Abstract Ideals, Time Bound Practices, and Historical Context
Jonathan Rowe on Nov 30th 2007
In trying to get a handle on America’s Founding — an historical event which in part because of the authority of the US Constitution, many sides want to claim — those three interacting factors necessarily yield unresolved disagreements over how to properly understand said event. Two things got me thinking about this recently. The first was my coblogger, D.A. Ridgely’s opinion on the culture war over America’s Founding and religion:
Thus, while Prof. Herzog might have wanted to analyze and critique on rational grounds the 2004 Texas Republican party platform’s assertion that “the United States of America is a Christian nation, and the public acknowledgment of God is undeniable in our history [and that] our nation was founded on fundamental Judeo-Christian principles based on the Holy Bible,” I am increasingly inclined to suspect that such approach misses the real point. Campaign verbiage of this sort simply is the sort of rhetoric one hears in the Bible Belt just as one is likely to encounter equally emotional but nearly substance-free economic and political rhetoric in the environs of Ann Arbor. In other words, understanding such phenomena is more properly the work of sociology or social psychology than of political theory, let alone philosophy.
He’s right in a sense. Because political philosophy involves asserting moral claims, political theorists of one stripe or another are inclined to give historical events politicized readings. Sociologists, or perhaps historians may claim some type of more objective analysis, something less “political” than how political theorists likely view events. Though, the social constructionists or legal realists are likely to note all of these disciplines are ideological and hence political.
Dr. Barry Shain makes a similar point — and this is the second thing that got me thinking about abstract ideals, time bound practices and historical context. Shain is one of the few notable paleoconservative professors of political science at a reputable university — Colgate. He also argues something close to the Christian America thesis, or in his case, the Protestant Christian America thesis, although in a much more learned and nuanced manner than do the Bartons and Federers of the world. Although I’m not much more impressed with the case he makes. He’s hard on the Straussians who argue for more of an Enlightenment America thesis (oddly enough, he works with one of them — Robert Kraynak), and argues their history is politicized (and indeed, this is in part because they are political scientists, not historians). Shain notes:
I think the current state of American history is a troubling problem and, sadly, among the causes, is too great a reliance on the historiography of political scientists. Because of the shift of attention by professional historians away from subjects of importance and interest, the dissemination of historical learning has been turned over to political scientists, most particularly Straussians, whose skills, interests, and professional competence leads readers and students away from a serious exploration of historical subjects and, the appropriate humility that hopefully follows.
[...]
The strangest thing today in American history is that the only group that supports a decidedly liberal reading of the Founding is one that is on the right, that is Straussian political theorists. How odd is this? The far left, that I assume dominate many departments of history, is too concerned with the particular fate of women and oppressed peoples to have the time to defend American historical liberalism. So who does? Well, those most frequently lauded by conservatives and supported by conservative organizations, that is, Straussians. I suppose, for me, that they are often poor historians is less frustrating, though not necessarily less dangerous, than that their history marginalizes conservatives and yet is supported and feted by the same people it marginalizes….So those who are viewed by many as authentic conservative voices, for example Charles Kessler, regularly lecture and describe America as an enlightened nation. I am sorry to disagree, but America, in the eighteenth century and still today, is a Christian country. If you are dubious and would prefer to travel in space rather than in time, take a quick trip to Europe so that you can see and feel what post-Christian enlightened nations actually feel and look like. It is incomprehensible to me why conservative donors support those who relegate them to the position of some kind of afterthought in the history of a nation that is authentically Christian and conservative. Is it some kind of self-loathing? I have yet to make sense of this strange anomaly. Indeed, American history is not only Christian, but at least until the end of the eighteenth century, it was Reform Protestant.
I would submit that whether one concludes as Shain does — that the American Founding ought to be understood as a “Reform Protestant Christian” event, and not an Enlightenment event depends on whether one views said event though its abstract ideals or time bound practices. Shain clearly chooses the latter:
Isn’t it possible that most contemporary readers have little idea what happiness meant when used in the Declaration or, more broadly, in the context of eighteenth-century political and moral thought? Too often, English readers assume that the eighteenth-century meanings of key concepts have remained unchanged over the course of 200 hundred years. This is an illusion…and, I fear, does far more harm than good….Almost every word in the Declaration, but particularly in the second paragraph that has been given so much attention, is regularly misread. It is frightening to me that people read the Declaration and claim that “it means that the authors held that all people were equal in society.” Everyone writing at the time was aware that no married woman could own property and that most people in the Western hinterlands were politically dispossessed. Most of the population in the coastal South or in large Northern towns owned or engaged in commerce involving slaves. Do most people think that the Declaration’s authors were terrible hypocrites or simply liars?
Liars no. Perhaps hypocrites. They posited various ideals and oft-did not live in accord with those ideals, like a rich leftist who takes advantages of tax shelters with which he in principle disagrees or a black conservative who takes advantage of an affirmative action program with which he disagrees. Jefferson said all men were created equal but owned slaves. Were those black slaves not human? The only way to get a “Protestant Christian America” reading out of the US Founding is to read it through those time bound practices, as opposed to abstracting any timeless ideals from the Founding. If one views Founding era practice as dispositive in determining Founding principles, one could aptly conclude that “all men are created equal” meant all white propertied Protestant males are created equal. As Robert Locke put it:
Crucial facts about what America was founded on are deliberately hushed up by both liberals and conservatives and admitted only by the non-respectable Left and the non-respectable Right. Namely, that this country was founded upon conquest, slavery, sexism, and class rule. The Constitution, as originally written, holds that our ownership of this land by conquest is just, that Indians are savages, that blacks may be enslaved, that women have no fit role in government, and that the (little-remembered) restriction of suffrage to men of property by state governments is valid.
Shain is one of those members of the “non-respectable Right,” and appeals for authority to a prominent member of the “non-respectable Left” — Mark Tushnet:
Critical legal theorist Mark Tushnet further observes “it was not ‘religion in general’ that the framers saw as the basis of secular order. Rather, it was Christianity and, more specifically, Protestant Christianity.”
Yes, it’s those critical legal theorists, deconstructionists and trashers of America’s Founding that they are, who without hesitation inform us that America was founded on racism, sexism, and class rule, and therefore, originalism is not a viable theory of constitutional interpretation because it is morally indefensible. And if America was founded on slavery, sexism, stealing land from Indians and class rule, then the crits are right, America’s Founding is morally indefensible and only important to study from an historical or sociological perspective, but can yield no moral authority whatsoever. Citing a bunch of slaveholding, racists, sexist bigots for moral authority…you might as well ask what would Hitler do?
The problem for Shain is his case for a Protestant Christian America is indissolubly linked to this racist, sexist, morally indefensible view of America’s Founding. As Shain noted:
…Marty Diamond and Herb Storing…were both dedicated scholars and sought the truth and followed it wherever it led, be the outcome convenient or not….[T]hose scholars who came to prominence after them have not followed them in their work habits and in their commitment to the truth. Their prominence among American conservatives, I fear, has been bad for history and, quite likely, bad for America and American conservatism. I remember, when still in grad school, an exchange that I had with Tom Pangle in which he accused me of exposing myths that were needed to protect American democracy, and in so doing, of writing in the tradition of Carl Schmitt. It was pretty clear to me that what Tom was accusing me of was describing, truthfully and faithfully, central features of early American history. More particularly, what warranted his attack was my demonstrating that American political thought and practices was importantly shaped by Reform Protestantism and not some idealized enlightenment.
I would note Pangle et al. have damn good reason for accusing Shain of positing something that could destroy American democracy. Those “central features of early American history” are not just America’s Protestant Christian foundations but that “ownership of this land by conquest is just, that Indians are savages, that blacks may be enslaved, that women have no fit role in government, and that the (little-remembered) restriction of suffrage to men of property by state governments is valid.” Given that such ideas have been rightly consigned to the dustbin of history, those who would appeal to America’s Founding for any kind of moral authority have no choice but to look for an alternative approach.
What those who defend America’s Enlightenment liberal foundations do is abstract ideals from America’s Founding and focus on them as opposed to practices inconsistent with those ideals like slavery or state established Protestantism. If one looks to Founding era practice, “all men are created equal” means all white, propertied, Protestant males. Abstracting ideals from the Declaration, one could conclude that since blacks and women are human beings — the term “men” meaning “mankind” or “human kind” includes blacks and women — racism and sexism violate the Declaration regardless of Founding era practice. Likewise, the same Founding era natural rights theory holds all men have unalienable rights of conscience and Christians take those rights on an equal footing with “the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination,” regardless of Founding era practice or laws to the contrary. America founded on slavery or anti-slavery? America founded on privileging Protestant Christianity or an enlightened equal rights among religions? It all depends on the perspective from which one looks. The meaningful difference being one of those perspectives (the “non-respectable one”) is morally indefensible, the other is not.
I’ll let you be the judge as to the proper one.
Filed in The Belfry, The Bureau
“central features of early American history” are not just America’s Protestant Christian foundations but that “ownership of this land by conquest is just, that Indians are savages, that blacks may be enslaved, that women have no fit role in government, and that the (little-remembered) restriction of suffrage to men of property by state governments is valid.” Given that such ideas have been rightly consigned to the dustbin of history, those who would appeal to America’s Founding for any kind of moral authority have no choice but to look for an alternative approach.
Aye, Mr. Rowe. The America as we know it started with Abraham Lincoln and the great bloody war between the states. Whether it was about the supreme sovereignty of the central government or erasing the abomination of chattel slavery makes little difference, as form met function.
Federalism, which even James Madison adored, has its shortcomings.
Still, federalism is invaluable in achieving a critical mass, which resulted in constitutional amendments like universal suffrage, which may or may not have been a good idea.
The Great Hand of the central government, then, is most useful when it comes to tipping the scales this way or that after the several states have formed a consensus. Until an idea’s time has come [see Everett Dirksen's inspiring speech of the same name], one can only move it along by moral suasion, not force, unless one’s in the mood for a Civil War, which we ain’t in the mood for just about now.
“unless one’s in the mood for a Civil War, which we ain’t in the mood for just about now.”
Are you sure? ;-)
This site aside online political rhetoric is often angry to the point where it is easy to imagine the particpants would fight if they were in the same room.
Perhaps we should be glad the web doesn’t have more influence.
A minor quibble, but I think I would be more inclined to say that political philosophy, at least at its best, is more properly a matter of analyzing than of asserting moral claims. Of course, if the Crits — Motto: “The Legal Realists were too absoutistic!” — are correct. such disinterested analysis is impossible. Those of us who continue to think that ethical relativism is ultimately incoherent (even without Foucault’s help!) disagree, but I have to admit that it is damned difficult to justify a more likely true metaethics than prescriptivism.
BTW, I hope it is understood that I have no objection with these sorts of theoretical disputes, per se. Perhaps the major thrust of my earlier post was simply that, interesting though such arguments are, they tend to be “hermeneutically sealed” vis a vis the general public debate which really is best understood in emotive or, at best, prescriptive terms.
The more common and more moderate utilization of historical originalism starts where someone like Shaine does but then accepts as legitimate many of the constitutional amendments and legal precedents or historical developments that have since given more equal rights to native Americans, non-property holders, non-Christians, blacks, women, etc. that are popularly accepted and well entrenched. However, when it comes to continuing moving in that same direction as an abstract principle they declare that we should stop where we are, that we are going no further because we cannot find any justification from the 1780’s for doing that absent a constitutional amendment or a change in existing legal precedents or in public opinion, or they selectively declare we should go backwards to something closer to what existed in the 1780’s because public opinion favors going backwards in this instance and because there never was a constitutional amendment justifying a prohibition on reverting to past practice.
Of course, they insist all along that originalism is a principle, one that they follow even if it doesn’t produce ideal results or the results that they would prefer, but in reality it is a selective principle based on public opinion, not on any ethical principle that transcends public opinion. Following public opniion is a good guide for legislating, but for the judicial branch this originalism principle is a non-principled abandonment of their responsibility to uphold minority civil rights against majority opinion.
Are you sure? ;-)
This site aside online political rhetoric is often angry to the point where it is easy to imagine the particpants would fight if they were in the same room.
Matt, I think the villain is internet anonymity. People say things they wouldn’t dream of saying face-to-face in a bar, where there’s a real possibility the other fellow might punch your lights out.
I notice that when people sign their real names, and they know their words will live forever in Google cache, they’re admirably thoughtful and civil.
“ethical relativism is ultimately incoherent”
DAR, could you provide your favorite cite (hopefully available on-line) arguing this position? Outside of perhaps one based on evolutionary psychology, I can’t even imagine what a coherent argument against ethical relativism would be. (Ignoring the very real possibility that I don’t really understand what it is.)
- Charles
“originalism is a principle … they follow even if it doesn’t produce … the results that they would prefer”
It’s an admittedly limit sample, but it does appear that the poster boy for originalism, J. Scalia generally does get the results one might guess he would prefer - at least in the arena of morality - by following that interpretative philosophy. Of course, this is just a happy coincidence, since it’s only “living constitutionalists” who have cynically adopted an interpretative philosophy that produces their desired results.
- Charles
It’s an admittedly limit sample, but it does appear that the poster boy for originalism, J. Scalia generally does get the results one might guess he would prefer - at least in the arena of morality - by following that interpretative philosophy. Of course, this is just a happy coincidence, since it’s only “living constitutionalists” who have cynically adopted an interpretative philosophy that produces their desired results.
According to this assertion, which appears cynical on its face, originalism does indeed support Scalia’s druthers, then, just as a “living constitution” philosophy is necessary to come to opposite conclusions.
There doesn’t seem to be a problem here; cynicism seems superfluous.
Charles,
I don’t want to put you off but neither do I want to threadjack here. Perhaps I’ll address the issue in a post of my own in the near future, at which point I’ll also try to find some cites for you. (Admittedly, nothing readily accessible springs to mind.) Let’s be clear at least that we’re talking about the same thing, though. I don’t deny that as a purely empirical matter people obviously do disagree about whether X is right, wrong, good, bad, etc. Nor do I deny that there are no natural, objective qualities or properties in the world to which “good” or “wrong” refer (that is, the opposite of moral relativism is moral objectivism, not moral naturalism). Still, what I claim is incoherent is the assertion that “X is morally wrong” and “X is not morally wrong” can both be true in any sense of truth itself worth asserting. Now, not to be too tedious here, but we’ll also have to look at possible confusions arising from not observing the type / token distinction and to make clear the very different sort of claim that normative statements are generically noncognative.
“cynicism seems superfluous”
The comment was meant to be sarcastic, but not cynical. I assume that anyone who attains the position of SC justice has noble intentions, but also that there is a natural inclination toward an interpretative philosophy that comports with one’s overall worldview. The sarcasm was directed at those who suggest an asymmetry in intentions, in my experience more often and more shrilly coming from fans of originalism (who, I bet, typically have at best a simplistic idea of what it means). I should emphasize that that experience has been in other fora. No slight intended to the “locals”.
Or perhaps I missed your point.
BTW, I’m not sure it’s true that a “living constitution’ philosophy is necessary to come to opposite conclusions. It appears to me that Prof Barrett’s “Lost Constitution” approach would produce many of those conclusions (eg, some of J. Scalia’s beloved morality laws would go). And although I don’t really know, I rather doubt that he is a “living constitutionalist”.
- Charles
there is a natural inclination toward an interpretative philosophy that comports with one’s overall worldview.
True, Charles, altho Justice Scalia occasionally upsets [cynical] expectations by sticking to his judicial philosophy, whereas a “living constitutionalist,” by definition, will always come up with an outcome that suits his/her druthers.
“There is no such thing as a ‘Catholic judge…The bottom line is that the Catholic faith seems to me to have little effect on my work as a judge. . . . Just as there is no ‘Catholic’ way to cook a hamburger, I am hard pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic.”—A. Scalia
[...] Jon Rowe quotes Prof. Barry Shain as follows: So those who are viewed by many as authentic conservative voices, for example Charles Kessler, regularly lecture and describe America as an enlightened nation. I am sorry to disagree, but America, in the eighteenth century and still today, is a Christian country. If you are dubious and would prefer to travel in space rather than in time, take a quick trip to Europe so that you can see and feel what post-Christian enlightened nations actually feel and look like. [...]
“a “living constitutionalist,” by definition, will always come up with an outcome that suits his/her druthers.”
Oh, the irony.
“There is no such thing as a ‘Catholic judge’”
I assume this quote was in response to recent expressions of concern about the unbalanced religious makeup of the new SCOTUS. I would (uncynically) agree with the quote, but only because I think the concern is misplaced. I suspect the primary motivator of J. Scalia’s interpretive approach is his conventionality, of which his religiosity is but one component. And conventionality means alignment with majority values - not necessarily contemporary ones. And if you prefer the “will of the majority” - preferably a past majority - and minimal constitutional constraint on the “tyranny” of that majority, originalism in one of its more restrictive flavors fills the bill.
Not, of course, meaning to suggest that even if this assessment were correct that it would have been a conscious “cynical” strategy, just a natural progression.
- Charles
I think we’re in agreement, Charles, with the proviso that Scalia may indeed be creditably principled, and those principles lead to some conscientious and unexpected outcomes.
If Scalia’s originalism is principled, then, we must admit that the Constitution as written, and as it understood itself [and how the Signers understood it], does indeed support his more traditional view of morality etc., and further, that “living constitutionalists” are indeed merely following their druthers, for if they came up with conscientious and unexpected outcomes, they’d be slouching toward originalism.
It would be nihilistic to consign originalism to a pile of indistinguishably valid philosophies, then. Scalia continually states he’s OK if the people want to change the laws and the constitution itself per the mechanisms already in place, and as a jurist would respect those changes.
“I think we’re in agreement”
Apparently not. You keep suggesting that Scalia’s originalism is somehow “right” while “LC” (and presumably other interpretative approaches) are “making it up as you go”, ie, “wrong”. I just see them as different, see the debate as being essentially how much should be subject to majority will, and consider that one’s position on that will strongly influence one’s preference vis-a-vis interpretive approach.
J. Scalia is an exemplar of the majority, so strict majoritarianism works well for him. For those of us who are in some way(s) minorities, not so well. To repeat, I uncynically trust that those who think seriously about such matters are sincere; but I can nonetheless disagree with some of them on some issues. I personally don’t want to live in J. Scalia’s neat little constricted world where the herd defines morality. In younger days I lived in that world, in particular in the Bible belt. It sucked.
BTW, suggesting that if you fail at winning a majority at the voting booth you can always amend the constitution - requiring a supermajority!! - is a cruelty joke. Evidently, even the supposed best SCOTUS intellect has his moments of logical lapse.
- Charles
I personally don’t want to live in J. Scalia’s neat little constricted world where the herd defines morality.
Well, I see a structural problem then, Charles. Scalia’s moral world is the majoritarian one of the Constitution when it was written, or the majoritarian one of the present, observing the proper mechanisms of evolving the law, which he’s OK with.
Past or present, I don’t see how to get around a certain majoritarianism, except for a minority to decree their own druthers to be the law of the land, which seems to be a fair definition of tyranny.
Unless you’ve got some third way I don’t see…
“… Unless you’ve got some third way I don’t see…”
This is a very strange statement. Hopefully, you accept the fundamental premise that our majoritarianism is not strict but instead is limited by exceptions either explicit (eg, BofR) or implicit (eg, Equal Protection) in the constitution. Otherwise, we’re spinning our wheels.
Both types of exception require some degree of interpretation.Thus, ambiguity inevitably arises. J. Scalia wants the exceptions to be minimal and his version of originalism gets him there. Others want them to be more extensive and reject that version of originalism. Some seem to have the impression that J. Scalia’s originalism is obviously and unequivocally “correct”. I have no idea where that impression comes from, other than that he skillfully argues his position and we can all be easily led where we want to go.
One possibility is that people draw an unwarranted conclusion from his dissents. In the few I’ve read, J. Scalia has (IMO) often been correct that the majority argument leaves much to be desired. And because he is a methodical, logical, and thorough analyst, he can destroy a weak opinion. But that is not definitive as to whether or not the decision is right or wrong. I may argue that 2+2 equals 4 because to achieve replacement, two parents need to have (roughly) two children. My logic is severely flawed, but my answer is correct.
BTW, since I’m pontificating a bit here, a disclaimer is in order. I am neither constitutional scholar nor even lawyer. OTOH, I have read enough to have at least arguably reasonable opinions on the matter. I am always open to being convinced that I am way off base, but a simplistic argument based on the assumption that J. Scalia is right and everyone else is wrong won’t do it. He is a mortal with a priori biases like the rest of us, and sometimes they get in the way. Read his Lawrence dissent replacing his biases with mine, viz:
- the state has no business legislating private morality (based on a general liberty interest)
- homosexuals constitute a suspect class (based on common sense, possibly augmented by genetics)
IMO, his arguments for rational basis review and against strict scrutiny fall apart. Since there are credible arguments in favor of both biases, the certainty of his closing sentence is unwarranted.
- Charles
Not following you. On what basis besides your druthers do you rule?
- the state has no business legislating private morality (based on a general liberty interest)
What is a “general liberty interest?” Where is that in the constitution? Even the sadly neglected 10th Amendment leaves powers to the several states, which is Scalia’s originalist foundation for his Lawrence dissent.
Liberty and the preservation of order are in constant conflict, and balancing them is a classic concern of law and its attending society. [Or, more accurately, society and its attending law, a distinction often overlooked as well.]
It does so all the time. You can’t Michael Vick your dog, practice cannibalism, or—sometimes, at least—abort your 8 1/2 month old fetus. I’m not comparing your issues to these things, mind you, and don’t support the type of laws re Lawrence. But still, I don’t see how the druthers of a minority, unsupported by the constitution itself or subsequent law, have any standing, yet they’re precisely the foundation of your case.
OK, you’re going to be unfair and make me justify my position! We are quickly nearing the limits of my ability to argue the point competently (or maybe way beyond it), but I naively think I’m good for one more round.
Possible technical bases for my “general liberty interest” are the 9th A ala Randy Barrett’s “Lost Constitution”, with “the people” interpreted as meaning “all the people”, not just a majority so that although “the fed gov can’t screw you, the state govs can”); or the “necessary and proper clause” with incorporation. But re Lawrence, since I do consider that gays meet the conditions for a suspect class, I think J. O’Connor’s EP basis was better, a preference IMO somewhat confirmed in that I found J.Scalia’s dismissive and unconvincing reply in the dissent to be weak.
OTOH, it seems obvious to me that the there are some arenas into which the state has no rational interest, eg, consensual sex acts conducted in private. The Griswold opinion may have been hopelessly flawed, but it’s hard for me to imagine how a fan of “limited government” can find a non-religious justification for why the state should be able to prohibit a couple - married or not, whatever combination of sexes, acting in private - from relatively positioning their bodies in any orientation they choose, using any appliances they choose, for any purpose they choose (except possibly procreation, but going down that path would be a major digression).
I am well aware of the liberty-order tug-of-war, and where order is actually threatened, my natural inclination is toward order. But extramarital sex per se, use of contraceptives, homosexual sex, et al, don’t threaten anything I can imagine other than the imaginations of some nut cases who panic at the thought that someone might be deriving some pleasure in this life rather than prepping for the next. (And FWIW, I’m with you that society dictates law rather than vice versa). But look at your and J. Scalia’s lists of “morality” problems: abortion, animal abuse, public nudity, prostitution (depending on how it’s marketed), et al are either nonconsensual, public, or both (cannibalism seems a special case that might be more complex). “It neither picks my pocket nor …”.
IMO, using the phrase “druthers of a minority” to describe collectively all of the relevant issues is at unfairly dismissive, implying as it does lack of seriousness. Personally, I try very hard to understand all reasonable sides of an argument. Admittedly, in the case of extreme silliness like the CT law at issue in Griswold, I’m comfortable accepting a less-than-precise argument just to get the issue off the table. OTOH, when it’s serious business like abortion, I try to be extra careful to assess the view that doesn’t come naturally to me. I simply don’t see a solution to the trade-off between a woman’s EP right and society’s interest in a fetus’s rights, so I remain open to any rational arguments either way.
I don’t use “druthers” pejoratively, only descriptively.
Your reasoning about what should and shouldn’t be illegal is fine, but has nothing to do with law or the constitution, is all. Justice O’Connor is a perfect example of outcome-based jurisprudence, which isn’t jurisprudence at all, but governance, substituting the druthers of the court for the druthers already embodied in law.
Although I admittedly injected my personal preferences, I also answered your request for possible constitution-based arguments. As noted before, I am not competent to prepare a detailed brief, but in the specific case of Lawrence I am 100% confident that an EP argument can be made by someone who is - because it was.
I infer that you consider O’Connor, Breyer, Souter, Ginsburg, and occasionally Kennedy to be unprincipled frauds simply trying to implement their personal agendas and that Scalia and Thomas, being originalists, are the only principled (Lawrence-era) justices. If so, that perhaps should have been made clear several exchanges ago. I laid out my contrary assumption early on. If you knew that we were starting from irreconcilable premises, acknowledging that might have short-circuited a futile process.
A final observation: many of your persuasion state that what they would like to see is essentially a bench of all Scalias. But given that his opinions on the hot-button issues are mosty predictable, the essence of that is wanting the court to produce specific results, and in particular Scalia’s results. This is the essence of authoritarianism. But the same people claim to be majoritarians, which implicitly assumes diversity of opinion (otherwise, no need to vote). Looks to me like a serious inconsistency. Being by nature anti-authoritarian, I like to see 5-4 decisions on difficult cases, suggesting as it does, a healthy diversity of opinion - although it would seem healthier if the specific distribution were less consistent.
Notwithstanding the above, I appreciate being challenged to defend my positions, so I have no regrets - and thank you for the willingness to engage an amateur.
- Charles
I’m an amateur, too, Charles. I do think that
But given that his opinions on the hot-button issues are mosty predictable, the essence of that is wanting the court to produce specific results, and in particular Scalia’s results. This is the essence of authoritarianism.
is unfair. Scalia can, because he actually has a judicial philosophy, be forced to come up with results that are surprising, and contrary to his druthers. The others cannot, and rule not as jurists, but as philosopher-kings.
This isn’t to say any of their rulings are wrong or unjust. That’s outside the purview of my objection.
Now, Clarence Thomas still is guided by natural law, which even Scalia is not. That’s another interesting question…
“Clarence Thomas still is guided by natural law … another interesting question…”
I don’t know if this was intended as an invitation for a response, but in any event I have none since I seem to be incapable of understanding the concept of “natural law” (despite several attempts). However, if you care to elaborate, I’ll “listen”. Otherwise, ta-ta.
-c
I’m sure it’ll pop up again. We’ve gone on long enough, and I enjoyed it. Thank you, Charles, and cheers.
This is one of my favorite Scalia pieces. In between the case cites, a great window into his thinking and philosophy.
An excerpt:
“I suppose it could be argued that you can be a living constitutionalist who wants to create only a new American constitution - sort of a living constitutionalist who doesn’t care what foreign countries think, but wants to update the American Constitution according to the contemporary mores of Americans. Well, that’s certainly a possible position, but it is not, however, one that I think is likely to prevail, because I do not think very many living constitutionalists are likely to be what you might call “chauvinistic living constitutionalists” - that is, dedicated to effecting only those changes that the American people desire. The American people can make their will well enough known by creating new rights legislatively, or in the last analysis by amending the Constitution per Article V. One who believes that it falls to the courts to update the list of rights guaranteed by the constitution tends to be one who believes in a platonic right and wrong, which wise judges are able to discern when the people at large cannot. In fact, it 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 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. There really is a brotherhood of the judiciary who indeed believe that it is our function as judges to determine the proper meaning of human rights, and what the brothers and sisters in one country say is quite relevant to what the brothers and sisters in another country say. And that’s why I think, if you are a living constitutionalist, you are almost certainly and internationalist living constitutionalist.”