The most important question to ask Elena Kagan
By Russell Shaw
If I had the chance to ask just one question at the Senate confirmation hearings on Elena Kagan’s fitness to be a justice of the Supreme Court, it would be this: “What do you think of the natural law?” I’d ask that question because it’s more important than most, even all, of the questions that will get asked, not because I have any doubt what the answer would be: “Not much.”
I say this not to the individual discredit of Kagan, solicitor general of the United States, but precisely because she’s a prominent representative of the Harvard-Yale law school axis now dominating the Supreme Court. As such, it’s safe to say, natural law is simply not a part of her intellectual universe. And that is worth putting on the record, if for no other reason than to dramatize the sorry straits in which American jurisprudence finds itself these days.
Natural law theory is the conceptual backbone of the Western legal tradition. It guided the framers of the American Constitution. Despite what some imagine, it isn’t a doctrine of the Catholic Church, though Catholic thinkers were largely responsible for its elaboration for centuries. A thumbnail sketch of it might be along these lines:
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