Turning the judiciary toward Natural Law could be President Donald Trump's greatest achievement
President Donald Trump is expected to appoint several hundred new federal judges. Nothing he does will have a greater impact on the future of America. But which judges should be appointed? How can originalists be identified? This will not be easy since most law professors, and many lawyers, are no longer originalists – i.e., those who base their judgments on the meaning of the words in the Constitution and in laws passed by Congress. Today, many think the Constitution is a living document that allows judges to make interpretations that in their minds bring law up to date.
As Trump's nominated judges are considered by the Senate, what happened to Robert Bork (whose name has been immortalized by the verb "borking") should be revisited. In 1987, President Reagan nominated Bork to the Supreme Court. He was a law professor at Yale, an expert in anti-trust law, and a judge. During his tenure as solicitor general, Bork obeyed Nixon's order to fire a special prosecutor who was investigating the Watergate break-in. There were many arguments against Bork – some of them exceedingly vicious, such as Ted Kennedy's infamous Senate floor oration:
Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is – and is often the only – protector of the individual rights that are the heart of our democracy ... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.
But the intellectual key to the opposition against him was his strong support for the Doctrine of Natural Law – which is part of the Declaration of Independence, but rejected by those influenced by postmodern (progressive) thought. The U.S. Senate rejected Bork's nomination.
It is suggested that all judges nominated by President Trump be required to state that that they support, and will make judgments in accordance with, the Doctrine of Natural Law as stated in the Declaration of Independence. For centuries, Natural Law has justified the moral basis of law and been a check on man-made law that is not just. To be a Natural Law, a rule, regulation, or law must be consistent, "natural" in accord with the norms of voluntary behavior, and just. In other words, it must be both right (endowed by God) and legal (man-made), and it must serve the public good rather than the interests of any faction. It would block laws resulting from identity politics.