I would only add that sometimes the text of a law or constitution includes language that calls for a value judgment, which ought to be informed by natural law. Probably the most obvious example is the Eighth Amendment's ban on "excessive" fines and bail, and "cruel" and unusual punishment. Recently, there has been much discussion about what constitutes a "reasonable" accommodation under RFRA.
My best guess is that Justice Scalia would have said that legal judgments involving considerations of value should be based on those values embedded in the original text of the relevant documents, legislation or case law. In that case, contemporary value judgments would be derived, not from the precepts of natural law, but from the antecedent texts and decisions. I suppose this kind of "originalism" is an exercise in historical sociology rather than an application of the requirements of natural law. For instance, I suspect Scalia would have assessed what counts as "reasonable accommodation" in the RFRA by scrutinizing the prior trajectory of case law on the subject, not by consulting natural law. Again, that's my best guess.
Tom Pearson
I agree with you that this would likely have been Justice Scalia's answer. I think his goal was to have a judicial philosophy that eliminated or at least minimized subjectivity in judging, and this approach has obvious value. However, I'm not sure it could ever be completely successful. For example, the Health Insurance Portability and Accountability Act (HIPAA) provides for fines for failure to meet certain standards for securing electronic medical records. Given the technical challenges of cybersecurity, the increased complexity of medical records, etc., it seems fanciful to suppose that one could identify eighteenth century precedents capable of providing a definitive answer to the question of whether or not the statutory fines are "excessive".
Jon Edwards
I agree with what JEdwards wrote. I mean, I definitely appreciate minimizing subjectivity, and attempting to make things work with what we think the founding fathers envisioned...
- but so much of what's out there is beyond what they envisioned, lacks precedents, and imposes what we we think they thought, etc etc.
I'm really for a new constitution at this point, but I don't see that happening in my lifetime.