William Baude’s recent lecture “Beyond Textualism?” has been making the rounds in conservative circles, including a response here from Adrian Vermeule and Connor Casey welcoming Baude’s agreement that the natural law would have been accepted as “unwritten law” among the Founders. Baude has responded on Twitter that his position is not new and in fact remains originalist.
Now I’m just a caveman patent lawyer, not a constitutional law professor—their world frightens and confuses me! But it seems to me that the dispute can be summarized in the following manner: Baude would accept natural law jurisprudence because the Founders interpreted their own law against that background, and therefore it is a valid interpretive principle today as well. In contrast, Vermeule and Casey would say to apply natural law principles because they are true and accurate principles of law, regardless of whether the Founders applied them or not. The first version is positivism (though perhaps of a Pickwickian kind), whereas the second is natural law.
And if that is the case, I will confess that in my younger days as a law student I would have taken Baude’s side. There is an attraction to it for lawyers of a conservative bent: “It is not I who have taken this or that position that seems at odds with general public mores today, but we must apply the law that was publicly enacted by the Founders. We cannot contravene their law, can we? And unless you change the law, well, you have to accept these essentially conservative positions of the law.”
However, this allows a person to escape responsibility for the outcomes of the law. You can tell your friends and colleagues that you really do personally think that abortion, for example, should be permissible by the law, but, well, that’s not what the Constitutional text says. In other words, adopting the positivist position allows one to hide primary arguments on whether this or that should be legal or tolerated and relies on secondary arguments about historical minutia—which just so happen to support your moral preferences most of the time.
I converted to the side of Vermeule and Casey because the foundation of American law in the classical legal tradition is accurate both from jurisprudential and historical bases. Historically, as Baude appears to concede, such is what the Founders themselves understood. But they adopted the classical legal tradition and its background principles because they believed such principles were actually law, not because they thought someone else at some other time believed these principles were actually law. This is an important distinction because jurisprudentially, reliance on the natural law and interpreting law against the background of the common good reflect a proper application of moral principles to the law. As one example, I have sketched out here at I&I how such principles of the classical legal tradition apply to patent and copyright law, with particular reliance on Justice Story’s use of the natural law and understanding of the common good in these contexts. Story did not do this because he thought he was bound by the Founders’ understanding of natural law to interpret the Constitution or statutes; he did so because he thought this was the obvious and only way to interpret such texts in view of the common good. The Founders and Story were operating in the same tradition, so there was no need to ask whether the Founders “originally” intended that tradition to apply. Doing otherwise permits the legal escapism I’ve described above.
Perhaps Baude and Vermeule and Casey would in practice arrive at the same place on almost all applications of the natural law to modern legal controversies, though I have my doubts. As I have written reliance on “history and tradition” to insert the natural law into contemporary American jurisprudence is merely an “attempt to adopt some of the historical rights (or not) found in the natural law and based in the common good without adopting the logical basis for those decisions.” The failure to adopt the underlying natural law and principles of the classical legal tradition leaves such decisions exposed to changes in historical circumstance, knowledge, or interpretation. Rather, we should accept no substitutes: The natural law and classical legal tradition should be applied because they are true to the Western legal tradition, not merely historically convenient.
