Natural Law, Thomas Aquinas, and Clarence Thomas

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I finished up my classes today by looking at Thomas Aquinas on natural law, and it occurred to me that a famous proponent of natural law today served as a good example to illustrate one of Aquinas' points. Aquinas doesn't think every moral conclusion that we can derive from natural law should be enforced by human law. He says the moral principles most worth enforcing are those that involve serious, especially potentially-widespread, harm. Almost any natural law theorist is going to see harm to yourself as immoral, but Aquinas wouldn't see that as a good reason to prohibit it by human law. He also says it's not genuinely a law without promulgation, which includes enforcement to motivate compliance.

As I was talking about this in class, I remembered Clarence Thomas' hilarious dissenting opinion in Lawrence v. Texas from 2003 and mentioned it as an example. Texas had laws against same-sex sodomy that no one ever enforced. Cops investigating a serious crime followed a lead and legally invaded a home that they suspected their target was living in. They were wrong. He'd moved, and a gay couple now lived in that home. The police stumbled in on the two men in the process of an illegal sex act. They promptly arrested them, and the two men sued in a case that got to the Supreme Court. Did this law violate these men's constitutional rights by this law?

Thomas' opinion is priceless, and my summary of it got some audible laughs from students who don't normally show much interest in any class content. He says it's not unconstitutional for the reasons given in Justice Scalia's dissenting opinion. The reason he wrote separately was not to change anything from what Scalia had said. He wrote a separate dissent to make it clear that he thought the Texas law was stupid, and that's exactly the word he used. He wanted it on record that he wasn't voting to uphold the constitutionality of the law because he thought the law was a good law. He didn't. He just didn't think it was the place of the U.S. Supreme Court to tell state legislators what to do on such matters. The law itself, however, was a stupid law. It's largely unenforceable, and any enforcement will be so sporadic that it will have hardly any deterrent value anyway. This is exactly what you'd expect of a natural law theorist in the tradition of Thomas Aquinas. Aquinas insists that there shouldn't be human laws of this sort.

I decided to take a look at the Wikipedia entry for Justice Thomas to see what it might say about natural law, and it says the following:

Whereas Thomas' earlier writings had frequently referenced the legal theory of natural law, Thomas distanced himself from that controversial stance during his confirmation hearings, giving the impression that he had no views. Thomas himself later asserted in his autobiography that in the course of his professional career, he had not developed a judicial philosophy.

What he actually did at his hearings (and yes, I just reviewed the transcripts to be sure I was getting it right) was to point out the difference between (a) thinking natural law is the basis of why it's good policy to have certain constitutional rights and (b) thinking we should look to natural law rather than to the Constitution's positive rights when deciding matters of constitutional law. Thomas had long endorsed (a) and never endorsed (b), and what the entry describes as his distancing himself from his previous natural laws views was really his denial of (b), something natural law theory doesn't imply anyway. When he says he had no judicial philosophy in his book, that doesn't mean he hadn't ever developed a view on the foundations of ethics, which is what natural law theories are. Not having a comprehensive judicial philosophy does not mean having no meta-ethical views.

Of course, if I changed the entry and gave as an explanation the fact that this is what natural law theory states, especially if I indicated my credentials as a philosopher, it would be rejected as original research. Wikipedia is the only place in the world where actual expertise on an issue counts against you in terms of recognition as the sort of person who can say something authoritative. It only would allow this if I had written it in a book or something and if someone who had no expertise on the issue had read it in that book and cited it. The best I could do is mention it in the discussion page for the article and hope someone who isn't a philosopher might be convinced and thus change it.

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