In a rather snarky piece in The Atlantic, author Anthony Murray questions whether or not a Supreme Court justice who believes in “natural law” (quotations marks are Murray’s) can make sound rulings. Murray is especially worried about cases involving the HHS mandate such as Conestoga Wood Specialties Corp. v. Secretary, etc. and Hobby Lobby Stores, Inc., et al. v. Sibelius.
Murray misunderstand natural law. He believes it to be religious, and frantically scrambles through the words of Thomas Jefferson in order to prove his point. Rather, he says, the framers of the Constitution rely on “positive law:”
If natural law were regarded as simply a religious creed, it would not conflict with the positive laws embedded in our Constitution and laws. The threat lies in the use of natural law by courts in judicial decisions. Invoking it in construing the Constitution and statutes raises an obvious question: If natural law exists, what is in it? Is it a blank slate on which anyone may write subjective beliefs? Does it include religious dogmas? If so, of what religions? (more…)