Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, July 13, 2010

"Conservatives' default positivism"

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? 


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This may be a very naive question, since I am not a lawyer or constitutional scholar, but I will raise it anyway.

Scalia famously said on 60 Minutes, "My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the Constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons. You don't count pregnant women twice."

In his post on this site of July 12 titled "Relativism, conscience, and moral obligation," Robert George takes Justices O'Connor, Kennedy, and Souter to task for writing, "At the heart of liberty is the right to define one's own concepts of existence, of meaning, of the universe, and of the mystery of human life." It seems to me the quote is taken seriously out of context. It is preceded by, "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." And it is followed by, "Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." It seems to me that out of context, the quote appears to be a grand statement about human existence. In context, it seems to me, it is still rather grandiose, but it's an interpretation of "liberty" and "person" in the Fourteenth Amendment, not in all of creation as viewed by the Catholic Church.

So my question is this. If Scalia interprets "persons" as "walking around persons" because he thinks that is what those who wrote the Fourteenth Amendment intended, is there a "constitutional person" or a "Fourteenth Amendment person" that -- for purposes of Supreme Court interpretations -- differs from the Catholic interpretation of "person" in other aspects besides being only a "walking around person" rather than a life-begins-at-conception person? If someone with Robert George's beliefs were on the Supreme Court, how far could he go in terms of interpreting the liberties of persons as they are viewed by the Catholic Church (as opposed to how they were viewed by those who wrote the Constitution, including the amendments)?

Posted by: David Nickol | Jul 14, 2010 7:29:34 AM

David, I don't think the question is naive. As Justice Scalia said, there are scholars who believe that the Constitution, properly understood and interpreted, *requires* governments to protect unborn children from violence. (I'm thinking of, say, Hadley Arkes, Gerard Bradley, and the old Doug Kmiec.)

As for Robby's July 12 post, I think it is true *both* that the "At the heart of liberty" sentence is an (silly, would-be grand) statement about "human existence" *and* one that serves, in context, to say something about the Casey plurality's (misguided) understanding of the 14th Amendment.

I'm not entirely sure about the question in the third paragraph, and Robby is certainly in a better position than anyone to answer a question about "someone with [his] beliefs." I think Justice Scalia believes that the "original public meaning" of "person" in the 14th Amendment did not include unborn children, and so he is not authorized (he thinks) to use the 14th Amendment to constrain states' legislation in ways not required by the Amendment's "original public meaning."

Posted by: Rick Garnett | Jul 14, 2010 12:00:53 PM


Thanks for your response. I realized that I can simplify (a little!) the question I am raising. Scalia says that "person" in the Fourteenth Amendment means "walking around person." But I would guess Scalia and most here on Mirror of Justice (and particularly Robert George) would see no distinction, when it comes to killing, between "walking around persons" and unborn persons if judging in their capacity as believing Catholics (which Scalia explicitly says he does not do). So the question in my mind is, if Scalia is right to limit what he will consider a person -- setting aside his Catholicism -- when interpreting the Fourteenth Amendment, what other differences are there between a "natural person" (walking around, in the womb, or just conceived) and a "Fourteenth Amendment person"? If the Constitution must be interpreted by what its authors considered a person to be, and not by what interpreters like Scalia consider a (natural) person to be, is there anything different between a "natural person" and a "Fourteenth Amendment person" other than that the latter must be "walking around"?

The only problem I see with the Supreme Court statement, which I think there is enough wiggle room to reinterpret, is the word "define." Using it in the sense of "discover and set forth the meaning of" (as in the Merriam-Websters online dictionary), I would rephrase it, "At the heart of liberty is the right to discover and set forth the meaning of one's own concepts of existence, of meaning, of the universe, and of the mystery of human life" free from government coercion. If "define" means "invent," then I see the problem. But I find it hard to believe the justices were saying nothing was really true, and so each person had to invent his or her own reality. Isn't discovering and deciding for oneself what freedom of conscience is? No matter what weight a person gives to, say, the teachings of the Catholic Church, it is still necessary for that person to decide what he or she believes to be the truth. And of course the Supreme Court didn't limit the right of the Catholic Church to coerce people -- only the government!

On the issue of "natural law" and abortion, it always strikes me that within Judaism, there is a very different view of personhood and when it begins. If natural law interpreted by Christians "proves" that abortion to save the life of the mother is impermissible, and that interpretation of natural law is made the law of the land, then what Jews consider to be permissible and even required in the case of life-threatening pregnancies will be illegal.

Posted by: David Nickol | Jul 14, 2010 7:38:01 PM

David, focusing just on the "mystery" passage, I agree with you (I think) that it is not particularly problematic to say (something like) "part of what it means to be a responsible and mature moral agent is to correctly form and then follow your conscience." What is objectionable, I think, is the suggestion in the opinion that it somehow interferes with freedom, or "liberty", properly understood, for the state to forbid conduct that the state believes ought to be forbidden, if there are some who think that the conduct ought *not* to be forbidden. *All* lawmaking, after all, involves an attempt to promote the good, as the lawmakers understand it, and many, many laws will constrain some people from doing what they would like to do.

Posted by: Rick Garnett | Jul 15, 2010 3:38:56 PM