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Monday, April 11, 2022

Natural Rights and SCOTUS

Aaron Blake at WP:
In questions for the record released after her confirmation hearings, [Judge Katanji Brown]  Jackson declined to take a position on whether people have so-called “natural rights.”

Here’s the Q&A with Sen. Ted Cruz (R-Tex.):

Q: Do you hold a position on whether individuals possess natural rights, yes or no?
JACKSON: I do not hold a position on whether individuals possess natural rights.

Some conservative legal pundits highlighted the answer Friday, with the National Review writing that Jackson “doesn’t embrace the basic American creed set forth in that passage from the Declaration” of Independence. Cruz followed that up by calling it “stunning.” The conservative group FreedomWorks on Monday called the answer “unreal.” And Sen. Charles E. Grassley (R-Iowa) on Monday cited the answer as part of his rationale for voting against Jackson at a hearing Monday.


The last time this concept took the main stage in Supreme Court confirmations was the late 1980s and early 1990s, when it came up in the hearings of Robert Bork and Clarence Thomas. And the two Republican nominees actually took opposing views on it.

Bork argued for a strict adherence to the text of the Constitution — an original-intent judicial philosophy that made no space for the concept of natural rights, or at least for their role in jurisprudence. Specifically, Bork rejected the idea that the Ninth Amendment (that “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”) conferred a right to privacy — which the court used to grant the right to an abortion in Roe v. Wade. In a 1990 book after his nomination was defeated, Bork linked the natural-rights approach to a dangerous “impulse to judicial authoritarianism.”

Thomas, though, had spoken extensively about the role of natural rights in the law before his 1991 confirmation hearings. In a 1987 speech, he praised an article that said a fetus had an inalienable right to life guaranteed by the law of God in the Declaration of Independence. Thomas called it a “splendid example of applying natural law.”

The divergent approaches were spotlighted by none other than a senator by the name of Joe Biden, who was then the chairman of the Senate Judiciary Committee. In a lengthy Washington Post op-ed on the topic, Biden wrote:
No issue divided Judge Bork and me as much as this single question: Are there fundamental rights — not explicit in the Constitution — that are protected by that document? My answer to that question, relying on principles of natural law, was an emphatic “yes” — a view that Judge Thomas, who has sharply criticized Judge Bork’s original-intent jurisprudence, appears to share.