Tuesday, July 13, 2010
Patrick and I have talked often about the matters discussed in his fine review of Hadley Arkes' new book, and so he knows that I persist in thinking that Justice Scalia is right to insist that *federal* judges, who get their "judicial power" from *our* particular constitution should not attempt to "give effect" to the natural law in their decisions interpreting and applying the Constitution. To say this is not, of course, to say that "law" has nothing to do with "morality" or anything like that. And, I think my reluctance is not rooted *only* in what Patrick concedes is a "(justified) fear that liberals on the bench will find in the natural law different contents than conservatives might find there[.]" I would supplement that "fear" with (a) the (related) awareness that, for better or worse, judicial constructions of the Constitution have come to be seen as supreme, ultimate, and unrevisable; and (b) a sense that federal judges are given by our Constitution a power to decide "cases" and "controversies" that is not necessarily co-extensive with all that "judging" could, under another Constitution, involve. So, it is not that "judging", in the abstract, cannot or should not include "giving effect to the natural law"; it is, instead, that *our* federal judges, all things considered, ought not to attempt to give effect to it (except, of course, insofar as it is reflected in our positive law -- and, I believe, it often is).
What say you, Patrick?