I was flipping channels and came across Justice Scalia speaking on c-span, just catching the last few minutes. It was a pretty standard Scalia speech, arguing for that only a principled originalism preserves the constitution's ability to maintain a stable and free society, in contrast to the notion of a "living constitution." But then he made this statement that, given Scalia's almost constant rhetoric against courts overruling legislative majorities, can only be described as baffling:
"I think the very terminology suggests where we have arrived, at the point of selecting people to write a constitution rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court or to a lower court, you know, "Judge so-and-so, do you think there's a right to this in the constitution? You don't? Well, my constituents think that they're oughta be and I'm not gonna appoint to the court someone who's not gonna find that." When we are in that mode, you realize that we have rendered the constitution useless. Because the constitution will mean whatever the majority wants it to mean. The Senators are representing the majority and they will be selecting justices who will devise a constitution that will be what the majority wants. And that, of course, deprives the constitution of its principle utility. The bill of rights is meant to protect you and me against - who do you think? - the majority. My most important function on the Supreme Court is to tell the majority to take a walk."
Maybe I'm missing something, but isn't this at odds with his often stated majoritarian views? During the oral argument in last week's Texas ten commandments case, he argued that the majority has a right to have government endorse its religious views at least to the extent of putting up monuments to them. He has famously said that if the the majority wants abortion to be legal, it should remain legal as long as it is done through the legislature rather than the judiciary. And in a Catholic News Service interview in 1996, he said:
"The whole theory of democracy, my dear fellow, is that the majority rules, that is the whole theory of it. You protect minorities only because the majority determines that there are certain minorities or certain minority positions that deserve protection. Thus in the United States Constitution we have removed from the majoritarian system of democracy the freedom of speech, the freedom of religion, and a few other freedoms that are named in the Bill of Rights. The whole purpose of that is that the people themselves, that is to say the majority, agree to the rights of the minority on those subjects -- but not on other subjects. If you want minority rights on other subjects, you must persuade the majority that you desire those minority rights. Or else you take up arms and conquer the majority. I mean you may always do that, of course."
Here he appears to be saying that in any situation where the constitution does not explicitly state that the minority has a specific right, the majority may do as it pleases. Indeed, in this same article he was quoted as saying, "(T)hat's why we have a Bill of Rights. We set them forth in the Bill of Rights. But that is the limit of them, and I do not make up other ones." But this ignores the 9th amendment and the entire concept of unenumerated rights. This seems odd for an originalist, given the very clear statements of the framers in the 9th amendment, and in their arguments for that amendment, that the enumeration of specific rights was not to be viewed as meaning there are no other unenumerated rights. Perhaps I'm missing an idea that would tie these together into a coherent argument on his behalf, but I'm missing what it might be. Any thoughts?
During the oral argument in last week's Texas ten commandments case, he (Scalia) argued that....
I'm not a fan of Scalia, but I do believe that one must be careful when trying to extrapolate from the questions that are posed to the positions of the judges. I'm not a judge, but I have judged at "moot courts" and I've posed questions from which nobody could assume how I might judge the case.
I understand the concern, and I know you're right that sometimes judges ask questions that would throw us off, but he repeated this several times and it is consistent with his stated positions in many other cases, so I feel safe in mentioning it.
You don't have to go as far back as 1996, or even extrapolate from questions. This is what he said on Monday (via TalkLeft, from AP):"If you think aficionados of a living Constitution want to bring you flexibility, think again," Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility."
"Why in the world would you have it interpreted by nine lawyers?""
So he's directly contradicting himself in the same speech. Majoritarianism good, majoritarianism bad. What class.
What I've never understood about Scalia's position is what the hell he thinks the Supreme Court is supposed to do in 8th amendment cases. In discharging its function it must, simply has no other choice than to, decide what is "cruel and unusual".
From the exerpt, it seems that he thinks we should *randomly* appoint the members of the court to make sure it represents a cross section of opinion.
Except that would just be majoritarianism by lottery. If (one of) the purpose(s) of the constitution is to protect minorities against the majority, which it pretty obviously is, then lawyers would seem pretty well placed to do the interpreting.
I know, I don't agree with him!
Actually, I guess senators should only ask duck hunting questions during confirmation.
...and I know you're right that sometimes judges ask questions that would throw us off...
Actually, I believe that you misunderstand why appellate judges ask questions like that. They don't ask questions like that to "throw us off." They often ask questions to explore the limitations of the constitutional claims that have been raised by the litigants from a policy standpoint. That can be useful in determining how to frame their opinions. They know full well that, regardless of how they themselvse vote in a particular case, the opinions that decide the case will influence the direction of the law for the lower courts.
That said, I agree. Scalia is a nut.
Well - I'm not a regular here and just stumbled on this post as a result of a Google search but I did happen to watch Scalia's presentation and judging by the comments here I would say that some of you are confused.
The two forms of majority refer to the supermajority that Constitutional amendments would require and the 50+1 majority that is required for most legislation. He makes this point very clear in his presentation. He argues that when the "majority" (meaning supermajority) wanted to change the Constitution in the past they did it the good old fashioned way and passed a Constitutional amendment or when "willful" judges abused their power they would adopt an originalist interpretation and just "lie" about the original meaning of the document.
His presentation is much more nuanced than you are making it out to be - and its fine to disagree with Scalia, many brilliant people do (Breyer for instance in his recent debate with Scalia also available at c-span.org) - but you should at least disagree while understanding his case in its context...
If you don't want to watch his presentation (highly recommended) then you might want to read a portion of it that I transcribed in my latest post. Feel free to leave a comment if you see a flaw in his reasoning there...
I'll take a stab at reconciling the two excerpts you posted. Scalia's position is that Constitutional interpretation should proceed according to the original meaning of the Constitution. He notes that opponents of an originalist interpretation often proclaim that this method does not allow for the flexibility that the U.S. government requires more than 200 years after the Constitution was adopted. Scalia responds that his Constitution is very flexible: the majority can move to through the legislative process for much flexibility and when necessary a supermajority can move through the Constitutional amendment process.
Scalia is not ignoring the 9th Amendment and unenumerated rights. Perhaps the best way to illustrate this is to pick two examples - let's use a putative right to abortion and the right to "eat and drink". Obviously neither of these rights is explicitly mentioned in the Constitution. Scalia would look at the 9th Amendment and ask "When the Constitution was ratified did it contain an unenumerated right to abortion? Would it have contained an unenumerated right to eat and drink as desired?" The answers would clearly be no/yes respectively. In other words - the unenumerated rights that the 9th Amendment safeguards are only those unenumerated rights which were in play in 1789. Note that this only covers situations for which there is a clear answer in 1789 (as with abortion - it was clearly outlawed in 1789 and thus could not have been an unenumerated right at the time) - Scalia is open to addressing new material but views this as rare. He maintains that most of the currently controversial subjects (euthanasia, abortion, homosexual marriage, etc) can be addressed based on an originalist interpretation.
This is where the majority comes in. Scalia says that when you allow the Supreme Court to adjust the meaning of the Constitution (as with abortion) over time and according to "the evolving standards of decency that mark the progress of a maturing society" what you are really doing is allowing the Court to govern the people. No longer does the majority, or even the supermajority govern themselves.
He maintains that "the evolving standards of decency" are not best determined by 9 Justices. Rather, if the people think that homosexual marriage is now decent they should persuade their fellow citizens and pass legislation making it so (and if necessary pass a Constitutional amendment - but of course that would only be required to overcome a negative as a simple majority could legalize homosexual marriage with legislation).
Scalia believes, rightly, that fundamentally everything comes down to the majority in this country. It might take a supermajority to get some things done but a large enough majority will (and he would argue should) always have the final say. The Court exists to referee the ground (according to an originalist interpretation) between the simple majority and the supermajority required to pass Constitutional amendments - nothing more.
And since I'm bored I will attempt to address a few other comments. Scalia would not have the Court abdicate its responsibilities when it comes to 8th Amendment cases. Rather, he would look at what was considered cruel and unusual when the Constitution was ratified and use that standard. It wasn't considered cruel and unusual to execute minors then, so he doesn't think the Constitution would consider it cruel and unusual today. He would say that there were many things that weren't considered cruel and unusual by society then - but that might be by today's society. He has no idea what that list of punishments is and claims that 9 people on a bench shouldn't be in charge of determining that. Rather, if the public views execution of a minor as cruel and unusual today they should convince their fellow citizens and outlaw it.
I do not see the contradiction about majoritarianism that Ed raised. Perhaps he could elaborate?
He certainly does not believe that Justices should be appointed randomly in order to reach a cross section of opinion - he is arguing that when the Court operates as it does today (without adhering to an originalist interpretation) that effectively 9 Justices are attempting to determine what the majority currently views as decent. It has surrendered its Constitutional obligation to protect the minority from a simple majority. A supermajority will always win. Hope this helps....
If "cruel and unusual" in the Eight Amendment means only what was cruel and unusual to the late eighteenth century, then I have a modest proposal for you.
I suggest that we repeal the Eighth Amendment and replace it with an amendment of identical wording, ratified in 2005. Then we could interpret this new amendment as forbidding everything that WE believe to be cruel and unusual.
We could repeat this process as needed every few years. Taken consistently, this is what Scalia's position would require if we were ever to escape the founders' definition of cruelty, and I find this ridiculous in the extreme.
The real question is this: Are we ruled by a bunch of people who died in the first half of the nineteenth century? Or are we OUR OWN rulers, guided by tradition, but not in thrall to it?
And which choice, do you think, best reflects the idea that the people are sovereign?
Thanks for your comments, and I agree substantially with your analysis of how Scalia would resolve a claim of unenumerated rights under the 9th amendment. But let me ask you two questions that bear on that analysis.
First, isn't there a tension between what might have been legal at a state level and what might have been legal at the federal level at the time of the founding? For instance, most of the bill of rights applied only to the federal government and the states retained the authority to violate them if they chose to do so, and of course many states did violate various provisions in the bill of rights at the time. So when Scalia says we need to look at the state of the law at that point in time to determine whether a given right would have been considered a legitimate one then, how is that problem resolved? In many cases, the states had laws that would have been considered a violation of rights at the federal level. If some states at the time had, for example, laws against blasphemy, wouldn't one, using the reasoning that Scalia uses, have to then argue that blasphemy laws were part of the "original understanding" of the first amendment? And if blasphemy laws are not unconstitutional, then what on earth could be?
Second, what would you make of the counter-argument that comes even from conservative intellectuals like Harry Jaffa, who argue that we should interpret the Constitution in light of the principles it is based upon rather than the compromises they had to make with those who opposed those principles? It seems to me that Scalia's form of originalism would lock into place as eternally binding the compromises made, like the various provisions allowing slavery in the original constitution (his reasoning would almost have to be identical to Taney's originalist arguments in Dred Scot), rather than the principles stated.
Your question constitutes a false choice. The country needn't be subject to rule by the founding fathers - nor rule by 9 appointed Justices. Scalia's whole point is that the Constitution allows for an enormous amount of flexibility. Flexibility that he feels should remain in the hands of the people (legislation + amendments) rather than in the hands of 9 Justices.
Scalia's position would not require a constant repeal and re-instatement of the 8th Amendment. All his position would require in order to accomplish your goal is a detailed amendment that holds all of the current Supreme Court doctrine on the 8th Amendment. Whenever the standard of decency shifted the amendment would simply be modified (as Supreme Court doctrine is consistently modified today). Such an amendment would likely never receive the supermajority required. Which, I think, just proves his point. The Justices today needn't worry about whether their doctrine could ever be implemented via simple legislation (much less an amendment) and thus the power lies with them - not with the people.
Now, if I may ask you a question (sans false choice): if you do not believe that the Constitution should be interpreted according to its original meaning - then what should the standard be? If you believe, as the Court has ruled, that the standard is merely the "evolving standards of decency" of society, then do you really believe that 9 Justices are better able to determine the standard of decency in society than society itself?
I would point out that people who get appointed to the Supreme Court are hardly representative of society and are far more likely to come from very privileged backgrounds - are their individual standards of decency likely representative of society's? Are they, as lawyers (as opposed to say... philosophers or social scientists) qualified to determine the evolving standards of decency of an entire society?
To the first question I would say yes and no. Yes - there was tension between what was legal at the state level and what was legal at the federal level at the time the Bill of Rights was ratified. No - the states did not retain Constitutional authority to pass legislation that conflicted with the federal Bill of Rights (Article VI, and later McCulloch v. Maryland). Any state law that was in conflict was eventually stuck down - or would have been had a case been brought before it was repealed. This should resolve the state-federal question. Were blasphemy laws universal at the time of ratification then yes, you might have a point - but they were not. There was a large body of legislation and intellectual thought devoted to protecting various forms of blasphemy (broadening the term to include the king, God, country etc).
Now, there is an interesting point to be made here. You might be making it and I might just be misunderstanding you. It is the case that there were radical differences between states - over, say, the definitions of "person" and "property." In the southern states they would no doubt have considered a black man to be property, in the north a person. There was no consensus. I am not sure how Scalia would resolve radical state-state differences when seeking the original meaning of the Constitution - if I had been at the presentation I would have asked him ;) This is not to say that such differences could not be resolved at all - the people could still resolve the issue with an amendment (and in fact they did.. with the help of a war). But yeah, if the 14th (and other) amendments were to disappear overnight and Scalia had to interpret the word "person" in the Constitution tomorrow without those touchstones I would like to know how he would go about it.
To the second question: Scalia would point out that no one is eternally locked into anything. Any compromises made in the past (as with the 3/5 clause) can be dealt with through the amendment process. He provides a good example in his presentation. He points out that in 1920, when the 19th Amendment (women's suffrage) was ratified the equal protection clause was in full effect. He maintains that in 1920 originalism was the norm which is why an amendment was required. At the time the Court, and indeed society as a whole, knew that the equal protection was not intended to prevent discrimination in the franchise and thus they did things "the good old fashioned way" - a just result through the legitimate process. He claims that today no amendment would be required. The Court would take a look at the equal protection clause and bend the clause to its will - in itself not a bad outcome. But when you look at the overall effect this form of interpretation has on the system it becomes clear to him that it is unacceptable. He provides a broader analysis in his presentation but you can look at one of the effects that I copied into this post - specifically his analysis about why the confirmation process has become so much more difficult in the span of 19 years.
To the first question I would say yes and no. Yes - there was tension between what was legal at the state level and what was legal at the federal level at the time the Bill of Rights was ratified. No - the states did not retain Constitutional authority to pass legislation that conflicted with the federal Bill of Rights (Article VI, and later McCulloch v. Maryland). Any state law that was in conflict was eventually stuck down - or would have been had a case been brought before it was repealed. This should resolve the state-federal question.Well, those provisions in the bill of rights that specifically say "Congress shall make no law..." did not apply to the states until 14th amendment incorporation, so Article VI still didn't change the fact that the states were in fact allowed to pass laws that were contrary to free speech, free exercise of religion, freedom of the press, and so forth. Surely no one who holds to originalism or textualism would deny that. So we're still back to the same question I asked before. In light of the fact that innumerable state laws were allowed to continue to be enforced, either because the bill of rights simply did not apply to the states or because no one ever took them to court, how do you go about determining when the existence of state laws at the time of the founding represents the original understanding of the bill of rights, and which ones represent violations of the bill of rights that were allowed to the states or unchallenged?
So if you admit that there were many laws at the state level that were in conflict with the Constitution, but never challenged in court, how do you distinguish between those laws and laws which really were consistent with the Constitution? It can only be done by reference to Constitutional principles, which gets us to the Harry Jaffa argument - you interpret the Constitution according to the principles stated, not according to the compromises of those principles found in the law.
Were blasphemy laws universal at the time of ratification then yes, you might have a point - but they were not. There was a large body of legislation and intellectual thought devoted to protecting various forms of blasphemy (broadening the term to include the king, God, country etc).
Well, let's look at some of the history of blasphemy laws at the time. Surely you would not deny that some states had laws against blasphemy at the time of the founding, and for many decades thereafter. In Massachusetts, for instance, Abner Kneeland was convicted of blasphemy in 1838. In appealing his case to the Massachusetts Supreme Court, the court made the very same argument for the validity of such laws that originalists make today - that the law was in force even after the passage of the Constitution, and many of the very men who framed the Constitution were then present in the Massachusetts legislature and had not moved to repeal it; hence, the law must be consistent with the first amendment according to the original understanding of that provision. The court did a thorough review of the history of blasphemy laws and found that many states had such laws after the passage of the Constitution, including Vermont, Maine, New Hampshire and New York.
The New York case, People v. Ruggles, also famously determined that blasphemy laws were not unconstitutional, and the court appealed to the common law and, again, to the fact that blasphemy laws remained in place even after the passage of the constitution, to argue that blasphemy laws were entirely consistent with the original understanding of the first amendment.
how do you go about determining when the existence of state laws at the time of the founding represents the original understanding of the bill of rights, and which ones represent violations of the bill of rights that were allowed to the states or unchallenged?
I see your point and my answer is that I am not sure. Scalia is fond of telling people to look first to the Federalist papers, and that is about as much as I have heard him say on the subject (obviously an incomplete answer). Maybe I will delve deeper into this now that I'm interested and check out his book - I believe it starts with an essay and then responds to critical essays from non-originalists. I know nothing of Jaffa's arguments but again, my interest is piqued so I will check out his book as well. Which of his books would you suggest Storm Over the Constitution or Original Intent and the Framers of the Constitution: A Disputed Question, or both?
I mentioned that I know nothing about Jaffa's position but let me take a stab at what Scalia might say to a "stated principles" interpretation. Let's look at the 1st Amendment again. He might argue that if one merely interpreted according to the stated principles a variety of forms of speech that the founders wanted restricted must be Constitutional - libel for instance. He would argue that any reasonable interpretation must take into account what freedom of the press actually meant in 1789. Or to take a more controversial issue - what could a "stated principles" Justice use to help interpret the meaning of "cruel and unusual?" Scalia maintains that originalists have a binding standard, a method of "controlling" the Justices and that every other method of interpretation lacks this necessary control.
I see your point and my answer is that I am not sure. Scalia is fond of telling people to look first to the Federalist papers, and that is about as much as I have heard him say on the subject (obviously an incomplete answer).
I have not read his book where he answers essays from others either, but I will do so at some point (my list of books to read gets longer by the minute). I would agree with him that the Federalist papers is a good place to start, but I wouldn't stop there. Unlike Scalia, I would also look to the Declaration of Independence as a source for determining how to apply Constitutional provisions (Clarence Thomas agrees with me, I might add), something he has explicitly rejected in the past. As a matter of principle, his rejection of the Declaration has never made sense to me; since the Declaration sets out the proper limitations of government and the principles upon which the nation was founded, it seems an ideal and obvious help in applying general constitutional provisions in specific situations.
I know nothing of Jaffa's arguments but again, my interest is piqued so I will check out his book as well. Which of his books would you suggest Storm Over the Constitution or Original Intent and the Framers of the Constitution: A Disputed Question, or both?
To be honest, I'm not terribly up on Jaffa myself. I know his views primarily through second hand sources and a few essays I've read of his here and there. And there are areas where I strongly disagree with him (he is virulently anti-gay, for instance). But two books I can strongly recommend are from Randy Barnett, Restoring the Lost Constitution and The Structure of Liberty. Barnett, a libertarian legal theorist, has developed the idea of liberal originalism (liberal in the classical sense, not the modern political sense).
I mentioned that I know nothing about Jaffa's position but let me take a stab at what Scalia might say to a "stated principles" interpretation. Let's look at the 1st Amendment again. He might argue that if one merely interpreted according to the stated principles a variety of forms of speech that the founders wanted restricted must be Constitutional - libel for instance. He would argue that any reasonable interpretation must take into account what freedom of the press actually meant in 1789.
But why stop at 1789? An originalist could just as easily justify decimating freedom of the press completely by pointing to the Sedition Act, passed by John Adams and a Federalist-controlled Congress in 1798. Surely, an originalist could argue, the very men who wrote the Constitution would not pass a law that was against the first amendment that they wrote only a few years earlier, and that would then prove, by the reasoning of originalism, that throwing newspaper editors in jail for criticizing the government was consistent with the first amendment. But the fact is that it's not consistent with the first amendment. It wasn't at the time and it isn't now. The Sedition Act was a brazen and hypocritical law clearly at odds with not only the first amendment but with the stated principles upon which the nation was founded, and Jefferson rightly reversed the convictions it prompted and pardoned the many newspaper editors who were punished for daring to criticize the Adams administration.
We must not forget that the founding fathers were still men, and politicians at that. Contrary to the simplistic, cartoonish version of them we all learned in elementary school, they were not holy men receiving the blessings of freedom from God himself, they were men of varying intellect and varying integrity who disagreed on a great man things and who regularly stabbed each other in the back and engaged in political intrigue. They weren't all that different from the politicians of today in that many of them overthrew principle when it suited their political needs. And that leads us back to the question of whether we should interpret the Constitution in terms of the principles they put forth, or in terms of the compromises and reversals of principle they often engaged in for political purposes?
Scalia maintains that originalists have a binding standard, a method of "controlling" the Justices and that every other method of interpretation lacks this necessary control.
One problem I have with Scalia is that he so often presents this simple dichotomy - you're either an "originalist" or you're a "living constitutionalist" - as though they were the only two options. But that is, at best, a misconception; at worst, an intentional distortion. There is a lot of room in between those two things, and there are many legal theorists, including Jaffa and Barnett, who argue that a properly understood originalism stands squarely against many of the positions taken by conservative originalists like Scalia and Bork. If you do read either Barnett or Jaffa, I'd be interested in hearing your opinion on it. Thanks for the comments.
Well both books are in the mail but in the mean time I searched for lectures that Jaffa has given that are available online. I found a pretty good lecture that he gave at Princeton's James Madison Program in American Ideals and Institutions. It is a little over an hour long and you can watch it here. His style is somewhat distracting but the substance is there. In his initial presentation he touches briefly on Scalia's position and then expands in response to a question (at almost precisely the 1 hour mark if you want to skip to that). I will present some of his key points as well as his response to the Scalia question below.
The precise point in the long human story at which "accident and force" was replaced by "reflection and choice" was the point at which human equality, that all men are created equal, determined the form of the consent by which the state of nature was transformed into civil society.
For more than a millennium and a half the Christian west had been afflicted by the hiatus between the authority of God and the authority of law. By unanimous consent the authority of God became once more the authority for law. It is important to understand that the principles of the social contract, stemming from the principles of the Declaration of Independence, are a means by which not only the authority of the people as the authority of law, but the authority of God becomes the authority for law. This authority now emanated from the people. Not from autocratic kings or aristocracies of wealth or birth. This was by reason of the fact that each human individual participating in the creation of a free civil society had been equally endowed by his creator with the rights which entitled him to enter into the social contract. It was understood, moreover, that the exercise of these rights, among them life, liberty, and the pursuit of happiness, was confined to the purposes for the sake of which they had been endowed by their Creator. When the signers of the Declaration appealed to the supreme judge of the world for the requisites of their intentions, they acknowledged the divine government of the world as the framework within which their rights might be exercised. The Declaration was, moreover, issued in the name of "the good people of these colonies."
In a letter to Spencer Rhone many years later , Jefferson said that the ultimate repository of the principles of the Constitution was "the people en masse". They, he said, are independent of everything "but moral law." The people however, does not make the moral law, the moral law makes the people. Without the moral law, a human assemblage, even when formed by consent, may be nothing more than a gang of robbers. Consent is then, more than an act of will. It is an act of will informed by an understanding of the moral law, which is also God's will. We see here how closely Jefferson is attuned to the natural law doctrine of Thomas Aquinas.
Jaffa goes on to explain that he believes that the interpretation of Locke's natural law that must be taken into account is the interpretation that the Founders relied upon - rather than more modern interpretations such as those by Leo Strauss. This indicates to me that he really isn't as far from Scalia's position as he would have us believe, more on that in a moment.
In response to a question Jaffa explains that he agrees with everything that Rehnquist says in his The">http://home.utm.utoronto.ca/~etphl105/RenquistLivingConstitution.pdf">The Notion of a Living Constitution - except his solution (which he presents as similar to Scalia's):
[Rehnquist:]"If a people adopts a Constitution with safeguards for individual liberty these do indeed take on a certain moral rightness or goodness. They do so neither because of any intrinsic worth or anyone's idea of natural justice, but only because they have been adopted by a people."
Jaffa goes on to consider what Rehnquist's position would mean:
First of all, safeguards for individual liberties do not have any intrinsic worth. That means that individual liberty does not have any intrinsic worth - which means ultimately that individual life does not have any intrinsic worth. But [Rehnquist] says, that if they are adopted by a people they take on a certain moral right or goodness. Well that means that they don't have moral rights and goodness - they take it on - this is just an overlay of opinion because people say it's so.
Now, what about the Constitution in 1787? If you're looking for original intent you go back to there. The Constitution of 1787 in its overall design was the greatest safeguard for individual liberty the world has ever seen. But that same Constitution has safeguards for slavery, very powerful safeguards for slavery. Do the safeguards for slavery not take on the same moral rightness or goodness as the safeguards for liberty? They obviously must. Now that was the position of the south, instructed by John C. Calhoun in 1860. They said that the morality of the safeguards of slavery were on the same level and had the same degree of obligation as the safeguards for liberty. The most important charge by the liberals against original intent jurisprudence is that the original Constitution sanctioned slavery. That is a reason why original intent should be disregarded. So the strongest argument against a jurisprudence of original intent is the one that Rehnquist creates, or at least endorses, by his own analysis.
Jaffa is correct. An originalist interpretation must imbue the slavery provisions with the same morality afforded to the safeguards for liberty. Scalia would disagree that this torpedoes his position. He would say that the Founders no doubt made a compromise (I wonder if he would call it a mistake?) and that when society came to view this compromise as a mistake, coercive means notwithstanding, it was rectified. Scalia would maintain that the flexibility of his system allowed for the people to keep the power and for the Constitutional conflict to be resolved.
I mentioned earlier that I don't think Jaffa is really that far from Scalia's position. Jaffa argued that the interpretation of Locke that must be used is that which the founders understood, rather than a modern interpretation. Scalia would no doubt agree. He would take it a step further. He would say that the interpretation that the founders understood is manifest in the laws that were passed at the time and in an analysis of their intent. How else could one understand their interpretation of Locke, as well as other political theorists?
Scalia would also point out that when you remove lawmaking power from the majority (or supermajority) you must place it in the hands of some other body. His question if not the public then who? Jaffa made a good case for why majoritarian rule might not be the answer but then didn't seem to offer an alternative solution. Perhaps the answer is in his book...
I am not a regular here and haven't read any of your other work - I wonder if you are surprised by Jaffa's position on the critical role of religion in his interpretation, I get the impression from your site that you might find it distasteful but also get the impression that you are (mostly) a fan of his. His entire case is built on the relationship between God(s) and governments.
A few quick responses:
Scalia would probably explain his position on the Declaration in light of his majoritarian view: the Declaration did not face the same process of ratification that the Constitutional process required (56 signers as opposed to passage through 9 state legislatures etc).
Why stop in 1789 (to 1791 ish)? Because that is when the strict ratification process stopped. In other words, Scalia would say that in 1791 when the 1st Amendment came into force it had a very specific meaning and that the Sedition Act was a clear violation of the intent of the people who allowed passage of the Amendment. An originalist could not argue the position you put forth. An originalist would have to look to the writings of Hamilton and Madison on the subject of a free press before the "evolving standard of decency" shifted dramatically in response to political pressure that eventually resulted in what some have called a 2nd revolution. It is their interpretation which was accepted at the time of ratification by the people - not the interpretation that some Federalists (few of the key Constitutional players) later used as a political weapon.
I do not view the founders as holy men, and I am quite sure Scalia doesn't either. He would not dispute that there were political compromises. What he would say is that their interpretation of the Constitution is the only interpretation that has been democratically approved and therefore is the only legitimate interpretation - the compromises should be dealt with through the approved Constitutional process.
Michael, I just realized that I never replied to your last comment. I saw it late one evening and intended to reply to it in the morning, but got caught up in other things and forgot entirely. Let me just say that I am not an advocate of Jaffa's views, many of which I find distasteful. I highlighted one specific argument he makes, that for purposes of Constitutional interpretation we should look to the original principles and not to the compromises of them, but that is all. You will find my views much more fully expressed in both books by Randy Barnett, which I understand you have ordered. When you finish reading them, perhaps we can discuss the subject again.
By the way, if you email Jon Rowe your comments, he'll likely be happy to respond. Jon knows far more about Jaffa's views than I do; indeed, most of my knowledge of Jaffa comes from him and from Timothy Sandefur, who was a Lincoln Fellow at the Claremont Institute. Both Jon and Timothy are, like me, strong advocates of Barnett's work, but Timothy in particular is very knowledgable about the west coast Straussians, having studied under many of them.
Although it is a fuzzy rule by which to interpret the Constitution, I support a more essentialistic view of deciding what is constitutional. By using the text of the Constitution, the Declaration, the Federalist Papers, etc., we can determine roughly what the "spirit"--for lack of a better word--of the Constitution is. Undoubtedly, there are times when an existing law is recognized to be out of step with contemporary principles, but the majority (even a simple majority) may not realize this. A predicament arises when the law can't technically be ruled unconstitutional by a strict originalist's standards, but the likelihood of changing public opinion in a timely manner is minimal.
With regard to the execution of minors: Apparently, a majority of people in this country support this, however it embodies many a contradiction when compared against the rest of our laws regarding minors. Yet, it may not be technically unconstitutional. In a perfect world (or nation) the majority would move to amend the Constitution to make the point moot, but in a country of 300 million it takes an awfully long amount of time to convince the majority of what is right. In cases such as this, I think judges need to make a leap and see if the majority comes around to the decision.
Though I can name many judges who I think are unfit to occupy the bench (Scalia, for one, who clearly believes that the Bible is more supreme than any of man's laws), I trust them in helping us clarify our laws.
In many cases--often, the most important--the majority does not know best, and it takes drastic measures to convince them. Sometimes, "activist judges" need to take these drastic measures. Over time, we will see if they were the right decisions. But in all such cases, it is important to err on the side of granting rights, rather than restricting them. This is what the court has held throughout the history of free speech law, for example.
We don't live in a pure democracy and I'm happier for it. Remember Athens: a pure democracy that decided to put Socrates to death.
And regarding Socrates, he has a good notion on the idea of justice, that relates to this talk of God's law and man's law. In the Declaration of Independence Jefferson talks of rights bestowed upon man by his Creator. I really wish he wouldn't have used that word, but it made the point to the people to whom the DofI was addressed. I think a better notion of this rights is addressed by Socrates' philosophy, which instructs us to act as if a pure objective concept of justice (and rights) exists out there somewhere, and we try as best we can to move on a path toward it. We can never be sure we have found this justice, so we must constantly question ourselves as to whether our laws our just. Eventually, of course, we will arive at justice in one form or another, but we should never be content to rest on our laurels, so to speak.
When applied to the principles established in the Constitution, I think many of them are just, thus it is appropriate to appeal to the authority of the Constitution, however we should never stop endeavoring to refine these principles. It is like science--the more we know, the more we make necessary adjustments to the current paradigm. Imagine if we had to wait until the majority of our population agreed on scientific theories to make them revered as accepted truths (or at least near truths).
Obviously, everyone is not qualified to issue informed opinions on what is legal, ethical, etc. Of course, we have to let the majority have a say in as much as possible, lest they feel oppressed and revolt. I don't think we're incurring the possiblity of revolt by prohibiting the execution of minors or the death penalty altogether.
Excuse the few typos in there. Man I wish I could edit these posts.