John C Hoelle (University of Colorado at Boulder) has posted The Virtue of a Natural Law Reading of the U.S. Constitution (Consortium, 2011) on SSRN. Here is the abstract:
Natural law was arguably fundamental to the U.S. Constitutional project: the Framers apparently assumed courts would interpret and apply unwritten natural law concepts alongside the enacted provisions of the document. However, since the early 19th Century judges have sought to ground all decisions on specific text in the Constitution. Not only is this inconsistent with the intent of the Framers, it makes for bad adjudication. Fortunately, I believe philosophy and custom can be marshaled on the side of re-introducing judicial appeal to natural law.
Philosophically, the fact that the positivist conception of law has no connection to ethics or natural law principles makes it ontologically bankrupt - unlike natural law, positive law has no ontological validity at its core. Natural law is also inherently primary to positive law - in the sense that moral imperatives shape positive law, and in the sense that interpreting positive law requires higher guiding principles. The existence of a long-standing custom of judicial appeal to natural law provides an ethical basis for judicial creativity in protecting rights that flow from natural law principles.
As to a model framework, I argue that judges are competent to apply a range of faculties in ascertaining our society’s moral true north. I offer that virtue ethics, and specifically the venerable tradition of the middle path - the doctrine of the mean - can provide a framework which holds promise as a universal principle that can assist us in re-evaluating and re-creating our fundamental law as our social experiment in the United States develops.