When the Right is Wrong; the Power of the Courts and Natural Law

The Supreme Court is an institution with an interesting history. It has almost always been controversial. Sometimes it has been right, and sometimes it has been wrong. In the early history of the United States, the Court wrote an opinion upholding the rights of Cherokee Indians against the United States government. The Court was right at that point. Andrew Jackson, however, refused to implement the Court’s decision. Jackson was wrong about the Indians but he was partially right about constitutional checks and balances: he had the power to interpret the Constitution and laws in good faith and could refuse to abide by the Court’s ruling except in the specific instance decided by the Court. Abraham Lincoln followed the same principle following Dred Scott. The Court was wrong in the Dred Scott opinion. They decided that black people could not have the rights of regular American citizens. Lincoln could do nothing to help Dred Scott, but he disagreed with the Court’s opinion and refused to put it into practice. Lincoln continued to issue passports and do other executive branch acts that treated black people as citizens of the United States with equal rights. During the 1800’s the Court was seen as an important applier of constitutional meaning in individual cases but not as an ultimate arbitrator of constitutional meaning in all cases.

Opinion about the Court’s power shifted in the 1900s. In the first half of the century various versions of positivism became dominant. Positivists said law was not a “brooding omnipresence in the sky” (to quote Oliver Wendell Holmes, Jr.). The positivists thought that law was not based on natural law and reason, but was whatever the legislatures and courts said it was. Positivists saw law as a science of articulated power. To the degree that law was within the jurisdiction of the courts, positivists saw law as whatever judges said or did. With respect to the common law this made some sense. But with respect to the Constitution, this was a revolutionary idea. Courts in the past had thought of the Constitution as a higher law that was founded upon, and clarified, the implications of the still higher natural law that gave power to the Declaration of Independence, the acts of the people, and the Constitutional Convention. If a constitution was seen merely as a document that provided a jumping off point for the articulation of evolving judicial opinion, this was something entirely different.

The Court earned its new power by doing something right. During the 1950s, legislatures in the separate states and the federal government were unwilling to make necessary progress in putting into action the implications of the amendments passed after the Civil War. Clearly black people were entitled to equal treatment and equal civil rights. But the legislatures did not take action to vouchsafe those civil rights. In the 1950s, the courts began to move to protect genuine civil rights. In doing so, they stretched their powers. The courts normally did not have the authority to oversee ongoing activities of executive branch entities in detail. They normally did not have the power to set government policy. But because of the positivism and legal realism of the earlier part of the 1900s, and because the Court was doing something right in standing up for civil rights, no one was willing or able to question the Court’s reach for power. The Court did a good thing, but in doing so they developed powers that stretched beyond the original design of the Constitution. As a result of the civil rights cases, the high court of the United States claimed the ability to be the ultimate arbitrator of the meaning of the U.S. Constitution. Because of this power, in practice, and because of the legal positivism and legal realism taught by American law schools, American politicians and lawyers came to accept that the Supreme Court really was not only the ultimate arbitrator of the Constitution, but in a sense, the font of a living Constitution that was comprised of whatever the Court said. Based on this new view of their power, the high court enacted and created new “rights” that were antithetical to the original constitutional order and to natural law: the right to abortion being chief among them. Both then and now there were some dissenters on the Court, but the dissenters’ opinions were not always as helpful as they might be.

Just today I saw on the internet some comments by Justice Scalia (who is a brilliant, and who is right about the law most of the time) in which he was essentially talking about the Court as a guardian of democracy. Scalia sees his role as doing whatever the majority of citizens in the country want him to do as expressed through their legislators. Scalia admits that he is personally opposed to abortion and that there is no right to abortion in the Constitution as it is currently written. But Scalia also admits that if the majority of the people would vote for a constitutional amendment, through the proper process, guaranteeing the right to abortion, then he would be happy to uphold that new right. Scalia apparently takes a Hobbesian positivist view of the law. He seems to be saying that whatever the majority wants, the majority gets, whether it is genuinely right or wrong. This is a problem. Suppose the majority of people passed a constitutional amendment denying civil rights to people based upon race or national origin? That would be immoral, clearly wrong and clearly contrary to the text of other provisions in the Constitution. Would the Court then uphold this provision merely because it had been passed by the majority of people through the proper process? Would they forget to make any objection even in principle?

Human beings have a right to life because they are human beings. That right comes from God and is inalienable. It is recognized in the Declaration of Independence, a foundational document of our government. The right to life cannot be taken away or disparaged by statute or even by constitutional amendment because it is based in a higher law than that of the Constitution. The problem is that today our society no longer understands, embraces or correctly articulates the higher law. We have so deluded ourselves in our claim that no such law exists that we have begun to pretend we forget what it actually says. Deep down it is undoubtedly true that the law is still there, but we have suppressed its meaning just as the southerners suppressed it when they insisted on making black people their slaves. We have suppressed the moral truth that human beings are human in all stages of development and that human beings are entitled to enough of a right to life that they cannot be intentionally killed with malice aforethought and without justification or excuse. We have allowed their intentional killing provided that they are very small and out of sight because they are in woman’s womb or in a petri dish. Justice Scalia’s rejection of the Court’s claim to be the font of revised constitutional text is justifiable and correct. But his belief in pure democracy as an antidote is simply suggesting a weaker poison in exchange for stronger.