Modern natural law constitutionalists assert that the Constitution, properly understood, includes a kind of general trump card in the form of a moral reality which provides (or is, at any rate, thought to provide) a measure of all positive legal acts--whether framed in terms of the values of natural equality, natural rights, or “simple justice.”
This article explores why “trump card” natural law constitutionalism cannot by its nature adequately confront crucial issues of institutional design and democratic theory. In thus putting questions of moral substance ahead of crucial issues of authority, natural law constitutionalism appears to rest on a naive, utopian faith in the ability of judges trained in law to adjudicate competing claims of rights and justice while lacking due regard for human propensities toward hubris as well as injustice.
4 S. Cal. Interdisc. L.J. 501 (1995).
McAffee, Thomas B., "Substance Above All: The Utopian Vision of Modern Natural Law Constitutionalists" (1995). Scholarly Works. 510.