Sunday, August 24, 2008

The Constitution vs. Natural Law

What is truth?, asked Pilate
By Tom Van Dyke


Jonathan Rowe judiciously explores the Jaffa versus Bork debate below, and our commenters rightly identify the problems.

I adore Antonin Scalia's clarity, and I think he sets it all---and his judicial philosophy---out nicely in this speech about the Supreme Court's increasing invocation of "international law" as "precedent."

"[I]t has occurred to me that this notion of an overarching moral law that is binding upon all of the nations of the world -- and with which all the judges of all of the nations of the world are charged with interpreting -- has replaced the common law.

Those of you who are lawyers will remember that, in the bad old days, that is to say, before Erie RR v. Tompkins [304 US 64, 78 (1938)], the courts believed that there was a single common law, it was up there in the stratosphere.

Now, the state courts of California said it meant one thing, the state courts of New York said it meant something else, and the Federal Courts might say it meant a third thing. But one of them was wrong! Because there really is a common law, and it's our job to figure out what it is."


So until 1938, Scalia argues [admits?] that "common law" was the guiding light for judges, and I believe he's using "common law" interchangeably with "natural law" here, as it's in the stratosphere. Do what you think is right, hang the constitution. This seems to put "originalism" or even "original intent" on very shaky ground.

Let's hear him out:


"So in those days, any common-law decision of one state would readily cite common-law decisions of other states, because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called "the brooding omnipresence in the sky" of the common law. Well, I think we've replaced that with the law of human rights. Which is a moral law, and surely there must be a right and a wrong answer to these moral questions...surely there is a right and wrong moral answer. And I believe there is, but the only thing is, I'm not sure what that right answer is. Or at least, I am for myself, but I'm not sure it's the same as what you think."


Some excellent points here: Judges had a roughly "common" understanding of natural law, and together built up a rather coherent body of judicial interpretation. Precedent, stare decisis, gathered a certain force and respect. Scalia himself is no radical; a look at his decisions show a certain respect for the body of American common law that has built up over the last 200+ years.

And here is the key point: What is the natural law? It's a slippery notion and therefore a problematic notion---the natural law is absolute, but human understanding of it is necessarily subjective. Your interpretation is probably not mine 100% across the board.

And so, Scalia sees a growing Tower of Judicial Babel:


"[A]nalytical reasons for newly imposed constitutional prescriptions or prohibitions that do not at all rest---as the original bill of rights did not at all rest---upon logic or analysis, but rather upon one's moral sentiments, one's view of natural law, one's philosophy or one's religion...Decisions on such matters, whether taken democratically by society or undemocratically by courts, have nothing to do with logic. So without something concrete to rely on, judicial opinions would be driven to rely on such philosophic or poetic explanations as "[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." [Planned Parenthood v. Casey, 505 U.S. at __; quoted in Lawrence, 539 U.S. at 574]."


And so, Scalia argues (do read the whole thing---my excerpts may have made a hash of his point) that a common understanding of the natural law, and by this he means democracy as expressed through legislation, not the "judicial activism" of a select few, is the most constitutional way to reconcile our laws and the "natural law."

Now there's a major aesthetic weakness in his position and philosophy---although Scalia disagrees with Dred Scott because it overturned the Missouri Compromise, which was passed through a democratically elected congress, he cannot summarily declare slavery to be bogus because it offends his moral sentiments. Still, he invokes the Ninth Amendment as a "call to action" [see Planned Parenthood v. Casey]. The Missouri Compromise was patently constitutional in his view, and the Supreme Court was thoroughly wrong in declaring it unconstitutional.

It is thought by many historians that by taking moral decisions out of the hands of the people, the Supreme Court in Dred Scott, instead of expediently settling the slavery question as it obviously intended, led to "Bloody Kansas," John Brown's terrorism, and inexorably, The Civil War.

Scalia's prescription for the conduct of the judiciary isn't the ideal---the ideal, as Plato points out, is a philosopher-king who would make all the right and just decisions on the spot. We wouldn't need precedent, we wouldn't even need laws, really.

But in human history, philosopher-kings come along seldom if at all. For those pragmatists who subscribe to the notion of "a nation of laws, not men"; who still believe that right and wrong are absolutes, even if difficult to discern; and who believe the odds of getting 5 philosopher-kings on Supreme Court are statistically prohibitive, Justice Scalia's thesis of "common law" holds much food for thought.

25 comments:

bpabbott said...

Tom,

Regarding Peter Springer, I'd not encountered him before. Thanks for the reference. I find his argument quite appealing.

He reminds me of the Atheist Ethicist, Alonzo Fyfe ... with the exception that Alonzo is a *very* open atheist.

Jonathan Rowe said...

It's Singer. My Dad saw him speak live at Princeton and I've seen him speak live on TV and the Internet. There are some good programs online of his to watch. He's a very mild mannered and articulate dude. Princeton is like 10 minutes away from where I work, so I wouldn't be surprised if I run into him face-2-face sometime soon.

Tom Van Dyke said...

Aw, guys, I've waited quite awhile on this blog to offer this post and Scalia's argument. The recent posts here on Jaffa, Bork and Scalia made it germane and timely.

Prof. Singer is tangential at this point. Scalia's notion of "common law" as a consolidated body of the American understanding of the "natural law" traces directly to the Founding.

I'll be happy to pick up Singer at a future date: I used him simply as an example of "rationalism" in the previous comments section, not in this post.

Me, I reckon that if we accept that "reason trumps revelation," there's no doubt that this will become Singer's America and not the Founders', as Singer is an eminently reasonable man.

Jonathan Rowe said...

Well we aren't done with Scalia yet. I thought, though, that you would argue, even if reason trumps revelation, we will get to Aquinas' world, not Singer's. That's what among others, Jaffa, George, and Finnis argue.

Tom Van Dyke said...

All things in their time, Jon, although I sometimes despair the time will never come. In the meantime, please do have at Scalia. It's his arguments we're examining.

[As for Jaffa, like Edmund Burke, he often makes me cringe. Right, for all the wrong reasons. John Adams? Wrong for all the right reasons. Hehe.]

Jonathan Rowe said...

I'm doing some last minute schoolwork for tomorrow. But let me let a little cat out of the bag, which probably won't surprise you. I do endorse the following as a moral truth:

"At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."

But, I don't think it comes from right or left field. I think, rather, such is the logical consequence of Locke's self ownership proposition.

If we are going to argue poetry, what's so wrong with that poem?

Tom Van Dyke said...


"At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."


Oh, I do hear that as central, Jon, and in my view, Scalia properly identifies it, calls it out, and mocks it.

Please do argue that as Locke. Me, I hear Sartre. The Founders would have been appalled, I think, as existentialism was almost 2 centuries away.

I think this has absolutely nothing to do with Scalia's argument, which I again insist on a return to, unless we want to make that existential sentiment an amendment to the US Constitution or retroactively insert it into the Declaration of Independence. I suppose Scalia---and all of us---would learn to live with it.

Until that day,


"At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."

is a complete negation of any concept of "natural law" whatsoever, and this is key, at least if we're still discussing the Founding around here.

Matt Huisman said...

I like the way Roy Clouser summarizes these competing viewpoints in his critique of the assumptions behind the DofI and Constitution:

To sum up, then: the Declaration recognizes that there is a standard for laws that
is not itself human-made, but it makes that standard to be rights that ensue from applying
the norm of justice to human life while ignoring the norm itself. It envisions every right
humans should enjoy as already possessed by them, and the making of positive law as
amounting to nothing more than figuring out how to protect those rights. So far as the
Declaration states, that is the whole story. By contrast, the Constitution recognizes that
there are no valid rights until they are embodied in black letter law or established by the
judicial interpretation of law. But it also carries that insight too far by trying to make it
the whole story. It recognizes no standard for justice beyond the judgment of law-makers
about the pragmatic needs of society. It thus acknowledges no standard by which we
could say that it would really be unjust to repeal the rights enumerated in its Bill of
Rights.


Is it just me, or does it seem extremely odd that, especially in today's world, we find the "secular" side appealing to a DofI inspired natural law approach to jurisprudence, and the "religious" side embracing various forms of legal positivism (originalism, textualism, etc.)?

Jonathan Rowe said...

Matt,

Yes that certainly is an irony that I've noticed as well.

Tom Van Dyke said...

I don't see the secular side arguing natural law atall. Any examples?

I do see Scalia trying to reach a democratic middle ground on addressing moral issues, abandoning the "natural law" approach in favor of textualism and an existing bodies of legislation that conform to judicial precedent.

Matt Huisman said...

Forgive my carelessness with the term natural law. I only meant that the rationale behind the 'Living Constitution' line of thinking is a sense that change is warranted because something ought to be so.

You'd think someone making an ought to be claim would either: 1) be satisfied with legal positivism and take Scalia's very modest request of correction/revision through legislation or 2) argue from higher authority (natural law, Almighty God). It's interesting that it doesn't actually work out that way, no?

bpabbott said...

Tom: >>I reckon that if we accept that "reason trumps revelation," there's no doubt that this will become Singer's America and not the Founders', as Singer is an eminently reasonable man.<<

Tom, I'm confused on two points. (1) Where is the evidnece that the founders rejected reason for relevation? (2) I infer from your comments that you see little/no overlap between secularism/reason and religion. Is your religion os unreasonable?

Jon: >>At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.<<

Tom responds: >>Is a complete negation of any concept of "natural law" whatsoever, and this is key, at least if we're still discussing the Founding around here.<<

Wow! ... I personally thought Jon's words to be a profoundly excellent example of the concept of "natural law".

My thinking is that any objection/negation of this sentiment does not originate with nature but with human prejudice.

Matt: >>Is it just me, or does it seem extremely odd that [...] the "secular" side appealing to a DofI inspired natural law approach to jurisprudence, and the "religious" side embracing various forms of legal positivism (originalism, textualism, etc.)?<<

Why? Do the sentiments of the DoI evaporate for those who don't embrace the scripture/doctrine of organized religions? Are the sentiments not possible to express in a exclusive religious context? Color me confused :-(

Tom: >>I don't see the secular side arguing natural law at all.<<

You refer to today's secularist, correct?

Also regarding "secularism" do you infer (1) Secularism is generally the assertion that governmental practices or institutions should exist separately from religion or religious belief, or (2) Secularisim is a principle of promoting secular ideas or values in either public or private settings over religious ways of thought.

I use the term as defined by the latter, but with the perspective that ...

Secularism is the principle that it is preferred to express ideas or values using non-religious (secular) language.

Admittedly my idea of secularism is at odds with Wikipedia. Might there be a better description for my perspective?

bpabbott said...

Matt: >>You'd think someone making an ought to be claim would either: 1) be satisfied with legal positivism and take Scalia's very modest request of correction/revision through legislation or 2) argue from higher authority (natural law, Almighty God). It's interesting that it doesn't actually work out that way, no?<<

No :-(

I find Scalia's position of tossing the problem over to the legislature to be a cop-out. The founders intended the three branches to be in conflict. Each should exercise their responsibilities in a well reasoned manner ... each seeking what is just and proper ... and neither should see themselves as subserviant to another.

In my opinion the three branch system works best when each branch has on foot on the brake of another, and if one isn't braking then another will be accelerating :-(

If the court misinterprets the law in the opinion of the legislature, the legislature can correct it ... I think it more appropriate for the court to interpret the intent/spirit of the law ... and to do so in an extrapolating sense. Meaning if the environment of today did not exist when the law was written, it is reasonable (to me) that the court extrapolate when determining intent ... further I'd prefer they do so in a manner that favors liberty (actions that have no negative impact on others).

Regarding "natural law", my perspective is that if nature shows no objection to an action, belief, etc. then "nature" has no prejudice towards it ... and thus it is up to the individual claiming a violation of "nature's law" to demonstrate it. I think that a reasoned perspective because it is wholly consistent with our constitutional judicial system ...

Thoughts?

Tom Van Dyke said...

In reverse order, Ben, you treat the human experience as if it starts anew everyday with the morning paper. You shift any and all burden of proof onto tradition and experience, custom and practice, to prove itself all over again.

Every day, every hour. I have no problem with challenging the status quo, but you ask mankind, Western Civilization, and the American Experiment to not only live under a permanent state of siege, but to concede the high ground to skepticism.

If order and law compose any part of a cohesive society---and they are essential---your thesis makes them impossible.

Where is the evidence that the founders rejected reason for relevation?

I think you got Jonathan Rowe's thesis a bit backwards here. I just acknowledge it constantly, as I've been under the impression we're exploring these questions together and not just trading monologues.

bpabbott said...

Tom: >>In reverse order, Ben, you treat the human experience as if it starts anew everyday with the morning paper. You shift any and all burden of proof onto tradition and experience, custom and practice, to prove itself all over again.<<

Tom, you appear to misunderstand/misrepresent my thoughts.

Tom: >>If order and law compose any part of a cohesive society---and they are essential---your thesis makes them impossible.<<

I don't see how. In my opinion liberty is essential to a cohesive society. I'd go further to say that we should seek to maximize liberty for each individual up to the point that the increase in one's liberty does not produce a negative to another's. There is some areas where these things overlap, but I don't think we touched on any here.

Matt Huisman said...

Ben,
If you hold something to be undeniable or self-evident, but don’t cite any authority (natural law, Almighty God, 33 Uganda Law Reports) – then all you’re left with is legal positivism, and so you should just follow the proper channel of writing legislation. But legal positivism can be a tough road if you don’t have the votes, which is why some will look to other options. Of course, this may cause others to wonder if they weren’t just trying to pull a fast one.

Tom Van Dyke said...


Regarding "natural law", my perspective is that if nature shows no objection to an action, belief, etc. then "nature" has no prejudice towards it ... and thus it is up to the individual claiming a violation of "nature's law" to demonstrate it.


Ben, this is what I took your having the status quo under constant siege, as the status quo has already "demonstrated" it to the satisfaction of those who passed a law against whatever x we're talking about.

Perhaps that's not what you meant. If you're talking about new legislation, of course the burden of proof falls on the challenger, as he's the one who's challenging the status quo.

Mr. Huisman, thx for touching back on the original topic. It did not go unnoticed.

bpabbott said...

Matt: >>If you hold something to be undeniable or self-evident, but don’t cite any authority (natural law, Almighty God, 33 Uganda Law Reports) – then all you’re left with is legal positivism, and so you should just follow the proper channel of writing legislation. But legal positivism can be a tough road if you don’t have the votes, which is why some will look to other options. Of course, this may cause others to wonder if they weren’t just trying to pull a fast one.<<

Excellent points.

I'm not claiming that the concept of "undeniable or self-evident" rights are an easy road to follow, nor do I think explanation of the founders regarding such is sufficient. However, it is my opinion that is the legacy they left us with.

As you point out it is a tough road, but it is the road the founders left for us and the court to travel (imo).

... and I think it rather clear that the founders did not intend to make violating rights an easy folly, not did they intended them to be easily defended.

bpabbott said...

Tom: >>Ben, this is what I took your having the status quo under constant siege, as the status quo has already "demonstrated" it to the satisfaction of those who passed a law against whatever x we're talking about.<<

ahh! ok. Thanks for the clarification.

In the event that the intent of the legislation is clear (& constitutional) I agree it should be respected, by the court. My point was that if there is doubt, then the court should essentially favor greater liberty in its judgement.

If the legislature finds a constriction of liberty is needed they can reaffirm that with subsequent legislation.

If not then the court has done a great service to its citizens.

Tom Van Dyke said...

Well, Ben, I think you just restated Scalia's judicial philosophy. I'm gratified this discussion wasn't pointless.

Perhaps we'll pick up a point you identify here, and what Mr. Rowe is getting at in his recent post on Locke: we might have little trouble in identifying absolute liberty---you can do what you want.

Once [a] man joins society, the "common good" starts creeping in as the limiting factor to his absolute liberty, and we have a helluva lot of trouble agreeing on what the "common good" is.

It seems to me that a disposition toward "greater liberty" is best reflected in our choice of legislators to elect. Of course, since each of us value some liberties over others---and have differing versions of "the common good"---well, that's why we're having an election in November.

Jonathan Rowe said...

Well -- I really don't like legislators and that's because entrusting them with the "common good" has lead to one big liberty denying leviathan state of trillion dollar budgets at the federal level and bloated state and local budgets as well. I also don't think courts should be entrusted with the final say over the "common good" either. Cass Sustein wants the Supreme Court to constitutionalize the New Deal!

Rather I want the different braches of governments to play off one another as factions, checks and balances the American way. And I see giving the judiciary the power of nullification (not necessarily supremacy where they get to dictate policy but merely strike down or invalidate the actions of other branches of government and no more) as entirely consistent with a limited government/republican/pro-political liberty system envisioned by the Founders. As such I'm entirely comfortable with the Supreme Court striking down sodomy laws. I'm somewhat less comfortable with courts demanding gay marriage.

It seems to me that giving the Court the power of judicial supremacy over equality issues, not the power of judicial nullification over liberty issues, is what is likely to lead us down a road to judicial tyranny.

Tom Van Dyke said...

Judiciously put, Counselor Rowe, and I agree with all your specifications. Please do see Justice Scalia's dissent in Lawrence, which does not argue in favor of anti-sodomy laws on any "moral" grounds, but against the new and novel principle that the majority on the Court uses to strike them down.

Scalia foresees the decision establishing legal principles that open the door to all sorts of other messinesses, some of which even the most free-thinking among us would find, um, unaesthetic.

We should also note that in practical terms, the unfortunate enforcement of the law in Lawrence resulted in a fine of around $100. The case is and was symbolic. Inherit the Wind, per the majority decision or Scalia's dissent.

bpabbott said...

Jon: >>And I see giving the judiciary the power of nullification (not necessarily supremacy where they get to dictate policy but merely strike down or invalidate the actions of other branches of government and no more) as entirely consistent with a limited government/republican/pro-political liberty system envisioned by the Founders.<<

I agree.

After all the Legislature may refuse to legislate (or they may even rescind law) and the executive may refuse to prosecute. That the Judiciary may nullify unjust law creates a balance where they tyranny of any other branch may be opposed.

Thus, I think it proper that all three branches are able to actively secure liberty for all or any individuals.

bpabbott said...

Jon adds: >>As such I'm entirely comfortable with the Supreme Court striking down sodomy laws. I'm somewhat less comfortable with courts demanding gay marriage.<<

Again, I agree ... but just to be sure, I'll elaborate ;-)

The former is an example of judging the propriety "justness" of the law. The latter is more than that.

The first involves consenting adults with no impact on anyone else. The second disparages a traditional institution (in the minds of many) for the supposed benefit of another. What exactly that benefit might be isn't clear (can someone illuminate me?).

In any event, in the majority of cases I'm aware of the courts have not favored gay marriage (as an agenda), but sought to ensure that any regulation of such contracts fall within the constitutional constraints.

And to be honest I do not understand the motive to ban same sex marriage ... I wasn't aware that the law permitted the government to "wed" same sex partners, and had assumed if such were to occur the law would have to be changed. Am I wrong on this?

In the event (as in Mass) the law is changed to permit civil unions I'm at loss as to the objection.

To be honest I think the extremists on both sides do more to hurt their positions (which I don't grasp) than they do to help.

Tom Van Dyke said...

That the Judiciary may nullify unjust law creates a balance where they tyranny of any other branch may be opposed.


But this is the rule of philosopher-kings, Ben. No wonder Montesquieu was a monarchist.