The Canon of Natural Law Avoidance

By William Harren. 

The relationship between natural law and positive law represents one of the oldest unresolved questions in American jurisprudence. When Thomas Jefferson wrote, “[w]e hold these truths to be self-evident, that all men are created equal,” he invoked natural law principles to establish the United States’ legitimacy. Yet the Constitution itself has little to say about natural law. Judges, lawyers, and legal scholars—unsure what to make of this discrepancy—spent much of the nation’s first hundred years debating these questions: Does natural law supersede the Constitution? Does the Constitution override natural law? Or does the Constitution somehow incorporate natural law into positive law?

While discussion of these questions declined in the twentieth century, it is unclear whether the debate fully resolved. It’s obvious that references to “the natural ordering of reason” and “the common good” have become vanishingly rare in court. It’s unclear, however, that modern ideas of “reasonableness,” “public policy,” and “substantive due process” are much different. While the terms of the debate may have shifted, the underlying tension remains. Full Article