Natural Law and Slavery

In the fantastic comments that followed yesterday’s post about judicial activism, Freedom21 asked a question that deserves its own post. She wanted to know if we believed that slavery would have ended earlier in the United States if our earliest Supreme Court Justices applied natural law, rather than merely interpreting the Constitution. I think the answer is “no.” Here’s why. . .

Natural law is the idea that certain rights are so fundamental to human beings, that they exist whether or not they are written into the government’s charter. In other words, these rights are so well understood to be “human rights” that they should be granted by courts even if the Constitution fails to include them. This is an enticing theory, but I see it as flawed because there is no consensus on what constitutes a natural right.

If there is no consensus, how can the court agree (after all, the Supreme Court works on the basis of majority rule). Additionally, if there is no consensus, are these really natural rights or are the judges just imposing their own utopian views upon an unwilling public?

Take the idea of slavery. Was there a large enough consensus in the legal community in the early 1800s that a majority of the Supreme Court would have considered freedom from slavery to be a natural right? The answer is “probably not.”

Since judges come from the population at large, there is no reason to think that their views would have been significantly different than the views held by the rest of the public.

With that in mind, consider that as a political issue, the idea of freeing the slaves really didn't take hold in the public until the middle of the Civil War -- and even then it was by no means an overwhelming majority belief. The right of equal treatment for all races was not achieved legally until the 1950s or later. The rights of women were not secured until well into the 1900s. Indeed, many of the things that we would consider natural rights today, would have been dismissed as fringe positions in the 1800s.

In fact, even today, many of the rights that you and I would consider “natural rights” are not recognized around the world. In Mexico, you are guilty until proven innocent. Germany will throw you in jail for flipping a Hitler or denying the Holocaust (this will soon be EU-wide law). Don’t offend a religion in France. Germany bans religions that it considers cults, and requires you to tithe (through your withholdings) to any religion you do join. Spain bans political parties that it considers terrorists. Sweden limits the names you can give your children. Want to be an imam in France? The government has to approve you. And be careful what laws you break (e.g. bribery), or they will strip you of your citizenship, shut down any corporations you own, and banish you from French territory.

So while many in the 1880s certainly felt slavery to be evil, it is not at all clear that there was a consensus at that time that being free from slavery was a natural right or that non-whites were entitled to natural rights. Thus, it is difficult to see how a majority of the Supreme Court would have chosen to declare freedom from slavery to be a natural right.

Moreover, even if the had, there would have been two political hurdles that would have prevented such a decision from taking effect. First, believe it not, the Constitution does not actually make the Supreme Court the arbiter of constitutionality. Until the Court’s “power grab” in Marbury v. Madison, many thought that each branch would monitor the constitutionality of its own actions. This power grab, however, changed that, and gave us the Court that we know today.

The other branches accepted this power grab in large part because the Court’s early rulings tread very lightly. If the Court instead had chosen to take such a strident position (banning slavery) against the political interests of the rest of the government, it is likely that the Executive and Legislative Branches would have smothered the Judicial Branch and stripped it of its powers. Thus, its ruling would have been discarded and slavery would have endured.

But even if the other branches accepted the Court’s ruling, that still would not have ended slavery. Indeed, the South had little choice but to accept slavery because its entire economy depended on slave labor. Abolition would have meant economic ruin to the South. Thus, if the federal government banned slavery, the South would have left the union at that point and we would have split into multiple countries -- a civil war would have been unthinkable right after the country was formed, especially with memories of the Articles of Confederation still fresh.

If the South broke away, the Northern states could no longer have applied political pressure to the South and there would have been no civil war. Therefore, not only would slavery have endured despite the Court’s ruling, but it likely would have lasted much longer in the new USA South.

Thus, I suspect that applying natural law would not have solved the slavery problem, and could, instead, have made it much worse.