7

I think it's cited occasionally by justices like Clarence Thomas, but it seems only when he's in the minority advocating something that most people see as being inline with his Catholicism under the guise of natural law.

Has a majority opinion ever taken in to account the natural moral law (please see encyclopedic definition) that is at odds, circumvents or makes up for lapses in the constitution? Has it ever been used to interpret the constitution?

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  • 2
    I'm surprised there isn't a "natural-law" tag yet.
    – Geremia
    Jan 14 '17 at 15:28
  • 1
    @Geremia Now there is: [natural-law]
    – Geremia
    Nov 3 '20 at 3:18
9

I did not find any instance in which the US Supreme Court has ever used "Natural Moral Law." However, it did use "Moral Law" 13 times.

It has used "Natural Law" 83 times. The most recent in 1996 in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

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  • 1
    "Natural Law" might be the more readily searched term, but people get that confused with laws of gravity and thermodynamics so I figured I'd avoid it in the question. Thanks for the list. I think it usually means the same thing. Jun 29 '15 at 21:20
  • @PeterTurner are you saying that "natural law", "moral law", and "natural moral law" are conceptually interchangeable in US case law? Jun 30 '15 at 0:23
  • @NewAlexandria heh, I have no idea, I'm not even remotely an expert in case law. I'm a Catechism teacher, not a constitutional lawyer. I do teach my pupils about Church Law and how it interacts with human law and that's why I wanted to know whether or not Natural Law (which, please don't mock me for saying it because it is the teaching of my church, is the law written on the human heart) has ever been used in supreme court cases to justify anything. Jun 30 '15 at 13:00
  • 3
    In a SCOTUS opinion, "natural law" is very likely to refer to the legal theory and not to a law of nature.
    – ohwilleke
    Nov 4 '20 at 19:56
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It has been used to interpret the constitution

In DISTRICT OF COLUMBIA ET AL. v. HELLER the SCOTUS decided that the right to bear arms was an individual right and not a collective right limited to organised militias, and that the Second Amendment to the Constitution merely codified that existing individual right (rather than creating the right).

William Blackstone in Vol. 1, Commentaries on the Laws of England (1765) states:

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

SCOTUS refer to this saying:

By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and selfpreservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; Cite as: 554 U. S. ____ (2008) 21 Opinion of the Court see also 3 id., at 2–4 (1768). Other contemporary authorities concurred.

The rationale appears to be that because the right of resistance and self-preservation is a natural right it cannot be a right conditional on military service.

The SCOTUS majority opinion concludes:

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed

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