In an essay for Anchoring Truths, Michael Hayes argues that the textualism relied upon by originalist jurists is insufficient to reverse decades of progressive victories in the culture war. Instead, he posits that only natural law arguments that accurately account for human nature will be effective at advancing a true alternative view of the law and its relation to social mores. While originalism may succeed at deconstructing the quite shaky legal architecture which surrounds most of “substantive due process”, it does little to account for the problem of unenumerated rights, which while not appearing in the text of the Constitution are retained by the individual nonetheless. Only a proper conception of natural law can supply a vision to fill this gap.
Below are some excerpts. Read the whole article here.
“All this is well and good. Originalism can thus be used to fight against unreasonable and innovative legal interpretations. But it cannot help us answer the ultimate question that the Court’s substantive due process precedents have raised. Namely, what purported individual rights, whether or not guaranteed by statutory or Constitutional language, does the government lack the power to restrict?
When we focus on this deeper question – what rights the individual retains against the state – we can see that the originalists’ attack on substantive due process is largely academic. As Justice Thomas has long recognized, the fact that a purported individual right cannot be found in the text of the Fourteenth Amendment’s due process clause does not mean that it does not exist. Perhaps these purported rights are protected by the original public meaning of the Fourteenth Amendment’s privileges and immunities clause, as he and others have suggested. But perhaps not. In any case, the fact that the Constitution is silent on a purported right does not mean that such a right does not exist, or that it can be infringed upon by the state.”
“Unless we want to abandon the notion that courts can limit the state’s infringement upon natural rights (i.e., those not expressly protected by statutory or Constitutional language), we must begin to make moral arguments, based on natural law, to defend the rights we seek to protect. We must explain how these rights are based in human nature, which entails articulating and defending a true account of human nature, as opposed to its modern, secular counterfeits. Originalism can push back against faulty textual analysis, but it cannot explain what natural rights, if any, ought to be secured against government infringement.”