and that is that we tend to think that the relationship or the fight is over judges versus democratic officials making these decisions. I think that’s one dimension of the problem, but one of the key dimensions of the fight between judicial authority and popular authority of various sorts is actually about centralization versus local control. So, the fights at the founding over judicial review and jury authority are in part of dimension of elite judicial control versus popular jury authority. But in part, it’s a debate over whether or not localities should be exercising authority or centralized authority being held in state institutions.

You have a very similar debate that takes place then in the debate over the Sedition Act, where you have federalist judges asserting their interpretive authority at a national level for the determination of what counts as a violation of speech and press freedoms. Then you have states asserting, this is most famously in Virginia and Kentucky, that interpretive authority actually needs to be more local, because the source of authority, the sovereignty itself, is derived from states. So, the debate over judicial authority there is partly a debate about judges versus democratic officials, but it’s also largely a debate about national versus state authority. I think the same thing is coming up in the Warren Court effort to nationalize rights.

So in part, it’s an effort to assert judicial authority over other democratic sources of authority, but in large part, the move that the Warren Court is making is to nationalize the rights’ jurisprudence. So, I think in these discussions, we often tend to forget that, but that’s actually a really big part of what this debate is about, not just about whether or not we should have democratic determinations of rights, but also where that democratic determination should be, whether at the state or national levels.

Paul Ray (49:03):
That’s a fascinating point. I certainly always read the fight over the Alien and Sedition Acts as a fight about the scope of protected rights, the scope of the space to be left open to the people, but I take your point to be much of the fight was not about that at all.

Jud Campbell (49:21):
That’s right. So, Jefferson’s position is that we should have sedition prosecutions, and they should take place at the state level, because it’s the people of the several states who get to decide where it is that the boundary between protected and unprotected speech resides.

Paul Ray (49:35):
Fascinating. All right, well, we have just a couple minutes for one or two questions from the audience if anyone wants to throw up a hand. Yes. Back there.

JP Hogan (49:47):
JP Hogan. I wanted to make a lot of comments through this, so I’m going to try to find a simpler question. You did bring up divine rights. I’m wondering what the history of natural law. Is it actually… Well, you brought up that the difference would be divine right of kings, but does it start with there becoming a printed English version of a Bible, so people could have their own rule book, and America then is the frontier people, frontier pilgrims get to go out and self-rule where there might be judicial, their traveling judges? So, it’s where people have the right to actually have sanctuaries, forgiveness and tolerance. People can wake up forgiven the next day. So, a lot of the constitutional interpretation would leave that dynamic of people in community judging themselves now that they could have…

Well, there were about 25 other points. I want to just maybe try to leave it at that, but we were constituted for frontier pilgrims. We weren’t infringing their rights by going into more detail in the constitution. The First Amendment establishments of religion would be saying Congress could not change natural law in some ways. So, there’s a puzzle in there that protects the religious liberty, and you’re bringing up natural law where it’s sort of against the king’s rights. What do you call it if it’s not the king’s rights? I’m just wondering how that fits into maybe what we didn’t hear.

Jud Campbell (51:18):
So, a big part of what the founders are up to in the First Amendment is protecting democracy, but another big part of it is ensuring that some of the fights over religious authority that had taken place historically, especially in England, were fights that at least at the national level, we wouldn’t replicate. So, a big part of the First Amendment is to ensure a freedom of publishing, not just for the interests of trying to protect democratic discussion, but also to protect religious pluralism. So, this is a key move for the First Amendment in particular. I think the discussion of the frontier nature of America at this point is also really important in thinking about just institutionally how it is that a lot of these decisions were adjudicated.

You don’t even have recorded judicial decisions in the late 1780s. American judges are often traveling in order to decide cases. They’re writing circuit, and so the resources that they have are very limited. The judicial training that these people receive is often incredibly minimal. So, just thinking about the relationship between popular authority and elite judicial authority looks very different in a world in which the thing that you do in order to become a judge is to have your community elect you as a judge, or to have the governor appoint you as a judge, notwithstanding the fact that you have never gone to law school and that you maybe read Blackstone at some point. So, it’s just a very different culture in which the norms, the lines of division and so on are not necessarily the same ones that we have today.

Paul Ray (53:02):
There’s a great line in the Federalist where Publius says that one reason for lifetime tenure for judges is to attract the few competent lawyers to become federal judges, right?

Jud Campbell (53:12):
Right, and largely, the preoccupation of the founders because so much of this was supposed to happen through democratic politics was in designing institutions that would bring the best people forward, that would encourage the right type of politics, et cetera. One of the best stories, by the way, about the debates over legal authority and popular authority is in Massachusetts and in New Hampshire. New Hampshire tries to stifle publishing of judicial opinions, because they don’t want their judges to have so much authority. They want to maintain a more populist legal culture, and so they end up preventing publication of judicial opinions, which leads the judges in New Hampshire to just start citing to the Massachusetts’ decisions, which doesn’t go over so well.

Paul Ray (54:01):
All right, we have time for one more question. Matt.

Matt (54:06):
Thank you. This is excellent. Just a question to Professor Campbell about natural rights and thinking about jurisprudence. I’m thinking from the perspective of a judge in an account of natural rights where it’s a capacity for a lot of things you can do, but you have to bump up against considerations of the common good, wouldn’t that put the judge and the legislator actually put the government in the position of seeing nature and natural rights as this zone that has to be hedged? So, then wouldn’t that put law something like in a sort of opposition to nature? So, I guess that’s the question is is it’s still natural right once it comes up against the common good considerations? Is natural rights and natural law in opposition in this framework, or how do we understand it?

Jud Campbell (55:14):
Well, through the early 20th century, this is exactly Dick’s point is that there’s a kind of synthesis. There’s an effort to see the positive laws and instantiation of principles of natural law. So, the effort is to try to harmonize the two sources. It’s certainly right to say though that because the government can regulate rights and promotion of the common good, there is going to be a positive law overlay, and that positive law overlay means that there’s a source of authority judges are looking to that is not simply natural in the state of nature sense. One of the things that becomes especially important in the 20th century is once you have an emergence of a much more pluralistic and much more secular nation, the idea that you can resort to moral reasoning to derive limits on natural rights becomes much more problematic.

Judges who are increasingly, during especially the 1950s and ’60s, becoming more assertive and trying to nationalize rights jurisprudence are really struggling with this question. So, the thing that they end up doing throughout a whole line of cases, the two most obvious are the obscenity cases and then the abortion cases, is to try to make the definition of rights totally separate from the definition of moral boundaries. That division ends up pulling apart what you might think of as a harmony between the natural law and the positive law.

Dick Helmholz (56:45):
It’d be interesting to think about this in terms of the fugitive slave laws. I haven’t seen any real discussion about that, but they really would bring this to a dramatic thought process anyway.

Paul Ray (57:03):
All right. Well, I don’t know if you all have very brief closing remarks that you’d like to offer.

J. Joel Alicea (57:11):
I’ll just quickly say that I do think that the remarks we just heard do highlight this revival of interest in the history of natural law in American law by Professor Helmholz, Professor Campbell, but others like Stuart Banner, Jonathan Gienapp, some others who are just doing a lot of great historical work on natural law concepts in American law. As I said, I think there are a lot of theoretical implications of that historical work that we’re just beginning now to work through. So, a lot of work remains to be done on that.

Dick Helmholz (57:51):
I’ll go back to my cases.

Paul Ray (57:52):
All right, great. Well, please join me in thanking our panelists.

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