WASHINGTON - It was nearly 120 years ago that the Supreme Court upheld a state law barring women from becoming attorneys, declaring that it was "the law of the Creator" that a woman "fulfill the noble and benign offices of wife and mother."
Today, that discredited 1873 decision is being dredged up by foes of the nomination of Judge Clarence Thomas to the Supreme Court. Why? Because the 1873 court and Thomas share a common legal theory: natural law.
Natural law is founded on the venerable concept of an unwritten moral code. Some say it comes from God. Others find its source in "human nature," especially the innate ability of humans to reason or to discern a difference between right and wrong. Thomas has spoken of both "the laws of Nature and of Nature's God."
To those who adhere to this philosophy, rights under natural law trump any conflicting provisions in written laws.
This notion was embedded in the Declaration of Independence and widely accepted when the Constitution was adopted.
In modern times, though, natural law has been cast into the dustbins of American jurisprudence, surviving largely in weighty law review articles, philosophy classrooms and Roman Catholic intellectual circles.
But with President Bush's selection of Thomas, natural law is making a comeback. Thomas has repeatedly referred to natural law as a vital source of constitutional interpretation, which makes it important for Americans - and the Senate Judiciary Committee - to understand what he is talking about.
Thomas' natural law philosophy sets him apart from other Supreme Court justices of the past 50 years. They have generally adhered to a school of constitutional interpretation known as legal positivism, the belief that individual rights exist only if they are expressed in written laws. The jurist Oliver Wendell Holmes scornfully described natural law as "a brooding omnipresence in the sky."
Thomas disagrees strongly with Holmes but has indicated that he would apply the Supreme Court's interpretive methods and use natural law sparingly. As a federal appeals judge for the past 17 months, he has never invoked natural law in a written opinion.
But he has left unclear his view of the impact of natural law on some of the most significant issues expected to come before the Supreme Court: race and sex discrimination, privacy and abortion, individual freedoms and government regulation.
Thomas' concept of natural law, as expressed in his articles and speeches, appears vague, inconsistent and undeveloped. He acknowledged last year that he lacked a "well thought-out constitutional philosophy."
Natural law is "a mighty slippery concept," said Suzanna Sherry, a University of Minnesota law professor who has specialized in constitutional history. Still, she finds it "no more frightening" than the discretion permitted under the prevalent theories of constitutional interpretation.
Sherry's studies show that the Constitution was never intended to displace natural law, and that the modern Supreme Court's reliance on the Constitution as its sole interpretative method is "inconsistent with the intent of the founding generation."
Thomas has written that "American politics and the American Constitution are unintelligible without the Declaration of Independence, and the Declaration is unintelligible without the notion of a higher law by which we fallible men and women can take our bearings."
The Declaration proclaims: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness."
But what unwritten "natural rights" is Thomas talking about? He has mentioned three areas:
1. Equality: Thomas has repeatedly stated that the natural right of equality means that the Constitution is color-blind, that individuals of one race can't be preferred over members of another race. That would rule out group racial preferences in affirmative-action programs.
Indeed, Thomas has disagreed with major Supreme Court decisions endorsing preferences based on race or gender, or requiring school busing. The court's 1954 school desegregation ruling in Brown vs. Board of Education, he said, should have been based on the natural law of equality instead of "dubious social science" showing that segregated black children had a self-image of inferiority.
2. Privacy and abortion: Many natural-law theorists believe privacy, which is not mentioned in the text of the Constitution, is a natural right.
Thomas hasn't said whether it is, or whether it would include a right to abortion. But he has disagreed with those who would protect privacy and other unwritten rights under the Ninth Amendment, which says that the enumeration of rights in the Constitution "shall not be construed to deny . . . others retained by the people."
Thomas has called the Ninth Amendment a potentially dangerous "blank check." Yet he has praised an article concluding that there is an unwritten "right to life of the child-about-to-be-born," calling it "a splendid example of applying natural law."
3. Economic freedom: Thomas has mentioned "economic liberties" as an ignored but vital part of the rights of Americans. But he has not explained what he means.
There is no evidence, however, that he wants to turn back the clock to the early part of this century, when the high court struck down wage, hour and consumer-protection laws to protect commercial freedoms.
In conclusion, Sherry said, "The Constitution is so vaguely written that you can find almost anything in it. There are a lot of ways to take the Constitution beyond its literal words. You don't need natural law.
"The justice whose politics you agree with is going to do the things you like, and the justice whose politics you don't agree with will give you decisions you won't like."