Natural Law Originalism for the Twenty-First Century: A Principle of Judicial Restraint, Not Invention

Abstract

Natural law assumes that, just as there is a physical reality to the universe, there is also a moral one. Natural law serves as the foundation for positive law, and conversely positive law in necessary to make natural law effective. Nonetheless, the relation between natural law and the Constitution is much disputed. Professor Kmiec argues that natural law was important to the Constitutional framers and is indeed reflected in the Constitution. He continues by offering a definition of natural law originalism, speculating how this definition might have been helpful to the Supreme Court in the controversial Lawrence v. Texas decision, and looking at competing Constitutional interpretive methods.

Keywords: natural law, positive law, Constitution, originalism, Constitutional interpretation, Lawrence v. Texas

JEL Classification: K10, K19, K40