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Montesquieu, Judicial Degeneracy, and the U.S. Supreme Court

Natural Moral Law in Contemporary Society, Holger Zaborowski ed., Catholic University of America Press, pp. 285-314, 2010

George Mason Law & Economics Research Paper No. 09-12

46 Pages Posted: 19 Feb 2009 Last revised: 8 Nov 2013

Nelson Lund

George Mason University School of Law

Date Written: February 16, 2009

Abstract

This essay, which is aimed primarily but not exclusively at audiences in the field of philosophy, originated in a lecture prepared for a series on "Natural Moral Law and Contemporary Society" at the School of Philosophy of the Catholic University of America. Using the Supreme Court's sodomy and abortion decisions as introductory examples, the essay briefly discusses the roots of judicial hubris in American constitutional law. The essay then looks more deeply into an institutional transformation rooted in Montesquieu's insight that it is both necessary and impossible to de-politicize the judicial function. The politically moderating role performed by judges in Montesquieu's English constitution does not translate easily into the American system of written constitutions with judicial review. The essay argues that the U.S. Supreme Court is not qualified to correct written human law through appeals to higher laws, including the natural moral law, and that this conclusion is consistent with the understanding of law both in our Constitution and in St. Thomas Aquinas' Summa Theologica.

Keywords: Alexander Bickel, Alexis de Tocqueville, Dred Scott, English common law, Fourteenth Amendment, John Locke, Justice Anthony Kennedy, Justice Roger Taney, Lawrence v. Texas, Roe v. Wade, self-evident truths, substantive due process

JEL Classification: A13, B15, B25, B30, B31

Suggested Citation

Lund, Nelson, Montesquieu, Judicial Degeneracy, and the U.S. Supreme Court (February 16, 2009). Natural Moral Law in Contemporary Society, Holger Zaborowski ed., Catholic University of America Press, pp. 285-314, 2010; George Mason Law & Economics Research Paper No. 09-12. Available at SSRN: https://ssrn.com/abstract=1344487 or http://dx.doi.org/10.2139/ssrn.1344487

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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