The late Justice Scalia was one of these legal positivists. He was a devout Roman Catholic who personally believed in what his Church taught: the natural law of the Aristotlean-Thomistic tradition. His point was if legislatures wish to use that to inform their conscience when drafting and voting for legislation they are free to do so. Just as they are free to use the the Bible, Book of Mormon, the works of Immanuel Kant or whatever they wish.
I can't resolve the debate between the legal positivists and those who believe that a higher organic law undergirds our system and can be used in constitutional interpretation. Legal positivism predominates. I do believe that the reason why some very distinguished scholars dissent and believe in natural law and rights is that quotations abound from America's Founders demonstrating that they believed in the existence of such.
Christian nationalists think that it's Christianity that is the source of this higher law. After years of studying this, I don't think that's right. Though God does have a place in documents like the Declaration of Independence and Alexander Hamilton's "The Farmer Refuted," which are among the sources of the aforementioned quotations by America's Founders on their belief in the existence of the "brooding omnipresence in the sky."
We can add William Livingston's name to the list of Founders who denied that Christianity was the source of the omnipresence. Livingston was a framer of the US Constitution and played a key role in getting the document ratified in New Jersey.
The denial of Christianity as the organic law of America comes from Livingston as he commented on the Articles of Confederation. The Articles do invoke "the Great Governor of the World," but that wasn't good enough for John Mason who wanted language that the "law of the eternal God, as contained in the sacred Scriptures, of the Old and New Testament, [is] the supreme law of the United States,..."
That language is also absent from the US Constitution. In fact the US Constitution, unlike the Articles, is Godless. Below is from Livingston's letter to John Mason, Princeton, 29th May, 1778:
And to have made the 'law of the eternal God, as contained in the sacred Scriptures, of the Old and New Testament, the supreme law of the United States,' would, I conceive, have laid the foundation of endless altercation and dispute, as the very first question that would have arisen upon that article would be, whether we were bound by the ceremonial as well as the moral law, delivered by Moses to the people of Israel. Should we confine ourselves to the law of God, as contained in the Scriptures of the New Testament (which is undoubtedly obligatory upon all Christians), there would still have been endless disputes about the construction of the of these laws. Shall the meaning be ascertained by every individual for himself, or by public authority? If the first, all human laws respecting the subject are merely nugatory; if the latter, government must assume the detestable power of Henry the Eighth, and enforce their own interpretations with pains and penalties.Post Script: For the full, easily accessible version of Livingston's letter, see here.
[...]
[A]nd the inseparable connexion between the morals of the people and the good of society will compel them to pay due attention to external regularity and decorum; but true piety again has never been agreed upon by mankind, and I should not be willing that any human tribunal should settle its definition for me.
9 comments:
Leaving God out of the Constitution has not saved us from "endless altercation and dispute," as far as I can tell. Not that putting God into the Constitution would have saved us from it, either.
The late Justice Scalia saw the "brooding omnipresence" not as God but as natural law, which ideally would be codified in 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 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 -- whether there's a right to an abortion, whether there's a right to homosexual conduct, what constitututes cruel and unusual punishment, and so on -- 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. And the notion that all the judges in the world can contemplate this brooding omnipresence of moral law, cite one another's opinions, and that somehow, they are qualified by their appointment to decide these very difficult moral questions . . . It's quite surprising to me, but I am sure that this is where we are."
As a result, Scalia rather gave up on the possibility of discerning natural law, and his "originalism"/textualism is based on the philosophy that we must be guided by actual legislation rather than the moral druthers of 5 of 9 Supreme Court justices.
As for whether Christianity informed the common law, Jefferson [not unexpectedly] vociferiously denied it, although the great English legal scholar Blackstone affirmed it.
http://reformed.org/webfiles/antithesis/index.html?mainframe=/webfiles/antithesis/v2n2/ant_v2n2_law.html
Many would be surprised to learn that Scalia gave up on the question altogether.
Tom, yes it's interesting when it comes to the "brooding omnipresence" how what's above can be looked to for what's below.
I think the key to Scalia's grievance is when we look "above" the Constitution to find it.
The common law is actually a place that's below state statutes. It still may be inappropriate to look for it there. But if a state statute can trump the common law, it makes it, according to Scalia's perspective a less dangerous place to put it. (But one Scalia not objecting to Erie still didn't think right.)
Below is Walter Berns in "Making Patriots." In our federal charters, we never did what Rev. Mason wanted. But still, the idea that "Christianity" is part of the common law persisted. Berns' quotation below is important in highlighting the PLACE of the common law as something below.
"Liberty of conscience was widely accepted at the time of the Founding, but this did not prevent some jurists and legislatures from insisting, at least for a while (and given our principles it could be only for a while), that Christianity was part of the law, meaning the common law. So it had been in England, and so, it was assumed by some (but not Jefferson), it would continue to be in America. But there was no disagreement about the place of the common law. Indeed one of the first things done by the states after independence was to declare (here in the words of the New Jersey constitution of 1776) that “the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter [or constitution].”
"But if the “rights and privileges” contained in the various state charters or constitutions included the right of liberty of conscience, and if, in turn, this right required, in Madison’s words, “a perfect separation between ecclesiastical and civil matters,” what did it mean to say that Christianity was part of the common law? Very little, as it turned out; and it turned out as it had to turn out. Consider, for example, the case of blasphemy in America…."
pp. 32-33.
"the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall remain in force, until they shall be altered by a future law of the Legislature"
Scalia in essence argued that the US had built such a comprehensive body of legislation that consulting the Brooding Omnipresence was no longer necessary.
However, for the plain meaning per "originalism"/textualism, English common law is still instructive.
Ibid.:
But those are not really the issues that I think people are concerned about; I think that people are concerned principally about the use of foreign law in the interpretation of the United States Constitution. And even there, I have to tell you, I cannot say that it is never relevant. To tell you the truth, I think it is relevant probably more than most people on the Supreme Court. Of course, the foreign law I think is relevant is very old foreign law -- [laughter] -- very old English law. Because what is meant by the terms of the Federal constitution is dependent upon what Englishmen in 1791 considered to be due process of law, or what they considered to be cruel and unusual punishment. So I use foreign law all the time - but it is all very old English law. What about modern foreign legal materials?
Well, that is where I get off the boat. It is my view that foreign legal materials can never be relevant to an interpretation of - to the meaning of - the United States Constitution.
http://web.archive.org/web/20080116061700/http://www.joink.com/homes/users/ninoville/aei2-21-06.asp
There is still a lot of stuff re this Scalia point about citing the English common law as the only acceptable source of foreign law that we haven't yet uncovered.
This is something I've mentioned before and I plan on paying a bit more attention to in the future. I have an LL.M. in the discipline (transnational law), but perhaps I'm missing something here.
To hear Scalia tell the story the "brooding omnipresence" citers are an international foreign law citing one another judicial class. The tendency is to want to distinguish America from continental Western Europe who are so much worse.
That is, I'm getting the intimation that citing foreign law is this continental European thing that American courts shouldn't do. But the truth is actually almost completely opposite. If European courts are in fact doing it, they are doing such in a way that is much less noteworthy precisely because of the weaker position non-Anglo European courts occupy in those nations.
But I know Israel has an "activist" Court like America. I know little about Great Britain's (including Scotland, British Ireland).
But continental European courts behave exactly as Justice Scalia want American courts to behave precisely because they are NOT common law legal heritage courts.
Civil Law nations don't recognize Courts as 1/3 equals. Their courts don't have precedents/stare decisis. Their decisions are binding only the parties. Legislatures are clearly the supreme power.
And unlike America, these "civil law" nations all have "hate speech" laws (that is they don't recognize "hate speech" as protected speech).
DA Strauss wrote about this. Google his work on "common law" Constitution. The thing that conservative critics like Scalia, Bork, etc., hate most about how the judiciary handles constitutional law is precisely related to the common law system of stare decisis and precedent that is absent from non-British European (i.e., continental) civil law system.
So no, this isn't -- unless I'm missing something -- an international thing, even as American courts misuse their power in citing foreign law. But rather, an American/Anglo common law thing that, if problematic, has gotten out of control.
As was his custom, Scalia is sharp on this point
Because what is meant by the terms of the Federal constitution is dependent upon what Englishmen in 1791 considered to be due process of law, or what they considered to be cruel and unusual punishment.
The problem is "evolving" common law or as Scalia puts it, replacing the common law with a regime of "human rights." Elsewhere in the essay, Scalia notes that overreaching jurists pick and choose which foreign laws to use in their creation of a new common law that is not born of the Constitution or stare decisis, the American equivalent of common law.
Capital punishment, for instance. What Scalia doesn't go into is that although "evolved" Europe bans capital punishment, polls indicate their people actually support it. As we see with Brexit, Europe is ruled by its elites and THEIR moral imperatives, not the people's--which is precisely why Scalia supported moral judgments be made democratically, not by elites like Brussels or our Ivy League-produced Supreme Court.
As Scalia cogently closed,
"If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way that Europeans are - and nothing has changed. I dare say that few of us here would like our life or liberty subject to the disposition of French or Italian criminal justice, not because those systems are unjust, but because we think ours is better. What reason is there to believe that other dispositions of a foreign country are so obviously suitable to the morals and beliefs of our people that they can be judicially imposed through constitutional adjudication? And is it really an appropriate function of judges to say which are and which aren't? I think not. Thank you."
http://web.archive.org/web/20080116061700/http://www.joink.com/homes/users/ninoville/aei2-21-06.asp
The problem with the "elites" in Europe and America, but especially continental Europe because they don't have the kind of judicial system we do, has a great deal to do with the elected representatives NOT necessarily doing "the will of the people."
In both Europe and America there are also administrative agencies and the like staffed with unelected types. But it was still the elected representatives who get them into the mess (that for instance Farage et al. is trying to get Europe out of).
The idea that the "elite" elected representatives though act as a buffer to tame the passions of the masses is a "republican" check on "democracy." Something America's Founders thought a good thing.
Perhaps we should do a book club one day on Jeremy Waldon's book that argues against judicial review. Scalia, Hamburger and a few others think judicial review is legitimate, but should be more cautiously when there is a clear "duty" to protect a textual right or something.
Though some conservatives like Lino Graglia have argued that Marbury was illegitimate. After all the text of the Constitution doesn't say Article III Courts have power of judicial review.
But Waldron's book argues that continental Europe has a BETTER system because it's more democratic and wants to see America look more like that. This is what getting rid of judicial review would do. (And he supports hate speech laws.)
I think the judicial review toothpaste is out of the Marbury tube. When the legislature has let something go for a century or two, I think it receives tacit legitimization.
Like, say, chaplains in Congress.
Now, Everson and the rest of 20th century "living constitutionalism," I'm quite open to rolling back. Stare decisis is for suckas. Unilateral disarmament.
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