This post by Richard Posner is just too interesting to let go without some reflection. As we mentioned before, Posner’s jurisprudence is grounded in postmodern philosophy that rejects the natural law or that there are any objective (i.e., “self-evident”) grounds for making moral distinctions.
But here, Posner lets it be known that he views natural law to be perhaps a “useful fiction” or device in jurisprudence. The reason why Posner would allow natural law to be used in judicial decision making is, because of the nature or our common law system, judges are inevitably left with “gaps” that they, as judges, need to fill when deciding questions of law.
But before I explain how Posner believes natural law might be used to fill the gaps, let me preface my remarks with some background on why there are "gaps" that judges need to fill.
Posner has rightly criticizes “original intent” conservatives like Bork who argue that judges never have to “make the law” but simply “apply it” by magically “channeling the framers” to find their collective original intent (and it would be useful to familiarize ourselves with 18th Century sociology and impute all of those prejudices into this collective original intent as well), and we can answer every specific fact/law question by this method.
Many provisions of the Constitution, however, are drafted in general terms [note: many statutes are as well]. This creates flexibility in the face of unforeseen changes, but it also creates the possibility of alternative interpretations, and this possibility is an embarrassment for a theory of judicial legitimacy that denies that judges have any right to exercise discretion. A choice among semantically plausible interpretations of a text, in circumstances remote from those contemplated by its drafters, requires the exercise of discretion and the weighing of consequences. Reading is not a form of deduction; understanding requires a consideration of consequences. The broader principle, which applies to the Constitution as much as to a spoken utterance, is that if one possible interpretation of an ambiguous statement would entail absurd or terrible results, that is a good reason to reject it.
Even the decision to read the Constitution narrowly, and thereby to “restrain” judicial interpretation, is not a decision that can be read directly from the text. The Constitution does not say, “Read me broadly,” or “Ready me narrowly.” The decision to do one or the other must be made as a matter of political theory and will depend on such things as one’s view of the springs of judicial legitimacy and the relative competence of courts and legislatures in dealing with particular types of issue.
Posner, Overcoming Law, p. 234.
I think Posner nails the one thing that ticks me off the most about the Graglia, Bork (and Clayton Cramer and Owen Courreges) jurisprudence is that they assume that the framers “intended” their so called “original intent-judicial restraint” jurisprudence, when there is every reason to believe that by writing the Constitution in such broad generalities and leaving behind no specific “book” of “original intent answers to specific questions that might arise under the Constitution in the future” that the Framers intended to create a document that could be interpreted in various ways in the future, depending on changes in circumstances. And they didn’t want to “lock us in” to 18th Century sociology complete with its prejudices.
But that’s not the same as saying that the Constitution means whatever a majority of Justices want it to mean. There are certain objective, timeless, general principles that never change—for instance, what is written in the text of the Constitution (unless amended). For example, as long as we have the First Amendment there must always be a constitutional free speech norm that holds, “government can’t censor.” But in terms of the specific application of that norm, our founders didn’t provide the answer to say whether hard core pornography ought to be protected in the future, and they KNEW THEY DIDN’T have such specific answers, but they also KNEW that until the First Amendment was amended or repealed, the Free Speech norm would be eternal.
So any judicial decision that flouts the text of the Constitution, ipso facto, is a bad result. For instance, reading the 2nd Amendment out of the Constitution; ignoring the doctrine of enumerated federal powers, which is unarguably clear from the text of the Constitution.
One thing that distinguishes Posner from some of the left-wing critics of Borkian jurisprudence, notably the critical legal theorists, is that such Foucault influenced Leftist are so enamored of the notion that there is no objective Truth, that they deny that judges should anchor themselves to any notions of objectivity whatsoever in deciding cases.
From what I understand, the Law & Economics school that Posner speaks for and the Critical Legal Theorists are both offshoots of the school of Legal Realism, ala Holmes; but the major split between them is that although Posner’s Holmesean jurisprudential approach doesn’t believe in objective moral Truths, it still believes that some type of objective decision making ought to guide judges—and they use the objective science of economics in particular (and social science in general) as that anchor.
But it’s clear that the Posners, the Crits (and I) believe that there are gaps (meaning specific answers to Constitutional questions) that were intentionally left open by the framers of the Constitution that later generations would have to answer.
Here is where natural law comes into the picture: Like Justice Thomas, I think that the objective theory of natural right, perfectly encapsulated in the Declaration of Independence, the Virginia Statute on Religious Freedom, Madison’s Memorial and Remonstrance, and in other writings of Madison, Jefferson, and Locke and others ought to be used to fill those gaps as well.
And even though Posner doesn’t believe in the objective Truth of natural law, he is not against Judges applying it. From his above linked post:
I have a qualified sympathy for the idea of natural law. If a novel case arises--one that cannot be decided by subsumption under clear statutory or constitutional language or precedent--the judge will have to look elsewhere, and if one wants to call the elsewhere "natural law" I have no strong objection, as long as it is understood not to be Thomas Aquinas's concept of natural law. The vaguer, less consistent, more anachronistic, more gap-ridden, and more absurd the orthodox materials of judicial decision (constitutional and statutory text, precedent, etc.) are, the more the judges will be on their own in deciding cases. And that is the situation in which American judges, especially appellate judges, often find themselves. Whether they draw on economic theory or political principles, or on some inarticulate notion of what is fair or right, to decide cases in the broad open area of American law, they will be going outside the positive law in any useful sense of that term--and, as I say, if you want to call where they are going natural law, that is all right with me.
Yet, I’m disappointed by how Posner would make use of this “useful fiction” of natural law:
Slavery is a good example of a practice believed to be contrary to natural law; and one comment notes the affinity between the concept of natural law and the idea of international legal norms as a source of guidance in interpreting local constitutional law….Yet in the context of pre-Civil War U.S. law, natural-law arguments for the unconstitutionality of slavery would have collapsed in the face of the constitutional text and history and the political balance of power….
Posner also writes,
One commenter asks, wouldn't it have been a good thing if, before the Civil War, the Supreme Court had taken note of the fact that the other nations of what we regarded as the civilized world had outlawed slavery? Could not the Court have used that international consensus to outlaw slavery in the United States? It could not have, because the preservation of slavery was the essence of the compromise that enabled the U.S. Constitution to be ratified, and because a decision outlawing slavery would have precipitated the secession of the southern states even quicker than the election of Lincoln did--he campaigned only to limit the spread of, and not to abolish, slavery. Abolition had to await the Emancipation Proclamation (of uncertain constitutionality) and the enactment of the Thirteenth Amendment.
Two important notes: One, it’s legitimate to argue, as Posner seems to, that the Court should not have applied the anti-slavery natural law norm, in order to stave off a civil war and later on attempt to more peacefully end the inhumane institution (that of course, turned out to be impossible). But Posner argues moreover, that slavery was constitutional according to our original (1787 or 1789) Constitution. My problem with this sentiment is that it believes that we were founded not on our ideals (which were fundamentally anti-slavery), but rather on our compromises with our ideals.
Posner is right to reject Aquinas’s notion of the natural law, if for no other reason than such theory saw nothing wrong with slavery. But the later natural law that we were founded on, Lockean-Jeffersonian-Madisonian, was indeed anti-slavery. If you believe that such natural law is the objective Truth, we could say that just as Einstein’s “discovery” of the Truth superseded what Newton knew, our Founders discovered a “Truth” that slavery violated the law of nature, of which Aquinas was not aware.
And we, in building upon the shoulders of our founders, and applying their objective, timeless principles, can similarly discover Truths of which our founders may not have been aware. See Lawrence v. Texas.