A traditional common-law style of judicial decisionmaking exists which was present at this nation’s founding. This common law style is derived from natural law tradition. And this tradition stands as an alternative to the formalism of Justice Scalia or the Holmesian style of Chief Justice Rehnquist. This natural law style, with its focus on the religious and communitarian ethical tradition, was the dominant view of judicial interpretation for the framing and ratifying generation of the original Constitution and the Civil War Amendments. The decisionmaking style of Justices O’Connor, Kennedy, and Souter appears to have great affinity with this traditional common-law style. Yet, from a philosophic and jurisprudential perspective, there are clear differences between the classical and Christian tradition of Edmund Burke and the Enlightenment tradition of John Locke, which instead focusses more consistently on rationalism, secularism, and radicalism. These differences can yield dramatically different results in individual cases. Once identified, the differences clearly indicate that Justices O’Connor, Kennedy, Souter and presumably Justices Ginsburg and Breyer operate more from the Enlightenment natural law tradition than the classical and Christian natural law tradition. Likewise, the Framers and ratifiers of the Constitution and the Civil War Amendments appear to have been influenced more by Enlightenment political and moral philosophy than by classical and Christian natural law. But if the eighteenth-century legal mind believed Edmund Burke equaled John Locke, modern minds should not make the same mistake. The Enlightenment tradition of John Locke, James Madison, and Chief Justice Marshall differs from the tradition of Edmund Burke and Samuel Chase.
St. Mary's University School of Law
R. Randall Kelso,
The Natural Law Tradition on the Modern Supreme Court: Not Burke, but the Enlightenment Tradition Represented by Locke, Madison, and Marshall.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol26/iss4/8
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