We’ve all heard that the U.S. Constitution is the supreme law of the land. It’s our nation’s governing document. But what happens if provisions in the Constitution conflict with natural law? Which takes precedence? How do we decide? J. Budziszewski, political philosopher, legal scholar, and professor of government at the University of Texas, discussed the issue with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)

Kokai: Before we get into the relationship between the Constitution and natural law, it might make sense to remind people, when we’re talking about natural law, what are we talking about?

Budziszewski: The natural law is a name that philosophers use for the foundational principles of right and wrong — the basic moral principles of good and evil. The most basic of these — the most fundamental — are really known to everybody by the ordinary exercise of reason and because we have a conscience. A person with a normal, adult mind literally can’t not know them. But we sometimes also use the words “natural law” to refer not just to those moral basics that everybody knows — like take care of your children, honor your parents, don’t ever deliberately take innocent human life, don’t steal, and so forth — but we also sometimes use the term to refer to the remote implications, the implications anyway, more or less remote, of these principles.

I said that the basic principles are things that everybody really knows deep down, even though they may deny them. But the remote implications, well, it may take a lot of experience, it may take discernment, moral wisdom, acuity to work those out. That’s a different matter. Not everybody necessarily knows those.

Kokai: So we have natural law as you just discussed. We also have the law that’s set out by the U.S. Constitution. How do these relate?

Budziszewski: Well, what ought to happen is that human law of all kinds — whether enacted by a legislature or whether in the Constitution — that it conforms to the natural law, that it doesn’t violate the natural law. As a matter of fact, it’s only from the natural law that law made by human beings has its authority. If it violates the natural law, in the strictest sense it isn’t really law at all; it’s a sort of an enacted fraud. It’s something pretending to have the authority of law that doesn’t really.

Now that doesn’t mean that, for instance, as some people think, that if the enacted law violates the natural law, that judges can just overturn it and write another law in its place. This is not a license or a permission for judicial activism because there are two different ideas here that have to be distinguished. One is that a law that is contrary to the natural law is not valid. But the other is the issue of who has the authority to say when that’s happened? Who has the authority to actually declare this enacted law is in violation of the natural law? It isn’t necessarily the judge.

The difficulty here is that the natural law tradition itself doesn’t claim that the natural law contains an answer to that question. The right answer to the question [of] who should have the authority to say when a violation of the natural law has taken place really depends on the exercise of prudence, of acquired practical wisdom applied to the nitty-gritty circumstances of your own case. So I’m inclined to think that the way that we deal with this in our constitutional system, where we divide authority between a legislature and judges in certain systematic ways, is a good way. I think prudence commends that way. But one could imagine another constitutional system that did these things differently, and that wouldn’t necessarily be wrong.

The fundamental principle is that the law has to follow the natural law. But the thing that’s changeable is how do you make sure it does? To whom do you give the authority to declare when a violation has taken place?

Kokai: In answering my question, you raised a number of interesting questions yourself in the realm of, well, how do we decide who gets to make the call on natural law and whether the Constitution or other positive laws conflict with it. Is our system the best one for having that argument decided?

Budziszewski: Well, one of the difficulties about our system is that people disagree about just what our system is. People in our system don’t all agree about who does have the authority to make that call. Some people would say, for instance, that legislators should be their own authority as to whether their enactments comply with the natural law. Others say judges. You already know I don’t agree with that. Others say, well, maybe judges on some issues and maybe the legislature on others.

It seems to me that in most cases … This is a judgment of prudence. Even some natural law thinkers would disagree with me about this. I could be wrong. It seems to me, though, that on most issues, the legislature is better equipped to figure out whether its enactments comply with the remote implications of the natural law. Because if you’re trying to figure out whether the details of your taxation policy, or whether or not to have tariffs, or all sorts of complicated things like that — whether they’re in compliance with the natural law or not, that takes an awful lot of thought and reflection.

It isn’t just a basic matter of conscience. And legislators are in a better position to reflect on those things because, for example, a judge is limited to consideration of the circumstances of the case that’s been brought to him, whereas legislators can think about all kinds of hypothetical circumstances and things that haven’t come up yet, and what would happen down the line if we did this, you see? They also have facilities for research that judges don’t do. Their job is to make the rules and not to adjudicate under the rules. So for a lot of reasons, in most cases, I would defer to legislators.

On the other hand, when we come to those basic principles that don’t require a lot of reflection, that are really known to all by the ordinary exercise of reason, by conscience, then a legislator can’t say to a judge, “I know better than you do on this.” The judge can legitimately say, “No, you do know, and you’re acting in defiance of what you know. I know just as well as you do that you should punish only the guilty and not the innocent. That you shouldn’t punish people for — even if this weren’t in the Constitution — that you shouldn’t punish people for something that wasn’t illegal at the time that they committed it. That innocent life is not to be taken.”

And so if a legislature were ever to violate one of these basic principles, then yes, I would say that judges could overrule. You know, the interesting thing about this is that, even if you disagreed with me, and even if you said, “Well, I don’t think that judges should have any leeway ever to refuse to render judgment under a law — a so-called law — enacted by the legislature on grounds that it violates the natural law,” you might think, well, OK, what you’ve said then is, judges don’t have to think about the natural law. But, you know, even if they never could overturn what the legislature had done, they would still have to think about the natural law in order to understand what the law that the legislature enacted meant.