Legal Commentary

I'd welcome Prawfsblawg readers' and bloggers' reactions to this review, by my friend and "Mirror of Justice" blogger Patrick Brennan (Villanova), of Prof. Hadley Arkes' new book, "Constitutional Illusions and Anchoring Truths."  Probably not all of Justice Scalia's critics are aware that he has some "conservative" critics as well, critics who -- like Arkes -- think that he is wrong to insist that it is beyond the capacity or job-description of federal judges to "give effect to the natural law."  Brennan writes:

 Scalia affirms the existence of the natural law, to be sure, but denies that federal judges are authorized to consult it as a part of their decision-making. Arkes?s admiration of Scalia is palpable, yet Arkes is impatient with Scalia?s unwillingness to look beyond the positive law for purposes of reaching judicial judgment.

Now, I take it as given that most of us would disagree with at least some of Prof. Arkes' (or Justice Scalia's) claims about the content of the natural law.  At the same time -- and whether or not we are comfortable with "natural law"-language -- many of us probably believe that it *is* within the role of judges, including federal judges, to give effect to foundational principles of justice and moral norms that are not clearly specified in the Constitution itself.

Now, why is it that Justice Scalia is "unwilling[] to look beyond the positive law for purposes of reaching judicial judgment"?  Is it that (a) he actually does, but just doesn't admit it; (b) he worries that judges authorized to look outside the positive law will find unsound moral norms to enforce; (c) he wants judges to have less power, and telling them to look at fewer sources of law is a good way of constraining their power; or (d) something else?

I posted a few thoughts, in response to Brennan, here.  Any thoughts?