In this article, Professor Hadley Arkes and Professor David Schaefer address each others' arguments concerning the role of natural law in the judiciary as discussed in Arkes' book Mere Natural Law.

Schaefer's primary concern with the book is that it supports appealing to
natural law outside of the text of the Constitution—an action that he thinks
lacks precedence and gives judges the ability to promote their own moral
superiority.

In response, Arkes quotes John Marshall, John Quincy Adams, and Alexander Hamilton to evidence that the Founders consistently explained their judgments by utilizing principles outside of the constitutional text.  He thereby proves that precedence for appealing to natural law is as old as America herself. Arkes then addresses Schaefer's concern about abusing the authority of natural law, saying that natural law cannot be treated as a "magic word that is invoked,” instead natural law is grounded in moral reasoning.

Following Arkes' defense of his book's stance on natural law, Schaefer responds in his own defense that America must return to a text-based originalist interpretation of the Constitution because Americans no longer agree on what constitutes natural rights.

Schaefer says that his view of judicial decisions resulting solely from moral law was impacted negatively because the mid-20^th century adopted new perspectives of morality, which the federal government was then expected to enforce regardless of state and local laws. It can be pointed out in Arkes’ defense, however, that judges should not be expected to flippantly abuse the authority of natural rights. By referencing the Lincoln administration’s action to overturn the Supreme Court judgments, Arkes reminds us that the judiciary is not the absolute authority.

“If Schaefer had read me closely, he would know that, in my understanding, a jurisprudence of natural law would not involve judges winging it, with no discipline, with no moral or legal limits on their judgment. The judges who fit my description would have a sharper sense of the boundaries that restrain the reach and inventiveness of judges.”

“[Schaefer] shares my concern for the way that even conservative justices have backed into assumptions of moral relativism when dealing with the regulation of speech. What is lost here is the moral ground of a civic order.”

“The American Founders drew on principles that were there before the text they framed—and they knew that those principles would still be there, as they knew, even if there were no text there.”

Read the full piece here.