Arkes & Kozinski Debate “Natural Law Should Inform Constitutional Law”

The Fifth Annual Rosenkranz Debate was held last Saturday during The Federalist Society’s 2012 National Lawyers Convention.  The topic was “Natural Law Should Inform Constitutional Law” although I think the title should have been “Natural Rights Should Inform Constitutional Law” since that was what was actually debated.   The advocates were Prof. Hadley P. Arkes (Edward N. Ney Professor in American Institutions, Amherst College) and Judge Alex Kozinski (Chief Judge, U.S. Court of Appeals, Ninth Circuit).  It was moderated by Judge Thomas B. Griffith (U.S. Court of Appeals, D.C. Circuit).

Everyone knows that Judge Kozinski is a highly entertaining speaker, but I had no idea how entertaining Hadley Arkes could be, while at the same time being substantively insightful and careful.  Warning:  Start watching this and you won’t be able to stop.

I ask the third question at 1:09 attempting to reconcile the two strongest arguments made by each debater: Arkes: there are such things as natural rights that the Constitution was designed to protect.  Kozinski: Judge Stephen Reinhardt should not be deciding what those rights are.  My reconciliation?  Adopt a “presumption of liberty” that would place the burden on the government to justify its restriction of liberty as a necessary and proper exercise of an enumerated power, or an exercise of the police power that was not unreasonable, arbitrary or discriminatory (the traditional pre-New Deal Due Process standard). Although this would require a conception of the police power of states, but we need such a conception anyway and judges would not need to speculate about the identity or scope of “natural rights.”  For more on how this worked in the past and can work again, see my short essay, Judicial Engagement Through the Lens of Lee Optical.