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.