In his latest column, Hadley Arkes recounts an ever-present theme in his writing over the years: the abandonment of natural law by conservative judges.
Here is Arkes:
One of the oddities of our time is how many Catholic lawyers look upon the natural law as a collection of hazy sentiments, hovering in the sky, having little practical bearing on the cases that come before them. They identify the natural law with “activist” judges on the Left, soaring off into the stratosphere, offering high-minded sentiments, untethered to anything in the text of the Constitution.
And yet, if we can recognize the misuse or abuse of the natural law, that suggests we can tell the difference between a plausible and implausible, rightful or wrongful use. Why not get clear, then, on the rightful use, rather than abandon the natural law altogether?
He then points to the Contract Clause of the Constitution to show an example of the underlying natural law principles inherent in the Constitution:
...The “Contracts Clause” of the Constitution represents one of the deep principles of lawfulness, but nothing in the Constitution distinguishes a legitimate from an illegitimate contract. We are thrown back upon the sense of the community about things that are rightful or wrongful, to the moral reasoning that should ever form the laws.
Only one kind of creature can make a contract – or a law. For only one kind of creature understands what it means to bear an obligation that may no longer accord with his interests or inclinations. Any serious discussion of the law will have to lead us back to that one creature who must ever be the subject and object of the law.
It is critical that conservative judges are able to interpret the Constitution in this light, the way the Founders intended. Without this standard, there is no way to coherently separate the principles from the compromises of the Constitution.
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