Jack Balkin, Justice Thomas, and the Embarrassing Natural Law

Here is an interesting post by Yale Law Professor Jack Balkin, "Is Belief in Natural Law an 'Embarrassment'?"  First, some back-story:  A few days ago, Nevada Senator (and Senate Minority Leader) Harry Reid told "Meet the Press" that, while Justice Antonin Scalia is quite smart, Justice Clarence Thomas is an "embarrassment to the Supreme Court."  "I think that his opinions are poorly written," Reid continued (exposing himself as an ignoramus, if not a trafficker in racial double-standards).

Next, Kevin Drum explained, on the Washington Monthly's blog, that Justice Thomas is indeed an "embarrassment," because he believes that "that our rights come not from government but from a 'creator' and 'the laws of nature and of nature's God,' as our Declaration of Independence says, and that the purpose and power of government should therefore be limited to protecting our natural, God-given rights."

Professor Balkin -- no fan of Justice Thomas's approach to the Constitution -- responds:

I don't think that one's position on natural law matters one way or the other about whether one is doing one's job as a judge well or badly. The real question, it seems to me, is what you think natural law ideas mean for Constitutional interpretation as a practical matter.

It's quite possible to take the view that the best interpretation of the Constitution is one that which comports with natural law, and that the Framers' understandings are defective, because the Framers supported a wide variety of practices that are inconsistent with natural justice. Similarly, it's entirely possible to believe in natural law and in the idea that the application of moral principles must change with changing circumstances, and hence, that the best interpretation of the Constitution must also change accordingly. Finally, it's possible to be a legal realist about the mechanics of judging-- that is, that judicial decision is inevitably influenced by surrounding historical, political, and social conditions, and that judges are sensitive to underlying facts rather to abstract doctrinal formulas-- and still believe that the best interpretation of the Constitution is one which conforms to one's notion of what natural law requires.

Interesting.

Rick