A concrete application of the common good and natural law

Pat Smith writes at Ius & Iustitium writes on the silver linings in the otherwise lamentable case of United States v. Dereck Tabor, No. 202100046:

Looking to Adrian Vermeule’s Common Good Constitutionalism, Thomas Aquinas, and Blackstone’s Commentaries, Senior Judge Stephens proposes interpreting Article 120b from the perspective of the common good. See id. at 44–46.

Stephens frames his interpretation of Article 120b as an inquiry in the light of the common good and the natural law, observing that “A statute—a lex—is an attempt to codify a higher law that a nation or a people all know to be true and good, even if it were to limit individual freedom in certain circumstances.” Id. at 46. For Stephens, Article 120b is an attempt to codify the natural-law notion that “it is always wrong to sexualize children.” Id. at 45. Moreover, this approach was, in Stephens’s account, the implicit approach of the military courts before 2008. In their early considerations of the question the question, the military courts took ultimately a view informed by the common good and the natural law. However, in a case called Miller, the Court of Appeals for the Armed Forces took a textualist view of the statute. This has led to the tangled web of precedent and interpretation that Judge Deerwester traces in the opinion of the Court. 

Stephens takes the opportunity presented by the case to make some general observations from the perspective of the classical tradition. His criticisms of positivism and textualism, especially from a sitting judge responsible for reviewing appeals from the Navy and Marine Corps’ courts-martial, are well worth reading. E.g.id. at 54. He also observes that the common good itself is harmed when individuals are “allowed to indulge a vulgar prurient interest towards a child and . . . [take] increasingly reckless steps toward ‘more serious sex crimes of a perverted nature’ . . .,”  id. at 55, even if the child is unaware of the conduct. Stephens’ comments—far from being mere obiter dicta—offer a window into the considerations of a sitting judge grappling with approaching a concrete question through the lens of the common good and the natural law, and for that reason alone they are well worth considering.