Natural Law Jurisprudence in U.S. Supreme Court Cases since Roe v. Wade

Charles P. Nemeth

Description

Legal theoreticians, philosophers and scholars in law and morality; Catholic, Christian and Orthodox Jewish legal thinkers; legal practitioners; law students; undergraduate and graduate students in legal studies, law and philosophy, law and society, political science and judicial process

Since America’s founding, natural law principles play a critical role in the development of rights and human dignity. Commencing with the notion that rights are derived from a higher, metaphysical power over mere promulgation and human legislation, the natural law advocate sees law and human rights in the context of a more perpetual and perennial philosophy. Coupled with this is the view that natural law provides a series of undeniable precepts for human operations or a natural prescription for human life based on the natural order.

Hence early court cases tend to emphasize the “natural” versus the unnatural and just as compellingly argue that the natural order, aligned with the eternal law, delivers a measure for human action. Earlier US Supreme Court cases often use this sort of language in granting or denying rights in certain human activity. As a result, a survey of some of the most significant landmark cases from the Supreme Court are assessed in Natural Law Jurisprudence in U.S. Supreme Court Cases since “Roe v. Wade” and, by implication, those cases which seem to disregard these fundamental principles, such as the slavery decisions, are highlighted.

Preface; Acknowledgments; 1. A Short Summary of the Natural Law Tradition Natural Law Predecessors: A Short History; 2. The Content and Substance of the Natural Law Natural Law Jurisprudence and Its Principles; 3. Natural Law and Abortion: A Post- Roe Evaluation Background and History; 4. Natural Law and the Supreme Court: Sexuality, Sexual Attraction and Procreation; 5. Natural Law and the Supreme Court: Suicide, Euthanasia and Mercy Killing; 6. Natural Law, Religious Expression and the Freedom to Believe; Index.

Sujets

• Catholicisme
• Jurisprudence
• LAW
• Droit et juridique
• PHILOSOPHY

Informations

• Publié par: Anthem Press
• Date de parution: 20 février 2020
• Nombre de lectures: 0
• EAN13: 9781785272073
• Langue: English

Extrait

Natural Law Jurisprudence in U.S. Supreme Court Cases since Roe v. Wade
Natural Law Jurisprudence in U.S. Supreme Court Cases since Roe v. Wade
Charles P. Nemeth
Anthem Press
An imprint of Wimbledon Publishing Company
www.anthempress.com
This edition first published in UK and USA 2020
by ANTHEM PRESS
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Copyright © Charles P. Nemeth 2020
The author asserts the moral right to be identified as the author of this work.
All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Library of Congress Control Number: 2019955036
ISBN-13: 978-1-78527-205-9 (Hbk)
ISBN-10: 1-78527-205-5 (Hbk)
This title is also available as an e-book.
To my son Joseph Aloysius who is blessed with a bright intellect and wonderful future in the law. And he is sure to carry on the natural law tradition.
To St. Thomas Aquinas who remarked,
Now laws are written for the purpose of manifesting both these rights, but in different ways. For the written law does indeed contain natural right, but it does not establish it, for the latter derives its force, not from the law but from nature: whereas the written law both contains positive right, and establishes it by giving it force of authority.
Hence it is necessary to judge according to the written law, else judgment would fall short either of the natural or of the positive right. (St. Thomas Aquinas, Summa Theologica , II-II, Art. 5, sed. Contra.)
CONTENTS
Preface
Acknowledgments
1 A Short Summary of the Natural Law Tradition
Natural Law Predecessors: A Short History
Ancient and classical vision
Early medieval legal thought on the natural law
Medieval conceptions of the natural law
St. Thomas Aquinas on the natural law
Law as the rule and measure of reason
Law as an instrument of the common good
Law as good and end
Law: The supremacy of reason over will
Law and its correlation to virtue
Law is hierarchical
Conclusion
2 The Content and Substance of the Natural Law

Natural Law Jurisprudence and Its Principles
The various kinds of law
The eternal law
The natural law
The content of the natural law
Secondary precepts of the natural law
Self-preservation
Procreation and sexual attraction
Family and care of offspring
A social, communal life
Belief in a deity
The divine law
The human law
The necessity of human law
Human law is derivative
Conclusion
3 Natural Law and Abortion: A Post-Roe Evaluation

Background and History
Roe v. Wade , 410 U.S. 113 (1973)
History and tradition in Roe v. Wade : A natural law inclination without natural law application
Roe v. Wade and the natural law: Potentiality, actuality, personhood and self-preservation
Doe v. Bolton , 410 U.S. 179 (1973)
Thornburgh v. American College of Obstetricians and Gynecologists , 476 U.S. 747 (1986)
Viability and self-preservation
Care of offspring
Webster v. Reproductive Health Systems , 492 U.S. 490 (1989)
Viability, personhood and self-preservation
Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833 (1992)
Viability, personhood and self-preservation
Informed consent, self-preservation and viability
Family and care of offspring
Minor’s consent
Spousal consent
Stenberg v. Carhart , 530 U.S. 914 (2000)
Self-preservation, viability and personhood
Gonzales v. Carhart 550 U.S. 124 (2007)
Family and care of offspring
Summary and Conclusion
4 Natural Law and the Supreme Court: Sexuality, Sexual Attraction and Procreation

Bowers v. Hardwick , 478 U.S. 186 (1986)
Bowers: The law of nature and the natural law
Bowers: Family, procreation and the natural law
Romer v. Evans , 517 U.S. 620 (1996)
Romer: Moral tradition, family and the natural law
Boy Scouts of America v. Dale , 530 U.S. 640 (2000)
Boy Scouts v. Dale : Tradition, natural order and the natural law
Lawrence v. Texas, 539 U.S. 558 (2003)
Lawrence v. Texas : Nature, moral tradition, procreation and the natural law
Obergefell v. Hodges , 135 S.Ct. 2071 (2015)
Obergefell: Nature, procreation, family and care of offspring and the natural law
Conclusion
5 Natural Law and the Supreme Court: Suicide, Euthanasia and Mercy Killing

Vacco v. Quill , 521 U.S. 793 (1997)
Nature, self-preservation and respect for life
Washington v. Glucksberg , 521 U.S. 702 (1997)
Natural law, legal tradition and history
Natural law, self-preservation, family life and the value of every human being
Conclusion
6 Natural Law, Religious Expression and the Freedom to Believe

Marsh v. Chambers , 463 U.S. 783 (1983)
Natural law, legal tradition and religious belief
Employment Division v. Smith , 494 U.S. 872 (1990)
Natural law, religious freedom and belief in a deity
Locke v. Davey , 540 U.S. 712 (2003)
Natural law, free exercise and belief
Christian Legal Society of the University of California v. Leo P. Martinez , 561 U.S. 661 (2010)
The natural law, religious expression and belief
Burwell v. Hobby Lobby Stores , 134 S.Ct. 2751 (2014)
Natural law, religious expression and belief
Masterpiece Cakeshop v. Colorado Civil Rights Commission , 138 S.Ct. 1719 (2018)
Natural Law, belief in a Deity, sexual attraction and procreation
Conclusion
Index
PREFACE
Natural law, as a school of jurisprudence or a means to decide or consider legal cases, is considered by some as nothing more than an emotive reminiscence and by others as a foundational system upon which legal reasoning must depend. To be sure, the once mighty method of natural law scrutiny has seen better and more prolific days. Critics often allege that natural law thinking borders on religious dogmatism or some sort of strange superstition. Those who still see its relevance are caricatured as sentimentalists wishing and hoping for a previous time and an earlier reverence for traditional moral principles. Of course, neither conclusion is correct, even though often argued.
The jurisprudence of natural law, the school and its advocacy, is something far more complicated than the caricature. For most of our legal history and legal tradition, the idea of a “law of nature” or a “natural law” was not so foreign. Indeed, the founders and framers of this extraordinary nation were comfortable with arguing on its behalf—and the Founding documents clearly manifest this hierarchical mindset with a higher more transcendent power reigning above the promulgations of man. 1 Edward S. Corwin’s masterpiece, The “Higher Law” Background of American Constitutional Law , ties these jurisprudential and historical threads together neatly when he claims,

The men we meet in the pages of this essay—Demosthenes, Sophocles, Aristotle, Cicero, Seneca, Ulpian, Gaius, John of Salisbury, Isidore of Seville, St. Thomas Aquinas, Bracton, Fortescue, Coke, Grotius, Newton, Hooker, Pufendorf, Locke, Blackstone—all insisted that the laws by which men live can and should be the “embodiment of essential and unchanging justice,” and we may salute them respectfully as founding fathers of our experiment in ordered liberty. 2
In short, nothing happened by chance in this magnificent republic but instead is the product of a long-standing tradition of human dignity and human liberty, which meant something to the citizenry. Princeton’s esteemed Robert George cogently ties the natural law connection to our nation’s founding documents and its founding fathers—a conclusion that should never be minimized or forgotten. He remarks,

Most modern commentators agree that the American founders were firm believers in natural law and sought to craft a constitution that would conform to its requirements, as they understood them, and embody its basic principles for the design of a just political order. The framers of the Constitution sought to create institutions and procedures that would afford respect and protection to those basic rights (“natural rights”) that people possess, not as privileges or opportunities granted by the state, but as principles of natural law. 3
It would be a tragedy to forget the power and persuasion of the natural law in this nation’s birth and in whatever form the natural law might be construed. For example, the founding fathers display some undeniable affection for Ciceronian naturalism and natural law reasoning quite evident at the time of the American Revolution. In addition, the framers hardly were melded together by a strong, common theology, although most adhered to some sort of higher authority in affairs—both human and divine. In other words, the foundational documents and rationales for America were not strictly based on a theological justification alone but at times were driven toward a natural philosophy that sought to determine what was natural and good for ev