Natural Law, the Judicial Role, and the Preservation of Constitutional Government

The American constitutional order rests upon a profound assumption. Law possesses an objective meaning that exists independently of the preferences of judges.[1] The Constitution was not written as a collection of vague aspirations to be reshaped by each generation of political elites. Rather, it was framed as a governing charter with words intended to communicate definite meaning, preserve liberty, and structure representative government. When judges faithfully interpret those words according to their truthful meaning, they protect both the constitutional system and the people whose liberties it secures. When judges instead transform constitutional meaning to reflect evolving social or political preferences, they undermine republican government and place political power in the hands of an unelected few.

At the center of this debate lies a question fundamental to constitutional governance.  What is the proper role of the judiciary? The answer carries enormous implications not merely for constitutional interpretation, but for the preservation of liberty itself. A constitutional republic cannot endure if judges become policymakers. Nor can the rule of law survive if constitutional meaning becomes endlessly malleable.

Underlying this concern is a classical understanding of natural law. The American founding assumed that certain truths about justice, morality, and human dignity exist independent of government. The Declaration of Independence famously affirmed that human beings are “endowed by their Creator with certain unalienable Rights.” Such rights do not originate from courts, legislatures, or political majorities. They exist prior to government and place limits upon governmental power. The Constitution was designed not to create these rights, but to secure them within a structure of ordered liberty. The Founders understood liberty as inseparable from objective moral truth. In their view, human beings do not create truth. They discover it. Rights arise not from the state, but from the Creator. Government therefore exists not to redefine morality according to political fashion, but to secure liberty within a moral order already embedded in creation itself. Good government, consequently, cannot be morally neutral. It must remain grounded in enduring truths about justice, human dignity, and the nature of man. This understanding profoundly shaped early American jurisprudence. For many decades after the founding, natural-law theory dominated American legal thought. The Declaration of Independence, the Federalist Papers, and the writings of numerous Founders reflected the conviction that law rests upon objective moral principles discoverable through reason and revelation. Early American lawyers and judges widely viewed the common law as an expression of natural and divine law.[2]

Blackstone’s Commentaries on the Laws of England, regarded as indispensable among early American lawyers and judges, repeatedly grounded legal principles in natural and divine law. Likewise, the United States Supreme Court in its early years frequently cited leading natural-law scholars such as Grotius, Pufendorf, and Vattel. The Founders expected judges to interpret law within this broader moral framework rather than detach legal reasoning from objective truth. Viewed through the lens of the Founders’ worldview, constitutional interpretation necessarily involves objective standards existing beyond the personal preferences of judges. The Constitution reflects enduring principles concerning justice, liberty, and the proper limits of governmental power. Judges therefore fulfill their constitutional role not by creating new meaning, but by faithfully discerning and applying truths already embedded within the constitutional order.[3]

Natural law, therefore, provided the moral foundation for the American constitutional system. The Framers understood that liberty could survive only where government remained limited and accountable. Recognizing the fallen nature of man and the corrupting tendency of unchecked power, the Constitution divided authority among separate branches and imposed structural restraints upon each. The biblical understanding that “all have sinned and fall short of the glory of God” informed the broader Western legal tradition inherited by the American Founders. James Madison echoed this realism concerning human nature in Federalist No. 51 when he observed, “If men were angels, no government would be necessary.” Likewise, Lord Acton’s warning that “power tends to corrupt, and absolute power corrupts absolutely” captures the same enduring truth concerning political authority and human nature. The Constitution accordingly divided authority among legislative, executive, and judicial branches, assigning to each a distinct role. This separation of powers reflected a realistic understanding of human nature in which concentrated and unchecked power inevitably threatens liberty.[4]

Within this framework, the Framers intentionally limited the judiciary’s role. Article III grants federal courts the “judicial Power,” but nowhere authorizes judges to legislate or amend constitutional meaning. Judges were entrusted with resolving cases and controversies by interpreting and applying the law as written. Alexander Hamilton explained in Federalist No. 78 that courts were to exercise “judgment,” not “will.” This distinction remains essential. Judgment requires a judge to discern and apply the law’s true meaning. Will occurs when a judge substitutes personal preference for constitutional text. In the first instance, the judiciary preserves constitutional government. In the second, it transforms itself into a political institution wielding authority never delegated by the people.[5]

Hamilton recognized that the judiciary could preserve liberty only so long as it remained faithful to its limited constitutional role. Courts were to protect the Constitution against legislative or executive violations because the Constitution represented the will of the people themselves. Judicial review therefore did not make judges superior to the people’s representatives. Rather, it ensured that all branches remained subordinate to the higher law established by the people through the Constitution. This understanding depends upon the assumption that constitutional meaning is fixed and discoverable. If constitutional language possesses no stable meaning, then judges no longer interpret law. They create it. Constitutional limits then become whatever judges prefer them to be. Thomas Jefferson warned of this danger early in American history. He feared that judges could gradually reshape the Constitution “by construction,” altering its substance without formally amending it. Such judicial manipulation threatened representative government because it bypassed the constitutional processes established for political change.[6]

The Constitution itself provides the proper mechanism for constitutional change. Article V authorizes amendments through a politically accountable process involving Congress and the states. This procedure reflects the republican principle that fundamental changes to constitutional meaning should occur through the consent of the governed, not through judicial decree. When courts effectively amend constitutional provisions through evolving interpretation, they circumvent this constitutional structure. Judges thereby assume authority reserved to the people and their elected representatives. Such actions undermine democratic accountability because federal judges hold life tenure precisely so they may apply the law without political pressure, not so they may impose political preferences immune from electoral correction.[7]

The abuse of judicial independence, therefore, presents a serious threat to constitutional legitimacy. Judicial independence serves an essential purpose within the American system. Lifetime tenure protects judges from retaliation when faithfully applying the law. Independence becomes tyrannical, though, when detached from constitutional restraint. The Anti-Federalists expressed this concern during the ratification debates. They feared that an unchecked judiciary could elevate itself above all other branches while remaining insulated from public accountability. Jefferson similarly warned that a Constitution placed in the hands of judges without interpretive restraint could become “a mere thing of wax” shaped according to judicial preference.[8]

These concerns become especially urgent when constitutional interpretation abandons objective meaning in favor of evolving standards. Once constitutional provisions become malleable, judicial decisions inevitably reflect subjective value judgments rather than principled legal reasoning. Constitutional law then becomes unpredictable. Predictability is indispensable to the rule of law. Citizens and government officials alike must know what the law requires in order to conform their conduct accordingly. Stable legal principles enable representative government to function effectively. But when constitutional meaning depends upon judicial perceptions, evolving social norms, or subjective balancing tests, consistency disappears.[9]

The consequences extend beyond legal uncertainty. Malleable interpretation fundamentally alters the relationship between the people and their government. In a constitutional republic, the people retain ultimate sovereignty. Elected representatives make law subject to constitutional limitations. Judges interpret and apply that law in cases and controversies before the court. When judges redefine constitutional meaning according to contemporary preferences, however, sovereignty effectively shifts from the people to the judiciary. Unelected judges become final arbiters not merely of what the Constitution says, but of what it ought to say. This transformation threatens liberty because it concentrates political authority within an institution deliberately insulated from democratic accountability.

The danger is not theoretical. History demonstrates how judicial activism can produce grave injustice. Courts claiming authority to evolve constitutional meaning have at times denied personhood to vulnerable human beings, undermined foundational moral principles, and displaced long-established social institutions. Such decisions reveal the peril of severing constitutional interpretation from objective meaning and moral truth.[10]

Natural law provides an essential corrective to this problem. Properly understood, natural law does not authorize judges to impose personal moral theories upon society. Rather, it recognizes that law itself must remain grounded in objective truth and moral order. The American constitutional system presupposes such a foundation. The Framers believed that liberty and self-government required moral restraint among both citizens and public officials. John Adams famously observed that the Constitution was made “only for a moral and religious people.” Likewise, the Northwest Ordinance declared that “religion, morality, and knowledge” are necessary to good government and human happiness. This moral framework shaped the Founders’ understanding of law and judicial duty. Judges were not expected to invent rights or redefine constitutional provisions according to shifting cultural values. Instead, they were to preserve the constitutional order by faithfully applying the law within the boundaries established by the people. Such fidelity protects liberty because it prevents judges from becoming political rulers. A judiciary committed to truthful interpretation respects the distinction between lawmaking and adjudication. It recognizes that constitutional change must occur through constitutionally prescribed means rather than judicial innovation.[11]

This approach also preserves institutional legitimacy. Courts derive their authority not from military force or democratic election, but from public confidence that judges apply law impartially and faithfully. When courts appear to function as political actors advancing ideological agendas, that legitimacy erodes. The tendency toward evolving constitutional interpretation places this legitimacy at risk. Courts may justify constitutional decisions by appealing to abstract concepts untethered from constitutional text, historical understanding, or objective meaning. Such reasoning often elevates judicial preference above constitutional structure.

Moreover, malleable interpretation frequently operates asymmetrically. Judicially created standards can empower courts to invalidate laws or policies reflecting traditional moral conscience while permitting equally value-laden secular alternatives. The result is not neutrality, but the substitution of one moral vision for another under the guise of constitutional interpretation. A constitutional republic cannot long endure under such conditions. Representative government depends upon politically accountable decision-making. Citizens must retain the ability to shape public policy through constitutional processes rather than judicial decree. When courts assume authority to redefine constitutional meaning, they weaken democratic self-government.

The remedy lies not in hostility toward the judiciary, but in restoring a proper understanding of the judicial role. Judges serve the constitutional order best when they exercise restraint grounded in fidelity to text, history, and objective meaning. History remains indispensable to this task because constitutional provisions arose within specific historical contexts. The meaning of constitutional language cannot be divorced from the understanding of those who drafted and ratified it. Historical inquiry therefore assists judges in discerning truthful meaning rather than inventing new meaning. This does not imply mechanical jurisprudence incapable of addressing modern circumstances. Constitutional principles may apply to new situations while retaining their original meaning. The distinction is crucial. Application may develop as society changes, but meaning itself does not evolve according to judicial preference.  Such an approach preserves both constitutional continuity and democratic legitimacy. It allows citizens, through constitutional amendment and representative government, to shape public policy while maintaining stable legal principles.[12]

Natural law further reinforces this framework by reminding both judges and citizens that constitutional government exists to secure inherent human dignity and liberty. Because from a natural law perspective rights are unalienable, no branch of government may rightly redefine them according to transient political desires. Constitutional interpretation must therefore remain tethered to objective truth rather than ideological fashion.[13]

This understanding also guards against tyranny. History repeatedly demonstrates that concentrated political power threatens liberty regardless of the institution exercising it. Judicial supremacy can become as dangerous as legislative or executive overreach when courts abandon constitutional restraint. The Founders understood this reality. Their constitutional design sought to prevent any branch from exercising unchecked authority. Judges preserve this balance only when they recognize the limits of their office.

Ultimately, the debate over constitutional interpretation concerns the preservation of self-government under law. A judiciary committed to truthful interpretation strengthens constitutional order by ensuring that law remains accountable to the people and consistent with objective meaning. A judiciary committed to evolving interpretation risks transforming constitutional government into rule by an unelected elite. The American constitutional system depends upon the virtue of judicial humility. Judges must resist the temptation to become philosopher-kings imposing preferred outcomes upon society. Their duty is not to perfect the Constitution according to contemporary values, but to preserve the constitutional structure entrusted to them. Such restraint does not weaken the judiciary. It strengthens both the courts and the republic by preserving the distinction between judgment and will. Through faithful interpretation, judges uphold the rule of law, protect democratic accountability, and honor the constitutional order established by the people.

Natural law and constitutional structure together point toward this conclusion. Liberty thrives where government remains limited, morally grounded, and accountable to objective truth. The judiciary fulfills its highest calling not when it remakes society according to judicial preference, but when it faithfully guards the constitutional framework that protects the freedom and dignity of the people.

In the end, the preservation of constitutional government requires judges willing to interpret rather than reinvent, to exercise judgment rather than will, and to uphold enduring constitutional meaning rather than transient political desire. Only then can the constitutional republic remain true to its foundational commitment to liberty, representative government, and the rule of law.

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End Notes

[1] This essay is based on a previously published longer work: Wagner, The Virtue of True Meaning and the Tyranny of the Few: A Remonstrance Against Politically Unaccountable Judicial Policymaking, 10 W. Aust. Jur. 3 (2019).

[2]See The Declaration of Independence para. 2 (U.S. 1776); R. H. Helmholz, “The Law of Nature and the Early History of Unenumerated Rights in the United States,” 9 University of Pennsylvania Journal of Constitutional Law 401 (2007); Douglas W. Kmiec, “Natural Law Originalism for the Twenty-First Century: A Principle of Judicial Restraint, Not Invention,” 40 Suffolk University Law Review 383 (2007).

[3]See William Blackstone, Commentaries on the Laws of England (1765–1769); Helmholz, supra; Mark L. Jones, “Fundamental Dimensions of Law and Legal Education,” 39 John Marshall Law Review 1041 (2006).

[4]Romans 3:23 (NKJV); James Madison, Federalist No. 51; John Emerich Edward Dalberg-Acton, Letter to Bishop Mandell Creighton (Apr. 5, 1887).

[5]U.S. Const. art. III, §§ 1–2; Alexander Hamilton, Federalist No. 78.

[6]See Thomas Jefferson, Letter to Adamantios Coray (Oct. 31, 1823); see also Thomas Jefferson, Letter to Spencer Roane (Sept. 6, 1819).

[7]U.S. Const. art. V; U.S. Const. art. III, § 1 (providing that federal judges hold office during good behavior). See also Alexander Hamilton, Federalist No. 78.

[8]Brutus, Essay XV, The New-York Journal (Mar. 20, 1788); Thomas Jefferson, Letter to Spencer Roane (Sept. 6, 1819).

[9]See Lon L. Fuller, The Morality of Law (rev. ed. 1969); Friedrich A. Hayek, The Constitution of Liberty (1960).

[10]See, e.g., Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); Buck v. Bell, 274 U.S. 200 (1927); Roe v. Wade, 410 U.S. 113 (1973); Obergefell v. Hodges, 576 U.S. 644 (2015).

[11]John Adams, Letter to the Officers of the First Brigade of the Third Division of the Massachusetts Militia (Oct. 11, 1798); Northwest Ordinance of 1787, art. III.

[12]See Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997); Philip Hamburger, Law and Judicial Duty (2008).

[13]See The Declaration of Independence para. 2 (U.S. 1776); Hadley Arkes, First Things: An Inquiry into the First Principles of Morals and Justice (1986); Kmiec, supra.