'Natural Law' for Gander and Goose

W. SHEPHERDSON ABELL

September 03, 1991|By W. SHEPHERDSON ABELL

Chevy Chase. -- Before the critics of Judge Thomas positively faint away at the thought of ''natural law'' jurisprudence, it might be useful to recall the thoughts of some recent justices on the subject.

Exhibit A is a speech given by former Justice William Brennan in 1980 at the dedication of the University of Maryland Law School library, named in honor of Justice Thurgood Marshall. (Justice Marshall had declined to attend the ceremony on the very reasonable grounds that the same law school had denied him admission 50 years earlier.)

Justice Brennan described his colleague's philosophy:

''He helped persuade us that the vogue for positivism in %J jurisprudence . . . must be replaced by a jurisprudence that recognizes human beings as the most distinctive and important feature of the universe. . . . Perhaps you may detect, as I think I do, something of the philosophy of St. Thomas in this view of jurisprudence. Call it a resurgence, if you will, of natural law.''

To think that the dread phrase -- the ''N'' phrase -- was applied to Justice Marshall himself -- and by his closest collaborator on the bench! (In fact, although Justice Brennan was describing the Marshall philosophy, it's impossible to read the speech without concluding that Justice Brennan was also describing his own view of the Constitution.)

Go back another 15 years, to 1965, in what is probably one of the last Supreme Court opinions harshly criticizing the natural-law approach to the Constitution. Justice Hugo Black attacked ''the natural-law due-process philosophy.'' Of course, that attack was contained in his sharp dissent from the Griswold holding, which established a constitutional right of privacy.

So we have three justices concerned with our topic. Justices Brennan and Marshall (if the Brennan analysis is correct) espoused a natural-law view. Justice Black did not -- precisely because he saw that jurisprudence leading to what for him was the unwarranted creation of a constitutional right of privacy.

The point is not that natural law (whatever that may mean) is a good or bad approach to the Constitution. (I side with Justice Black on that one.) ''Natural law'' can mean different things to different people. When applied to the Constitution, it suggests, at the very least, that a justice might base decisions on a philosophical view of human nature instead of relying on the text. Perhaps Judge Thomas has some much more bizarre and sinister theory in mind. Surely this is a very valid point for inquiry by the Senate, and many of us will be very interested to see how he responds.

But, in any case, ''natural law'' is not a very good -- or very fair -- catchphrase for opposition to Justice Marshall's designated successor. It is being used as a club by many who thought the Brennan-Marshall view was just great in its day.

That is reminiscent of what happened at the time of the Bork battle. The virtues of stare decisis were belatedly recognized by a lot of lawyers and law professors who didn't think it was such an important doctrine while 62 precedents were being overruled during the 15 years when Earl Warren was Chief Justice. (Maybe that's what they mean by a ''confirmation convention.'')

What's sauce for the goose ought to be sauce for the gander.

W. Shepherdson Abell is an attorney.

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