Why constructive regulation wants pure regulation
In his recent “Letter to a Noble Lawyer,” Hadley Arkes notes that his friend’s difficulties with natural law jurisdiction stem in part from concerns about the negative consequences of “letting lifelong judges free rein to apply their own understanding of natural law . “This line was reminiscent of an anonymous review of a journal submission. I was once warned that if judges take a natural law approach to interpretation of the law, “it will go to the races”. The concern here is legitimate: judges – especially independent, lifelong federal judges – should not enforce their own political preferences under the guise of interpretation of the law. Far better for the judge to subordinate his will to the requirements of the law. Textualism and originalism each offer the possibility of tying judicial discretion to something concrete and of freeing us from rule by a bevy of Platonic guards.
And yet even the argument of the judiciary’s reluctance to act is basically based on a normative representation of the judicial authority. When we say that a judge should be faithful to the original meaning of the constitution or legal text, what should this explain? In Natural Law for Lawyers, J. Budziszewski reports on a seminar discussion at Calvin College in which the participants pushed Antonin Scalia to answer precisely this question. “When asked why a judge should keep his oath to keep the law,” writes Budziszewski, “[Justice Scalia] readily admitted that the basis for this duty is the natural law imperative that promises should be kept. “In addition to justifying the judicial oath, Scalia has relentlessly denied any role for his own view of natural law in judicial interpretation throughout his career. Similarly, many of our noble friends in the legal profession continue to believe in the reality of a natural law, even if they insist that the law of nature is irrelevant to the judicial office and morally dangerous to interpret.
We could rephrase the argument as follows: The constitution creates political institutions that promote the common good and ensure the conditions for the prosperity of the individual. Part of this draft is for lawmakers, not judges, to think about the measures that are most likely to safeguard the common good. When judges replace their own will with that of the legislature, they undermine this constitutional concept and undermine the common good. Better to be ruled by the first 2,000 names in the phone book than by an Ivy League faculty, to paraphrase William F. Buckley, and better to be ruled by the original meaning of the Constitution than by constitutional theories, too from unelected judges with Ivy League degrees. Against this background, the turn to textualism and originalism was less about moral relativism than about securing moral goods by depriving the judges of interpretative discretion.
However, given this noble end, it remains inevitable that when judges pass judgment on a particular case, they will go beyond the constitutional text and do something that will affect their understanding of that text. Herein lies the problem: Aren’t the judges then free and not bound by the constitution? The solution many of our friends give to this problem is to turn to rigorous historical studies to work out the original meanings of key phrases in the Constitution, or founding dictionaries to determine the original public meaning of the text. However, this also involves taking a step beyond the Constitution (both in terms of historical methods and in terms of the interpretative theory that was put forward to justify being tied to historical understandings), as well as recognizing that the adoption of the originalist methodology lacks judicial consensus important results provide matters of law.
This latter point was made quite dramatic by Neil Gorsuch’s supposedly textualist opinion in the Bostock case that summer and the disagreements expressed by his textualist colleagues. If different judges who have openly subscribed to the textualist methodology can arrive at such different interpretations of the meaning of the word “gender” in Title VII of the Civil Rights Act, what exactly does textualism promise? No consensus and no restriction on discretion. For a judge who tends to get a certain outcome, there are law professors who work to create articles to review laws that support any number of conclusions on controversial legal issues, and this goes for textualism and originalism as well as for any other approach.
However, as Arkes notes, this “existence of disagreement does nothing to dispel the belief that even in the presence of disagreement, originalism has real truths to discern.” This is as it should be, since we can rely on the existence of Differences of opinion cannot infer anything of significance about the merits of a particular argument; surely we cannot conclude that an argument is wrong just because someone registers their disagreement. “Who could ever have assumed that by adopting a moral code we should be freed from all questions of casuistry?” Asked CS Lewis in a posthumously published article. “Obviously, it is moral codes that raise questions of casuistry,” he stated, “just as the rules of chess cause chess problems.” Interpretation problems will always be with us, but the old view of natural law – if there was a natural law, people wouldn’t disagree on moral issues – needs to calm down.
The starting point for the examination of natural law jurisprudence is not the fact of moral differences of opinion, but the moral basis of the judicial authority. Why does the law even command our loyalty? And what exactly is the law that the judge must be faithful to? At the same point where Budziszewski reports on Scalia’s admission that the law of nature ultimately established his obligation to observe the judicial oath, he also stated that the oath (28 USC, § 453) expressly consists of “Justice without consideration to administer and do equal rights to the rich and poor “and to” faithfully and impartially perform and perform all judicial duties “,” in accordance with the Constitution and laws of the United States “. “The meaning,” comments Budziszewski, “could hardly be clearer. The enacted law does not regulate the meaning of justice. Rather, justice regulates the meaning of the law issued. The natural law tradition always endures. ”
The best case for textualism and originalism in legal and constitutional interpretation is that everyone correctly identifies the right authority in our system to make rules for the common good, and everyone offers the best chance of exercising that authority in accordance with respect for consent that rules. In this way we avoid replacing will with reason, possibly right.
The humble assertion of natural attorneys in these legal and constitutional interpretation disputes was that we cannot fully understand or explain the law or identify its shortcomings unless we resort to moral truths open to reason. There can never be a complete analytical separation between law and morality, since governing by law is a moral enterprise. Part of this moral enterprise is to build political institutions that identify the right authority to make rules for the common good and then exercise that authority with the consent of the governed. For these very reasons, however, positive law often deviates from the perfect justice that we might expect if men were angels, even if it aims at some kind of justice that is possible in a regime where imperfect men rule imperfect men. The alternative is to allow unauthorized power to impose rules without consent, a violent imposition of will that goes against the rule of law.
The best case for textualism and originalism in legal and constitutional interpretation is that everyone correctly identifies the right authority in our system to make rules for the common good, and everyone offers the best chance of exercising that authority in accordance with respect for consent that rules. In this way we avoid replacing will with reason, possibly right. In view of the force of the argument, the fact remains that the interpretation sometimes depends on what Hamilton describes as “a mere construction rule that does not result from a positive law, but from the nature and the reason of the matter.” At other times, interpretation depends on an inevitable, if implicit, judgment about the nature of moral reality.
John Quincy Adams made this clear during a hearing before the Supreme Court in the case of the Spanish slave ship La Amistad (ironically, “friendship”). After the ship set sail from Cuba, the enslaved Africans on board killed the captain and most of the crew and sailed into New York Harbor. In this case, Secretary of State John Forsyth claimed that enslaved Africans were property under a contractual obligation that property reclaimed from pirates must be returned, prompting Adams to ask: What is property? And who are the pirates? The government’s case depended on the Africans aboard being instantly morally responsible people, capable of the crime of piracy, while being returned as property. In response, Adams recalled the nation of beings in Gulliver’s travels who discreetly said of a lie or a lie that someone “said what is not”. From the Secretary of State’s assertion that these people were inherently property to be returned as such under this treaty, Adams claimed that Forsyth “said what is not”.
In a similar, if often less dramatic way, legal questions implicitly depend on moral premises and assertions about reality, on things that are and not – whether about property or personality, rules of construction and common sense, or even about regulatory compromises and the imperfect justice of the positive law, which nevertheless claims our loyalty. The natural law jurisprudence is not a panacea with which every legal or constitutional dispute is settled, and that of course also applies to every alternative. However, natural law provides a framework within which we can address any dispute. Rather, it is not a question of consensus or disagreement, but of the nature of law and the moral premises that underlie a regime characterized by the rule of law and the consent of the governed. Natural law has something to say about this, because we cannot report either on the authority of law or on the justification of a particular approach to legal and constitutional interpretation without relying on natural law.