Natural Law and the Constitution Revisited
![handle is hein.journals/flr70 and id is 295 raw text is: NATURAL LAW AND THE CONSTITUTIION
REVISITED
Robert P. George'
James Fleming says that I have misinterpreted him on several
points. My essay,' Fleming's critique,2 and my reply to his critique'
are now before the reader. Happily, anyone who is interested in our
debate can easily examine these texts and decide the question for
himself.
Fleming states that I am trying to wed natural law with Borkian
legal positivism.4 It is regrettable that he continues casually to toss
around terms like natural law and legal positivism without
clarifying what he means by them. I can do little more here than
repeat my admonition that nothing but error and confusion comes of
this.5
Apparently, Fleming supposes that someone who believes in
natural law and natural rights, and who acknowledges that the framers
and ratifiers of the Constitution were believers in natural law and
natural rights, should also believe that the meaning of constitutional
provisions turn[s] on what is morally right or wrong, and that judges
exercising the power of judicial review have the authority to enforce,
in the name of the Constitution, their particular moral judgments.b
This, I'm afraid, is a non sequitur.
Further, Fleming suggests that I have a stake or interest in
something he is pleased to call a natural law' reading of the
Constitution.7 In this, too, he is mistaken. I do indeed believe that the
* This article is Professor George's rebuttal to Professor Fleming's comments, James
E. Fleming, A Further Comment on Robert P. George's 'Natural Law, 70 Fordham
L. Rev. 255 (2001), and to Professor Kelbley's article, Charles A. Kelbley, Tile
Impenetrable Constitution and Status Quo Morality, 70 Fordham L. Rev. 257 (2001).
1. Robert P. George, Natural Law, the Constitution, and the Theory and Practice
of Judicial Review, 69 Fordham L. Rev. 2269 (2001).
2. James E. Fleming, Fidelity to Natural Law and Natural Rights in Constitutional
Interpretation, 69 Fordham L. Rev. 2285 (2001).
3. Robert P. George, The Natural Law Due Process Philosophy, 69 Fordham L
Rev. 2301 (2001).
4. James E. Fleming, A Further Comment on Robert P. George's Natural Law,
70 Fordham L. Rev. 255 (2001).
5. See George, supra note 3, at 2301.
6. Fleming, supra note 4, at 255.
7. Id. at 255.](ViewImageLocal?handle=hein.journals/flr70&div=21&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Natural Law and the Constitution Revisited
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most