by Ed Mechmann
After Justice Ruth Ginsburg died, a friend jokingly suggested that she would contact the President and suggest that he nominate me for the vacancy. The chances of that happening are as far below zero as the temperature in outer space. But as a Catholic lawyer, I think it would be amusing to present my legal philosophy to an imaginary confirmation hearing. I think it would add a refreshing bit of honesty to hearings that are almost exclusively political theater and obfuscation. And the reaction to my remarks would be amazing to see. So here goes.
What My Legal Philosophy is Not
Let me first make clear what my philosophy is not.
I am not an “originalist”, as most conservative legal thinkers style themselves nowadays. That term refers to a particular approach to interpreting the Constitution. It has been described very well by Judge Amy Coney Barrett:
Originalists, like textualists, care about what people understood words to mean at the time that the law was enacted because those people had the authority to make law. They did so through legitimate processes, which included writing down and fixing the law… And, as with statutes, the law can mean no more or less than that communicated by the language in which it is written.
All of that is important and is true up to a point. Judges should apply the law as it is written, and respect the lawmaking process. But no written law can possibly be clear and comprehensive enough to apply unambiguously to all conceivable situations. Judges necessarily “fill in the blanks” to decide the inevitable cases that do not fit squarely into the text of a law. They have to draw on principles that are not contained in the text.
The question is, how to you fill in the blanks?
Originalism has no answer to that question. It is just a version of legal positivism. Positivists reject objective moral truth. They consider the law to be only what is enacted by those with the power to do so. They would strike down a law only if it conflicts with another higher one.
So originalist judges try to decide cases without any reference to objective moral truth. Instead they rely on linguistics and legislative history to discern the “original public meaning” of the text, and nothing else. But even the most committed originalist always has to reach out for moral and legal principles that are not in the text of the Constitution. The notion of originalism itself is one of them – it is not contained anywhere in the Constitution. The same is true of Justice Antonin Scalia’s influential “canons of interpretation” to guide judges in interpreting legal texts.
I understand why originalism has become the dominant legal philosophy among conservatives. It is a reaction to the abuse of power by “progressive” judges who believe in a “living constitution”. They filled in the blanks with their own political and moral beliefs under the guise of “substantive due process”. They are absolutely guilty of “legislating from the bench”. That is certainly an abuse, but originalism is an incomplete answer.
Ultimately originalism is a dead end by itself, and the question remains: how do you fill in the blanks?
I am a Natural Lawyer
This brings me to the point of telling you what my legal philosophy is.
My legal philosophy rests instead on some basic principles. There is an objective moral truth that is found in the natural law. The only proper way to interpret any man-made law is in light of the natural law. And all human law must ultimately conform to the natural law in order to be valid and binding.
The natural law is rooted in reason and the universal moral values that it can discern. It comes from a deep understanding of the authentic nature of the human person and of the human community. It understands what is good and true for human happiness and fulfillment. And it teaches us what is evil and destructive for us. The natural law is not something completely distinct from man-made law. Rather, its basic principles of fairness and reason pervade our laws so thoroughly that we take them for granted.
The relationship between human law and natural law was stated most clearly and powerfully by William Seward. On the floor of the U.S. Senate, during a debate on slavery in the territories, he said:
But there is a higher law than the Constitution, which regulates our authority over the domain, and devotes it to the same noble purposes. The territory is a part, no inconsiderable part, of the common heritage of mankind, bestowed upon them by the Creator if the universe. We are his stewards, and must so discharge our trust as to secure in the highest attainable degree their happiness.
Seward was excoriated for that statement at the time by defenders of slavery, and he would certainly be ostracized from polite legal society today. Yet that principle was inherited by our nation as part of the English common law. The Constitution actually embodies natural law principles and empowers the government to give them effect. This was clearly understood by the Founders and the early generation of lawyers and judges.
The Founders knew very well what William Blackstone, the great compiler of the English common law, wrote:
This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.
James Wilson was one of the first Supreme Court justices, and one of our greatest legal minds. He said “it should always be remembered, that this law, natural or revealed, made for men or for nations, flows from the same divine source: It is the law of God . . . Human law must rest its authority, ultimately, upon the authority of that law, which is divine.” He also stated “That our Creator has a supreme right to prescribe a law for our conduct, and that we are under the most perfect obligation to obey that law, are truths established on the clearest and most solid principles.”
The role of the natural law was also affirmed by another of our greatest legal thinkers, Abraham Lincoln. He rejected the morally vacant “popular sovereignty” argument offered by Stephen Douglass in defense of slavery. That was about as pure an expression of positivism as one can find. Lincoln understood instead that all law must rest on universal principles of morality about the true nature of the human person. He rightly invoked the basic equality of all people as expressed in the Declaration of Independence. That is a key tenet of the natural law. The abolition of slavery took place only because people eventually conformed human law to the natural law.
It is ironic that Douglass’ legal theory has become the dominant one today. It is, in fact, defended by originalists. For example, Justice Scalia once wrote, “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Lincoln would have recoiled from the idea that one class of humans could have their lives taken with impunity, merely because the people have voted that way. It is difficult to think of a concept that is more at odds with the natural law, moral truth, and reason.
Only Natural Law Fills the Blanks
Originalism is morally bankrupt without the natural law. So are the competing theories of the “living constitution” and “substantive due process”. The only legitimate way to fill in the blanks in the Constitution is to rely on natural law.
Without the natural law, lawmakers and judges will inevitably fill in the blanks with idiosyncratic and erroneous views of the human person and community. That road leads to incoherence. For example, the “progressive” theory of “substantive due process” is really just a false version of natural law based on the bogus theory of absolute individual autonomy. The “living constitution” is just an excuse to enact contemporary political values. The result is that the law is always up for grabs.
Any judge who says they can decide cases purely by originalism, without any recourse to extrinsic principles of morality or reason, is deluding themselves or misleading us. The natural law is ultimately the only source of clear and firm principles to decide cases.
My Legal Philosophy is Catholic
The need to link positive law with natural law is not just an American and English tradition. It is also the position that I hold as a matter of my Catholic faith. St. Pope John Paul II put it this way: “The doctrine on the necessary conformity of civil law with the moral law is in continuity with the whole tradition of the Church.” And again, “Every law made by man can be called a law insofar as it derives from the natural law. But if it is somehow opposed to the natural law, then it is not really a law but rather a corruption of the law”.
In fact, Catholic belief goes even further. Pope John Paul also wrote, “human law is law inasmuch as it is in conformity with right reason and thus derives from the eternal law.” By “eternal law” he is specifically referring to God’s law, the same ultimate source of law referred to by Seward, Blackstone, Lincoln, Wilson, et al.
Catholic legal philosophy thus is originalist, but in the truest sense because it fills in the blanks by consulting the natural law. It is thus the best way to interpret our Constitution.
Cutting to the Key Questions
So I’ll be blunt about the questions you are dying to ask.
My legal philosophy would never agree that a court decision contrary to the natural law is “settled”. Adherence to erroneous precedents is simply irrational. As the great American legal scholar, Chancellor James Kent said, “If, however, any solemnly adjudged case can be shown to be in error, it is no doubt the right and the duty of the judges who have a similar case before them, to correct the error”. That is true originalism.
In my view, Roe v. Wade and its progeny Planned Parenthood v. Casey are wrong as a matter of moral and legal reasoning and are profoundly unjust. They defined an entire class of human beings to be non-persons with no rights, who can be subjected to violence with impunity. That violates not only the natural law, but the promise of equality in the Declaration of Independence and the Constitution. I would vote to overrule those decisions and any decision based on them. I would also vote to invalidate any law that authorized the killing with impunity of unborn children. I would uphold any law that restricts it.
There are other cases that in my view conflict with the natural law and which I would vote to overrule. Bostock v. Clayton County (redefining “sex” to include gender identity and sexual orientation) and Obergefell v. Hodges (redefining marriage) are the most prominent recent cases that violate natural law, because they are inconsistent with the true nature of the human person. I would also overrule Employment Division v. Smith (eviscerating the Free Exercise Clause), Herrera v. Collins (executing an innocent man does not violate the Constitution), and Hawaii v. Trump (permitting an immigration policy that was based on anti-religious animus), to name a few others. All of them violate fundamental human rights.
To be clear, I would certainly uphold the great civil rights cases like Brown v. Board of Education (school desegregation), Heart of Atlanta Motel v. United States (desegregation of public accommodations), and Loving v. Virginia (eliminating bans on interracial marriage). All of those are based firmly on the natural law principle of equality before the law.
Where I Stand
I realize that these views put me “outside the mainstream” of contemporary legal thinking. Modern legal thinkers laugh at the natural law and are horrified by Catholic principles. It would be easier for me just to say that I am an originalist and remain silent about how I would fill in the gaps. By espousing my actual beliefs, I am sure I would never be confirmed for any public office.
But I would rather stand with Lincoln, Wilson and Blackstone, as well as with St. Pope John Paul and the Catholic faith. There are eternal truths worth more than any worldly position or honor. That’s a principle of the natural law too.