Bench Memos

Judge O’Scannlain on Joseph Story, Natural Law, and Modern Confusion

The Heritage Foundation has posted the text of Ninth Circuit judge Diarmuid F. O’Scannlain’s recent Joseph Story Distinguished Lecture, which I was pleased to attend.

In his excellent lecture, Judge O’Scannlain explores Story’s understanding of natural law, including its foundation in man’s inherent and unchangeable nature. He contrasts Story’s understanding with the “fundamental philosophical premise” of Planned Parenthood v. Casey and other recent rulings—namely, that the law “cannot assume that human nature has an objective reality.” As O’Scannlain explains, Story would recognize that “the Court’s recent jurisprudence is at war with itself: It purports to protect universal principles of justice, yet its assumptions undercut the very idea of universal principles.”

It is, of course, one thing to say that judges, in deciding cases, shouldn’t engage in doctrinal inventions that contradict natural law. It would be quite another to say that judges may freely indulge their understandings of natural law to override positive law. O’Scannlain emphasizes that Story “recognized that the judicial office placed limits on his ability to apply natural law”—limited, I gather, to those legal provisions that incorporate natural-law principles—so the reader should understand Story’s belief that (as O’Scannlain puts it) “positive law must conform to natural law” as a philosophical conviction, not as a judicial doctrine.

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