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Should Natural Law Inform Constitutional Law?

That was the subject of a recent debate between Professor Hadley Arkes and Chief Judge Alex Kozinski. Check it out....

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If you’re trapped in the office on this Friday after Thanksgiving — or, just as bad, stuck at a distant relative’s house with nothing to do — Professor Hadley Arkes of Amherst College and Chief Judge Alex Kozinski of the Ninth Circuit are here to help.

Last weekend, at the National Lawyers Convention of the Federalist Society, Professor Arkes and Chief Judge Kozinski debated whether natural law should inform constitutional law. Let’s check out their most interesting debate….

Professor Arkes and Chief Judge Kozinski clashed in the fifth annual Rosenkranz Debate, which has become a highlight of the Federalist Society’s annual conference. The debate was ably moderated by Judge Thomas Griffith of the D.C. Circuit (and, like Judge Kozinski, of the top shelf of feeder judges).

I was lucky enough to be present in person for this delightful debate, which allowed me to admire the stylishly casual blue shoes that Judge Kozinski paired with his dark grey suit (sans tie). In case you’re wondering where you can get your own pair, His Honor advised me that they are Vans Authentics: “They actually come in a variety of colors, but I mostly wear black or blue. I love them. They’re super, super comfy.”

Sorry for the footwear digression — where was I? Oh yes, the debate. Professor Arkes, not surprisingly given his writings, advocated for natural law. He cited historical evidence showing that the Framers of the Constitution believed very deeply in natural law. And he had this funny quip refuting the subjectivity of language: “If all words are subjective, then ‘F**k the draft’ would mean ‘Make love to the wind!'”

Chief Judge Kozinski assumed the role of natural law skeptic. Although he expressed some sympathy for the natural law position — after all, textualists must give some meaning to the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) — he identified several challenges in making natural law a meaningful part of constitutional interpretation:

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  • The “state of nature” of social contract theory is really a theoretical construct of philosophy, not a phenomenon well-documented by history. So how can we decide what “natural rights” we enjoyed in this state?
  • Understandings of “natural rights” can and will change. For example, at the Founding, many classes of human beings were excluded from political participation (e.g., women, people of color, people who didn’t own land).
  • Society changes as well. For example, take technological change and its implications for human reproduction.
  • What is a judge supposed to do when natural rights collide with legal text?

On that last item, Chief Judge Kozinski had a funny riff on the “natural-born-citizen clause,” which troubles him given the fact that he was born in Romania. This led both Professor Arkes and members of the audience to call for amending the Constitution to allow for a presidential bid by Judge Kozinski. (I’d be all in favor of “Kozinski 2016,” especially now that Justice Clarence Thomas has disclaimed any interest in wanting to run for president, as Kashmir Hill and I had suggested in a Washington Post piece.)

In the course of raising the “who decides?” point with respect to natural rights, Judge Kozinski got in a good dig at some of his more liberal Ninth Circuit colleagues: “I know federal judges are not supposed to look at text, but Judge [Carlos] Bea and Judge [Diarmuid] O’Scannlain and I occasionally manage to catch a glimpse.” Both Judge Bea and Judge O’Scannlain were in the audience, which laughed appreciatively at the shout-outs.

As the debate went on, through rebuttals and a question-and-answer session (featuring such luminaries as Professor Randy Barnett), it actually started turning into a love fest (not unlike the FCPA panel I attended earlier in the conference). As a lover of conflict and drama, I was honestly hoping for more fireworks — along the lines of, say, this crazy panel from the 2006 conference. But aficionados of thoughtful and nuanced discussion seemed to appreciate the proceedings.

These are just my impressions; check out the debate for yourself via the embed below. Enjoy!

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Fifth Annual Rosenkranz Debate: RESOLVED: Natural Law Should Inform Constitutional Law
[Federalist Society]
Bipartisan ‘Love Fest’ on the FCPA Guidance [Main Justice]

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