a government of laws and not of men
–from the Massachusetts Bill of Rights of 1780
No one disputes that judges must uphold the rule of law. Every judge claims that as a sacred duty.
Even the plurality in Planned Parenthood v. Casey made such a claim while upholding the right to an abortion. True, they in effect admitted, Roe v. Wade was a decision that was without legal and constitutional justification. But, the plurality declared, both on the basis of stare decisis (regard for precedent) and in the face of popular opposition, they must uphold what was the flawed decision in Roe. Why? To uphold the rule of law.
For his part, Justice Scalia tells us that he must stick to the text of the Constitution with only the most specific level of historical example to illuminate the text. Why? To uphold the rule of law. Justices Kennedy and O’Connor embrace the school of “legal process” that binds judges within the interstices of the technique of judging. For them, that is the rule of law. Chief Justice Rehnquist often defers to the legislative judgment, lest he substitute his own view of appropriate policy for those who have legitimate discretion in deciding such matters. Otherwise, he would be violating the rule of law. And Judge Bork famously decried the use of the unwritten natural law as a source for a judge s decision-making. That too would violate the norms of the rule of law.
In particular, judges who claim that the written law is the touchstone of their legal authority assert that it is the best protection against judicial usurpation and judicial activism. They are known as positivists, relying only upon the law as “posited” by the Constitution or the legislature. They, like Judge Bork, assert that judges who avow a natural law provenance for their decisions are unbounded and subjective. As Justice Black declared, a “natural law” approach would “degrade the constitutional safeguards of the bill of rights and simultaneously appropriate for this Court a broad power which we are not authorized by the Constitution to exercise.” Adamson v. California, 332, U.S. 46, 70 (1947).
Yet it has been the positivism of the Supreme Court since World War II that has led to the most massive and unapologetic assertion of judicial power in our history. Roe v. Wade is not an example of natural law jurisprudence gone awry. It is an example of untrammeled positivism. Although positivistic jurisprudence begins with the modest declaration that judges should stick to the text of the Constitution as it is given to them, its very premise legitimates the extension of judicial power far beyond the text.
The essence of the positivistic justification is that the assertion of the will by an authoritative law-maker legitimates the force of the law. Of course, if a judge recognizes that the legislature is that authoritative body, the judge’s decisions will be concomitantly limited. If he recognizes the text of the Constitution as the source of the authoritative action of the collective will, then that will limit his function.
But if it is the will that legitimates the exercise of power, why should the judge posit that will in someone else? Once the judge realizes, as the legal realists noted, that judges do indeed make law, and once he accepts that fact as legitimate, he has agreed that his own will is indeed an authoritative source of the law. And once he accepts that moral proposition, there is nothing (except perhaps the constraints of tradition) to prevent him from venturing outward from the text to rely upon his own notions of right and wrong policy to make the law.
History indicates that it is natural law, not positivism, that provides a surer limit than does positivism. As Justice Frankfurter indicated in contesting a positivistic theory of the incorporation of the Bill of Rights, “In the history of thought ’natural law’ has a much longer and much better founded meaning and justification than such subjective selection of the first eight Amendments for incorporation into the Fourteenth.” Adamson v. California, 332, U.S. 46, 65 (1947). But the connection of judicial restraint to natural law is not merely a function of the historical record. It is an aspect of the internal workings of natural law itself.
A judge operating under the norms of natural law is more respectful of his limitations under positive law than even a positivist is. A positivist must acknowledge that the will is the authenticator of the law. But a natural law judge knows precisely, as Hamilton said in Federalist No. 78, that he is empowered by “neither FORCE nor WILL, but merely judgement” in his functions. Without will as an authenticator, a judge has no authority to supersede authoritatively passed positive law.
Long ago, St. Thomas Aquinas enunciated that truth. NoT only did a judge act unlawfully, he said, when he decided a case on his subjective knowledge instead of the facts as presented to him in court, but such a judge has no authority to decide outside of the written law at all. That is why Aquinas requires a judge to give reasons, so that the objective basis of his judgment can be known. (Summa Theologica, Pt. II-II, q. 60, art. 5, q. 67, art. 1).
Positive law contains both rights deriving from natural law and rights or entitlements deriving from positive law, Aquinas argues. Most policies of any regime are neutral in terms of the natural law. Any number of choices are available before the lawgiver. Those myriad choices are emplaced in the positive law. A judge gains his authority by the lawgiver only to effectuate the written law of the lawgiver. If he does more than that, if he goes beyond the positive law as handed down to him, his judgment is “perverse.” (Summa Theologica, Pt. II-II, q. 60, art. 5, art. 6).
But what about those rare instances when the lawgiver himself, in the positive law, violates the norms of natural law? What if a state legislature does that, or the police? The logic is inescapable. “[I]f the written law contains anything contrary to the natural right, it is unjust and has no binding force.” Just as a judge has no authority to make new positive law, the lawgiver has no authority to make positive law contrary to natural law. And if a judge should enforce such a law, the judge himself would be acting unlawfully. Justice Frankfurter realized this when he struck down evidence gained by police emptying the stomach of an unconscious man. Such an action, he said, “shocks the conscience.” Rochin v. California, 342 U.S. 165, 172 (1952). “Conscience,” in Frankfurter’s sense, was not a subjective distaste, but the conscience of a judge, rooted in the verities of natural justice. No policeman, no judge, could exceed that limi
Chief Justice John Marshall made the lawfulness of a judge’s decision the centerpiece of his argument in Marbury v. Madison, the very case that concretized the right of the Supreme Court to review acts of Congress. It would be a “crime,” Marshall said, if the Court, after swearing to uphold the law, should enforce an act that was not truly law. “How immoral to impose [an oath] upon [judges], if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support?” 5 U.S. (1 Cranch) 137, 180 (1803). The Court, Marshall insisted, has no authority to do such a thing.
Thus, the very premise of judicial review in America is rooted in the structure of natural law. And in that, both judicial restraint and the rule of law are truly maintained.
David Forte is a Professor of Law at Cleveland State University.