The Gnostic Theory of Constitutional Interpretation

Anthony Esolen's writes at Mere Comments on the trend on liberal Western courts to be guided by "a new natural law":

Speaking in New Zealand last December, Chief Justice Beverly McLachlin of the Canadian Supreme Court described the criteria for discerning what she called “a new natural law.” Her statements evince that soft narcotic blurring of categories that people find so useful when they wish to arrogate an authority that is not properly their own. “The rule of law,” she says, “requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion.” Note that she has not identified constitutional mandates, or constitutional prohibitions, but constitutional norms, the meta-constitutional values that are supposed on certain nights to animate the actual written constitution, which would otherwise be a dead letter. These norms are, conveniently, unwritten, requiring a special sense, a knack, to discover not only what they are, but that they are at all.

Esolen goes on to call this "Judy Jetson Theory of International Jurisprudence:"

“But Daddy, don’t be such a square! I just have to wear that miniskirt! It’s all the rage on Pluto. It’s the living end!” And the daughters of Pluto say it’s all the rage on Earth. Unlike Justice McLachlin’s natural law, some things never change.

And this is the essence of the matter, isn't it? This notion that there are principles "in, with, and under" (to use a Lutheran phrase to describe the presence of Jesus Christ in the bread and wine of communion) the words of the constitutional text is peculiarly bizarre, especially within the context of the U.S. Constitution. How did we become saddled with this idea that a document which sets forth specific, enumerated powers in order to erect very definite boundaries for the federal government is somehow animated by subjective values which are not discernible by the great, uneducated masses?

It would be just as well to refer to this as the Gnostic Theory of Constitutional Interpretation: the saving ways of the law can only be known through secret knowledge , accessible only though the wisdom of the judiciary.