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Re: Jrb & Ct


Ramesh: I concur that Brown’s natural-law comments go beyond that of Thomas’s pre- confirmation commentary. But recall that Thomas didn’t back down when challenged by Biden regarding the salutary effects of natural law on the role of a judge.It strikes me that Thomas’s refusal to disavow natural law in the context of a searing confirmation battle–the most hostile ever–is even greater testament to one’s position on the subject than Brown’s speech in the friendly confines of the Federalist Society.

Thomas seems to maintain that natural law can be one of the most effective brakes on activist tendencies among judges, more so than even the positivism championed by (I believe) Judge Bork. This is also consistent with Federalist #78.

I personally don’t think a raw embrace of natural law as a supertext to the Constitution is wise or appropriate (although I reserve the right to revise and extend my remarks on that one–esp. re: Bill of Rights issues–need to think it through a bit more) and I think you raise valid concerns about Brown’s extra-judicial statements. But I think Brown’s body of opinions may be the best evidence that Thomas may be right about the ability of natural law to curb judicial activism ..


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