I happen to have copies of the Natural Law Institute’s proceedings held at the University of Notre Dame. There are five volumes covering the years 1947-1951. This series will be unsystematic notes and quotations from the published proceedings.
From “The Natural Philosophy of the Founding Fathers”
The Constitutional structure of US law provides a remarkable power to the individual which stands in direct opposition to democratic, majority rule. This essay begins with the lawsuit of five brothers who successfully obtain a decision overturning the “National Industrial Recovery Act”, a fundamental restructuring of the economy. This is remarkable in legal regimes. This decision is an example of
The practical importance of natural law to the citizen of the United States. Nowhere else in the world of 1935 could individual citizens of any states challenge and set aside an official act of their Government on the theory that such act violated the citizens’ reserved personal rights. (4-5)
It seems that the difficulty of this unique aspect of American law is a live-issue at present. Freedom of speech sets the individual against the majority; with the majority (or at least the most politically demanding minority) acting to limit the speech of others. The question, “How can these few others challenge the right of the majority to do as it pleases?” is a common political argument.
The right of the individual to limit the power of the majority exists within our constitutional system. The question thus raised, how can such anti-majoritarian right be justified:
If our system of constitutional limitations is an end in itself, it is defensible only as a tradition and the sands of purely traditional values are rapidly running out today. On the contrary, if the letter of these limitations is merely insulation from a well defined concept of man’s inherent and imperishable nature, then a knowledge and evaluation of this concept is and must be required of every American judge and all American lawyers whose terrible and continuing responsibility it is to uphold and defend our presently besieged system of American Law. (6)
Before I consider this essay further, some questions come to mind: The majoritarian argument (at least for a distinct advocacy group) is making an argument which is based upon a very different metaphysics of “human nature” than is used in this quotation.
As a preliminary thought, I think an argument can be made that those who oppose the concept of an “inherent and imperishable nature” are still arguing metaphysics and also a kind of natural law. Arguments which are based in “sexual liberty” or “choice” or “fairness” or “love” are making natural law arguments based upon a distinct metaphysics and moral theory. They are certainly not bare positive law arguments (although they may later be defended upon positive law grounds).