Natural law in American jurisprudence: Calder vs. Bull and Corfield v. Coryell and their progeny
Mock, Douglas S.
MetadataShow full item record
This dissertation seeks to answer the question of whether and to what extent principles of natural law have figured in Supreme Court jurisprudence in the last two centuries. In the last quarter-century, scholars and judicial analysts have displayed a renewed interest in natural law reasoning and whether justices do or should take cognizance of natural law considerations. The issue became prominent during the 1991 confirmation hearings of Clarence Thomas, who had written and spoken favorably of natural law as a guiding principle in constitutional adjudication. Two cases and their progeny figure herein. In Calder v. Bull (1798), Supreme Court Justices Samuel Chase and James Iredell discussed whether principles of natural justice placed limits on legislatures beyond which they could not go, or whether judges could rely only on specific constitutional restraints in evaluating legislative acts. In Corfield v. Coryell (1823), Justice Bushrod Washington explained that the Constitution’s Privileges and Immunities Clause protects those rights that are “fundamental,” and many subsequent commentators and courts have given this statement a natural rights gloss. This work contributes to existing Supreme Court literature by tracing the entire history of Calder and Corfield, the two cases most frequently cited for potentially having natural law implications. The paper considers each citation as it is relevant to the natural law debate; cases are excluded only because they are cited for another point. For example, cases that cite Calder for its holding that the Constitution’s Ex Post Facto clause only applies to criminal cases are not considered. The paper concludes that natural law considerations now figure in Supreme Court jurisprudence only in a mediated sense. While several Eighteenth and Nineteenth Century opinions, including Corfield itself, accept natural law principles as interpretative guides, natural law as a free-standing source of adjudication has faded from Supreme Court jurisprudence. Concomitantly, the Privileges and Immunities Clause as a source of rights has been largely discarded in favor of a substantive due-process jurisprudence, with the Court adopting a gradual, common-law type of approach in determining the constitutional limits of government interference with Americans’ rights.