Why plessy/brown and bowers/lawrence are correct: Thomistic natural law as the content of a moral constitutional interpretation
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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This article posits the use of Thomistic natural law as the content for a moral constitutional interpretation. Surveying the history of natural law, from the Roman period through modernity, it concludes that the dynamic theory of natural law put forth by Aquinas provides the best baseline for a natural law / moral interpretation of the United States Constitution. The most apparent consequence of using this dynamic conception of natural law is that ostensibly antithetical case law, such as Plessy / Brown and Bowers / Lawrence, can be seen as consistent with then prevailing interpretations of what constitutes the proper scope of constitutional provisions. Plessy and Bowers can be seen as products of a then prevailing constitutional interpretation of due process and equal protection that was rendered obsolete by evolving principles of political morality and equality in society in general. The result was Brown and Lawrence. It is the evolution of interpretation, in this context, that fits with the Thomistic conception of natural law, and it is for that reason that this conception provides such a fertile touchstone for gauging constitutional interpretation across generations.
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