Robert Bork: Requiescat in Pace

Wednesday, December 19, AD 2012

 

If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended.  If the Constitution is law, then presumably, like all other law, the meaning the lawmakers intended is as binding upon judges as it is upon legislatures and executives.  There is no other sense in which the Constitution can be what article VI proclaims it to be: “Law….” This means, of course, that a judge, no matter on what court he sits, may never create new
constitutional rights or destroy old ones.  Any time he does so, he violates not
only the limits to his own authority but, and for that reason, also violates the
rights of the legislature and the people….the philosophy of original
understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution.

Robert Bork

 

Robert Bork, one of the titans of American Law, has died.  The foremost expert on anti-trust,  and a champion of originalism in regard to the Constitution, Bork was appointed by President Reagan to the United States Court of Appeals for the District of Columbia.  In 1987 he was nominated by Reagan for the Supreme Court.  In a campaign of lies and personal vilification spearheaded, fittingly enough, by Senator Edward M. Kennedy his nomination was defeated.  If he had been confirmed, Roe v. Wade would now be merely a bitter memory. 

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4 Responses to Robert Bork: Requiescat in Pace

  • In 1987 he was nominated by Reagan for the Supreme Court. In a campaign of lies and personal vilification spearheaded, fittingly enough, by Senator Edward M. Kennedy his nomination was defeated.

    And left-wing Catholics, who still lionize Kennedy while carping about the GOP doing nothing about abortion, will fail to appreciate why they aren’t taken seriously.

  • i think part of the problem the originalist case encounters is that a lot of Americans, not just liberals, think that if something is considered an injustice (large or small) but isn’t being democratically overturned, the Supreme Court has some kind of duty to expedite that.

    plus people talk about checking the “tyranny of the majority” as if that’s the main function of the courts, as opposed to just one function.

  • May he rest in peace.

    From today’s WSJ: “The Wisdom of Robert Bork.”

    “. . . the Warren Court, was the redistribution of society’s wealth, prestige and political power. […] routinely voted against business litigants whatever the legal context. . . . even those who approve, . . . conclude that Justice Douglas’s politics were also his law.”

    On activist judges: “That activism prevails in those courts, even though . . . elected judges, suggests either . . . public is ill-informed about the shift in power from democratic institutions to authoritarian bodies or . . . general weariness with democracy and the endless struggles it entails.”

    “Their Will Be Done,” July 5, 2005

    “Once the justices depart . . . from the original understanding of the principles of the Constitution, they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills. Yet when it rules in the name of the Constitution, whether it rules truly or not, the Court is the most powerful branch of government in domestic policy. The combination of absolute power, disdain for the historic Constitution, and philosophical incompetence is lethal.

    “The Court’s philosophy reflects, or rather embodies and advances, the liberationist spirit of our times. In moral matters, each man is a separate sovereignty. In its insistence on radical personal autonomy, the Court assaults what remains of our stock of common moral beliefs. That is all the more insidious because the public and the media take these spurious constitutional rulings as not merely legal conclusions but moral teachings supposedly incarnate in our most sacred civic document.”

    Robert Bork will not suffer the evil times that are “in the offing.”

The Constitution Then and Now

Thursday, January 6, AD 2011

I have just finished a rather thorough book on the history of the ratification debates written by Pauline Maeir, titled Ratification: the People Debate the Constitution.  The recurring theme throughout the debates from the Constitution’s opponents is concern that the Framers had created a centralized state that would, especially through its vast taxing powers, become corrupt and tyrannical.  I have been over this to some extent in a previous post, and I once again highlight the words of the Anti-Federalist writer Brutus because it is one of the best expressions of anti-constitutional angst:

Exercised without limitation, it will introduce itself into every corner of the city and country. It [the national government] will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take the cognizance of the professional man in his office or his study; it will watch the merchant in the counting-house or in his store; it will follow the mechanic to his shop and in his work, and will haunt him in his family and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house and in the field, observe the toil of his hands and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States.

Fast forward 223 years later (or more than 100 years if you’re Ezra Klein), where we witness the Constitution being read aloud on the floor of the House of Representatives.  Republicans have promised that in every proposed piece of legislation they will cite the constitutional authority for each provision – and contra what the New York Times may think, Congress, and not just the Judiciary,  has the authority and ability to interpret the Constitution for itself as a body (as does the President).  The reason for all this as that conservatives feel that a more filial observance of the powers – and limits to said powers – of the Constitution will reign in the federal government.  In other words, we need to more faithfully interpret the Constitution if we want the federal government to become less centralized and less tyrannical.

So were the Ant-Federalists right?  Reading Maier’s book, as well as any selection of the Anti-Federalist papers, one is almost tempted to label the constitution’s original critics as prophets as indeed many of their worst dreams came true.  Perhaps the most prescient prediction is that the federal government would, in essence, swallow up the states as state and local governments have diminished in power and authority over the years.

It’s also worth remembering that the Constitution was intentionally designed to increase the power of the federal government.  I cringe a little when conservatives claim that the Constitution was designed to limit the powers of the federal government.  Well, in point of fact the Constitution was meant to improve upon the Articles of Confederation and make it easier for the federal government to act.  Under the Articles of Confederation legislation required unanimous consent among the states.  Further complicating matters, some states refused to furnish needed funds to keep the national government solvent.  So the purpose of the Constitution was in fact to enhance federal authority.

But the story doesn’t end there.  The delegated powers were few and well-defined.  One of the principal Anti-Federalist arguments was that the Constitution lacked a Bill of Rights, to which the Federalists responded that the Constitution itself was a bill of rights.  The people need not fear that the federal government would engage in actions that were clearly outside of its delegated authority.  Eventually the first Congress would adopt a bill of rights, partially as a means to placate reluctant ratifiers.

And so now proponents of limited government turn to the Constitution in order to justify a more limited state.  Are we simply wrong?  Perhaps the Constitution’s grant of authority is as broad as the Anti-Federalists feared, and we are clinging to a mistaken notion of what the Constitution does and does not prohibit.  I’m sure several people reading this would tend to agree with that notion.  Anybody remotely familiar with my writing would not be surprised when I say that part of the crisis we face is due to a neglect of the original intent of the Constitution.  The problem lies principally with a judiciary that has mis-interpreted the Constitution so overwhelmingly that they have rendered large parts of it – especially the Tenth Amendment – practically null, while expanding and twisting other elements – notably the commerce clause and 14th Amendment – to fit their needs.  Personally I think the case of Wickard v. Filburn did more damage to the Constitution than any other decision other than Roe.  If you’re not familiar with the case, do read the opinion of the Court as handed down by Justice Jackson, and see how the Court – unanimously – decreed that eating food that you grew on your farm somehow affected interstate commerce.  Once such a tenuous connection was made between private activity and interstate commerce, the floodgates were opened, tempered only slightly by narrow Supreme Court decisions in the late 90s that did not fully reverse the reasoning behind Wickard.

At any rate, I find it mildly amusing that proponents of limited government have transformed from the most virulent opponents of the Constitution to its most vocal supporters.  I suspect that conservatives and leftists will have wildly varying opinions as to what that signifies.

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16 Responses to The Constitution Then and Now

  • I found your final paragraph quite poignant, and I, too, have wondered about that shift. As someone who is very sympathetic with versions of democratic liberalism, I am a strong advocate of limited government and, more specifically, wish to preserve the integrity of the Constitution. Yet I do not sympathize with many who are, as you say, today’s “most vocal supporters” of the Constitution. I think some of the disagreement runs much deeper than a dispute over whether government should be limited. It runs down to what exactly should set the normative standards of limitation. Is it a single right? A set of rights? Is it the nature of free and rational humans beings? Is it human well-being and participation in objective goods? I look forward to continuing to discuss these questions with you and others here on the blog.

    As for the book, I asked for it (but, alas, did not receive it) for Christmas. You’ve got me motivated to just go out and purchase myself. What did you think of it?

  • I enjoyed the book, though it does get somewhat repetitive, and focuses a lot on two conventions: Virginia and New York. Then again, those were probably the most contentious debates and the ones with the best records of the debates. It provides an excellent background into the maneuverings behind ratification, and frankly the Federalists come off as looking a little shady in certain states in finagling ratification.

    It’s also more of a narrative history – it’s not like a Forrest McDonald book that penetrates very deeply into the theoretical arguments. Maier just lays out the debates that took place, state by state, and how everything unfolded. As someone who has read a lot about this particular era, I have to say even I made some new discoveries. I definitely recommend it.

  • One could be of the view that the Articles of Confederation were useless and believe that the federal government should have more power than it had thereunder, but still be a proponent of limited government.

    Jefferson was a proponent of limited government, but wasn’t among the Anti-Federalists who objected to the Constitution. In fact, he supported the Constitution, albeit rather reluctantly unless it contained a Bill of Rights. The “Father of the Consitution”, James Madison, was, like his mentor Jefferson, also a proponent of limited government. (They both, however, seemed to be rather fond of the war powers of the presidency, at least as long as they were the ones wielding them.)

    So, I’m not sure your final paragraph is quite accurate in proclaiming that “that proponents of limited government have transformed from the most virulent opponents of the Constitution to its most vocal supporters”.

  • “At any rate, I find it mildly amusing that proponents of limited government have transformed from the most virulent opponents of the Constitution to its most vocal supporters.”

    Of course it was a fairly early transformation. The Democrats from the time of Jackson tended to strictly construe the Constitution, certainly as it applied to expenditures of funds for internal improvements funded by the Federal government. The Whigs and then the Republicans were for a looser interpretation to allow for internal improvements. Since that time proponents for the expansion of the power of the Federal government have tended to be in favor of a broad, or fanciful, interpretation of the constitution, while opponents of expanded powers of the Feds have taken a strict, or narrow, interpretation of the Constitution. Since the time of the New Deal Democrats have tended to stump for what they call a living Constitution and Republicans have found virtue in attempting to stay as close to the intent of the Founding Fathers as they can. It is easy to point to examples which indicate hypocrisy on both sides, but the broad categories are basically accurate descriptions for both sides most of the time.

    The basic problem of course is an out of control Federal judiciary that has taken a fairly straight forward document and de facto “amended” it thousands of times, and pays far more deference to what courts have written about the Constitution than the actual text of the Constitution. Our Federal Scribes and Pharisees in black robes have followed a well worn path of any group paid to interpret a document and who exercise power in the name of that document: over time their glosses and decisions obscure the meaning of that document and tend to benefit the power of those interpreting the document.

  • “Personally I think the case of Wickard v. Filburn did more damage to the Constitution than any other decision other than Roe. ”

    The first time I read it, I thought to myself, “this justifies a command economy.”

    “At any rate, I find it mildly amusing that proponents of limited government have transformed from the most virulent opponents of the Constitution to its most vocal supporters. ”

    Why amusing? A lot changes in over 200 years, and we have to take relativity into account: compared to what the social democrats in the Democratic Party have established, and would establish further if unchecked, the government established by the US Constitution IS a limited government.

    I agree that it would be useful for small-government conservatives to take the anti-Federalist case to heart, precisely for the reason you mentioned and everyone ought to know: that we would not have our Bill of Rights without their intervention. In another thread I posted Jefferson’s repeal of the Alien and Sedition Acts which I think articulates a vision of limited government that is neither “anti-federalist” in the strict sense of the word, nor does it praise expanding government as today’s social engineers would have it.

    I love the work Thomas Woods has done on the nullification issue, and I’m glad that he and others are restoring legitimacy to this much maligned and misunderstood principle. I think it is through a reassertion of 10th amendment rights that the power of the federal government can be curtailed.

  • Looking back, I probably should have re-worded that last paragraph. First of all, the phrase “limited government” is itself vague. Also, the Anti-Federalists weren’t uniform in their opinions, and some of them opposed the Constitution because it wasn’t active enough.

    Maybe a better way to put it is to observe how views of the Constitution have changed among those most apprehensive about the national government, with justification as you all have pointed out.

  • That is one of my favorite anti-Federalist quotes – from Brutus #6, I believe. You edited the last sentence of that paragraph, which states, “To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!”

    I tend to agree with you that Wickard v. Filburn was and is an extremely damaging precedent, allowing interference with local and personal decision making in a brutal way. We might also note that the legislation not overturned by WvF was itself an example of poor constitutional reasoning, so the executive and the legislative share much to blame there.

    I submit that the interpretation of the commerce clause which allowed government to regulate anything which MIGHT get into interstate commerce or MIGHT affect it in some way, combined with the expansive de facto interpretation of the general welfare clause taken by Congress and the courts has, in no small part, gotten us to where we are today.

  • An excellent and thought provoking piece. I hope to read book soon.
    It is possible that those who insisted on a Bill of Rights as an express limit on Federal power may have outwitted themselves. Consider that it is through the incorporation doctrine whereby provisions of the Bill of Rights, originally forseen as a limit on Federal action, are applied to actions of individual states and localities through the language of the 14th amendment, that so much Federal judicial overreaching has occured; from restrictions on school prayer, to lawsuits over nativity scenes, to Roe v Wade. There would have been no basis to intervene in these areas at least not by Federal judical fiat where there not a Bill of Rights to be misused and misapplied in the first place; whatever else to the good that one might want to say about it.

  • Chris,

    I am not sure it was entirely intended to be limits on Federal power alone. While that holds true in some cases (“Congress shall make no law”), in others it seems that the states are implicated.

    For instance, the Federal criminal law was fairly nonexistent for much of the early union, yet you have:

    “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury” and “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”

    and

    “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”

  • The Constitution is an old fiddle on which you can play any tune. Endlessly interpreted and re-interpreted, according to the shifting whims of the times and the prejudices of 9 flawed human beings, the document starts out with a magnificent preamble and then descends into much ambiguity and legal mumbo-jumbo that provides much grist but little clarity on the Law of the Land.

    Right off, the First and Second Amendments, i.e., outlining “freedoms” of speech and the right to bear arms, defy clear understanding and universal agreement and have caused arguments for 200+ years that continue to this day and will never be resolved as long as lawyers, justices and academics continue to parse every word for their “intended” meaning only to fall short time and again. Say, where’s the comma in that clause, is it parenthetical or dependent, and so on, ad nauseum.

    Cue the patriotic music while we hear the majestic words uttered with all due sanctity and solemnity in the “people’s House,” as tears well up in the eyes of the Speaker.

    Next up: reading of the Federalist Papers, to be followed by assorted selections of wise musings of the on-board Framers, leaving out Tom Paine or any other dissenter who might rock the Ship of State. Give me Jimmy Stewart, as Jefferson Smith, winging it on the floor instead. At least it’s entertaining.

    Conveniently ignore antislavery crusader William Lloyd Garrison’s assessment of the 1787 Constitution as “a covenant with death and an agreement with hell.” Forget the sins of slavery, wrought by the Founders, and Dred Scott, and the 120-year delay in granting full rights to half the human race.

    Let’s jump the the Fourth Amendment — which allegedly guards against unreasonable searches and seizure, or an inherent right to privacy by all citizens, now flouted at every airport, road block or public gathering place where citizens must prove they are not criminals.

    Several volumes await on “due process,” mentioned in the 5th, 6th, 14th, all wide open to whatever and whoever and whenever.

    Yada, yada, yada.

    Thanks, Paul, for playing some new tunes I hadn’t heard before. Always love to hear variations on a theme to keep from nodding off.

  • Jonathan, perhaps a Constitutional law expert could weigh in but my underanding is clearly that until passage of the 14th amendment, the Bill of Rights was viewed as a limit on federal not state actions. It was only through application of the 14th amendment for example that things such as Miranda warnings became binding on state and local police, not just federal law enforcement, or the principal of excluding illegally obtained evidence became binding in state and not just federal prosecutions. Likewise Federal Court decisions on matters involving local school boards or state laws governing abortion would have been unthinkable to the founders, and only crept into our law through application of the incorporation doctrine applying the protections of the Bill or Rights to state and local action via construction of language of the 14th amendment. Perhaps some learrned Constitutional Law scholar can illuminate further.

  • Chris,

    While most incorporation doctrine cases appeared in the late 1890s, textually, there is an inconsistency between the “Congress shall make no law,” included in the first amendment, and others where there is no specific limitation.

    A good place to turn prior to that time seems to me to be Justice Story’s Commentaries – http://www.constitution.org/js/js_344.htm, which appeared in 1833, and predates the series of incorporation cases. Story notes that, in regards to freedom of the press, “It is plum, then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his fights, person, property, or reputation.”

    And again, in regards to the right to bear arms, Story notes: “The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

    It seems difficult to believe, and Story does not mention the Federal government in either place (as he does in other places) that such rights could expressed for every man, yet have every state restrict the press severely or deny the right to bear arms, and not have these amendments be meaningless.

    I do think, however, that the Bill of Rights has been over-incorporated, and that a more careful jurisprudence would have incorporated some of the amendments, and not others.

  • We might also note that the legislation not overturned by WvF was itself an example of poor constitutional reasoning, so the executive and the legislative share much to blame there.

    Good point. I meant to emphasize that each branch of government has been complicit in all of these developments. In fact in the 90s cases I alluded to – US v. Lopez and another which suddenly escapes me – the Courts acted as a corrective on an over-reaching Congress.

    As for the Bill of Rights, that’s something worth untangling. One thing to keep in mind is that our view of the first ten amendments as something like a unified whole is a somewhat modern interpretation, a point which Maier helpfully makes. It just so happens that there were exactly ten at first, a convenient number that calls to mind the Ten Commandments. But they were not necessarily intended to be taken as a collective whole.

    First of all, there were twelve amendments originally penned by Madison during the First Congress, ten of which (after modification) were soon ratified. Another amendment wasn’t ratified until the late 20th century – the 27th Amendment, which concerns itself with Congressional pay raises. There was another amendment – not ratified – that dealt with representation, and which will also be the subject of my next post.

    It’s also worth keeping in mind that the entire amendment process was a result of developments from the ratifying conventions, and again Maier goes into great detail on this. After the first few states ratified, many of the later ratifying states approved the Constitution but also offered various recommendations for ratification – and there was another side debate in the anti-constitutional camp as many constitutional opponents wanted to offer only conditional ratification, but that’s another subject. There were a whole slew of proposed amendments, some contradicting the others. Finally 12 were penned, ten (and then eleven, but only after 200 years) were adopted.

    So I don’t think we should look at the first ten amendments as a collective. When it comes to the first amendment, the language couldn’t be clearer that it applies only to the federal government. However, it is certainly reasonable to interpret the rest as applying generally to the states.

  • One possibilty is that the states already had such protections in their state constitutions, and therefore the federal one just addressed fed limits. But I don’t know if that was the case. If not, then it seems your argument would be pretty strong.

  • “At any rate, I find it mildly amusing that proponents of limited government have transformed from the most virulent opponents of the Constitution to its most vocal supporters.”

    It’s not a shift at all. The worst-case scenario in the minds of the opponents of the Constitution was nothing compared to the reality of 1937 (or maybe even 1863). Let’s chart it out this way:

    Weak—a–b————-c———d–e–f—-Strong

    A is the limited-government position around ratification, B is the expansive government position of the same era. We breezed past C in maybe the Progressive Era. Now we’re at E, and the two parties represent D and F.

    The debate still stands as to whether there’s anything in the Constitution that prevents govenment from drifting stronger (rightward in my chart). But let’s not pretend that anyone is going to debate the Constitutionality of the food stamp program.

    Likewise, I don’t think it’s fair to say that the Constitution was intended to expand federal power. Sure it was, but on a completely different order of magnitude than we have today.

  • “It’s also worth remembering that the Constitution was intentionally designed to increase the power of the federal government. I cringe a little when conservatives claim that the Constitution was designed to limit the powers of the federal government. Well, in point of fact the Constitution was meant to improve upon the Articles of Confederation and make it easier for the federal government to act.”

    I am no constitutional scholar for certain, but what I remember from some articles on the Constitution’s framing, the Founders desired to build a limited government that could function, and the Articles of Confederation were simply too anarchical to allow the central government to operate effectively. A limited government that cannot act is no government at all. Advocating today for the Constitution our Founders left us is not a contradiction of limited government, but instead an embracing of it. The U.S. finds itself in the position of having a government that falls on the spectrum between the deficiency of anarchy and excess of tyranny someplace between the middle and tyranny. When the Constitution was being written, the government was between the middle and anarchy. This difference in perspective is significant.

    If we want to address the question of “right-sizing” government, I think there are two aspects to consider: form and virtue. With regards to FORM, authentic governance would be placed at the half-way point on the spectrum of forms tyranny and anarchy. With regards to VIRUE, and what all Americans seem to have no cognizance of, is that the integrity of government is built upon the integrity of the people inhabiting office. Likewise, the integrity of the office holders is dependent upon those who put them in office. This would apply to hereditary Monarchy as much as our constitutional Republic with democratic representation. It is true that there are forms of “government” that are intrinsically evil. What is also true is that good government is based more on the virtue of the members of society than it is on governmental forms.

    The danger we face now, and the deep irony is that, living in a country based on a constitution framed to protect faith and morals in temporal living (no matter the inherent flaws of it due to because of its conception in Protestant Rationalism) is seeing men use that same Constitution to erect a nation of faithlessness and immorality enforced by the very branches of government tasked to prevent such a thing from coming to pass. The need for faith and morals is so fundamental because, although God is King and Lord over all the Earth, He has given the governance of ourselves over to us – no matter the form – and we can only execute it to His glory and our good if we adhere to His Faith and Morals. What a fearful responsibility to lay upon such frail and flawed creatures! True governance can only be a gift from God.

25 Responses to Obama and Notre Dame – a Belated Follow-Up

  • Agreed 150% on the PWSA as a good common-ground measure. Heck, it’s good legislation regardless of whether it brings folks together or not.

    But, if you google around a bit, you’ll find that there is a lot of resistance in left-wing circles to the Act, coming from the mindset of the “reducing pregnancies, not number of abortions” crowd. The PWSA forthrightly (and rightly) presumes that abortions are bad and discourages them, which is a no-no in those circles.

    Given that the President appears to share that mindset, I think the odds of him putting his clout behind the PWSA are vanishingly small at this point in time. If/when he needs pro-life Democrats to get something he truly cares about passed, then you might see the horse trading.

    Sadly enough, I think we’re much more likely to see Rep. Slaughter’s “Prevention First Act” than the PWSA. And, make no mistake, Slaughter is in the hard-core choicer camp.

  • Father Jenkins- surprise still in his job- received his 15 minutes of fame. Dear Leader received another day of adulation. Both care about the unborn about as much as the crumb sitting on my desk. By me. Lovely rhetoric about Dialogue and such. But no other significant issue- and this is as significant as it gets- is more polarizing. Designed to be no other way. Tim notes those rare creatures known as pro-life Democrats- endangered species who should receive legal protection. Perhaps Dear Leader will open up TARP money for Planned Parenthood and non-franchise clinics. Might have the same beneficial effect as to Ford and Chrysler. Oh, just to note before posting- Tiller The Killer’s big time abort business is shutting its doors. What a shame. Maybe it could have qualified for TARP funding.

  • (1) Scalia does not really believ ein Original Intent

    (2) I don’t know what you mean by the “American Right” wanting to wash it hands of abortion by sending it to the States. First many on the right are for the Human Rights Amendment. ALso the “AMerican Right” would be working in their respective State legislatures to prohbit abortion. Activity does not stop just because it does not happen in the District of Columbia

    (3) Archbishop Chaput said recently there was no “Catholic way” to the interpret the Const. I think he is right.

    (4) what you refer to as States Rights is more commonly know as Federalism that has not been abolished. I think if you are proposing that getting this issue back to the States is against Catholic SOcial Doctrine you need to flesh that out some.

    (5)THere are Natural Law folks on the right such as Arkes and Robert George etc etc that are trying to influence the Court and polticy

    (6) There is nothing to probhibit Legislators from legilsating based on the Natural law

  • Let me add the whole Subsidarity , Federalism, abortion issue was fleshed out in some detail in response to Kmiec.

    See this entry at America magazine

    http://americaelection2008.blogspot.com/2008/10/different-take-on-kmiecs-book.html

  • Yeah, I would say that States Rights is quite consistent with Catholic Social Teaching. Subsidiarity and all. That is a principle you know.

  • I will grant that labels like American Political Left and Right are very general- but I think that those who feel comfortable self-labeling themselves liberal or conservative, will fit those larger categories. I reject these labels for myself because I believe like Archbishop Chaput- I use his great book “Render..” in my classes- that there isn’t going to be a Catholic political party- as the Compendium states we are always to be critical members of any political party- that implies that there is always going to be an incompleteness in any purely political party.

    I don’t mean to take a cheap shot on those who take the Federalist position, that abortion can only be resolved at the state level because that’s how our Constitution was written- but I advise all Catholics to read Notre Dame prof. Rice’s book on Natural Law. He describes Justice Thomas as pretty much putting the idea of natural law reasoning to death, when he backtracked during his confirmation hearings on previous positive assertions on the role of such reasoning in juridical decision making. I do view Scalia and Thomas quite negatively for the way they come across in interviews when they seem proud to assert that their Catholicism has absolutely nothing to do with their work as Justices- I don’t think anyone in any position should say that- the natural law is everyone’s responsibility- especially those with juridical and political power- this is an intellectual dodge- even if it is an honest one- to come across as some kind of progressive, non-partisan in contrast with those who do use reasoning beyond the deciphering of the original intent of the Constitutional framers.

    Professor Rice says that on abortion we don’t even have to pull out the natural law trump card- it would be rare to have to do that given that much of positive law in the Constitution is already rooted in natural law reasoning- if we apply the 5th and 14th Amendments to the unborn, we would be good to go- but this is not on the radar in the Scalia/Thomas circles as far as I know- and I would say that these Justices are very well regarded in general by conservatives/ American Political Right.

    I am offering a critique that isn’t designed to play well to liberals or conservatives, I don’t think Jesus played to such narrow audiences, and I don’t find the complete social doctrine of the Church to be in conformity with any ideology that I’ve encountered thus far- so I work in both liberal and conservative circles depending on the issue- but sometimes neither camp seems to get it right- like on abortion- the liberal juridical approach is ice cold, while I grant the Scalia et al approach is luke warm- not sure I can get on board with lukewarm even if it offers a legislative endgame in every state. I want the unborn to be safe in every state, all over the world- the Law should reflect this- the Law must reflect this, and then all other aspects of society will need to reform to adjust to this reality- economically, culturally- all of it needs to upgrade to deal with the children we will be welcoming into the world instead of terminating.

  • Subsidiarity is not to be viewed apart from the universal common good and solidarity- it also isn’t a replacement for the natural law requirements for all people- Catholic or not. This emphasis on natural law is found throughout the social doctrine and papal encyclicals

  • Thank you for a thoughtful diary. Another bill that I hope starts gathering support is the “Newborn Child and Mother Act”. Approximately 1500 mothers die in childbirth across Africa EVERY DAY. I gather most of their babies die, too.

  • TIm

    Let me say I am not saying that Natural Law Jurisprudence is forbidden. As Arkes says where in the Const does it forbit it? I am just saying that if lets say a Catholic Judge does that think that was part of the Document then I think he can in a valid way interpret it otherwise. I mean in the end his Power and authority come from the Document or the “Pact” as it were. So when Scalia looks at the text he does not that think he has the power to change it

    It is in a sense similar to the situation of the Federal Judges that lets say were anti Slavery. They might have been anti Slavery but because their power and authrotiy came from an agreement that made an compromise with this evil they very well could not just ban it nationwide.

    Again as to Natural Law and the Social Compendium what should Catholic Judges do. I can’t imagine that they would start citing the Comepndium of SOcial Justice. In fact what authority would they have to base Opinion on that at all.

    I am not sure Scalia or THomas for that matter have an agenda to end abortion nationwide. I think they probally think that is not their job but the job of the legislator. I strongly suspect that Scalia thinks Gay marriage is wrong. However I doubt he would think he ahd any authority to “ban” it in lets say Iowa.

    TO quote Chaput in Full
    “CHAPUT: The Supreme Court doesn’t make law, as we know. It interprets the law. I think it’s much easier from a moral perspective to be a justice – a judge – than it is to be a legislator. Legislators are the ones who make laws and change laws. But to interpret the law in its fidelity to the Constitution is a much less morally compromising kind of position to have, I think.

    I’d rather be a justice than a politician, in terms of dealing with my conscience, because if we write bad laws in this country that are constitutional, then the judges – the justices – have to interpret the laws as allowed by the Constitution, even if they don’t like them, even if they would think they’re not good for the country, it seems to me, even if they think they’re not moral. That’s what justices do. So I had the impression that Wendy thinks that the Supreme Court writes the law. Certainly that’s not my impression. I know it can’t write the law. In terms of not wanting all the justices to be Catholics, I agree with you, Michael. That would not be a good idea in the United States”.

    http://pewforum.org/events/?EventID=213

    Now I think Judical attitudes matter that is for sure. The attitude of the Iowa Supreme Courts Justices was frightening as they basically shot down arguments because they thought they could smell religous intent.

    I just think from a Natural Law standpoint that the key is if one wishes to adovcate that is to start in the legilatures. That is where the action is.

    As Chaput stated

  • “Subsidiarity is not to be viewed apart from the universal common good and solidarity- it also isn’t a replacement for the natural law requirements for all people- Catholic or not. This emphasis on natural law is found throughout the social doctrine and papal encyclicals”

    Well Tim I don’t think Federalsim gets rid of that. I mean what is changed or what is at issue is what branches of the Governements have the responsibility, power , and authority to act as to the common good or solidarity.. As to the abortion question is it the States or the Federal Govt or a combination of the two.

  • What other aspects of the natural law should the Justices be concerned with? Should a Catholic-based interpretation mandate that all homosexual acts be outlawed? Should a natural law view of the Constitution mean a ban of contraceptives? How far do we take this? And what do we do when we have a majority of Justices whose interpretation of the natural law leads to conclusions quite the opposite of our own?

  • Tim

    I think my other post did not go through for some reason

    Let me clear I am not saying that Natural law Juridprudence cannot be had. As Arkes says where in the COnst is it forbidden.

    I just think that if you really want Natural Law and to have it part of our system one needs to start with the legislature where the real action is at. THat is not to ignore the Judiciary. We should recall that Iowa Supreme Court mandated Gay marraige and in that argument they shot down opponets of it because they say said they could smell religious reasoning. That is a problem

    I am not sure at all that THomas and Scalia have a “plan” to end abortion. I suspect they don’t think that is their job but that of the legislature. Just Like how I think that Scalia is against gay marraige but I could never seem him overturning a state law allowing it because it goes against the natural law or because he does not like it.

    I suppose if we are going to get natural law more in the discussion first the Catholic schools nned to be teaching it more.Then we are going to have to have an discussion with our neighbors about it.

    Political parties are not going to be able to do that. In fact in GOP circles where such an approach has fans in some segments there would have to be some on the evangelical side that would have to embrace it. SOme are open others are wary.

    So as to Natural law principles I think there is a lot of work to be done before we can expect polticos to start using it. In fact we might need to breed a whole new generation of polticos that understand it.

    When I talk to Catholic about the natural law it sometimes seems like they look at me like I am from Mars. That has nothing to do with left, right, or center but just horrid Catholic education in the Puplit, in CCD , and in the schools.

    As to Catholic social justice concerns and principles I think there will be porgress till each “side” that is engaging this start talking to each other instead of yelling at each other.

  • Tim,

    Of course subsidiarity is to be seen in the context of the common good and solidarity. Just as solidarity is to be seen in the context of the common good and subsidiarity. The claim of solidarity does not rule out allowing more basic units of society tend to the common good. Catholic Social teaching never says this. In fact higher units of society are to take over only when lower units cannot meet a common need. States rights fits perfectly in this framework.
    When to allow higher units to take over from lower is a prudential judgement in many cases and you will not find such a criteria in the Compendium.

  • My impression from reading the social doctrine is that the common good is the only real reason for having governing authority in the first place- when this focus is lost then that authority can soon run amuck- I do not dispute or ignore the principle of subsidiarity but we are talking about abortion here, and that is something that cannot be left to even a popular vote- it smacks of the whole scene with Jesus being condemned by popular vote, and Pilate standing by, washing his hands of the affair, even as he seemed to side with Jesus on the level of basic justice- Pope John Paul II even used this comparison with abortion and Christ with over-reliance on democratic outcomes in determining all important matters- now Pilate has not gone down in history as a heroic figure- and I don’t think that a State’s Rights approach to abortion is going to be seen as the best we could do at the level of civil authority.

    We have a problem with subsidiarity as a primary principle to view abortion or the global economy through right now- with the power of multinational corporations usurping even the power of national governments- read Bailouts- it would seem that the local government powers have not kept up with the times- and Free Trade Pacts have taken economic decisions far afield from local control. With abortion, we simply have to have everyone doing what they can with whatever power they have to establish the legal and moral sense that an unborn child is worthy of our human rights. Natural Law reasoning does not have to be overused to the point where we have an effective theocracy- but we ignore the Natural Law to our own peril as a nation, as a people.

    Again- I cannot go into the detail here on this as Professor Rice did in his book- 50 Questions on the Natural Law- if anyone has read that book and has any comments I would love to hear of your thoughts. I think he represents the most orthodox Catholic position on the importance of Natural Law, and how we can promote it without having to force the nation to convert to Catholicism wholesale. There is something religious behind the Natural Law, and the Catholic social doctrine is a necessary guide- but the Natural Law is something reasonable and can be argued with non-believers and believers alike. We cannot continue to cede everything to the secularists- at some point we have to fight for more than merely symbolic gestures like Nativity Scenes on government property- we need Catholics willing to stand behind Natural Law reasoning and Catholic social doctrine- the Natural Law reasoning is all we need to use in public debates, and all the Justices need to make certain that Justice prevails when opportunity comes for them to render decisions that obviously offer life and death for many. Imagine if genocide came up for a vote? Abortion is a genocide of unborn, unwanted children- millions of them- if this doesn’t call forth a universal decision on the part of our Supreme Court- then they may as well pack it in, and leave our Capital empty of Justices and Justice.

  • Tim

    So a vote on the Supreme Court is legitimate but a vote in the Staer Houses is not. Also one can amend State Const a heck of a lot more easier than you can the U.S. COnst to show these natural law principles

    Again it is not a principle of “State Rights” but Federalism. I am not saying fight for a Human Rights AMendment. In fact I suspect that a HUman Ruights amendments would gain steam when it returned to the States.

    You know we can’t just blame nameless polticos in D.C. for not getting the pro-life cause done. It is suddennly much more in our faces where we must convince our neighbors

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  • Tim,

    Its not a problem of seeing subsidiarity as a primary priciple for in fact it is. As are the principles of the common good and solidarity. They are an organic unity. The problem becomes how do we apply these primary priciples to concrete situations. You have your problems with multi-nationals. I have a problem with strong (an ever increasingly stronger) national and international governments. The Compendium does not have a policy to address these. Catholics in good conscience apply the primary principles. At times Catholics in good conscience disagree, sometimes strongly. That’s life in the secualar for the Christian.

  • Honestly, Tim, I think your argument sets up a couple of straw men that you then proceed to effectively slaughter; I disagree with a couple of your premises, and must, therefore, disagree with your conclusions.

    First, I believe you fall victim to the same illogic that drives most who claim to not be “right-wing” Catholics: namely, you choose to lump all Catholic Social Teachings, and abortion, into the same mass and call it legitimately Catholic. I disagree for a couple of reasons:

    1. You mentioned that you would have invited neither PResident Obama nor President Bush to speak at Notre Dame, given the authority to make such a decision. You cite both men’s lack of conformity to basic principles of Catholic Social Doctrine as your reason.

    This comparison sufers for at least two reasons. first, abortion, and , say, the death penalty are not equivalent issues. The authority to make the decision to mete out a penalty of death rests with duly elected civil authorities. SOLELY with them. And while the Compendium of Catholic Social Teaching may decry the occasional necessity to mete out such a sentnece, and while it may state that the circumstances which should require such a penalty are so rarae as to be almost nonexistent, in the end, the judgment of the circumstances lies SOLEY with those duly elected to exercise such authority.

    Similarly with the exercise of war powers. The Church rightly decries the use of military force in *any* circumstance; however, it recognizes the right of governments to enter into armed conflict against those nations or entities which pose a credible threat, and which cannot be subdued by other means. That right flows from the national leader’s responsibility to provide for legitimate defense of its territory and citizens. And the authority to make such a decision rest, again, SOLELY with the likes of President Bush and President Obama.

    Man, this is brain-wracking. I will amend my opening statement to include the thought that I can only respond to one at a time.

    But i fwe are goin gto use Catholic Teaching to justify our positions, it wold seem prudent…to use ALL of it, not jsut the parts that nicely fit our preconceived schema.

    God bless.

  • Totally apart from the extremely interesting issues and discussions in this thread, it occurred to me [somewhat belatedly] that Father Jenkins was greatly disingenuous in the reasons he gave for inviting Mr. Obama to speak at the Commencement exercises.

    Commencements they are meant to be – but commencements to the world wider than the campus in South Bend.

    Now if the graduating students had not pretty well covered the subject – personally and intellectually – in four years’ attendance at the school, what is the purpose of a dialogue about it just as they are about to leave? Surely their teachers must have discussed [dialogued?] the issues during the campaign a year previously.

    I said disingenuous; I repeat disingenuous.

  • And the authority to make such a decision rest, again, SOLELY with the likes of President Bush and President Obama.

    But it does not end there. The authority to pass judgment on the decision made by presidents lies with the Church and SOLELY with the Church.

  • Tim,
    I would go further in this line of consistent criticism of the American political Left and Right. I don’t believe that the state’s rights approach to abortion rights is truly consistent with Catholic social doctrine. The juridical philosophy called “Originalism”, which is championed by many Catholics supportive of the American political Right, is not one that is rooted in Natural Law.

    Conservative Catholics hold to the belief that the laws of the land should be rooted in Natural Law. They belief that the way to change those laws is through democratic processes which are established in the United States constitution and the constitutions of the several states which it comprises. There is nothing in Natural Law which states that a judiciary should act in contravention of the laws which are established.

    Professor Rice says that on abortion we don’t even have to pull out the natural law trump card- it would be rare to have to do that given that much of positive law in the Constitution is already rooted in natural law reasoning- if we apply the 5th and 14th Amendments to the unborn, we would be good to go

    I agree completely.

    but this is not on the radar in the Scalia/Thomas circles as far as I know- and I would say that these Justices are very well regarded in general by conservatives/ American Political Right.

    I’m not so sure, have they ruled that way? If a case came before them which way would they rule? I think you’re mistaken. Those justices have consistently ruled in a way that would allow us to infer they do in fact believe that the unborn are human persons and are protected. Their Catholic faith (and basic empbryology) teaches them that, and there is no contradiction with the Constitution which would preclude them as “originists” in ruling that way.

    we simply have to have everyone doing what they can with whatever power they have to establish the legal and moral sense that an unborn child is worthy of our human rights. Natural Law reasoning does not have to be overused to the point where we have an effective theocracy- but we ignore the Natural Law to our own peril as a nation, as a people.

    Absolutely, but I think there is limits to what a Catholic is compelled to do given the restrictions of his office, especially if he has taken an oath to be bound by those restrictions. Now, no Catholic is permitted to commit an immoral act regardless of his office, but that doesn’t mean he is obliged to use their office illegally in their actions.

    Michael J. Iafrate,

    But it does not end there. The authority to pass judgment on the decision made by presidents lies with the Church and SOLELY with the Church.

    No. Wrong. While the Church has the authority to pass judgments when a public act is in objective violation of Church teaching, she does not make such judgements on purely subjective reasoning (sound thought it might be), nor does the Church pass judgement where she does not possess all of the relevent facts that the civic authority does. She may and often does issue opinions based on what is known and the preponderance of evidence, but that is not the same thing. Ultimately the judgement falls to the Lord God Almighty.

    Jh,

    I just think that if you really want Natural Law and to have it part of our system one needs to start with the legislature where the real action is at.

    exactly!

    Deacon,

    awesome! You nailed it.

  • No. Wrong. While the Church has the authority to pass judgments when a public act is in objective violation of Church teaching, she does not make such judgements on purely subjective reasoning (sound thought it might be), nor does the Church pass judgement where she does not possess all of the relevent facts that the civic authority does. She may and often does issue opinions based on what is known and the preponderance of evidence, but that is not the same thing.

    No, YOU are wrong. The Church has the right to make judgments on wars. Period. That it does not do so regularly with unambiguous force does not mean it does not possess this authority.

    Your mistaken view is precisely one of the results of buying into the americanist separation of secular and sacred authority. Too many Catholics (usually so-called “patriotic” ones) fall for it. What you do not realize is that you are contributing to the marginalization of the Church by promoting such nonsense.

  • “There is nothing in Natural Law which states that a judiciary should act in contravention of the laws which are established.”

    Because the Natural Law, i.e. the Law of Human Nature has no conception of “judiciaries.” However, the moral principles to which we’re oriented would suggest that laws that are not in accord with true justice–thus, not actually being laws should be contravened. Simple establishment makes no case in itself for not contravening it. Now you’ll argue that’s the role of the legislatior; I’m establishing that the Natural Law is not silent about the matter.

    “I think there is limits to what a Catholic is compelled to do given the restrictions of his office, especially if he has taken an oath to be bound by those restrictions. Now, no Catholic is permitted to commit an immoral act regardless of his office, but that doesn’t mean he is obliged to use their office illegally in their actions.”

    Well, I see your point. But this is again my problem with Scalia’s philosophy. I talked about it in a different thread. Effectively, I think the American conception of “justice” and “law,” at least in terms of judicial philosophy is based largely on positive law philosophy and Western Enlightenment philosophy rather than natural law thinking, and therefore, a proper notion of justice and law. Therefore, I think the “originalism and textualist” position might do-the-least-harm, it remains fatally flawed.

  • Eric,

    so how do you propose a “natural law” based judiciary should act? Do we need a legislature at all, just for administrative types of laws? Why not just a system of judges who base their rulings on their understanding of natural law? What reference documents for natural law would be used as a basis?

    I reject this idea because it is akin to anarchy. Each judge applying his own understanding of a very broadly contentious set of rather non-specific rules.

    I believe self-governance is in accord with natural law, and so the people guided by conscience establish the system of laws, the judges do not overturn them they simply apply them.

    There may be certain cases where heroic violation of laws will not cause more harm than good, that any moral person should stand up against them, this can not be the general case.

  • Matt,

    Well, I am no constitutional law scholar. However, I do think that the “originalist” and “textualist” position contradict, to some degree, my understanding of both law and justice because of the inherent lack of consideration of natural law principles. This, I think, is a built-in recipe for disaster. Granted, while the philosophy itself might be, relative to other theories, the “lesser of evils” because of its do-no-harm mantra, it still can create quite a few ethical problems for Catholics.

    I earlier used the example of pre-Civil War slavery. Hypothetically speaking, if there were a case regarding slavery before the United States Supreme Court, tied 4-4, and I’m a Catholic sitting on the U.S. Supreme Court, I certainly would not rule to uphold slavery as the law—and with no apology. It seems that the American notion of “justice” is not whether or not a law is in conformity with the natural law, reflecting the eternal law of God. No, rather, “justice” means having laws conform immediately to the written letter of the U.S. Constitution strictly and legal precedence. While this is not immediately a problem (I’m not saying that the U.S. Constitution should be irrelevant), while it is not in and of itself wrong—it does give rise to ethical issues.

    From the originalist viewpoint regarding slavery, a Justice would have to rule in favor of an unjust law which contradicts the very essence of their title: Justice. An unjust law is not a law according to the scheme of the natural law. However, to an originalist, that point is irrelevant. If law is not meant to be in conformity with the natural law, which reflects perfect justice, then our inherent goal is not to uphold real laws at all but human decrees with no consideration or concern of objective conformity with the laws written into Nature. This, to me, seems to be clearly antithetical to Plato’s The Laws, Cicero’s On The Law, Aristotle’s Nichomachean Ethics, and St. Thomas Aquinas’ Treatise on Law which are four of the most important works in the natural law tradition. There is a fundamental disagreement then about the nature of law itself, about the nature of justice, and therefore, the likeliness to reach just conclusions, while not impossible certainly, is more difficult.

    Alexander Hamilton put it this way: “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself; and can never be erased or obscured by mortal power.” Even the more secular-minded Thomas Jefferson agreed: The “only firm basis” of freedom, he wrote, is “a conviction in the minds of people that their liberties are the gift of God.”

    These words are clearly a natural law commitment (and I’m not suggesting they are advocating it be used by the U.S. Supreme Court). Yet contemporary judicial philosophy is based largely on the Enlightenment-borne philosophy of legal positivism—that is, there is no inherent or necessary connection between the law and ethics, but rather laws are rules made by human beings entered into a social contract with no regard for moral objectivity because the contract is inherently relative.

    If you consider such broad phrases such as “cruel and unusual” or “unreasonable searches and seizures,” it seems to me that the Founders presuppose that you would reference some sort of objective moral criteria that exists outside of the text of the Constitution to know what constitutes such activity. What is cruel? What is unusual? What is unreasonable? Unless there is some objective, unchanging standards that it is presupposed, that is known and can be known because of a common human nature with an unchanging law—the natural law—then it seems that the “concepts” of these things evolve and change with society; thus, this lends itself to the argument for a “living Constitution” that should be read in light of the relative values of the contemporary people. Yet the “originalists” pore scrupulously over the text for some criteria, the Founders (in a world yet to have fully abandon the natural law) may have presumed to be self-evident, or they commit to some legal precedence judged to be in conformity with their judicial philosophy versus what it may be the Founders actually intended. Again, to what do you reference as the criteria to define such “concepts” (cruel, unusual, unreasonable)? Their time period? Our time period? And barring natural law ethics, it becomes inherently relative, which requires one to inject their “personal values” into the constitutional text.

    Simply put, I cannot fully embrace this judicial philosophy and am rather interested in projects to rethink, reasonably, how to interpret the Constitution and develop an American legal system that is more harmonious with the ongoing project of Catholic legal theory. Though, I will add that originalism does guarantee some sort of consistency in judiciary judgments and protects Americans from arbitrary changes in constitutional interpretation. Moreover, to fully reject originalism there needs to be a ready, clearly articulated criterion for interpreting the Constitution, otherwise the matter of law will be solely at the discretion of political inclinations of sitting Justices. Perhaps, at best, originalism constrains the worse temptation of Justices to overreach.

    But it still remains that originalism isn’t perfect. It faces hermeneutic difficulties to which Justice Scalia admits, when he said, “It’s not always easy to figure out what the provision meant when it was adopted…I do not say originalism is perfect. I just say it’s better than anything else.” That is, anything else so far. So while I am not in favor of a hasty departure from originalism to an anything-goes Court, I’m not going to back the theory.

    I still think that it poses quite an ethical dilemma and I’m weary of the Catholic support it gets despite the fact that its philosophical underpinnings, i.e. legal positivism, are fundamentally contradictory to Catholic moral and social thought. While I am sympathetic to the intellectual commitment to protect the integrity of the legal system and the constitutional order, I don’t think that requires an immediate advocacy of originalism over attempting to find some other way to interpret the Constitution. I am not convinced it’s all or nothing—either originalism or the “living Constitution” theory.

    As Edmund Randolph set out at the Constitutional Convention, the goal was to “insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events.” Now, this quote, granted, can be misconstrued and interpreted as advocacy of an “evolving” doctrine in regard to constitutional interpretation. However, it seems to me, that the U.S. Constitution seeks to create a government that recognizes and respects the natural, inalienable rights that are self-evident in the natural moral law which are enshrined within the text of the Constitution. While the “essential principles,” which are moral, cannot change—as the moral law does not change; positive laws, however can. Different situations, different circumstances, different cultural values may have a need for different positive laws to best accommodate and promote human flourishing and the protection of human rights. (I’m not saying these laws come from or should come from the Court.) Now how such a view could reasonably and practically be played out in terms of judicial philosophy is quite a debate.

    Nevertheless, originalism strikes me as too keen on preservation of the status quo, that is, order rather than on actual Justice, ifthe circumstances puts the two in contradiction. It brings to mind Machiavellian principles (which I think is the actual beginning of modern philosophy) specifically the re-definition of prudence as a purely pragmatist virtue oriented more toward some end, judging and weighing consequences, i.e. consequentialist and utilitarian ethics that masquerade as natural law thinking when it really is not. It seems the concern is not necessarily on what is moral, but to what works (pragmatist). Therefore, one of the Cardinal Virtues is employed in such a way that its immediate and direct concern is not necessarily intertwined with its sister virtue of Justice, real justice. And the divorce of the two, characteristic of modern thinking, is precisely what I am arguing against.

    Again, I’m not constitutional law scholar, but I do find it curious that the framers of the Constitution did not indicate, in the text itself, how the Constitution should be read. I have no idea why. Perhaps they could not agree on a method themselves, as we cannot.

    Though, I do wonder if one is arguing “original intent” or “original meaning,” does this include taking into account the fact that the words (diction), come from other common law traditions based largely around natural law thinking? Do you seek to understand the words in those light as to get a greater understanding of the words in light of the historical situation? This might be comparable to using the historical-critical method as a tool for scriptural exegesis. In other words, one would read the U.S. Constitution in light of the Declaration of Independence and the natural law tradition? Or, does one read the text strictly, isolated from such references?

    My question arises because of this: The Declaration of Independence states that all men are created equal. The Bill of Rights establishes natural human rights. Yet in the U.S. Constitution there is legalized slavery. A natural law thinker would see that as a blatant contradiction. If such a matter were before a Catholic on the Supreme Court, should the Catholic uphold the unjust law as a matter of originalist intent even if contradicts the natural law and say, the majority of the United States citizens refused to conform with natural justice and outlaw it legislatively. For instance, what if abortion was a right written verbatim into the U.S. Constitution. Would I have to be complicit with an intrinsic evil until such a time that society changed its mind? I know I certainly wouldn’t. I am not sure if any oath or commitment can exempt you from stopping an objective moral evil. Consequences aside, as judging whether or not to end slavery or abortion based on how the populace will respond is judging the rightness or wrongness of the act based on the consequences–which again, is consequentialism and not natural law morality. The problem again persists.

    This is the challenge and difficulty of natural law jurisprudence, of which, I am profoundly interested in. Perhaps, I should send Prof. Robert George, a proponent of the “New Natural Law Theory”, another email and ask him a few questions about the matter; he usually replies rather quickly.

Obama Wants Living Constitution Theory For SCOTUS Nominee

Saturday, May 2, AD 2009

With the announced retirement of Supreme Court Justice David Souter President Obama wasted no time in addressing the issue of what he’s looking for to fill this vacancy.  In so many words he clearly stated his desire for an activist judge with an eye towards reengineering America [emphasis and comments mine].

“It is also about how our laws affect the daily realities of people’s lives [meaning he wants a Justice who holds fast to the Living Constitution Theory,ie, an activist judge finding invisible law where none existed], whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”

The following excerpt clearly reveals President Obama’s contempt for legislative history in effect eliminating a potential nominee that adheres to the theory of original intent.

“I will seek someone who understands that justice is not about some abstract legal theory or footnote in a casebook.”

One thing is for sure, it will be an extremist liberal and pro-abortion nominee.

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13 Responses to Obama Wants Living Constitution Theory For SCOTUS Nominee

  • Obama’s nominee is unlikely to be an originalist, and they will certainly uphold Roe. This does not mean, however, that Obama has contempt for legislative history or the judicial record. For starters, it’s justices like Scalia who dislike legislative history (because it’s easy to find support for almost any position in the congressional record). As to the judicial record, upholding Roe at this point is respecting the principal of stare decisis. Originalists care about the original understanding of the Constitution, and less about legislative history and the judicial record.

  • John,

    I’ll take your word on it since you’ll be barristering soon enough!

  • John,

    I forgot to mention that they do use legislative history, but not in all cases.

  • Just to be clear, ‘legislative history’ is a tool of statutory interpretation which involves looking at the Congressional record and statements from bill sponsors, etc. Scalia, as a ‘textualist’, thinks only the text of the statute should matter. Obama’s nominee is more likely to favor ‘legislative history’ than a Scalia-type nominee.

    ‘Original intent’ or originalism has to do with Constitutional interpretation; and the theory of the living constitution (which, imo, all justices adhere to in practice to one degree or another) is another theory of Constitutional interpretation.

  • Stare decisis-“To stand by that which is decided”-when we feel like it.

    Stare Decisis tends to be invoked by judges who like a prior decision and ignored by judges who believe the prior decision was a piece of judicial idiocy. Of course when a court is dealing with constitutional issues stare decisis plays less of a role because the constitution, and the correct interpretation of it, is more important than prior decisions of any court. As Roe amply demonstrates however, too often the tool of Constitutional interpretation used by the Supreme Court and many other courts might rightly be called “making it up as they go along”.

  • The doctrine of stare decisis is of limited value in constitutional matters, since erroneous court decisions cannot be rectified by subsequent legislation. While this judicial doctrine has value, the weight it merits should be inversely proportional to the degree of wrongness and degree of importance of the prior decision to which it would be applied. From the standpoint of actual legal reasoning all that Roe has in its favor is stare decisis, given that its rationale is ridiculously deficient, and that is not much. But for the reasons Don suggests, that will be enough for any Obama appointee who favors abortion rights on policy grounds. He will find the scoundrel’s refuge in stare decisis for sure.

  • As Donald and Mike describe, stare decisis tends to be arbitrarily invoked and ignored depending on the judge and the issue. The post originally read ‘Obama’s contempt for legislative history and the judicial record‘. In response, I was pointing out that Obama’s nominees would be unlikely to show contempt for the judicial record (i.e. stare decisis) with regard to Roe, rather than expressing a more general opinion about the importance of stare decisis.

  • I had never been to this blog until now. Why does this blog look so shamelessly like Vox Nova? Couldn’t you guys find another theme? Come on… 🙂

  • Katerina,

    You guys have a beautiful set up and have the best theme. We couldn’t’ find another one that was better. You guys chose the best template out there!

    Imitation is a form of flattery you know!

    😉

  • Cannot fault anyone for having good taste.

  • Yeah, the reference to “legislative history” doesn’t make sense here. “Legislative history” is a term referring to how Congress enacted a statute — committee reports, House reports, and the like. It’s not a term that refers to the Constitution. And moreover, Scalia (who is at least a “fainthearted originalist,” as he describes himself) is a huge opponent of looking to legislative history . . . his opinion is that Congress enacted whatever is actually in the law, and that it’s dangerous for judges to go beyond the law to look at what some Senate committee might have said that’s different.

  • Obama’s judges will be interested in stare decisis ONLY until they run into a case … such as what happened in Lawrence v. Texas … in which they suddenly decide to overturn precedent.

    This Weekly Standard piece from a while back explains the left’s new-found affinity for stare decisis:

    THE HEARINGS on John Roberts’s and Sam Alito’s nominations to the Supreme Court featured a Latin phrase most people hear only in connection with Supreme Court confirmations: stare decisis. Stare decisis is the legal doctrine holding that in general, an issue once decided should stay decided, and not be revisited.

    ***
    Nowadays, it is liberals, not conservatives, who talk about stare decisis in committee hearings, generally in the context of abortion. Oddly, though, it’s also liberals who want nominees to agree that the Constitution is a “living document.”

    ***
    How is it that liberals have become, simultaneously, the champions of both fidelity to precedent and an ever-changing Constitution?

    Part of the answer, of course, is that the left’s commitment to stare decisis is selective. Many of the Supreme Court’s iconic liberal decisions overruled prior case law. Brown v. Board of Education (1954), overturned Plessy v. Ferguson (1896); Gideon v. Wainwright (1963), which established the constitutional right to a free public defender in felony cases, overruled Betts v. Brady (1942); Mapp v. Ohio (1961), which applied the exclusionary rule to state court prosecutions, overruled Wolf v. Colorado (1949); and so on. Nor need we reach far back into history for such instances. Just two years ago, in Lawrence v. Texas (2003), the Court found a constitutional right to perform acts of homosexual sodomy, thereby overturning Bowers v. Hardwick, which itself was no historical relic, having been decided in 1986. Yet none of the liberals who now wax eloquent about stare decisis criticized Lawrence’s violation of that principle.

    ***
    When liberals talk about a “living Constitution,” what they really mean is a leftward-marching Constitution. Liberals – especially those of an age to be senators – have spent most of their lives secure in the conviction that history was moving their way. History meant progress, and progress meant progressive politics. In judicial terms, that implied a one-way ratchet: “conservative” precedents can and should be overturned, while decisions that embody liberal principles are sacrosanct. To liberals, that probably seemed more like inevitability than inconsistency.

  • Why does this blog look so shamelessly like Vox Nova? Couldn’t you guys find another theme? Come on… 🙂

    We had the ‘Kubrick’ theme for the first five months, but Kubrick doesn’t have the sidebar on individual posts. This made navigation less convenient and, as it turns out, meant the sitemeter was only catching about 40% of the visits. This format was the easiest to transition to from Kubrick. Plus, as Tito said, it looks good and there’s nothing wrong with flattery through imitation from time to time.