Working Paper No. 09-12:
Montesquieu, Judicial Degeneracy, and the United States Supreme Court

Author(s):

Nelson Lund

Date Posted: February 2009

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Abstract:

This essay, which is aimed primarily but not exclusively at audiences in the field of philosophy, originated in a lecture prepared for a series on "Natural Moral Law and Contemporary Society" at the School of Philosophy of the Catholic University of America. Using the Supreme Court's sodomy and abortion decisions as introductory examples, the essay briefly discusses the roots of judicial hubris in American constitutional law. The essay then looks more deeply into an institutional transformation rooted in Montesquieu's insight that it is both necessary and impossible to de-politicize the judicial function. The politically moderating role performed by judges in Montesquieu's English constitution does not translate easily into the American system of written constitutions with judicial review. The essay argues that the U.S. Supreme Court is not qualified to correct written human law through appeals to higher laws, including the natural moral law, and that this conclusion is consistent with the understanding of law both in our Constitution and in St. Thomas Aquinas' Summa Theologica.