Bret Kavanaugh and Natural Law Theory.

I recall reading somewhere, sorry I forget exactly where, that SCOTUS nominee Bret Kavanaugh believes in natural law theory. (FWIW, here and here are the relevant Wikipedia articles.)

I am a little confused, and I will explain to you why.

For one thing, the right to privacy, as I understand it, is based on natural law, according to past SCOTUS members. When they recognized it in 1965, they said it was a right older than the Constitution itself. They were referring to natural law, weren’t they?

Secondly, original intent judges like Kavanaugh believe in religiously defending the original meaning of the Constitution. In fact, that is usually what they hit everyone else over the head with, when someone criticizes their ruling. The Constitution and nothing else. So how does natural law come into play?

And lastly, I have to mention, our founding fathers were very into natural law and natural rights. And they were often anti-religion. Or at least, anti-established religion. Again, how do original intent jurists like Kavanaugh think they can fall back on natural law and rights?

I will certainly try to find the articles I read, if requested. But I can’t make any guarantees. I mean, could you find every article you recently read?

Also, it has been a while since I took a government or political science class. So I may be rusty on those subjects. So please feel free to correct me where I am wrong.

But I get most of my “education” from the internet now. Don’t we all?

Thank you in advance to all who reply:).


MISSED THE EDIT WINDOW: And BTW, as I have said before on these boards, I sort of believe in natural law. But I don’t believe in original intent, for the most part. :slight_smile:

Where is it said that Kavanaugh is a believer in natural law?

I know I read it somewhere.

It apparently isn’t in the Wikipedia link. I will do a Google search. If that doesn’t work, I will just have to do it some other day. I have stuff to do today.

Gorsuch apparently believes in natural law. I will do some more searches.

(You guys have to believe me, I know I read somewhere that Kavanaugh believes in natural law. After reading that above article though, I do wonder where I could have read that. If anyone else could help me out here, that would be greatly appreciated:).)

This article is interesting. I didn’t read it all the way thru. But it says as a Roman Catholic, Kavanaugh may think a “natural law” trumps even the Constitution. Maybe that is what the article I read meant.

I will do one more search, and that’s it:).

Well, that’s all I can find. But I know I read it somewhere.

If someone can find it, great.

Otherwise, one of the articles I found may be relevant though. Do R. Catholics have priorities that conflict with the U.S. Constitution? As I said, that might have been what the article originally said.

Also, what of natural law and rights and U.S. Constitution? Should it trump the Constitution? And does it?


It’s not that I necessarily disbelieve you, but that’s not how this works.

This one is easy:

No it shouldn’t and no it doesn’t.

Possibly, but not necessarily. Many of our rights are based upon English common law developed from the Magna Carta up until 1776.

Of course, one may ask where English common law got certain rights, but it is much like the debate about where atheists get their sense of morality. I think that at some point everyone reaches for some higher power for their sense of right and wrong, whatever that higher power is.

Not necessary. Plenty of philosophies to reach for before needing to invoke a higher power (e.g. Utilitarianism).

That doesn’t explain purely moral judgments. Society would objectively be safer, for example, if we allowed unfettered searches of people’s homes. The exclusionary rule allows known guilty people to go free to commit more crimes. Those are not practical limitations on government power, but come from a sense of right and wrong.

No, the reason we don’t want unlimited searches is to protect us from the government being the bad guys and harming us. Making sure they have to have a legitimate reason that they can prove in front of a judge is a form of protection. We could restrict them entirely, but we balance that against our need for protection from others.

Don’t get me wrong: the law is informed by morality, but that’s because the law is merely the attempt of the people to codify morality. The main issue with the law is that it can lag behind morality, and people discovering what is naturally moral can lag behind. It takes time for the right idea to propagate.

Also, the right to privacy is inherently implied in the right to protect against unreasonable searches. That seems to me to be the best place in the existing Constitution to hang your hat on not allowing searches of one’s medical history (including abortion) to be governed by the law.

Probably best for another thread but suffice to say that black and white moral prescriptions are few and far between. Even if they come from on high there are usually caveats and gray areas (e.g. thou shalt not kill (except in certain circumstances)).

Oh, and natural law is the basis of our Declaration of Independence. It is the justification we gave for our revolution. So, yes, it must inherently be greater than the laws that were created under it. The Revolution shows that, the fundamental concept of Americanism is that, if the law does not adequately reflect natural law, one is justified in a full on revolution.

And, as I’ve said before, it’s just true. It’s up to the government to make the people feel like they are in control, or else the people may try to take control. That’s the fundamental line between something being a democracy and not being a democracy.

The Declaration of Independence is not law and does not supercede any laws in the US.

To wit:

“We 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.”

How’d that work out for black people and the 3/5 compromise?

Even with the caveats, there is morality to it. If not, why shouldn’t I kill my neighbor for his house or covet his wife’s ass or refrain from stealing? These are moral and not practical judgments.

If we have no laws against these things, then the strong will always oppress the weak, but again without morality, why does that matter?

My original point was you need not look on high to answer moral questions. You can do so easily with “mundane” philosophy. Heck, an atheist would tell you that since there is no god the morality from “on high” is really just a creation of man as well.

How we balance out these moral questions and decisions is what society does.

So, without a higher morality, if I say that rape of children should be legal and you say it should not, then our views are equally valid, no? Subject only to a vote of the majority perhaps?

As a society we agree that raping children is something we find repugnant.

In some societies, today, marrying off child brides to much older men is deemed a-ok. In my book this amounts to rape. In those societies they disagree.

I do not need a higher power to decide what they are doing is monstrous but their society and their higher power think it is all fine and has been for centuries or longer.

EDIT: And while interesting this is all a hijack of this thread. Happy to discuss it elsewhere.