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?
https://mirrorofjustice.blogs.com/mirrorofjustice/2010/07/conservatives-default-positivism.html
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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)?