{"id":790,"date":"2026-07-02T10:38:49","date_gmt":"2026-07-02T10:38:49","guid":{"rendered":"https:\/\/cityrelocationnews.com\/?p=790"},"modified":"2026-07-02T10:38:49","modified_gmt":"2026-07-02T10:38:49","slug":"why-have-liberals-abandoned-a-moral-reading-of-the-constitution","status":"publish","type":"post","link":"https:\/\/cityrelocationnews.com\/?p=790","title":{"rendered":"Why Have Liberals Abandoned a Moral Reading of the Constitution?"},"content":{"rendered":"
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What is law and where does it come from? Several years ago at Harvard Law School, where I am a professor, L.G.B.T.Q. student groups reported that at an event that hundreds of students attended, a student made \u201cpatently homophobic and transphobic comments rooted in \u2018natural law.\u2019\u00a0\u201d The organizations published a statement demanding that the school treat the incident as misconduct or hate speech, explaining that \u201cthe antiquated and parochial belief in a so-called \u2018naturally ordered society\u2019 has long been used to justify and allow the deprivation of certain groups from access to meaningful human experiences and participation in public life.\u201d It then dawned on me that, among a swath of our country\u2019s future lawyers, endorsement of \u201cnatural law\u201d was viewed as a form of hate. How had we managed to so narrow and antagonize a concept that had underwritten our country\u2019s most important rights to equality and liberty?<\/p>\n

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The Declaration of Independence presupposes a notion of divinity; it asserts that the point of government is to secure rights ordained by \u201cthe Laws of Nature and of Nature\u2019s God.\u201d The oft-recited passage \u201cWe hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness\u201d was the premise for breaking with a government that became \u201cdestructive of these ends,\u201d so that a new one might be formed, with consent of the governed, to implement these higher principles. The purpose of a man-made government was to enforce God-given rights.<\/p>\n

More than a decade later, the charter creating that new government lacked mention of natural law and God, stating that it is \u201cWe the People of the United States\u201d who \u201cdo ordain and establish this Constitution.\u201d Disagreement about whether the Constitution should be taken to presuppose the authority of natural law, or to displace it, emerged among early Supreme Court Justices. In the 1798 case Calder v. Bull, Justice Samuel Chase, a Declaration signer, said that any legislation violating \u201cthe great first principles of the social compact\u201d would not be a law at all. Chase\u2019s position was backed by a long tradition of natural justice, stretching to Aristotle\u2019s advice to \u201cappeal to the law of nature\u201d if there was \u201cno case according to the law of the land.\u201d Justice James Iredell, however, rejected the notion that the Court could declare a law void \u201cmerely because it is in its judgment contrary to the principles of natural justice.\u201d His concern was that \u201cthe ideas of natural justice are regulated by no fixed standard\u201d\u2014unlike the \u201cprecision\u201d and \u201csettled boundaries\u201d of the written Constitution. Iredell\u2019s position that courts could not use natural law to invalidate statutes was consonant with the philosopher Jeremy Bentham\u2019s view that natural law was nonsense and an excuse \u201cto rise up in arms against any law whatever that he happens not to like.\u201d The Constitution\u2019s language ruled out neither of those understandings. The Chase-versus-Iredell debate embodied an instability, from the beginning of the country, regarding the fundamental question of what law is, which has never been fully resolved.<\/p>\n

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Lon Fuller, a legal philosopher and a prominent proponent of a secular form of natural law, observed in 1948 that \u201cfor many the term \u2018natural law\u2019 still has about it a rich, deep odor of the witches\u2019 caldron, and the mere mention of it suffices to unloose a torrent of emotions and fears.\u201d That is still true today. For many liberals, those fears are provoked by an apprehension that \u201cnatural law\u201d may be a way to justify homophobia, promote religious nationalism, or subordinate women. But liberals should have confidence in meeting those fears with arguments about how natural-law principles of equality and dignity underpinning our legal tradition. The content of natural law has been contested throughout our history, but, over the long haul, liberals have fared well in reading the Constitution in light of the higher principles of fundamental justice. The semiquincentennial of our country is the perfect time for liberals to reclaim natural law and not cede it to their antagonists.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

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Whatever the most contested issue is in a particular time\u2014slavery, segregation, miscegenation, gender equality, abortion, gay sex, same-sex marriage\u2014the clash regarding natural law and positive law, or, to put it another way, our unwritten and written constitutions, has tended to resurface. It is a skeleton key to each era\u2019s culture wars. The most unbearable clash was between the Declaration\u2019s principle of equality and the Constitution\u2019s provisions on slavery\u2014the three-fifths clause, the fugitive-slave clause, and the slave-trade clause. The ubiquity of natural-law thinking soon led to both antislavery and pro-slavery arguments invoking it. In 1841, John Quincy Adams, a President turned congressman and Supreme Court advocate, appeared before the Court, seeking the freedom of people kidnapped from Africa who mutinied en route to America on the slave ship Amistad. Adams argued to the Justices, \u201cI know of no other law that reaches the case of my clients, but the law of nature and of Nature\u2019s God on which our fathers placed our own national existence\u201d; the Court explicitly relied on natural law in deciding in favor of the captives.<\/p>\n

Defenders of slavery claimed that the institution was required by the natural hierarchy of humans reflected in the Constitution\u2019s provisions. A wing of abolitionists, including Frederick Douglass, invoked the Declaration to assert that, properly interpreted in light of natural justice, the Constitution was really an antislavery document, notwithstanding its terrible compromises. Resistance to that reading animated the Supreme Court\u2019s opinion in Dred Scott v. Sandford, which concluded that the Constitution meant that Black men could not be citizens and that Congress could not disallow slavery in federal territories. The opinion pointed out that the Declaration\u2019s signatories, most of whom enslaved people, would have been rank hypocrites had the document\u2019s principle of equality included those whom they enslaved. Blasting the Court\u2019s conclusions, Abraham Lincoln explained that the proposition that all men are created equal with God-given rights had been placed in the Declaration \u201cfor future use.\u201d On the eve of the Civil War, Lincoln wrote that this principle was an \u201capple of gold\u201d for which the Constitution, the \u201cpicture of silver\u201d framing it, had been made, and not the other way around. His address at Gettysburg, in November, 1863, opening with \u201cFour score and seven years ago,\u201d referred not to the Constitution but to the Declaration.<\/p>\n

One way of thinking about the post-Civil War amendments\u2014which banned slavery, guaranteed equal protection of the laws, and prohibited denial of the vote based on race\u2014is that they wrote into the Constitution the natural-law principles for which the war had been fought. But the written text did not halt passionate disagreement about what natural law required pertaining to racial equality. The Supreme Court, in Plessy v. Ferguson, upheld segregation, reasoning that, \u201cin the nature of things,\u201d the Fourteenth Amendment \u201ccould not have been intended to abolish distinctions based on color.\u201d Advocates for and against women\u2019s equality similarly argued in terms of natural law. The Seneca Falls declaration deemed all laws that place women in an inferior position to men \u201ccontrary to the great precept of nature.\u201d But, in a case upholding the exclusion of women from the practice of law, an infamous concurring opinion by Justice Joseph Bradley (which law students might cite to condemn natural law) claimed that \u201cnature herself\u201d recognized \u201cdifferent spheres and destinies for man and woman.\u201d<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

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In his 2021 book, \u201cThe Decline of Natural Law,\u201d the legal historian Stuart Banner observed that the recruitment of natural law by opposing sides on contentious social issues contributed to increasing doubt about its existence. By the early twentieth century, lawyers and judges considered natural law to be irrelevant to the legal system, and the language all but disappeared from legal arguments and decisions. Justice Oliver Wendell Holmes, Jr., bitingly mocked people\u2019s belief in natural law as a \u201cna\u00efve state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere.\u201d But the rise of totalitarianism and fascism in Europe in the nineteen-thirties, in constitution-bound states, provoked American lawyers to revisit the question of whether an unjust law was to be considered law at all. Many reflected, in particular, on the evil that Nazi Germany had accomplished through legalism. Lon Fuller argued, after the Second World War, that the Nazi regime\u2019s violation of law\u2019s \u201cinner morality\u201d had made it cease to be a true legal system.<\/p>\n

When the Supreme Court, in Brown v. Board of Education, unanimously reversed Plessy, in 1954, it conspicuously avoided mentioning natural justice, higher principles, or moral values. Yet it admitted that Brown\u2019s central holding, that \u201cseparate educational facilities are inherently unequal\u201d and thus unconstitutional, did not flow from the Fourteenth Amendment\u2019s original meaning. The same Congress had approved both the amendment\u2019s text and the segregated schools of Washington, D.C. The civil-rights struggle was shot through with natural-law thinking, as Martin Luther King, Jr., made clear in his \u201cLetter from Birmingham Jail.\u201d He identified Thomas Aquinas as his source for the idea that \u201can unjust law is a human law that is not rooted in eternal law and natural law,\u201d and that \u201ca just law is a man made code that squares with the moral law or the law of God.\u201d<\/p>\n

As Congress passed landmark civil-rights legislation in the nineteen-sixties, the contest in the Supreme Court over natural law moved to concepts of autonomy and privacy. In 1965, the Court held, in Griswold v. Connecticut, that the application to married couples of a criminal ban on contraceptives was unconstitutional because of a fundamental right to privacy that was not laid out in specific words of constitutional text. Justice William O. Douglas, largely regarded as one of the most liberal Justices in history, wrote for the Court, which found the right in \u201cpenumbras, formed by emanations\u201d from a number of Bill of Rights provisions. His fellow liberal Justice Arthur Goldberg pointed to the Ninth Amendment, which provides that \u201cthe enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.\u201d Justice John Marshall Harlan\u00a0II, a conservative, took a more moral-philosophical approach, saying that a law that \u201cviolates basic values \u2018implicit in the concept of ordered liberty\u2019\u00a0\u201d violates the Fourteenth Amendment\u2019s due-process clause. In an earlier case, Harlan had explained that \u201cdue process has not been reduced to any formula; its content cannot be determined by reference to any code.\u201d The meaning of \u201cliberty,\u201d he wrote, \u201ccannot be found in or limited by the precise terms of the specific guarantees.\u201d The meaning of the Constitution, in his view, was found in its broader purposes, not its text.<\/p>\n

In the Griswold majority, the splits among Justices about the legal basis for the right to privacy revealed how contested it was from the start. In a dissent, the liberal Justice Hugo Black, who had prefigured modern originalism by several decades by championing plain text and original intent, rebuked his colleagues for relying on a \u201cmysterious and uncertain natural law concept\u201d\u2014much as Justice Iredell had critiqued Justice Chase in the eighteenth century. But the right to privacy flourished. Justice Harlan\u2019s approach to substantive due process became the foundation for Roe v. Wade, which declared that, although \u201cthe Constitution does not explicitly mention any right of privacy,\u201d the right in the Fourteenth Amendment was \u201cbroad enough to encompass a woman\u2019s decision whether or not to terminate her pregnancy.\u201d<\/p>\n

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The conservative legal movement\u2019s reaction to the fundamental-rights decisions of the sixties and seventies was to cry foul\u2014accusing the Court of declaring those rights to be based on judges\u2019 moral values rather than a neutral and fair reading of law. The concern was not limited to conservatives. One of the most important liberal constitutional scholars, John Hart Ely, who was pro-choice, called Roe \u201ca very bad decision\u201d because \u201cit is not<\/em> constitutional law and gives almost no sense of an obligation to try to be\u201d\u2014a line that became useful fodder for Justice Samuel Alito in overruling Roe, in 2022.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

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During his 1991 confirmation hearings, Clarence Thomas\u2014who had trained for the Catholic priesthood and praised the use of natural law to support a fetal right to life\u2014told the Senate Judiciary Committee that he did not \u201csee a role for the use of natural law in constitutional adjudication.\u201d Senator Joseph Biden, the Democratic chair of the committee, and also a Catholic, said the quiet part out loud, stating approvingly that the Supreme Court\u2019s due-process cases protecting rights to contraception and interracial marriage were<\/em> natural law. Those cases exemplified what the liberal legal theorist Ronald Dworkin defended as a \u201cmoral reading of the Constitution.\u201d Though natural law was considered a \u201cparticularly dreaded\u201d label, Dworkin wrote, he admitted that if \u201cany theory which makes the content of law sometimes depend on the correct answer to some moral question is a natural law theory, then I am guilty of natural law.\u201d<\/p>\n

Liberals kept faith with the Court\u2019s unfolding progression of liberal rights, but they grew more defensive about trafficking in natural law. This was aggravated by the florid language of Justice Anthony Kennedy, the Republican-appointed Justice who authored decisions which often sounded mystical, metaphysical, or downright cheesy. In Planned Parenthood v. Casey, which reaffirmed the core of the abortion right, a line attributed to Justice Kennedy waxed: \u201cAt the heart of liberty is the right to define one\u2019s own concept of existence, of meaning, of the universe, and of the mystery of human life.\u201d In Lawrence v. Texas, striking down a law criminalizing gay sex, Kennedy extolled the \u201cliberty of the person both in its spatial and more transcendent dimensions.\u201d In Obergefell v. Hodges, which required states to recognize same-sex marriage, he leaned even more heavily on language resembling nineteenth-century opinions expounding the nature of things. \u201cThe nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality,\u201d he wrote, adding, \u201cMarriage responds to the universal fear that a lonely person might call out only to find no one there.\u201d In dissent, Justice Antonin Scalia, assailed Kennedy\u2019s \u201cshowy profundities\u201d as \u201cprofoundly incoherent,\u201d and declared that \u201cthe world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law.\u201d<\/p>\n

Justice Scalia\u2019s defining \u201cshtick\u201d (as he called it) was the original public meaning of the plain text of the law. In one of his last speeches, in 2016, Scalia alleged that Justices in the Obergefell majority were acting as they believed natural law required. A famous Catholic, Scalia attacked the Catholic theologian Aquinas\u2019s statement that, \u201cif the written law contains anything contrary to the natural right, it is unjust and has no binding force.\u201d \u201cHorrors!\u201d Scalia said. He recoiled at \u201chuman judges setting aside positive law because they believe it contradicts natural law\u201d\u2014precisely what he thought the Court did in striking down democratically enacted laws as violating fundamental rights not in the written Constitution.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

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Scalia and others conservatives\u2019 insistence that a sine qua non of legal interpretation was leaving moral values at the door made many lawyers loath to admit that morality was central to legal interpretation, lest they confirm allegations of lawlessness and illegitimacy. Some prominent liberal legal scholars even attempted to defend substantive-due-process rights using originalist and textualist methods. In a speech in 2010, Justice David Souter (for whom I clerked) rightly emphasized how \u201cegregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments.\u201d But performing fealty to that na\u00efve and impoverished picture of judging had become nearly de rigueur for both liberals and conservatives. Elena Kagan stated, during her Supreme Court confirmation hearing later that year, \u201cWe\u2019re all originalists now\u201d\u2014signalling at least some acceptance of conservatives\u2019 preferred judicial constraints. In 2023, Justice Kagan disclaimed the line as a \u201cstupid sound bite\u201d that had been taken out of context; she hadn\u2019t meant that the Constitution should be forever bound to the original meaning of its plain text, but rather that the view that \u201cconstitutional meaning evolves is consistent with the actual, original meaning of what the document is meant to do.\u201d Kagan went on to say, in 2015, \u201cI think we\u2019re all textualists now,\u201d but, in 2022, wrote, \u201cI was wrong,\u201d in a dissent in West Virginia v. E.P.A, chastising her conservative colleagues for being \u201ctextualist only when being so suits it.\u201d Many liberals had been disciplined to adopt methods that purported to strictly confine legal interpretation, only to discover that their most prominent adherents, whether covertly or unconsciously, had other plans.<\/p>\n

So, it was deeply refreshing when, in his 2020 essay \u201cBeyond Originalism,\u201d and his 2022 book, \u201cCommon Good Constitutionalism,\u201d Adrian Vermeule (a colleague of mine at Harvard Law School, and a friend) urged conservatives to ditch originalism and embrace the classical legal tradition of Aquinas; he made no bones about the central role of natural law in legal interpretation. Now that legal conservatism has \u201cthe upper hand\u201d in the courts and is no longer \u201ca beleaguered and eccentric view,\u201d he deems originalism to have \u201coutlived its utility,\u201d and calls for a constitutionalism \u201cless tied to tendentious law-office history and endless litigation of dubious claims about events centuries in the past.\u201d Vermeule\u2014a former clerk for Scalia\u2014proposes that conservatives should read the Constitution\u2019s ambiguous phrases and general structure in an openly moral way, drawing on principles grounded in the nature and purposes of government.<\/p>\n

Vermeule draws, in part, on Dworkin\u2019s view that constitutional standards are explicitly moral, and that phrases like \u201cliberty,\u201d \u201cdue process,\u201d and \u201cequal protection\u201d should be interpreted in light of moral principles of justice and fairness embedded in the law. What Dworkin called a \u201cmoral reading of the Constitution\u201d has upheld principles of privacy and autonomy and justified rights to abortion and same-sex intimacy, as requirements of fundamental justice. But in \u201cCommon Good Constitutionalism,\u201d Vermeule rejects the \u201cconventionally left-liberal and individualist bent\u201d of those liberal commitments. His constitutional interpretation opposes what he called \u201cthe relentless expansion of individualistic autonomy\u201d represented in the cases championed by liberals; it supports unborn children\u2019s right to life and recognizes that marriage is only between a man and a woman. Under Vermeuele\u2019s vision, he writes, Casey\u2019s right to \u201cdefine one\u2019s own concept of existence, of meaning, of the universe, and of the mystery of human life\u201d would be \u201cstamped as abominable, beyond the realm of the acceptable forever after.\u201d<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

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The stark disagreements over the moral values underlying our legal tradition are no reason for liberals to disavow a moral approach to legal interpretation. Quite the opposite. Liberals should take a page from Vermeule just as he has taken a page from Dworkin, and reclaim the interpretation of law explicitly in terms of moral values. Despite the abundant criticism of the Trump Administration\u2019s actions as unconstitutional, many of the Administration\u2019s most disturbing policies have conformed to the law. Claims about unconstitutionality are often arguments about what the law should be in light of our legal tradition\u2019s higher principles of justice. This is not a time for liberals to cede the field of disputation over natural law\u2019s meaning or \u201cthe common good.\u201d A moral reading of legal obligations and rights should not become a conservative monopoly, any more than it was ever alleged to be a liberal one.<\/p>\n

In April, in a speech in honor of the two-hundred-and-fiftieth anniversary of the Declaration, Justice Thomas laid claim to the document\u2019s foundation of natural, unalienable rights, \u201cthe moral principles by which Frederick Douglass, Abraham Lincoln, and Martin Luther King, Jr., could criticize the institutions of slavery and segregation.\u201d We should remember that the American natural-law tradition belongs to all of us\u2014including progressives and conservatives, religious and secular readers of Aquinas, advocates and skeptics of liberal rights. Our struggles for justice, from the Declaration to today, have been fights over natural-law principles. That is the ghost in the machine. Whether or not we acknowledge it, the nation\u2019s birthday is a timely celebration of natural law. Reading words in legal texts divorced from fundamental moral values will not save us from tyranny.\u00a0\u2666<\/p>\n

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From slavery to abortion, conservatives and liberals alike have reached for \u201cnatural law\u201d to resolve many of the country\u2019s most important cases. But, in recent years, the balance has shifted. 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