Showing posts with label Athenian Democracy. Show all posts
Showing posts with label Athenian Democracy. Show all posts

Friday, September 2, 2022

Defining the terms 1. Yes, we're a democracy (and a republic as well).

The American system of government is democratic. We are a democracy

There's an odd objection in some quarters that arises from time to time to calling the US a democracy. At other times, we're proud of it.  During World War One we became, for instance, the Arsenal of Democracy.  Not the Arsenal of Republics.

Here's the deal.

Let's define democracy.

Merriam-Webster states the following:

Some might say, well so what, but that's about as good of set of definitions as any.

Given as we're discussing, principally, the means of choosing our leaders, we can probably exclude topics 3, 4, and 5, for the most part.

That leaves categories 1 and 2.

Some people, on this topic, like to say "we're a republic, not a democracy".  That displays, however, an erroneous understanding of what a republic is.

Let's go to the same source.  It states:

Definition of republic

1a(1)a government having a chief of state who is not a monarch and who in modern times is usually a president
(2)a political unit (such as a nation) having such a form of government
b(1)a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law
(2)a political unit (such as a nation) having such a form of government
ca usually specified republican government of a political unitthe French Fourth Republic
2a body of persons freely engaged in a specified activitythe republic of letters
3a constituent political and territorial unit of the former nations of Czechoslovakia, the Soviet Union, or Yugoslavia

We can obviously exclude 2 and 3 here.

Categories 1(a)(b) and (c) apply to the United States.

We choose our national legislature through democratic means.  We vote for them.  That makes us a democratic republic.

We're a democracy and a republic, just as the United Kingdom is a parliamentary democracy.

The United States has always been a democracy, but over time, its democratic nature has expanded enormously.  Only men could vote originally.  Indeed, in some colonies only propertied men could vote.  Native Americans and the enslaved couldn't vote, no matter where they were born, either.  Now all of this is in the past, and the voting age is 18, which it was not originally.

Also, we directly elect Senators, which was at one time not the case.  They were originally chosen by State Legislatures, although some case can be made that this might have worked better than the current system.

Operating against this, as the government has expanded enormously, certain legislative functions have been turned over to regulatory bodies, which do not function democratically, although they are required to take public input for their decisions.  And the Court started acting extra judicially in the 20th Century, which isn't democratic.  Both of these things have recently been scaled back, which has been a subject of controversy.

And we're not a "pure democracy".  No modern nation is.  A pure democracy is one in which the citizens vote on everything.  Examples of that are rare, with only ancient Athens coming to mind.  A pure democracy wouldn't work, for obvious reasons, for any sizable nation, or perhaps any modern nation of any type.

Before closing, we should note that we're a federal republic.  I.e, a system that brings in regions into the larger government.  So, once again, our national legislature is based upon regions, i.e., states.  We're not the only nation to have such an arrangement, by any means. Many do, and the varieties of that vary enormously.

Before we depart, the United States has traditionally been a "Liberal Democracy", which doesn't mean what it might at first seem to mean.  The Collins Dictionary defines a Liberal Democracy as follows:

democracy based on the recognition of individual rights and freedoms, in which decisions from direct or representative processes prevail in many policy areas

Pretty broad, but other definitions get quite lengthy.

Recently we wrote on Illiberal Democracy.  Wikipedia defines Illiberal democracy as the following:

An illiberal democracy describes a governing system in which, although elections take place, citizens are cut off from knowledge about the activities of those who exercise real power because of the lack of civil liberties; thus it does not constitute an open society.

Proponents of illiberal democracy, and it does have proponents, would not define it that way. They'd probably define it as a system of government in which leaders are chosen democratically, but within an overarching set of agreed to principals and values which supersede and override democratic impulses, and control what can legitimately be debated.

Helpful?  Probably not much, but keeping in mind the deeper meaning of the terms is useful.

Basically, if people get to vote, and the vote determines the government, it's a democracy.  If people get to vote, but that doesn't matter, it isn't.

Monday, November 25, 2019

So we've had a week of Impeachment hearings and

they don't make President Trump look good.  It's clear that he was pressuring the Ukrainians to engage in the investigation of Hunter Biden and that he had intellectual capitol invested in a conspiracy theory that nobody believes in who has looked at it.

Moreover, as Ms. Hill noted, the Administration's ongoing belief about Ukraine and election interference means that Vladimir Putin's efforts to mess with our election were not only successful, but it continues to be successful.

Yume, Vladimir Putin, and Buffy.  Any way you look at it, the figure who looms large over all of this is Vladimir Putin, the autocrat of Russia.  He has to be laughing as Americans openly continue to struggle with Russian interference in the 2016 election and the success of those efforts in destabilizing American democracy right up to the present moment.  Krelim official photograph, kremlin.ur.  

Beyond that, the current President doesn't seem to have any lines between the personal and political.

All of which is bad.

But is any of it illegal?

A reader poses the question if this conduct violates 52 U.S.C. § 30121

Apparently there's been some speculation out there that this is the provision that all this bad conduct violates.  


It doesn't.


Here's what this provision states:

Contributions and donations by foreign nationals  
(a)Prohibition 
It shall be unlawful for— 
(1)a foreign national, directly or indirectly, to make— 
(A)a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election; 
(B)a contribution or donation to a committee of a political party; or

(C)an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or 
(2)a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national. 
(b)“Foreign national” defined  
As used in this section, the term “foreign national” means— 
(1)a foreign principal, as such term is defined by section 611(b) of title 22, except that the term “foreign national” shall not include any individual who is a citizen of the United States*; or 
(2)an individual who is not a citizen of the United States or a national of the United States (as defined in section 1101(a)(22) of title 8) and who is not lawfully admitted for permanent residence, as defined by section 1101(a)(20) of title 8.

Let's take out the obvious.  Trump isn't a foreign national.

Okay, so in order for this statute to apply, the President would have to "to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national."

So, some are theorizing, by pressuring the Ukrainian president to investigate Hunter he's soliciting "a contribution or donation".


That's strained in the extreme.


Whether the Democrats rely on this provision in their upcoming articles of impeachment is yet to be seen, and I doubt they will.  Frankly, I don't think the articles will have any citations to statutory law at all.  It'll be a series of accusations that he did improper things, but they won't be things that they can pin as illegal.  Immoral?  Perhaps?  Exceptionally crude and inappropriate?  Perhaps again. Vested in debunked theories?  Perhaps yet again.  But violating a statutory code?  So far, that seems unlikely.**


All of which puts everyone in a bad spot.  


The simple solution to this is an election. But the Democrats now have so much invested in this that they seemingly  have to go forward no matter what. For that matter, the Republicans have been put in a terrible spot as well as they've been left with seeming little choice but to defend conduct that they never otherwise would have.  All of this is serving to elevate extremist in both parties to greater heights.  And that will serve to make the upcoming election ever more extreme.


Indeed, as a trial will occur in the Senate, at this point it's impossible not to imagine the Impeachment Trial turning into a weeks long Republican effort to praise the President and perhaps give credence to discredited theories and, moreover, for the entire process to be converted by the Administration as a way to dominate the news for election purposes.  It'll be one long campaign rally, potentially, just as the House Impeachment hearings have been one long No Confidence Hearing in a country that lacks a No Confidence feature in its Constitution.


All in all, this is doing damage to everything and now that the ship has sailed there's no recovering it.  The Democrats are yielding to uber snark rather than doing anything serious.  The GOP has been reduced in its arguments to defending conduct it no doubt doesn't really approve of, which may be why the GOP figures we've heard from in the House are people that we've never heard of before.  Adam Schiff is coming across like a pampas jackass.  Devin Nunes as somebody who needs to take a public speaking class. And Jim Jordan looks absurd.  The President comes across just as he always has, which shouldn't surprise anyone. Everyone looks pretty helpless.  


Indeed the only ones who have come out looking good so far are career diplomats and government service officers who are the heroes of the moment.  Unfortunately, at the exact same time this gives credit to those on the hard right who argue that Trump is sabotaged at every turn by "the Deep State" and disloyal staffers.  And not doubt those sort of claims will be amplified in the upcoming election.


Indeed, the election itself will become even more about Trump than it already is. And that's not going to be a good thing.  Issues and policies will be buried.  And that will mean, should the Democrats win in the fall, the country will have elected somebody it probably knows almost nothing about.  The vast field of Democratic candidates right now operates to to increase that problem in that its tough to know very much about any of them, particularly with this element of background chatter constantly going on.


All of which goes to show that those who claimed that Nancy Pelosi was a master politician were pretty much right.  Her instincts were to not go in this direction, and now we know why.  When she did, she probably didn't have much of a choice.  But my guess is that her absence from the press attention during this has been studied on her part.


________________________________________________________________________________


Addendum:



Thomas Jefferson.  Morally problematic and enigmatic, but still brilliant.  Has the day that he feared we'd get to arrived?

After I wrote it, but before it was published, I received an email from The New Republic which I think demonstrates the really surreal state of our republic at the current time.


The email linked in an article in the current issue entitled:



To Lock Up a President


It goes on to start off with:

Democrats seem to agree that Trump should be brought to justice. Whether they agree on the precise nature of that justice is an open question.
The Article notes that there are now protesters on the left wanting to "lock up" Trump. This quote from Bernie Sanders is included in the article.
“I think the people of this country are catching on to the degree that this president thinks he is above the law,” Sanders said. “And what the American people are saying, nobody is above the law. And I think what the American people are also saying is, in fact, that if this president did break the law, he should be prosecuted like any other individual who breaks the law.”
And hence the really disturbing problem.

Things may change, and if they did substantially I'd agree that the implications of violating the law are what they are. But so far, there's been no evidence at all that Trump broke the law.  What the evidence is that he mixed his personal political aspirations with official policy in a highly inappropriate way.


But that's political.


We've definitely had Presidents break the law.  Indeed, I'd argue that both George Bush II and Barack Obama broke the law in their licensing the use of military force without a Declaration of War, although I'm one of the very few people who seem bothered by that.  Richard Nixon undoubtedly broke the law.  Reagan's lieutenants broke the law in a way that would certainly seem to implicate Reagan.  Probably most of the Cold War Presidents crowded the law in some fashion.  But what we are really seeing here is the suggestion that Trump must have broken the law because, those people argue, they don't like what he did.


Well, that doesn't make it illegal.  There's been a lot of Presidents who did stuff that was outright icky and morally questionable in the extreme (John F. Kennedy for example), but that doesn't mean all of that was illegal (although the Bay of Pigs invasion may have been).


At some point since George Bush I we've started to stray into that dangerous area of making moral failings illegal and political failure illegal.  That's a scary development.  The entire effort to impeach Bill Clinton was a spectacular example of that, but there have been plenty of others.  Since at least the Clinton Administration simply being in an Administration has exposed office holders to potential prosecution simply for failure.  It's spread to industry and commerce as well, with "insider trading" laws being an example of actually making simply being in the know illegal, and crises to prosecute bankers for failed banking practices something we've heard since 2008.


Crises of "lock him up" can't come as too much of  surprise for somebody who campaigned against his 2016 opponent with cries that she was "Crooked Hillary" and who didn't shut down supporters when they yelled "lock her up".  So a person really can't feel too sorry for a politician who is now receiving treatment similar to that which he meted out.  But a person can feel sorry for the country.  People vilified nearly every President we ever had, but the efforts we've seen since Clinton to remove them on pretexts is new and distressing in the extreme.


When the country was founded, it was famously given a republican form of government which, as Benjamin Frankly wry noted, may be difficult to keep.  We have so far. A republican government is a democracy, in spite of those who really haven't thought it out occasionally stating "a republic isn't a democracy".  Yes, it is.  What we didn't get with that republic is a democracy without a written constitution, like the British Parliament, or a pure unrestrained democracy, like the ancient Athenian democracy.  And for good reason.


Thomas Jefferson theorized from the onset that American democracy was in fact completely doomed.  His view is that it would have a long run, but only as long as it had territory to expand into and therefore a population of yeomen farmers.  Once that class yielded to an urban class, and he was certain that it would, he was certain that the urban class would rise and that politicians would purchase its votes through favors to the urban class, which he regarded as a mob.


Jefferson proved absolutely correct that the yeoman unfortunately yielded to the urbanites.  But a lot of modern democracies are more urban than rural and appear very stable.  Quite a few of the European democracies were urban when they became democracies, although at least early in the history of most of them, and ongoing in some, a yeoman class was strongly represented politically.  Ironically, in recent years some European economies have become much more open and free market than our own and are functioning politically much better than we are.


At any rate, Jefferson's view was long term gloomy.  He probably didn't regard it as such as he thought that settling the western expanse of the continent would take 1,000 years, something he was massively off the mark on.  But there are real reasons to feel that what he featured would take place after the conclusion of that 1,000 years may have been right in some form.  Americans don't seem to interested in the democratic process any more.  Like Athenian democracy, they appear okay with screaming for the head of political opponents simply because they can, and are fine with making the opponents criminals because they are opponents. And like Jefferson feared, one party at least is pretty comfortable with buying the loyalty of voters in economic positions promising to fund all of life's decisions, from education (Sanders and others) to having children (Booker), and any other number of things that prior generations would have been insulted to have the government involved in.


A republic. . . if you can keep it.


Addendum, November 25, 2016.

This Week featured a couple of lawyers who are "Constitutional Scholars".  I don't know what their backgrounds are other than the very short snipped regarding them, and they may very well be that, although what that likely means is that they're academic lawyers.  Most practitioners don't get that title as a rule, unless they're being interviewed by the press on a specific topic or case.

Anyhow, they, and the panelist, irrespective of political persuasion, all tended towards the view that "high crime and misdemeanors" is sufficiently vague such that an impeachment can be done for political reasons.  That view surprises me, but it was the uniform view.  

Indeed, they discussed the current statute on bribery and debated if it is really relevant at all.  There was no real consensus.  Some suggested no, as it wasn't the law at the time.

Frankly, I think its relevant as the Constitution says "high crimes and misdemeanors", but the provisions are admittedly vague.  The uniform view is that its a political process, which means that as a quasi judicial process, if that view is held, it's more political than my general view here would have it.

_________________________________________________________________________________


*For those who might wonder, the line excepting foreign nationals who are U.S. citizens creates an exception for dual citizens.  It might frankly be impossible for a person to know who and who is not a dual citizen in common politics and therefore this exception precludes all sorts of accidental violations of the law.


**Indeed, in my view relying upon 52 U.S.C. § 30121 creates a legal risk as if the Senate was actually to remove Trump from office, which it is not going to do, it would raise the question on whether or not the Senate can remove a President from office for the violation of a crime upon which he has not been convicted.


This problem would exist anyhow, and always exists in Impeachment hearing in which the President has not been so convicted.  Of note, no U.S. President who has been subject to an impeachment trial has actually been convicted of a crime.  Nixon came the closest but he wasn't impeached.  Indeed, the Nixon example shows why the strange presumed prohibition on prosecuting a President for an actual violation of a crime during his office doesn't make any sense at all.  Anyhow, as no President has been removed, the impeachment clause of the Constitution has actually never been tested.


What we don't know, and its an interesting question, is what would happen if a President was removed.  It's a power clearly vested in Congress and up until quite recently such powers were pretty much absolute.  In recent years, however, the Supreme Court has held that they are not.  


In other words, had Nixon been impeached, or Clinton, and then they tried to take their impeachment to the Supreme Court, the Court would have ruled quickly it had no jurisdiction over the matter.  Now, we can't be so sure.  If the Court found it did have jurisdiction and took the matter up (there's some procedural matters that would have to occur in order for that to happen) it might very well hold that it has the exclusive right to interpret the clause and render a decision on its meaning.  There's good reason to hope that this never occurs.

Monday, July 13, 2015

The Natural Law

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The Declaration of Independence, which specifically cited Natural Law as a basis for declaring the colonies to be independent from the United Kingdom.
One of the things that has become pretty evident due to the Obegefell decision, but which was really evident before (this draft started about a month ago, before the recent Supreme Court decisions came out) is how anemic American legal education and thinking has become.  Law Schools are pretty much trade schools nowadays, and they're producing technicians.  I suppose that's why law schools are generally enthusiastic about the UBE, as a school that educated machinists or mechanics, fine occupations I'd note, would want their graduates to have "transportable" degrees.  The law is pretty much viewed that way as a profession now.  Not a "learned profession", as it once was, but a technical skill without a philosophic origin or inclination.

But law is supposed to be different.  The degree purports to be a "doctorate" after all, and the old theory was that lawyers were educated not only in the law, but also in the philosophy and theory of law.  Oh, most or at least a lot of, law schools probably have a class on jurisprudence (UW did not when I was there), but as jurisprudence doesn't make it to the UBE, I doubt very many people take it.  It's really a gaping hole in our legal education.

In contrast, there was a time when lawyers actually pondered such things.  Justice Bloom, a long ago Wyoming Supreme Court justice, left his diaries to UW and they're filled with his pondering on Roman Law.  Now, I'm not advocating adopting the Code Justinian (the Corpus Juris Civilis), but I am advocating knowing the history and origin of law, and its theories.  If a person doesn't understand the concept of Roman Law, the concept of Common Law, and their origins, they ought to, assuming they are lawyers, and particularly if they are judges.

And I'm also advocating that lawyers at a bare minimum be taught and required to learn, and understand, the theory of law.  If they don't, then there is really no law at all. And right now, that pretty much seems to be the case.  Recent opinions by the United States Supreme Court are disappointing in these regards, and seem to suggest that the Court has no concept of the law beyond vague grasping of trying to do, what it thinks is the right thing, or the next thing, or what people would want to do if they knew what they should want.

So, I think they should learn about Natural Law.

Natural Law is an ancient concept, and frankly probably goes back as far as man.  In writings, however, we can see it referred to at least as early as Plato, and we also see it at work amongst the Romans.  It's famously associated with St. Thomas Aquinas, but contrary to what some sneering commenters, who hold a "progressive" authoritarian concept of the law, it vastly predates him as a concept.

There are entire treatises on Natural Law, and this isn't intended to be one, but the basic concept is simple enough. We observe, by merely existing, that there is a nature and that nature has a natural order.  That natural order is the Natural Law.  Things sometimes within that order depart from it, but those exceptions, unless widespread enough to constitute part of nature themselves, do not redefine it. Indeed, as this is a legal concept, we accept that there things which are disordered as they depart from the Natural Law.

This applies to the affairs of man in the context of observed behavior.  All men, in all societies, everywhere, have a concept that unrestricted homicide is wrong.  They also all have the concept that homicide in defense of themselves or their family (tribe) is not.  All have a concept of property ownership, and that taking a person's property is generally wrong, but all also have a concept that certain property belongs to nobody, or rather everybody.  All societies have a concept of a male/female union that's inviolate under normal circumstances, and which trespassing upon can result in severe consequences. 

This isn't all, by any means, but it provides a common assortment. Whether a person is a cafe crawler in France, or a jungle dweller in the Philippines, this basic set of laws is recognized.  Where not written into the law, it's strongly written into social custom to the point of being the law.  Indeed, from time to time here I've mentioned "the old law", which is an aspect of this.

The origin of the Natural Law, in modern times, has been what has upset social liberals and caused the Natural Law to be forgotten.  In Thomistic Theology, or theology in general, the Natural Law is divine in origin and inscribed on the hearts of every human being.  The signors of the Declaration of Independence, and the drafters of the Constitution, understood it in that context, although loosely as they were not all of the same religion, and living during the Enlightenment, as they did, some were not Christians at all. Starting with Karl Marx and Frederic Engels, social liberals have been at war with that concept and have, indeed, sanctioned huge departures from the Natural Law.  But that's confusing the thesis.  Philosophers who predated St. Thomas, and indeed who predated Christ, wrote on the Natural Law, and indeed there really isn't any ancient philosophy anywhere that didn't recognize it.  A principal difference, in fact, of European philosophy and Oriental philosophy is that Europeans held that the Natural Law could be observed, and hence discerned, while Orientals held that the Natural Law could be observed, and need not be further discerned.

Natural Law was universally understood to exist and form a citable form of law by the early philosophers, and perhaps more importantly for our discussion here, the Courts and lawyers of the United States early in its history.  Frequent citation to the Natural Law can be found in the briefs submitted for argument in front of the United States Supreme Court in the 19th Century and there was no real effort to describe what it was, as it was widely understood to both exist and have a common meaning.

Citations to natural law at that point in time cited three types as clearly existing, only one of which tends to be still cited by the Court now, that being physical laws (as in water flows down hill).  The Courts, outside of physical laws, spoke frequently of "the natural law of nations" and "natural law", with the latter being what we are speaking about here, and the former of which was a common law of nations which also included natural law elements.

Interestingly the Court felt just the opposite of today's court.  It not only recognized Natural Law, but it also recognized that a nation's law could violate Natural Law, and where the United State's laws violated Natural Law, no matter how repugnant the violation, the Court had no choice but to uphold the written law of the United States.  For example, in a case called The Antelope, which involved a slave ship of that name, the Court held:
The question, whether the slave trade is prohibited by the law of nations has been seriously propounded, and both the affirmative and negative of the proposition have been maintained with equal earnestness. 
That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labour, is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission. But from the earliest times war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was, that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of neral usage. That which has received the assent of all, must be the law of all. 
Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful. 
Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal. The parties to the modern law of nations do not propagate their principles by force; and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law, be permitted to participate in its effects by purchasing the beings who are its victims? 
Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a part, and to whose law the appeal is made.
The Antelope, 23 U.S. 66 (1825), John Marshall, holding, amongst other things, that slavery was contrary to the natural law, but not the statutory law of the United States.  

That's a remarkable opinion.  Marshall clearly knew natural law, and without citing any religious text at all, he held that slavery was contrary to it.  He also didn't feel shy about noting the expansion of the phenomenon of the written law evolving to comport with the natural law, but he didn't feel the Court could take that into account.  Therefore, not only did Marshall recognize a natural law, but he also rejected the "evolution" of the law theory recently espoused by Justice Kennedy in the Obegefell decision.  The decision here was not unique in early US  Supreme Court opinions.
Thus, it may happen, that the occupant, who may have enriched himself to any amount, by the natural, as well as the industrial products of land, to which he had no legal title, (as by the sale of timber, coal, ore, or the like,) is accountable for no part of those profits but such as accrued after suit brought; and, on the other hand, may demand full remuneration for all the improvements made upon the land, although they were placed there by means of those very profits, in violation of that maxim of equity, and of natural law, nemo debet locupletari aliena jactura.
Green v. Biddle, 23 US 1 (1823).
The positive law of nations has ordained the rule; the natural law of nations has assigned the reasons on which it is founded; and Rutherforth, in his Institutes, explains those reasons, which arise from the amenability of governments to each other. A cruiser is amenable only to the government by whom he is commissioned; that government is amenable to the power whose subjects are injured by him; and after the ordinary prize judicature is exhausted, they are to apply to their own sovereign for redress. The principal object of that judicature is the examination into the conduct of the captors. The question of property is merely incidental
L'Invincible, 14 US 238 (1816).

After the turn of the Century, citations to Natural Law really start to drop off. I'm not sure of why, but two notable features of this era was the rise of efforts to regularize legal education, lead by the American Bar Association, and the onset of the Progressive Era.  The latter probably had more to do with it than the former.

Progressivism had its origins prior to the Civil War with the abolitionist movement, and perhaps ultimately ironically, it found much of its philosophic base in both Natural Law and religion.  After Emancipation the movement split, however, with the core of the group remaining focused on the plight of freed slaves, but with the more radical elements taking up other causes.  By the late 19th Century it was achieving results and it really came into full flower when Theodore Roosevelt became President.

In my mind, TR was a great President, but he's poorly understood in many ways and he never had a great respect for the law.  Indeed, when he was a law student, which he was only briefly, he was notorious for interrupting discussions on the law with inquiries about what should be regarded as justice.  TR skirted the Constitution in many instances and did not feel retrained or guilty in doing so.  Following him, the Supreme Court began to be more of an active institution itself, although it would take decades for that to really come fully into effect.  However, by mid 20th Century the Court was rejecting appeals to Natural Law and seemingly basing its decisions on other things, with that other thing being its concept of what the law ought to be.

Ironically, at the same time that the Natural Law has been retreating from the Court and forgotten by the law, it's been adopted to some degree by the population.  Citations to Natural Law in some quarters are common.  Aldo Leopold's The Land Ethic is a citation to Natural Law, in nature and human affairs.  Conservation organizations, like The Sierra Club, or The Theodore Roosevelt Conservation Initiative, or The Land Conservatory, are based on a concept of Natural Law.  Indeed, some radical ones, such as Greenpeace, are entirely based on that concept to a very radical degree, adopting the thesis that Natural Law trumps human law where the two do not agree.  Philosophers like Michael Pollin basically argue for a concept of the Natural Law.  Very loosely, some statutory law, like The Clean Water Act or The Endangered Species Act, exist with a concept of Natural Law in the background.  People who were debating same gender marriage, up until the Court attempted to end the debate, often argued based on concepts of the Natural Law.

The Court, however, oddly can't seem to find it.

Most recently, of course, we've seen this in Obegefell, which is pretty much based on theory that concepts of fairness and marriage have evolved, even if the electorate in a large number of states has expressly rejected that idea, and therefore the Court will force it.  The opinion comes very close to suggesting that the opinions of the right thinking people have evolved, and the Court therefore is going to do for the country what the country would do for itself, and would do soon anyway, if the country knew what was good for it.  In essence, the Court here acts in the role of Plato's ideal king against the rude mob, for the rude mob's benefit.  A pretty scary proposition.  In essence it adopts the thesis that there is no law, save the law the Court says exists. 

But how does that hold up under natural law?

Not well at all.

The ultimate problem with this is that our entire system of laws is based on a concept of Natural Law, and if we take that out, the law lacks a foundation.  At that point, attempts to substitute one such as the Court has done rely, at best, on a heavily weakened Social Contract theory of law.  While that theory is at least some sort of a theory, it's a weak one at best.  Social Contract advocates argue that the law is one vast contract between all of us human beings, or at least all of us human beings in the country, and the law ought to be determined from that.  The problem with that theory, besides that the Court doesn't begin to apply that evenly, is that the Court only uses "evolving concept" type logic when it wants to alter the state of the law from what a majority of people in some places want to do. It would actually make much more sense to argue Natural Law at that point, as Marshall did in The Antelope, but do what Marshall didn't do and over ride the statutory law, than it does to rely on some sort of social contract theory.  

Some may ask why any of this matters, of course.  But law is somewhat like currency.  It has to be based on something in order to be worth anything.  I know that this is a poor argument in terms of our current currency, which is based only on a promise that it's worth something, but it is nonetheless true.  Natural Law provides a basis for the law, and its something that almost everyone concedes existing at some level.  If it doesn't exist, all law is actually wholly meaningless, and based only on who can punish us and who cannot, which is the pure application of both the Economic Theory of Law and the Marxist Theory of Law.  Might makes right, in other words.  That's the antithesis of the American concept of law and stands squarely against what we think we stand for.  The Social Contract Theory of Law, while less vile, basically is an argument for Athenian democracy, which the Constitution actually was drafted in part to restrain.

All of this goes to argue that the current state of legal knowledge is a bit sad, and in need of reform if law is to be a "learned profession", rather than a mere economic based trade.