Eduardo Penalver on Natural Law and the Constitution

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Restoring the Right Constitution?
EDUARDO M. PENALVER
Cornell Law School
Cornell Legal Studies Research Paper No. 06-048
Yale Law Journal, Vol. 116, 2007

Abstract:    
After years of relative neglect, the past few decades have witnessed a dramatic renewal of interest in the natural law tradition within philosophical circles. This natural law renaissance, however, has yet to bear much fruit within American constitutional discourse, especially among commentators on the left. In light of its low profile within contemporary constitutional debates, an effort to formulate a natural law constitutionalism is almost by definition an event worthy of sustained attention. In Restoring the Lost Constitution, Randy Barnett draws heavily upon a natural law theory of constitutional legitimacy to argue in favor of a radically libertarian reading of the Constitution. Barnett's important book, and the substantial commentary it has generated, may well help to generate interest in natural law constitutionalism. Unfortunately, his libertarian emphasis on unfettered rights of property and contract is likely to reinforce the notion that natural law theorizing is an activity best left to those on the rightmost end of the political spectrum. It would be a mistake, however, to understand Barnett's libertarian version of natural law constitutional theory as exhausting the possibilities of the tradition. Although Barnett's theory of constitutional legitimacy is infused with language drawn from the broader natural law framework, his "natural rights" theory, as he calls it, actually departs in significant ways from the classical natural law tradition. Moreover, there are substantial reasons to favor a version of natural law with implications for state power that are far more progressive than Barnett's. Nor does Barnett establish, as he attempts to do, that the Constitution itself somehow locks us into a commitment to his libertarian, natural rights version of natural law theory. Indeed, without changing much in Barnett's account, it is possible to convert his theory from one that supports the conservative goal of limiting the power of government, restricting it to the narrow task of facilitating or preserving property and contract rights, into one that justifies a far more progressive view.