The commercials for the beverage Tropicana Twister tell us that it's "unnatural," combining fruit-juice flavors in ways that "Mother Nature never intended." Judging from press coverage of Clarence Thomas's judicial philosophy, there's a good chance that the Supreme Court nominee wants to ban Tropicana Twister and implement strict segregation of fruit juices.
The head scratching over what Thomas means when he refers to natural law and natural rights indicates widespread confusion about the principles on which this nation was founded. The news media have made Thomas out to be some sort of weirdo because he proposes to apply those principles in interpreting the Constitution. There are legitimate questions about how judges should go about doing this—what sources they should consult, what rules they should follow, what analysis they should apply. But most commentators have instead focused on the strangeness of the notion, expressed in the Declaration of Independence and the Ninth Amendment, that rights do not come from governments.
This emphasis arises from a dilemma of many left-liberals: They don't really believe that rights depend on written law; they know, for instance, that slavery was just as wrong in ancient Rome or the antebellum South as it is today. But at the same time, they reject the idea of a higher law as old-fashioned and tinged with religion. The subhead of a story in US News & World Report asks, "Would Justice Thomas put God on the bench?" The Village Voice declares, "Clarence Thomas Isn't Just a Conservative, He's From the 18th Century." Such reports give the impression that Thomas is a Bible-thumping reactionary who wants to impose his own standards of behavior on all Americans.
Part of the problem is that journalists and their sources tend to conflate the idea of natural law with specific beliefs about what is "natural" or "unnatural." Hence the Voice article suggests that anyone who believes in natural law must want to ban abortion, birth control, homosexuality, and indecent speech. Thomas, opines US. News, "will provoke a firestorm of opposition if he suggests that practices such as birth control or homosexuality are 'unnatural' and, thus, not protected."
Harvard law professor Laurence Tribe, who certainly knows better, shamelessly plays on such fears in a New York Times op-ed piece: "Natural law has most often been cited to justify moralistic intrusions on personal choice—as illustrated by Chief Justice Warren E. Burger's appeal to 'Judeo-Christian moral and ethical standards' in Bowers v. Hardwick, a 1986 case condemning oral and anal sex between consenting adults in private."
But what exactly is wrong with the Georgia sodomy law that the Supreme Court upheld in Bowers? To argue that it's unconstitutional, one must rely on a theory of rights that goes beyond the explicit wording of the Constitution—a theory in which rights predate and transcend the document itself. In short, one must rely on natural law.
The Voice obscures this point by trying to make a false distinction between natural law and natural rights. It identifies the former with Thomas Aquinas and the retrograde notion that "there are absolute standards of right and wrong," the latter with John Locke and the Founders. But natural rights and natural law are part of the same framework: You can't have one without the other.
The Voice article inadvertently illustrates the problem of trying to separate the two concepts. The authors are puzzled by the fact that Thomas, who cites the bad, medieval Aquinas in his writings, "inexplicably" quotes good, progressive Martin Luther King, Jr., as well: "A just law is a man-made law that squares with the moral law or the law of God.…An unjust law is a human law that is not rooted in eternal law and natural law." King could have explained the link; he was paraphrasing Aquinas.
This article originally appeared in print under the headline "Natural Mistake".