Stephan and Butler, perhaps Tribe goes the route of the Social Contract because, whether it’s via Hobbes or Rousseau, you get a totalitarian Leviathan or Sovereign who (as Jean Jacques lovingly observed) can “force you to be free.”
The alternative is the Natural Law, which fundamentally rejects totalitarianism by putting limits on the power of the state (but, to the chagrin of some, affirms that the state — the polis — is natural to man).
The mention of Justice Thomas is intriguing. I recall how he ducked the issue of Natural Law during his confirmation hearings, insisting that he was interested in it only as an historical artifact, rather than a reality that forms the foundation for any free society because of its acknowledgment of a higher law. He might have ducked it then, but he is apparently embracing it now.
12:58 pm on February 8, 2011
