Parts of the constitution rise from common law, which, as I commented previously rises from quite ancient moral considerations. For example, the due process protections.
Eh, doesn't this cut both ways? Why would the framers of either the original bill of rights or the 14th need to explicitly enshrine and codify, say, jury trials in criminal and civil cases at all? And even if we assumed that this was just a redundancy (rather than something of disputed necessity even at the time), why would modern jurists be bound to incorporate not only what's in the text, but also to defer to the reasoning employed by ancient moral thinkers who did not ratify either document?
The common law incorporated the mores of the society. The “right or wrong” of an act is judged by those similarly situated. This remains true today. It comes from a recognition that the higher power (and I’m going back as far as four millennia) established the nature of morality. That nature remains in place today. Absent that moral content, there is no civil society.
I don't think you answered my concern, I think you answered the one you wanted me to have. I didn't ask whether the common law incorporates non-natural objective moral facts. It's about whether the constitution incorporates common law. I am saying that your point that the constitution incorporates specific aspects of the common law, rather than merely exempting those aspects it didn't, suggests that constitutional law is not common law, that the text suggests that there isn't general federal common law. If so, there's no entry point for incorporating these alleged moral facts into constitutional and public law as a matter of constitutionality, you'd be arguing for judges to adopt an unconstitutional jurisprudence.
Vincent: You posed the specific question “Whether the Constitution incorporates common law.” But, you also raised the question as to whether the failure of the Constitution to incorporate other aspects of common law imputes that the Constitution itself is not common law, and as well, there is, therefore, no federal common law. And, thus, the absence of the Constitution being common law, or establishing no common law, results in no means to incorporate “alleged moral facts” into Constitutional and public law.
Let me settle the final question as to whether there is “federal common law”. There is. Example: Clearfield Trust Co. v. US, 318 U.S. 363 (1943). In this matter, the question arose as to whether state or federal law applies to reimbursement of a forged check drawn on a federal account. The court held that when the United States disburses its funds or pays its debts, it is exercising a constitutional function or power; and, its rights and duties on commercial paper so issued are governed by federal, rather than local, law. Further, the court held that in the absence of an applicable Act of Congress, it is for the federal courts to fashion the governing rule of federal law according to their own standards. In this case, they relied on Swift v. Tyson, 16 Pet. 1 (1842), which held that “When a federal court rules on an issue that has not been addressed by the state legislature, it may develop a federal common law that is different from the state common law. (I recommend the full opinion of Swift to you as it discussers the relationship between common law (in this case, long-standing commercial practices) and positive law found in statutes and rules.)
Thus, the Court has recognized that on a Constitutional question, it can rely on federal common law which rose from long-standing common law that itself stands on the shoulders of moral practices.
What then is the “rule” that allows for use of “natural law”, i.e., common law in Constitutional questions. Clearfield Trust provides that rule; to wit, when exercising a constitutional function or power in the absence of an applicable Act of Congress, the federal courts shall fashion the governing rule of federal law according to their own standards.
Having dispensed with the question as to whether there is federal common law, we can now take up the question predicate, whether the Constitution is itself common law. I suggest that this question is nugatory. The Constitution, being an instrument ratified by the members of the republic, is positive law. But, so what? The instant question addresses how to interpret the Constitution. This brings in the original question you posed, as to whether the Constitution “incorporates common law.” Presumably, if it does, then application of common law principles would be appropriate, the Constitution “incorporating” that common law itself.
Notably, you do not ask whether the entire Constitution, i.e., each Article and Amendment, incorporates common law. I will address this at the end of this too lengthy response, but it is not necessary to address in the instance where even one Article incorporates common law.
In essence, the Court must interpret the meaning of the Constitution, and thus, the question is as to whether, in doing so, can it rely on common law. There are nine basic approaches to Constitutional interpretation. I summarize them below and indicate which incorporate reliance on common law, and thus infuse the constitution with natural law.
1. Originalism
Originalism is the theory that the Constitution should be interpreted based on the meaning that its words and phrases had at the time of its drafting or ratification. Originalists believe that the framers' intentions or the original public meaning of the text should guide its application today. Originalism Focuses on the intentions or purposes of the framers of the Constitution. It asks, "What did the framers intend when they wrote this?" This approach may or may not rely on common law. Clearly the Fourth, Fifth and Fourteenth Amendments (Sec. 1) rise from common law. The Ninth Amendment, however, appears to be positive law, even under an originalism approach.
2. Living Constitution
The Living Constitution approach holds that the Constitution should be interpreted in light of contemporary values, societal changes, and modern circumstances. This view suggests that the Constitution's meaning evolves over time as society's understanding and needs change. Nothing could be further from application of common law than interpretations under this interpretive approach. Notably, however, reliance on values places a clear potential for a Court to apply natural law principles, if they reflect contemporary values. Thus, application of the golden rule to an interpretation would constitute a natural law interpretation with which nearly all religions and moral disciplines would support. Satanist (arguably at least three of which are now members of the Court) would chose some other basis to ground their understanding of contemporary values.
3. Textualism
Textualism is an approach that emphasizes the plain meaning of the words in the Constitution itself, looking primarily at the text and how it would be understood in its ordinary sense. This method doesn't focus on historical context or societal changes but instead insists on adhering strictly to the language used. This approach would only rely on common (natural) law where it assists in understanding the plain meaning of the words. Thus, this approach could incorporate natural law where the words rise from a natural law origin.
4. Structuralism
Structuralism focuses on the overall structure of the Constitution and the relationships between its various provisions. It interprets specific clauses in light of how they fit within the broader framework of government and constitutional principles, such as separation of powers, federalism, and checks and balances. This interpretive approach is a second tier analytical method. It looks within the Constitution for direction. If that direction rises from an Article or Amendment that rises from natural law, then the structuralism is tarred by that brush. If not, then it reflects positive law.
5. Pragmatism
Pragmatism emphasizes practical consequences and real-world outcomes in interpreting the Constitution. It encourages judges to consider the effects of their rulings on society and to make decisions based on practical, real-world considerations rather than strictly on legal formalities or abstract principles.
If there is an opening for application of natural law, it is Pragmatism. Of course, as Justice Kagen has so often demonstrated, it also allows for application of absurdities and flights of fancy not tethered to anything whatever.
6. Historical Contextualism
Historical Contextualism focuses on interpreting the Constitution based on its historical context, examining the social, political, and economic conditions in the 18th century when the document was drafted. This method often involves looking at contemporaneous documents, such as The Federalist Papers, state ratifying conventions, and other writings of the era. Where historical documents incorporate natural law, and most of them do, then this approach applies natural law.
7. Doctrinalism (Precedent-based Interpretation)
Doctrinalism focuses on interpreting the Constitution in light of established judicial precedents. It looks to past decisions made by the Supreme Court and lower courts to guide current interpretations, emphasizing the importance of stare decisis (the principle of following precedents). Although sometimes propounded as an interpretive approach, it really isn’t. This method is less about reinterpreting the Constitution and more about applying past decisions to present cases. If those past decisions relied on natural law precepts, then so too would the following of those precedents. If not, then not.
8. Moral Reasoning
Moral Reasoning involves interpreting the Constitution through the lens of moral principles or ethical values, often relying on ideas of justice, fairness, or human rights. This method can sometimes draw from natural law. Notably, some liberal jurists, such as Justice Ruth Bader Ginsburg, have sometimes embraced this approach, particularly in cases involving civil rights.
9. Fidelity to Text and Purpose
Fidelity to Text and Purpose blends textualism with a focus on the broader purpose behind the Constitution. It seeks to interpret the text in a way that remains faithful to both its literal meaning and its larger objectives or goals, such as promoting democracy, protecting individual rights, or securing liberty. This method sometimes combines elements of originalism and living constitutionalism, trying to reconcile historical intent with modern interpretations. It allows for application of natural law precepts, but does not require such application.
Based on the above, clearly Constitutional interpretation could in many cased, under nearly all interpretive methods, allow for application of natural law precepts. What can be sed conclusively is that Constitutional interpretation is not limited to positive law and does not prohibit application of natural law precepts.
Now, let’s look briefly on the Constitution itself. This is my personal view. It is surely open to criticism.
Natural law is the basis of:
Article I, Section 9 (in part)
Article II, Section 4
Article III, Section 2
Article IV, Sections 2 (in part), 4 (in part)
Amendments I – IX, XIII – XV, XIX, XXIV, XXIV, XXVI
Positive law establishes:
Article I, Sections 1 – 8, 9 (in part), 10.
Article II, Sections 1 – 3
Article III, Sections 1, 2 (in part), 3.
Article IV, Sections 1, 2 (in part), 3, 4 (in part)
Article V
Article VI
Amendments X – XII, XVI – XVII, XX – XXIII, XXV, XXVII
Probably worth noting that Swift was overruled, and Clearfield stands for the idea that federal common law is not general common law, so it cuts against the idea that judges are authorized in general to incorproatd any moral facts. Quite aside from that, the motivating concerns were pragmatic, so only to the extent that we take natural law to be synonymous with open ended consequentialism is Clearfield a statement of incorporating natural law. Additionally, the idea that natural law is the basis for any text relies on a couple of notions, which may or may not be interdependent: one, natural law exists and directly motivates the drafting of text. Two, natural law theory was the but for cause for constitutional provisions.
The first is at least partly a substantive metanormative claim about law and moral facts, and their relationship to positive law, but which seems to run counter to your idea that the *text* of the constitution is constituted separately by both positive and natural law.
The second is a bit of a narrower claim, that the theory, regardless of its merits, was the context in which the constitution was drafted, and thus understanding the meaning of the document at the time of its adoption requires understanding natural law. Like you say, this allows for limited incorporation to the extent that there is anything specific in terms of public evidence to rely on. But that's very different from the kind of moral reasoning you equate with natural law. It's saying that we only incorporate the moral reasoning *of others* and only to the extent that it resolves a first-identified ambiguity. It's not the same as authorizing judges to exercise their own judgement on the matter, or at least to the extent it would, it would be a self defeating argument in that respect. For if we want to use modern applications of historical context, why not modern understandings of historical text, which may excise any natural law context entirely? We'd be back to arguing the merits of the natural law, wholly independently of the constitution, not arguing about how or whether it is incorporated.
Give me a day or two and I’ll do an article by article analysis, and then examine how the constitution establishes a common law approach to its interpretation, if it does.
I really want to be sympathetic to John's argument. I get the formalist considerations, the fear of judges making stuff up. But damn it, of all the people to invoke, Holmes? C'mon, that nihilist wasn't bound by the text any more than natural law.
I guess I find this John's weakest reply because it's really leaning into democratic legitimacy as a sort of throughline and hook, and I'm left sort of scratching my head. I've heard him say elsewhere that he's tolerant of natural law to the extent that it's used as a tool to figure out what public meaning was. I get that. That's an originalist approach. I'm undecided on it, but I get it. But what I don't really get is infusing that with what he's *calling* judicial humility. I just don't understand this argument. Why are myopic readings of the Constitution humble but reading general terms as general terms like Scalia also advocated somehow the expansionist role? It feels like he's selectively dropping the argument from objective evidence to make a separate case for "much democracy".
It presents to me like the answer is between these two poles. The constitution has broad guarantees in it. John wants to read broad incorporations out because of judicial "humility", but his best arguments sound to me in terms of public evidence: the constitution may incorporate the natural and common law, but that should solely and exclusively be informed by the meaning of text, not by either judicial restraint or by pre-constitutional moral theory. Judges have a comparative advantage in figuring out what text means, not which free floating moral facts govern all human hearts, or whatever poetry we use, or in determining when to beat defer to a bunch of sycophants in suits.
Yech - I thought Linda Denno (Sept 17/24) had more or less settled this. I guess, however, that her expertise got in the way of her explanation. Since I know nothing and therefore feel no compulsion to do either the academic thing (quote Burke, Locke, et al) or the lawyerly thing (cite Rutledge, Marshall et al), let me throw an axe at the issue.
Very (!) broadly the New Testament can be seen as The Covenant re-imagined and re-executed for its time - and, similarly, the American constitutional documents can be seen as the third try at setting rules for a society based on natural law - i.e. on the sense of justice children show before their parents, siblings, and schools modify their behavior.
Accept this, and it's obvious that the American covenant intends the rule of natural justice but human nature and social complexity conspire to corrupt the application of these ideas - meaning that the courts vs legislature stand-off is merely one way of addressing human failure while the explicit limitation of authority within the constitutional documents is another, and the endless semantic hairsplitting courts indulge in is largely consequential damage reflecting the limitations of those caught in the system and so fundamentally irrelevant to the discussion at hand.
Best response yet by John. Can natural law as a jurisprudential guide stand under John's withering positivic attack? John's argument is one of utility as opposed to philosophy. Let's kick out all the judges who fail to evince the necessary amount of humility.
Parts of the constitution rise from common law, which, as I commented previously rises from quite ancient moral considerations. For example, the due process protections.
Not to worry. An epic beatdown rebuttal is coming!
Eh, doesn't this cut both ways? Why would the framers of either the original bill of rights or the 14th need to explicitly enshrine and codify, say, jury trials in criminal and civil cases at all? And even if we assumed that this was just a redundancy (rather than something of disputed necessity even at the time), why would modern jurists be bound to incorporate not only what's in the text, but also to defer to the reasoning employed by ancient moral thinkers who did not ratify either document?
The common law incorporated the mores of the society. The “right or wrong” of an act is judged by those similarly situated. This remains true today. It comes from a recognition that the higher power (and I’m going back as far as four millennia) established the nature of morality. That nature remains in place today. Absent that moral content, there is no civil society.
I don't think you answered my concern, I think you answered the one you wanted me to have. I didn't ask whether the common law incorporates non-natural objective moral facts. It's about whether the constitution incorporates common law. I am saying that your point that the constitution incorporates specific aspects of the common law, rather than merely exempting those aspects it didn't, suggests that constitutional law is not common law, that the text suggests that there isn't general federal common law. If so, there's no entry point for incorporating these alleged moral facts into constitutional and public law as a matter of constitutionality, you'd be arguing for judges to adopt an unconstitutional jurisprudence.
Vincent: You posed the specific question “Whether the Constitution incorporates common law.” But, you also raised the question as to whether the failure of the Constitution to incorporate other aspects of common law imputes that the Constitution itself is not common law, and as well, there is, therefore, no federal common law. And, thus, the absence of the Constitution being common law, or establishing no common law, results in no means to incorporate “alleged moral facts” into Constitutional and public law.
Let me settle the final question as to whether there is “federal common law”. There is. Example: Clearfield Trust Co. v. US, 318 U.S. 363 (1943). In this matter, the question arose as to whether state or federal law applies to reimbursement of a forged check drawn on a federal account. The court held that when the United States disburses its funds or pays its debts, it is exercising a constitutional function or power; and, its rights and duties on commercial paper so issued are governed by federal, rather than local, law. Further, the court held that in the absence of an applicable Act of Congress, it is for the federal courts to fashion the governing rule of federal law according to their own standards. In this case, they relied on Swift v. Tyson, 16 Pet. 1 (1842), which held that “When a federal court rules on an issue that has not been addressed by the state legislature, it may develop a federal common law that is different from the state common law. (I recommend the full opinion of Swift to you as it discussers the relationship between common law (in this case, long-standing commercial practices) and positive law found in statutes and rules.)
Thus, the Court has recognized that on a Constitutional question, it can rely on federal common law which rose from long-standing common law that itself stands on the shoulders of moral practices.
What then is the “rule” that allows for use of “natural law”, i.e., common law in Constitutional questions. Clearfield Trust provides that rule; to wit, when exercising a constitutional function or power in the absence of an applicable Act of Congress, the federal courts shall fashion the governing rule of federal law according to their own standards.
Having dispensed with the question as to whether there is federal common law, we can now take up the question predicate, whether the Constitution is itself common law. I suggest that this question is nugatory. The Constitution, being an instrument ratified by the members of the republic, is positive law. But, so what? The instant question addresses how to interpret the Constitution. This brings in the original question you posed, as to whether the Constitution “incorporates common law.” Presumably, if it does, then application of common law principles would be appropriate, the Constitution “incorporating” that common law itself.
Notably, you do not ask whether the entire Constitution, i.e., each Article and Amendment, incorporates common law. I will address this at the end of this too lengthy response, but it is not necessary to address in the instance where even one Article incorporates common law.
In essence, the Court must interpret the meaning of the Constitution, and thus, the question is as to whether, in doing so, can it rely on common law. There are nine basic approaches to Constitutional interpretation. I summarize them below and indicate which incorporate reliance on common law, and thus infuse the constitution with natural law.
1. Originalism
Originalism is the theory that the Constitution should be interpreted based on the meaning that its words and phrases had at the time of its drafting or ratification. Originalists believe that the framers' intentions or the original public meaning of the text should guide its application today. Originalism Focuses on the intentions or purposes of the framers of the Constitution. It asks, "What did the framers intend when they wrote this?" This approach may or may not rely on common law. Clearly the Fourth, Fifth and Fourteenth Amendments (Sec. 1) rise from common law. The Ninth Amendment, however, appears to be positive law, even under an originalism approach.
2. Living Constitution
The Living Constitution approach holds that the Constitution should be interpreted in light of contemporary values, societal changes, and modern circumstances. This view suggests that the Constitution's meaning evolves over time as society's understanding and needs change. Nothing could be further from application of common law than interpretations under this interpretive approach. Notably, however, reliance on values places a clear potential for a Court to apply natural law principles, if they reflect contemporary values. Thus, application of the golden rule to an interpretation would constitute a natural law interpretation with which nearly all religions and moral disciplines would support. Satanist (arguably at least three of which are now members of the Court) would chose some other basis to ground their understanding of contemporary values.
3. Textualism
Textualism is an approach that emphasizes the plain meaning of the words in the Constitution itself, looking primarily at the text and how it would be understood in its ordinary sense. This method doesn't focus on historical context or societal changes but instead insists on adhering strictly to the language used. This approach would only rely on common (natural) law where it assists in understanding the plain meaning of the words. Thus, this approach could incorporate natural law where the words rise from a natural law origin.
4. Structuralism
Structuralism focuses on the overall structure of the Constitution and the relationships between its various provisions. It interprets specific clauses in light of how they fit within the broader framework of government and constitutional principles, such as separation of powers, federalism, and checks and balances. This interpretive approach is a second tier analytical method. It looks within the Constitution for direction. If that direction rises from an Article or Amendment that rises from natural law, then the structuralism is tarred by that brush. If not, then it reflects positive law.
5. Pragmatism
Pragmatism emphasizes practical consequences and real-world outcomes in interpreting the Constitution. It encourages judges to consider the effects of their rulings on society and to make decisions based on practical, real-world considerations rather than strictly on legal formalities or abstract principles.
If there is an opening for application of natural law, it is Pragmatism. Of course, as Justice Kagen has so often demonstrated, it also allows for application of absurdities and flights of fancy not tethered to anything whatever.
6. Historical Contextualism
Historical Contextualism focuses on interpreting the Constitution based on its historical context, examining the social, political, and economic conditions in the 18th century when the document was drafted. This method often involves looking at contemporaneous documents, such as The Federalist Papers, state ratifying conventions, and other writings of the era. Where historical documents incorporate natural law, and most of them do, then this approach applies natural law.
7. Doctrinalism (Precedent-based Interpretation)
Doctrinalism focuses on interpreting the Constitution in light of established judicial precedents. It looks to past decisions made by the Supreme Court and lower courts to guide current interpretations, emphasizing the importance of stare decisis (the principle of following precedents). Although sometimes propounded as an interpretive approach, it really isn’t. This method is less about reinterpreting the Constitution and more about applying past decisions to present cases. If those past decisions relied on natural law precepts, then so too would the following of those precedents. If not, then not.
8. Moral Reasoning
Moral Reasoning involves interpreting the Constitution through the lens of moral principles or ethical values, often relying on ideas of justice, fairness, or human rights. This method can sometimes draw from natural law. Notably, some liberal jurists, such as Justice Ruth Bader Ginsburg, have sometimes embraced this approach, particularly in cases involving civil rights.
9. Fidelity to Text and Purpose
Fidelity to Text and Purpose blends textualism with a focus on the broader purpose behind the Constitution. It seeks to interpret the text in a way that remains faithful to both its literal meaning and its larger objectives or goals, such as promoting democracy, protecting individual rights, or securing liberty. This method sometimes combines elements of originalism and living constitutionalism, trying to reconcile historical intent with modern interpretations. It allows for application of natural law precepts, but does not require such application.
Based on the above, clearly Constitutional interpretation could in many cased, under nearly all interpretive methods, allow for application of natural law precepts. What can be sed conclusively is that Constitutional interpretation is not limited to positive law and does not prohibit application of natural law precepts.
Now, let’s look briefly on the Constitution itself. This is my personal view. It is surely open to criticism.
Natural law is the basis of:
Article I, Section 9 (in part)
Article II, Section 4
Article III, Section 2
Article IV, Sections 2 (in part), 4 (in part)
Amendments I – IX, XIII – XV, XIX, XXIV, XXIV, XXVI
Positive law establishes:
Article I, Sections 1 – 8, 9 (in part), 10.
Article II, Sections 1 – 3
Article III, Sections 1, 2 (in part), 3.
Article IV, Sections 1, 2 (in part), 3, 4 (in part)
Article V
Article VI
Amendments X – XII, XVI – XVII, XX – XXIII, XXV, XXVII
Probably worth noting that Swift was overruled, and Clearfield stands for the idea that federal common law is not general common law, so it cuts against the idea that judges are authorized in general to incorproatd any moral facts. Quite aside from that, the motivating concerns were pragmatic, so only to the extent that we take natural law to be synonymous with open ended consequentialism is Clearfield a statement of incorporating natural law. Additionally, the idea that natural law is the basis for any text relies on a couple of notions, which may or may not be interdependent: one, natural law exists and directly motivates the drafting of text. Two, natural law theory was the but for cause for constitutional provisions.
The first is at least partly a substantive metanormative claim about law and moral facts, and their relationship to positive law, but which seems to run counter to your idea that the *text* of the constitution is constituted separately by both positive and natural law.
The second is a bit of a narrower claim, that the theory, regardless of its merits, was the context in which the constitution was drafted, and thus understanding the meaning of the document at the time of its adoption requires understanding natural law. Like you say, this allows for limited incorporation to the extent that there is anything specific in terms of public evidence to rely on. But that's very different from the kind of moral reasoning you equate with natural law. It's saying that we only incorporate the moral reasoning *of others* and only to the extent that it resolves a first-identified ambiguity. It's not the same as authorizing judges to exercise their own judgement on the matter, or at least to the extent it would, it would be a self defeating argument in that respect. For if we want to use modern applications of historical context, why not modern understandings of historical text, which may excise any natural law context entirely? We'd be back to arguing the merits of the natural law, wholly independently of the constitution, not arguing about how or whether it is incorporated.
Points taken.
Give me a day or two and I’ll do an article by article analysis, and then examine how the constitution establishes a common law approach to its interpretation, if it does.
I really want to be sympathetic to John's argument. I get the formalist considerations, the fear of judges making stuff up. But damn it, of all the people to invoke, Holmes? C'mon, that nihilist wasn't bound by the text any more than natural law.
I guess I find this John's weakest reply because it's really leaning into democratic legitimacy as a sort of throughline and hook, and I'm left sort of scratching my head. I've heard him say elsewhere that he's tolerant of natural law to the extent that it's used as a tool to figure out what public meaning was. I get that. That's an originalist approach. I'm undecided on it, but I get it. But what I don't really get is infusing that with what he's *calling* judicial humility. I just don't understand this argument. Why are myopic readings of the Constitution humble but reading general terms as general terms like Scalia also advocated somehow the expansionist role? It feels like he's selectively dropping the argument from objective evidence to make a separate case for "much democracy".
It presents to me like the answer is between these two poles. The constitution has broad guarantees in it. John wants to read broad incorporations out because of judicial "humility", but his best arguments sound to me in terms of public evidence: the constitution may incorporate the natural and common law, but that should solely and exclusively be informed by the meaning of text, not by either judicial restraint or by pre-constitutional moral theory. Judges have a comparative advantage in figuring out what text means, not which free floating moral facts govern all human hearts, or whatever poetry we use, or in determining when to beat defer to a bunch of sycophants in suits.
Yech - I thought Linda Denno (Sept 17/24) had more or less settled this. I guess, however, that her expertise got in the way of her explanation. Since I know nothing and therefore feel no compulsion to do either the academic thing (quote Burke, Locke, et al) or the lawyerly thing (cite Rutledge, Marshall et al), let me throw an axe at the issue.
Very (!) broadly the New Testament can be seen as The Covenant re-imagined and re-executed for its time - and, similarly, the American constitutional documents can be seen as the third try at setting rules for a society based on natural law - i.e. on the sense of justice children show before their parents, siblings, and schools modify their behavior.
Accept this, and it's obvious that the American covenant intends the rule of natural justice but human nature and social complexity conspire to corrupt the application of these ideas - meaning that the courts vs legislature stand-off is merely one way of addressing human failure while the explicit limitation of authority within the constitutional documents is another, and the endless semantic hairsplitting courts indulge in is largely consequential damage reflecting the limitations of those caught in the system and so fundamentally irrelevant to the discussion at hand.
Was the constitution drafted for the purpose of protecting democracy or because we each have the right to our own lives and self-governance?
Best response yet by John. Can natural law as a jurisprudential guide stand under John's withering positivic attack? John's argument is one of utility as opposed to philosophy. Let's kick out all the judges who fail to evince the necessary amount of humility.