Even Conservative Justice Scalia Was Not Sufficiently Conservative

January 30, 2017

The view that the origins of our law is based on natural law is a view of jurisprudence that sadly has been supplanted in most of our major law schools. It came under attack by Professors Ronald Dworkin, Lon Fuller, H.L.A. Hart and others, like John M. Finnis, who rejected the Blackstone philosophy of jurisprudence based upon natural law (Finnis didn't wholly reject it, but modified it). Blackstone had written, “Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.” Natural law interpretations imply an Almighty God, Creator of Heaven and Earth, and thus universal laws emanating or commanded by the Godhead which overlap man-made laws control those man-made laws.  

So, absent natural law, what makes a law lawful, that is, worthy of being obeyed qua law? Even if one believes that social norms or standards exist to which a law must conform (thus making a law deserving of being obeyed and not merely a required and enforced norm), there is no justification outside of sociological relativism for the law. Law and order, directed as an ultimate requirement for society, cannot be put forward as “ultimate”, i.e., not arbitrary, if it merely exists to uphold norms relative to specific times and places. If there is no natural law, then a society’s laws are to some degree arbitrary and to some degree are relativized and evolving. That is what liberal, activist jurors contend, and that is what is typically taught in our law schools.

Thus, I recently watched a re-run of an interview of Antonin Scalia by Charlie Rose where the conservative Justice was questioned in some depth about his philosophy of law. In that interview, he said that he was mischaracterized as being a supporter of "original intent" regarding the Constitution and the laws flowing from that document. Instead, he preferred to be understood as a “textualist,” someone more concerned about words than intentions, with the Constitution understood as an enduring document, and not as an evolving document. Thus, the ground for the durability of the U.S. Constitution is what the writers meant by the original language and their expectations about the application of that language by reasonable men. He told Charlie that this also was different from a “strict constructionist” who would, he believed, be excessively literalist in his or her interpretations. If, for example, the First Amendment says we have freedom of speech and freedom of the press, strict construction might construe that to mean that the writers of the Bill of Rights only wished to protect our speech and our press. However, a reasonable man would understand the words to mean freedom applying to our letters, to our books, and to other forms of written and spoken communications.  

Why would he prefer to be considered a textualist than an original intent judge? Although he did not specify his objection to original intent, that concept had to mean subscription to natural law which was essential for William Blackstone’s philosophy of law in the English-speaking world. The intent to abide by the “laws of nature and nature's God" was part of colonial dogma. Scalia focuses instead on the stability of the language, and a reasonable man’s understanding of that language. It depends on the inherent stability of word and term usage over time. Thus the plain meaning of certain terms in the Constitution and the law, cannot "evolve" or be "deconstructed" as the activist judges (most judges) assert. You cannot see the right to abortion in the “right to privacy” because the original idea of the right to prevent unreasonable searches of one’s person or property had nothing to do with the child in the mother’s womb. The words just cannot be construed that way without defying the text of the Constitution and the original interpretations of the laws based on that text.  

Thus (and this is my example, not his), "dirty" means unclean and cannot mean "not as clean as it could be." The latter false definition would allow wiggle room for applying the word dirty in a different way than it was applied millions of times when it meant the opposite of clean. Scalia gave the example of using the word "infer" to mean "implied." He said he hated that misuse. Infer of course means that a conclusion can be and only can be logically derived from the premises of an argument whereas "implied" admits of a whole range of possibilities. So, in the classic example, “All men are mortal, Socrates is a man, therefore [inferred] Socrates is mortal.”  However, if inferred is understood as implied, one could say, "All men are mortal, Socrates is a man, therefore it is inferred [improperly understood to mean implied] that Socrates is no different from other mortal men.” Hence an entirely different conclusion is reached than the one textually (i.e., logically) required.

Thus, to complete my point: Scalia's main argument in the homosexual marriage case of Obergefell v. Hodges was that the majority decision was horribly wrong because it was a case of judicial tyranny. The five Supremes had overstepped the powers of the judiciary with respect to the Court's role in a balanced federal government, and not that homosexual marriage is against the laws of nature and nature's God, which it is. The framers of the U.S. Constitution would have been very comfortable speaking about the unnatural condition of such a marriage, but today's jurists, even an ultra-conservative one like Scalia, had to focus his objection somewhat differently. His view is required because it is based on “textualism” and not “natural law,” and thus Almighty God is excluded even by Justice Scalia in his official reasoning process and justification. For Scalia, the wrongness of the Obergefell v. Hodges decision was not in legitimizing an immoral institution – homosexual marriage – but in enacting an illegitimate extension of the Court’s power. Thus, even our most conservative Justice was unable to condemn the immoral conduct of the litigants in order to justify his dissent.

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Jeffrey Ludwig is a teacher of history and philosophy and has taught at Harvard, Penn State, Juniata College, and the City University of New York as well as at the secondary school level. He has published numerous articles at americanthinker.com, frontpagemag.com, israelnationalnews.com, and americanchurchmag.com   He also served as pastor of Bible Christian Church in New York City. His latest book is entitled "The Catastrophic Decline of America's Public High Schools." You can get it from Amazon here...