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GOP pits Ketanji Brown Jackson against the Declaration of Independence

History shows it’s not nearly so simple

Sen. Ted Cruz (R-Tex.) at Ketanji Brown Jackson’s confirmation hearings. (Demetrius Freeman/The Washington Post)

The fight over Ketanji Brown Jackson’s confirmation to the Supreme Court is effectively over, but for the shouting. But those still seeking to stop her have come in for a late shout.

The latest issue Republicans are raising: In questions for the record released after her confirmation hearings, Jackson declined to take a position on whether people have so-called “natural rights.”

Here’s the Q&A with Sen. Ted Cruz (R-Tex.):

Q: Do you hold a position on whether individuals possess natural rights, yes or no?
JACKSON: I do not hold a position on whether individuals possess natural rights.

Some conservative legal pundits highlighted the answer Friday, with the National Review writing that Jackson “doesn’t embrace the basic American creed set forth in that passage from the Declaration” of Independence. Cruz followed that up by calling it “stunning.” The conservative group FreedomWorks on Monday called the answer “unreal.” And Sen. Charles E. Grassley (R-Iowa) on Monday cited the answer as part of his rationale for voting against Jackson at a hearing Monday.

Grassley said Jackson could “easily have said yes to that, but she took a position she didn’t have a position.”

“Part of having judicial philosophy is having an understanding of the fundamental principles in our Constitution,” he added. “Natural rights are part of that system.”

The underlying logic seems pretty simple. The Declaration of Independence does say men are “endowed by their Creator with certain unalienable Rights” — a reasonable analog for so-called “natural rights.” By saying she has no position on this, Jackson seems to decline to endorse that founding principle. For some, this also conjures another question Republicans have attacked Jackson for punting on: how she would define a “woman.”

The reality, though, isn’t quite so simple — nor is this such an easy call for a judge, as history shows. And indeed, this seems to be the latest in a long line of questions that one wouldn’t necessarily expect a judge to take a position on.

The theory of natural law or natural rights basically holds that all people have inherent rights, conferred upon them not by the legislation or the law, but by God or some other source, including nature or reason.

The last time this concept took the main stage in Supreme Court confirmations was the late 1980s and early 1990s, when it came up in the hearings of Robert Bork and Clarence Thomas. And the two Republican nominees actually took opposing views on it.

Bork argued for a strict adherence to the text of the Constitution — an original-intent judicial philosophy that made no space for the concept of natural rights, or at least for their role in jurisprudence. Specifically, Bork rejected the idea that the Ninth Amendment (that “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”) conferred a right to privacy — which the court used to grant the right to an abortion in Roe v. Wade. In a 1990 book after his nomination was defeated, Bork linked the natural-rights approach to a dangerous “impulse to judicial authoritarianism.”

Thomas, though, had spoken extensively about the role of natural rights in the law before his 1991 confirmation hearings. In a 1987 speech, he praised an article that said a fetus had an inalienable right to life guaranteed by the law of God in the Declaration of Independence. Thomas called it a “splendid example of applying natural law.”

The divergent approaches were spotlighted by none other than a senator by the name of Joe Biden, who was then the chairman of the Senate Judiciary Committee. In a lengthy Washington Post op-ed on the topic, Biden wrote:

No issue divided Judge Bork and me as much as this single question: Are there fundamental rights — not explicit in the Constitution — that are protected by that document? My answer to that question, relying on principles of natural law, was an emphatic “yes” — a view that Judge Thomas, who has sharply criticized Judge Bork’s original-intent jurisprudence, appears to share.

As you can see, this isn’t an issue that has broken down so neatly along partisan lines. Indeed, in writing about the split between Thomas and Bork at the time, The Post’s Ruth Marcus noted that Thomas’s views on natural law were anathema to some in the conservative movement.

Conservative legal scholar Bruce Fein went so far as to say he would write a column opposing Thomas’s confirmation if Thomas were to endorse natural-rights theory, “because it is not consistent with an oath to uphold the Constitution.”

And indeed, both sides believed the idea had been exploited by the other for their chosen purposes — to the point that it became highly contentious.

“The idea is a discredited one in our society … and for good reason,” law professor John Hart Ely wrote in a 1980 book. “Natural law has been summoned in support of all manner of causes in this country — some worthy, others nefarious — and often on both sides of the same issue.”

Even in pushing natural rights before his ascension to the Supreme Court, Thomas acknowledged he was swimming against the current on his side.

“Contrary to the worst fears of my conservative allies, such a view is far from being a license for unlimited government and a roving judiciary,” Thomas said in a 1988 speech. “Rather, natural rights and higher law arguments are the best defense of liberty and of limited government.”

Thomas wound up being pressed extensively on this in his hearings, and he backed off it to some degree. He said, “I don’t see a role for the use of natural law in constitutional adjudication.”

Jackson, of course, wasn’t asked whether natural rights would have any affect on her jurisprudence, but whether she believed they existed at all. Still, those two things are pretty inexorably linked: If you believe in natural rights, which don’t exist in the Constitution, the question that follows is how that would affect your jurisprudence. If your judicial philosophy is only to decide cases based upon the Constitution — what’s known as “positive law,” in contrast to natural law — there’s really no role for natural law.

Beyond that, while the concept of natural rights was enunciated in the Declaration of Independence, that was effectively a revolutionary document, rather than the law of a country that would soon be founded. You could argue that it informed the Constitution and even the Ninth Amendment — as some do — but that’s a matter of considerable legal debate.

Unfortunately, we didn’t get a full dialogue on this subject, because the issue for some reason wasn’t raised in Jackson’s hearings.

But it did come up during Justice Elena Kagan’s hearings in 2010, when then-Sen. Tom Coburn (R-Okla.) pressed her on whether the right to arms for self-defense was a natural right:

KAGAN: Senator Coburn, to be honest with you, I don’t have a view of what are natural rights, independent of the Constitution. And my job as a justice will be to enforce and defend the Constitution and other laws of the United States.
COBURN: So you wouldn’t embrace what the Declaration of Independence says, that we have “certain God-given inalienable rights” that aren’t given in the Constitution, that are ours and ours alone, and that the government doesn’t give those to us?
KAGAN: Senator Coburn, I believe that the Constitution is an extraordinary document. And I’m not saying I do not believe that there are rights preexisting the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.

Coburn conceded the point but then asked Kagan whether she believed in natural rights, personally. And Kagan — as you would expect of any Supreme Court nominee asked about her personal views — said they had no bearing, because she was asked to interpret the actual law.

“I think you should want me to act on the basis of law, and that is what I have upheld to do, if I’m fortunate enough to be confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States,” Kagan said.

Given what we see in her written answers, Jackson may well have said something pretty similar — if only there had been a real dialogue.