The Natural Law Component of the Ninth Amendment

Natural law both frightens and fascinates us.We fear it because we suspect that "you can invoke natural law to support anything you want."'We are fascinated with it because it holds the promise of providing a normative reference point which reconciles the ageless conundrum of free choice (to which moral responsibility can be attached) in a causally determined universe (from which individual moral responsibility appears to be absent).If there is some plausible way of ascribing normative significance to the determinate events of our existence, then we have located a standard by which the nominal free choice of an actor within that constrained and determined world can be judged.Even more importantly, this standard is one which may operate to legitimate evaluation and rejection of governmental rules which contravene the normative natural order.We fear that this quest is illusory, that there is no such discoverable standard, and that all attempts to locate one must degenerate into either unprincipled assertions of personal preference 2 or statements at such a high order of abstraction that they are "uselessly vague." 3 The duality of this preoccupation with natural law has been a part of American constitutional law since its inception.From the celebrated debate between Justices Samuel Chase and James Iredell in Calder v. Bull 4 to Justice Clarence Thomas, constitutional scholars and judges have flirted with natural law as a device to amplify, supplement, or simply fill the interstices of the written law of the Constitution.5 The legitimacy of natural law as an aspect of