FINDING NATURAL LAW: WHERE DO YOU LOOK FOR HIGHEST COURT

Why all of the fuss about Judge Clarence Thomas and his romance with natural law? Of natural law Thomas say, "The natural law background of the Constitution... provides the only firm basis for a just, wise, and constitutional decision." In our nation, we labor under the delusion that somehow our judges are superhumans who make their decisions in an antiseptic, morally neutral environment totally separated from their own personal background and values. It is, in the final analysis, a myth, but we enjoy it so like the one about George Washington standing up in the boat as he crossed the Delaware.

At the same time, we somehow would like to give our judges some guidance in determining the scope of our Constitution's open-ended provisions. For much of the 19th century, natural law was the pretense that provided our judges with "eternal and immutable" truth.

The Declaration of Independence, which was our indictment against the cruelties of our English oppressors, refers both to natural an to man-made law as well as to anything else that might help add zest to the revolutionary cause. Our subsequent Constitution which established the powers and structure of government, deleted all of the "beat the Tories" language and with it all references to natural law. It was one thing for Jefferson to write a statement to rally the troops; it was another thing for Madison and Hamilton to write a charter of governance.

But natural law as a concept lingered through much of the 19th century causing some troubled consciences on issues like slavery. John C. Calhoun invoked natural law to "prove" the inferiority of blacks. Wendell Phillips, the great abolitionist, threw up his hands in dismay "because nature no longer spoke with a single voice; only the judge's conscience ultimately determined the source of right."

Natural law became just about anything a judge wanted to say it was. Natural law was invoked to include the right to brew beer at home. Justice Joseph Bradley used natural law to deny the right of a woman to be a lawyer. "The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman ... The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." Natural Law "the nature of things" was used to support the infamous "separate but equal" doctrine in Pleasy v. Ferguson.

As Americans, we can reason about moral and ethical issues. It is a delusion to assert that there is a handy mechanism to determine absolute, eternal truth. Natural law is not an impersonal source. It is not like using the old scale in the drug store where you put in a penny and life's answers came out on a little card.

Judge Thomas can pledge "I'm there to take the cases that come before me and to do the fairest, most open-minded, decent job I can as a judge." We can believe he is sincere in articulating this bromide.

But it is an inescapable role of the Supreme Court to define and impose constitutional values. Since natural law does not provide an ascertainable, impersonal value source, then Justice Thomas will do what every other Supreme Court Justice has done. He will try to do his version of "the right thing" he will impose his own developed values. Frustratingly, there's no other way.