Washington. -- If Americans have the patience to listen to the often highly abstract debate that already surrounds the legal views of Supreme Court nominee Clarence Thomas, they will hear the modern echoes of a controversy that goes back well over two centuries.
It is no less than a debate over where Americans get their rights: the source of their fundamental rights as human beings and the origins of their legal rights as citizens of this country.
The debate got started after President Bush picked Judge Thomas, of the U.S. Circuit Court of Appeals for the District of Columbia, to replace retiring Justice Thurgood Marshall. Liberal groups poring over Judge Thomas' writings and speeches soon discovered that he is an apostle of "natural law" and "natural rights."
That approach to the meaning of the law, and of the U.S. Constitution, has an ancient pedigree. And, while it may appear to be an academic abstraction debated seriously only by speculative scholars, both its adherents and its critics say that it could provide the key to a judge's vote on one side or the other of a very real legal or constitutional dispute.
Judge Thomas has proclaimed often, with no apology, his attraction to "natural law" as a political and judicial philosophy. When the discovery of that led to an immediate barrage of criticism, however, Judge Thomas and his supporters began to offer public assurances that his views along those lines did not mean he was prejudging any issues that he might confront as a justice.
Last month, his chief Senate sponsor, Sen. John C. Danforth, R-Mo., said it had been only "a throwaway line" when Judge Thomas in a speech had praised a magazine article by conservative businessman Lewis Lehrman using "natural law" as basis for criticizing the Supreme Court's abortion-rights decision.
Liberal analysts of Judge Thomas' views had fixed on that very line as proof that the "natural law" approach to the definition of rights under the Constitution would lead him, as a justice, to overturn many modern court rulings protecting women and minorities, especially Roe vs. Wade, the 1973 abortion ruling.
But some conservative analysts have chimed in with criticism, too, saying that the "natural law" approach would lead Judge Thomas into the error of writing his own views of the rights people should have into the Constitution -- the error those analysts have long found in the work of liberal justices, including Justice Marshall.
In general, the "natural law, natural rights" view suggests, at least to some of its adherents, that Americans' most basic rights actually come from God and that the moral order of the universe is a good place to start looking for the meaning of rights under the U.S. Constitution.
It is a view that, for some, has a good deal of religious belief behind it
Its critics say it would turn judges loose to make decisions that suit their own personal beliefs or fears, but its adherents -- including, in this instance, Judge Thomas himself -- say that it is the real clue to judicial restraint and "limited government" in general.
To critics, it would imprison American policy in stingy, traditional notions of "goodness" and morality, and would hold women and minorities down to subordinate levels of social rank or status. To its adherents, including Judge Thomas, it would liberate Americans to develop on their own, without intrusive government meddling.
It is clear that those who claim to understand the "natural law" or "natural rights" concept do not agree on just how it would come out in the specific actions of a judge or a court stirred by that philosophy. No one can predict with assurance how a Justice Thomas would vote if he put "natural law" to work on the Supreme Court.
One thing is clear, though: There is no "natural law" adherent on the court right now, and thus Judge Thomas' capacity to use theories based on the concept to influence his colleagues might be quite limited. Even so, those theories might well lead him to support some far-reaching future decisions fashioned by a conservative-dominated court, even if the reasons he gave for his vote were his alone.
"Natural law" theory, for example, might well lead Judge Thomas to cast his vote to overrule the Roe vs. Wade decision creating a woman's right to abortion, because he has argued that judicial restraint is a cardinal virtue of "natural law" theory. He has spoken harshly of "run-amok judges."
On the other hand, some constitutional right of privacy -- the core doctrine beneath the Roe decision -- might survive a "natural law" analysis, because it might be traced to abiding notions of "natural right" instead of to the words of the Constitution.