Should Supreme Court judges believe in natural rights?

Judge Ketanji Brown Jackson will receive enough votes in the Senate today to join the Supreme Court as the first African-American female judge. Jackson is worthy of any conventional measure—experience, intelligence, character—for the Supreme Court. But Republicans can still oppose him on the central question of legal philosophy, which Democrats have made the primary basis for Senate confirmation votes in the High Court.

Even when they oppose Jackson, Republicans have shown restraint that has not been tolerated by Justices Brett Kavanaugh or Amy Connie Barrett. Republican senators may vote against Judge Jackson because he has consistently sentenced child pornography offenders to shorter prison times than usual. Other senators may refuse to define “female” as a sign that has no common sense theory based on reality. Still others may doubt his claim that he has no idea about critical race theory – which continues to have its harmful effects in schools – or his allegiance to originality as an interpretive method. Can’t take it seriously. But these factors merit Judge Jackson’s decisions and policy positions, and do not include his personal background, religion, or family life.

On this score, Republicans would do well to focus less on Jackson’s sentencing decisions and more on their eyebrow-raising views about the Declaration of Liberty and Natural Rights. His most notable response came not during the hearing itself, but in the questions asked for the record after the hearing. In written questions, Senator Ted Cruz (R-Tex.) asked Judge Jackson: “Do you take a position on whether individuals have natural rights, yes or no?” He replied: “I have no position on whether individuals have natural rights.”

Senators should pause from Judge Jackson’s reaction, because if the judge does not believe that our rights as Americans are “natural” that arise from our equal status as human beings, then they feel that our rights are Where do you come from? Perhaps Judge Jackson believes that our individual rights depend entirely on affirmative law—in other words, rules made by the people and their representatives, such as the Constitution’s Bill of Rights, its Reconstruction Amendment, 1964. The Civil Rights Act of 1965 and the Right to Vote Act of 1965. It does not appear that our rights predate the Constitution or other affirmative laws.

That would be an unbelievable outlook for a future Supreme Court judge, though considering the way law is taught in our colleges and universities today. This is in contrast to the views of Abraham Lincoln, who expressed regret even in the face of slavery. Dred Scott vs SandfordThe Supreme Court’s decision upheld this. Lincoln insisted that “if slavery is not wrong, then nothing is wrong.” It takes the same intellectual side as Stephen Douglas, Lincoln’s great rival in the 1858 debates, who believed that Congress and the states decided whether blacks had rights, not God, or our status as equal human beings. It follows the same logic as Chief Justice Roger Taney, author of dread scott Judgment, which believed that blacks had no rights because the Constitution forbade it.

Judge Jackson’s response is even more disturbing because it equates to a rejection of the Declaration of Independence. In another written question, Senator Cruz asked: “Please explain, in your own words, the prevailing principle among members of the Founding Fathers’ generation that human beings have natural rights that are inherent or inalienable.” Judge Jackson replied: “The principle that man has implied or inalienable rights is reflected in the Declaration of Independence, which states: ‘We hold these truths to be self-evident, that all men are created equal’. , that they are endowed by their Creator with certain inalienable rights, among these are life, liberty and the pursuit of happiness.'”

WASHINGTON, DC – MARCH 23: US Supreme Court nominee Justice Ketanji Brown Jackson returns after a break in his confirmation hearing before the Senate Judiciary Committee at the Hart Senate Office Building on Capitol Hill on March 23, 2022 in Washington, DC. Judge Ketanji Brown Jackson, President Joe Biden’s choice to replace retired Justice Stephen Breyer on the US Supreme Court, will become the first black woman to serve on the Supreme Court if confirmed.
Anna Moneymaker/Getty Images

In his answer, Judge Jackson accurately identified the Declaration of Independence as one of the major interpretations of natural rights in American history. But if he has no position on natural rights, as he wrote in response to Senator Cruz, then he has no position on the Declaration of Independence. His answers did not come in the pressurized circumstances of a live hearing, but in the form of written answers to questions written after the conclusion of his Judiciary Committee hearings. We should not see him as a mistake, but as a way that he considered the matter carefully. Again, she puts herself in opposition to the Great Liberator, who once said, “I have never felt politically inclined not to arouse the sentiments enshrined in the Declaration of Independence.” In an 1859 letter, Lincoln memorably wrote on the occasion of Thomas Jefferson’s birthday:

Full respect to Jefferson – to a man who had the coolness, predictability and ability to present an abstract truth, a revolutionary document applicable to all men, under the concrete pressure of the struggle for national independence by a single people. At all times, and thus to carry it there, that this day, and in all days to come, it will be a rebuke and a stumbling block to the very troubled of tyranny and oppression to reappear.

It is hard to accept that US Supreme Court justices take no position on such views on the essential truth of Lincoln and the Declaration of Independence, “that all men are created equal, that they are accompanied by their Creator to something unchangeable.” Rights are endowed, among these are life, liberty and the pursuit of happiness.”

Jurists should and do disagree on the legal significance of these words. Justice Robert Bork and Justice Antonin Scalia famously believed that in our system of separation of powers, federal judges should not read the unencumbered rights in the Constitution, but put its provisions into writing. Justice Clarence Thomas, who may be the first judge to cite the Declaration of Independence as a legal right (in a case concluding that race-based affirmative action violates the Constitution), believes otherwise. They disagree as to whether judges have the authority to import natural rights into the vague provisions and blanks of the Constitution, such as the 14th Amendment’s guarantees of privileges and immunities, due process and equal protection. For example, a conservative of the Bork-Scalia variety may hold that the constitution does not provide for abortion rights, but that states are still free to decide whether to allow the termination of a fetus at any time or No. A conservative of the Thomas variety, on the other hand, might think that natural law requires judges to protect the rights of a fetus as a human being by abortion at the state or federal level. Conservatives of the good would disagree on the role of federal judges in incorporating or avoiding natural rights in our law.

But Senator Cruz didn’t ask Judge Jackson that way. He did not ask her whether she agreed with Scalia and Bork or with Thomas. Instead, she asked if she believed that natural rights exist at all. Even Bork and Scalia would agree that “all instruments are created equal” and “endowed by their creator with certain irrevocable rights.” They only disagreed with other conservatives as to which institution—the Congress, the executive or the states—had the constitutional authority to enforce them. Judge Jackson could not even agree that such rights existed.

A motion that excludes judges from their enforcement is a far more difficult proposition to hold. This raises the question of whether, if Judge Jackson believes that rights extend only to legislatures or popular acts, the Constitution places any limits on the power of government beyond those set forth in the Bill of Rights and Reconstruction Amendments. One senator may wonder whether Judge Jackson shares the philosophy of Justice Oliver Wendell Holmes, who held that judges should act regardless of morality or natural rights. Holmes wrote, “If my fellow citizens want to go to Hell, I will help them.” “it’s my job.”

Republican senators can respectfully dissent if Judge Jackson thinks it’s their job, too. Such a protest would not be based on the conviction on Jackson’s record or his tangential connections, if any, but significant race theory—or his personal background, history, or character. This reflects his disagreement with the Constitution and his views on natural rights. And by emphasizing that natural rights matter, Senate Republicans themselves can begin to repair the confirmation process.

John Yu is the Emanuel Heller Professor of Law at the University of California at Berkeley.

The views expressed in this article are those of the author.

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