Mirror of Justice

Alvare on Commonweal on the PPACA

Helen Alvare has a strongly reasoned piece up at Public Discourse on Commonweal's apparently willful naivete about the coming effects of Patient Protection and Affordable Care Act. Check it out. 

*Ruled* by a text?

And so the thot plickens (and other Spoonerisms) . . .  My response to Rick's rich questions begins, as Rick knows (from, inter alia, the public discussions many of us had at the recent "Annual Roundtable on Law and Religion"at Brooklyn Law (thanks again, Nelson!)), from the premise that the focal case (prime analogate) of law is: the ruling *mind* ordering other *minds* toward the common good.  I regard the substitution of texts for mind, as the locus/source of law, as *the* problem (yes, symptom of the deeper problem (of voluntarism)).  Now, the regulating mind of the lawgiver does indeed need to be promulgated (as a condition, indeed, of its becoming *law*), and that promgulation typically takes the form of a written (as opposed to oral) statement.  But I don't take writtenness, even of a constitution (even *our* Constitution), as a reason to conclude that a text takes on a law-giving role independent of the lawgiver.  To be sure, lawgivers' obligation to *promulgate* what they mean to be law will usually assure that there's a pretty tight convergence between the law, on the one hand, and what is promulgated, on the other, but scriveners' errors are just one example of why text does not equal law.  The impossibility of perfect transmission/translation of the *mental word* into the *spoken word* -- and this is the core issue -- assures that texts cannot rule.  An additional reason texts cannot "rule" is that the very conditions for taking promulgations-in-the-name-of-law seriously as *law* is that they are to contribute to the common good; where promulgations don't facially contribute to the common good, there is reason, though it too has constraints, to construe them in such a way as to cause them to do so.  So, I take the written texts very seriously indeed, but I don't imagine that I or anyone else can be ruled by a text as such.  "Textualism" is just the limit case, it seems to me, of an attempt to substitute stuff (e.g., *probabilities* of meaning generated by dictionary surfing) for (the meaning of an authoritative/ruling) mind.  Saying as much, I recognize the transaction (and other) costs of not stipulating that texts ("objectified intent," as Scalia calls them) are "law." 

What say you, Rick?    

Obviously, if one doesn't share my starting points (about law's being *exactly* [in the focal case] authoritative mind ruling subordinate mind), textualism (and other equally well-intentioned evils) are good to go. 

Response to Patrick re: judicial power, textualism, natural law, and the like

Thanks, Patrick, for your response.  I do not think I disagree with much -- if any -- of what you say, as a matter of principle.  My purpose (no pun intended) in resisting (what I *think* is) the Arkes view of federal-judging-in-constitutional-cases is not to defend the "voluntarism" that Patrick sees lurking behind "textualism."  I'm not making claims about what it means, as a general matter, to "make law", or to "judge", or to exercise "judicial review."  It seems to me, though, that *our* Constitution is a written one -- it is a "text" -- and it matters that it is a "text."  It is *that* text (and positive laws made pursuant to it) -- and not anything else -- that *our* federal judges have the authority to interpret and, in effect, to enforce.  (Let's put aside diversity jurisdiction, etc.)  Now, to say this is not to pretend that difficult questions are not presented about what this text means, or about how its meaning ought to be discerned.  It is to say, though, that, when federal judges judge, the "target" is the meaning of this text (and is not the content of the natural law, considered apart from its instantiations and specifications in this text). 

Patrick, do you disagree so far? 

Save the date: Abortion conference at Princeton

This October, pro-life and pro-choice advocates will gather at Princeton for a conference designed to facilitate a public discourse of "open hearts, open minds, and fair-minded words."  Participants include John Finnis, Peter Singer, Frances Kissling, Robin West, Helen Alvare, Dawn Johnsen, and Anita Allen, among others.  I'll be speaking about rights of conscience, and MoJers Rick G. and Lisa S. will also be making appearances.  Listening to John Finnis, Maggie Little, and Peter Singer discuss the moral status of the fetus should itself be worth the (very reasonable) price of admission.  Registration is now open.

The Legal Strategy of the Christian Legal Society

Mike Dorf has an interesting essay at Dorf on Law speculating on the legal strategy of the Christian Legal Society in its recent Supreme Court case. Why did the lawyers stipulate to the all-comers policy in the lower courts? Why did they run away from the stipulation in the Supreme Court? Why did they distinguish between status and beliefs instead of arguing for a more absolute form of freedom of association? On the latter Mike thinks that McConnell did not want to have the Court think the group was homophobic. I am sure he didn't, but I think the larger worry was that he wanted to avoid a principle that would give racially discriminatory groups unqualified rights to equal status with other groups. I do not know if this was a necessary strategy, but I do not think it hurt his client.

Comments open.

In answer to Rick's question

I agree with my friend Rick that what judges (or other legal officials) should do is principally a function of their office, that is, of what the people have charged them with doing.  In the case of federal judges, this means, in part, figuring out what the Article III "judicial power" is.  Which is why, for example, Ronald Dworkin is wrong to talk about the judicial office without distinguishing between state and federal judges.  With respect to federal judges in particular, I'm persuaded by Jeff Powell's argument that the Framers were torn "between a global rejection of any and all methods of construction and a willingness to intepret the constitutional text in accordance with with the common law principles that had been used to construe statutes."  But even if Powell and I are wrong about the Framers' intent on this issue, there's another reason to favor an approach to legal texts that "textualism" seeks to rule out.  I'll make the point with one of my favorite examples.  The APA defines a "rule" as "the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy . . . ."  Commenting on this definition, then-professor Scalia said this: "Since every statement is of either general or particular applicability, and since everything an agency does is 'designed to implement, interpret, or prescribe law or policy, etc.' the only limiting (that is to say, defining) part of the definition of [a rule of law] is 'agency statement . . . of future effect.'  that is of course absurd.  It means, for example, that an EPA directive that a particular company must, in order to comply with existing law and regulations, install particular emission-control equipment at a particular factory is a rule rather than an order; that the proceeding looking to its issuance is a rulemaking rather than an adjudication . . . .  Such an analysis produces a categorization which is . . . contrary to the common understanding of what constitutes a rulemaking . . . ."  What to do about this absurdity and violation of the "common understanding?  According to then-professor Scalia: "It is generally acknowledged that the only responsible judicial attitude toward this central APA definition is one of benign disregard."  So, my position, in relevant part, is that while it is principally a question of positive law what judges can do (with respect to the Constitution, statutes, agency outputs, judicial decisions), the grant of judicial office should be construed, where possible, to favor the conditions that allow for law to be made and implemented.  To require judges to give effect to silly texts, such as the APA definition of a rule, would undermine the conditions for making law; implementing silliness is not making ordinances of reason for the common good.  Scalia's willingness to ignore the definition at the heart of our second-level Constitution, the APA, is a case in point; judges need a certain measure of flexibility that the wooden application of statutes would eviscerate.  I see the question of what access judges should have to the natural law as on a continuum with the question of what freedom judges should have to give intelligent, purposive interpretations to statutes, the Constitution, etc.  If my test seems a little flabby (to borrow an adjective that Justice Scalia has used to great effect), that's because I don't think the business of making law, as opposed to giving effect to the will of legislature, admits writ large of a more precise metric.  Needless to say, it's the voluntarism lurking behind "textualism" that I think needs to be slain if law is to be understood and treated, as it should be, as a thing of reason.

What say you, Rick?

The ACLU v. Catholic hospitals?

Michael Sean Winters, at NCR, passes on a story that "[t]he ACLU is mounting an effort to force Catholic hospitals to perform abortions in certain cases and provide other forms of care that violate the Church’s ethical norms."  More here. 

Jody Bottum argued, in the April issue of First Things, that we "need Catholic hospitals", that they and other "limicole" institutions are important "not for Catholicism, which will survive without them, but for America and its strange experiment in ordered liberty."

I have to admit, while I am passionately (obsessively?) committed to there being a future for (authentic) Catholic schools and universities, I would like to believe that Catholic hospitals have such a future, too . . . but I'm not sure.

Aidan O'Neill on the U.K. Supreme Court's recent asylum decision

MOJ-friend Aidan O'Neill has posted some "reflections" on the recent decision by the U.K. Supreme Court regarding homosexual asylum seekers.  Our own Michael S. discussed the case in this post, and in this one.

As Aidan notes, one of the aspects of the Court's decision that could be troubling is that it "rejects the cogency of any distinction between acting on one’s sexual orientation and being of a particular sexual orientation."  And, this aspect of the decision -- which, if I read the piece correctly, Aidan embraces -- is, of course, highly relevant both to our Court's recent decision in the Christian Legal Society case, but also to the soon-to-announced invalidation by a federal trial court of California's rejection of same-sex marriage.

Aidan concludes with this:

The (anti-relativist) realization that there are absolute moral values (captured in the concept of “human rights”) which are not culturally relative or religiously specific  and which States and societies and religions must protect and promote in order to have legitimacy is a post WW11/post-Nuremberg phenomenon common to the political/legal cultures of the civilised world.   An expression by the court that the actions by another State or significant religious or cultural or political non-State institutions within that state contravene fundamental human rights is very much the province and duty of the judge.  There is no usurpation of power in the judges so doing in this particular case.

The hard part, I guess (and I'm sure Aidan agrees), is identifying what those "absolute moral values" are that are appropriately "captured in the concept of 'human rights.'"  He and I agree, I think, that it is unobjectionable to characterize (in the right context -- see my post, below, on judges and the natural law) s "misguided" an action by a non-state institution (including a religious institution) that "contravene[s] fundamental human rights."  (It is, for example, "misguided" for mainline Protestant churches in America to support our country's abortion-rights regime.)  What is worrisome (to me), though, is the ongoing attempt to exclude moral arguments made by religious people from the debate about what are "fundamental human rights."

"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? 

Judicial access to the natural law?

Hadley Arkes's new book, Constitutional Illusions and Anchoring Truths (Cambridge, 2010), raises (in that elegant Arkes way) lots of interesting questions, including the one about judicial access to the natural law.  Arkes and I disagree, to some extent, on how to frame the issues concerning judges and the natural law, but we are united in bebunking the default legal positivism of much contemporary American conservativism.  You can read more here.