The Natural Law vs. Positivism Debate, Round 3

"Lucretia" responds to John Yoo.

Editor’s note: Listeners to the podcast know that our “Lucretia” is loathe to let any unsoundness escape rebuke, and so John Yoo’s spirited response to my initial challenge to his legal positivism has elicited the following extensive rebuttal and further challenge. I think I’ll likely follow up myself with some direct cross-examination of the good Prof. Yoo, since he dodged my question of deciding between Jefferson and Bentham—probably something like “Five Questions for John Yoo.”

Further, I expect this debate will go for several more rounds, and at some point we might revise and edit the entire debate and turn into a short book, perhaps “The Natural Law Dialogues.” In the meantime, settle in.

—Steve

I must begin by confessing to a certain lack of humility: in taking up Professor John Yoo’s arguments I am challenging not only one of the greatest legal minds of our generation but also a good and dear friend.  Yet take them on I must, motivated in part by that friendship to correct the errors of John’s ways, and motivated even more by the critical nature of the subject, i.e., how judges and justices should interpret the Constitution of the United States.  Given the central role the courts now play in governing our republic—deciding nearly every important political, religious, administrative, or legal controversy—the answer to that question is not some mere academic squabble.

Modern conservative legal thought has embraced “originalism” as a theory of constitutional interpretation, largely as a perfectly understandable reaction to the excesses of 20^th century jurisprudence, which viewed the Constitution as a “living” document upon which judges should impose their values in service to an evolving sense of human dignity.  This judge-centered approach produced a number of appalling and destructive decisions; in many cases ushering outrageous progressive policies and objectives that could never have been accomplished through the democratic political process. Originalism provided an antidote to progressive judicial activism, and gradually became an acceptable alternative to legal realism and other theories of constitutional interpretation that gave free reign to judicial usurpation. Originalism, defined broadly as the theory that judges should interpret the Constitution according to some understanding of the original intent of the framers, presents as several different versions within the legal community, including: original intent; original public meaning; textualism; and common good originalism.

The two towering figures most often associated with articulating the theory of original intent are the late Chief Justice William Rehnquist and the late Justice Antonin Scalia.  Both were known for their eloquent dissents while in the minority on the Court, and for paving the way for a jurisprudence once again grounded in the Constitution after decades of unprincipled judicial activism.  John is obviously quite taken with Justice Scalia’s version of originalism, and quotes from Justice Scalia at length.  John does so in order to demonstrate that originalism is a conservative position that recognizes the need to place lawmaking in the hands of legislators where it belongs and not in the hands of unaccountable judges.  This, according to John, is the opposite of what Steve (Hayward) and I believe.  Of course, the positions which he attributes to us are categorically not what either of us believe. John asserts that “their moral views, which they call the natural law, must come first, and the laws as written come second.”  This is a gross misrepresentation of our views, as is his assertion that “they believe that judges, lawyers, and citizens must bend the second to comply with the first, even to the point where written law which is inconsistent with their moral views are no laws at all.”

Neither Steve nor I have ever held such views, and John’s attempt to attribute those views to us is little more than a straw man fallacy.   What is true is that (speaking for myself at this point) I believe that the Declaration of Independence does indeed provide the moral foundation for our Constitution.  This is not some idiosyncratic or narcissistic value judgment, nor am I alone in this belief, as it was clearly the position also of the men who founded our Constitution.  While I would guess that John is as clearly conversant as I am with the many instances of our Founders affirming that the Constitution was founded upon the natural principles of the Declaration of Independence, I give him just this single quote from Federalist Paper #40, where Madison defends the Constitutional Convention for allegedly overstepping its charge in its creation of the proposed constitution:

They must have reflected that in all great changes of established governments forms ought to give way to substance; that a rigid adherence in such cases to the former would render nominal and nugatory the transcendent and precious right of the people to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.”

John claims that our Constitution is merely a procedural document; i.e., that its forms are all that is important and beyond that there is no “substance.”  But Madison reminds us that forms must give way to substance, and that substance is to be found in the natural law purpose of the Declaration of Independence; the transcendent and precious right of the people to safety and happiness.

I was blessed to have the opportunity to study with some of the great Harry Jaffa’s best students and indeed with Harry Jaffa himself.  I am proud to have inherited some of Jaffa’s pugilistic nature, so I am more than ready to defend myself against John’s straw man fallacies.  In the more than four decades since I first heard Jaffa speak, I have never heard a single argument successfully rebutting Jaffa’s reasoned conviction that our Constitution is understandable—and exceptional—only insofar as it is informed by the natural law principles enshrined in the Declaration of Independence. But even Jaffa had some sympathy for those who believe ,as John does, that understanding and embracing the natural law truths discovered by our Founders and enshrined by them in our Constitution is at best a logical stretch.

 As Jaffa notes in A New Birth of Freedom:

“We must face the reality…that in the long experience of mankind, the self-evident truths of the Declaration of Independence had never, before 1776, been the basis of the experiment of popular self-government. This in itself is sufficient to raise the question of whether it was utopian to think that mere abstract truth could serve as the basis of an actual political regime. It is to ask the question that Plato himself asked, but did not answer, of whether natural right could become political right.”

In the three-day seminar to which John alludes, I attempted to demonstrate that legitimate political authority must be based upon the agreement (unanimous consent) of political equals; human equality being understood in the way Jefferson speaks of  the self-evident truth that “all men are created equal.”  This does not mean that all human beings are equal in all respects, nor does it mean that the self-evident truth of human equality had been widely accepted or understood.  Thomas Jefferson reminds us that it was “monkish ignorance and superstition” that had persuaded previous generations to accept tyrannical governments.  Jefferson claimed that it was “the general spread of the light of science” that had “already laid open to every view the palpable truth that the mass of mankind has not been born, with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god.”

If nature (or nature’s God) has not delineated rulers and ruled (and John has yet to provide any proof that such natural rulers exist among the human species), than each human being must be understood as being necessarily and unequivocally his or her own natural ruler.  The social contract made between these free and equal human beings is, according to the universal principles of the Declaration of Independence, for the purpose of securing natural rights; rights which are inalienable but insecure absent government.  Governments are instituted to secure these rights, deriving their just powers from the consent of the governed.  This is not just some natural law theory that the founders embraced because there were no competing theories at the time (one wonders if John has ever heard of the “divine right of kings”), but is a rational and undeniable conclusion based upon unassailable premises. The truth of human equality is also, as Abraham Lincoln reminds us, an abstract truth, applicable to all men and all times.

When I assert that originalism, or original intent, or any of the other variations being bandied about today, is an insufficient point of departure from which to interpret the Constitution, I do so because no current theory of originalism takes into account the natural law foundations that inform our Constitution and give it meaning. The Fifth (and the Fourteenth) Amendment guarantees that no person shall be deprived of life, liberty, or property without due process of law.  John asserts that due process is merely a procedural guarantee, agreed upon by some supermajority at some point, and therefore deserving of some kind of weight or authority.  But what is it that due process protects—and why should we care?  The First Amendment guarantees freedom of religion, speech, and press, but why are these things deserving of protection?  The civil rights and liberties guaranteed by our Constitution are not goods in and of themselves for the most part; they are there to ensure that the natural rights we all possess by virtue of our common humanity are secured against a government that might attempt to take away our exercise of those rights.  Our First Amendment guarantee that “Congress shall make no law…abridging freedom of speech,”  and our Second Amendment right to keep and bear arms are not merely procedural guarantees; rather they ensure that we can speak out freely against governmental malfeasance, abuse, and tyranny.  They ensure that the people continue to have the means to protect and exercise their “transcendent and precious right to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’”

To return for a moment to John’s intellectual hero, Justice Scalia.  Scalia asserted that the Declaration of Independence is merely aspirational, and that there is no such “philosophizing” in the Constitution,  which according to him is merely a “practical and pragmatic charter of government.”  Scalia also asserted that

The whole theory of democracy is that the majority rules: that is the whole theory of it.  You protect minorities only because the majority determines that there are certain minority positions that deserve protection. . . you either agree with democratic theory or you do not.  But you cannot have democratic theory and then say, but what about the minority? The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights.

This is, of course, the polar opposite of the natural law theory that informed our founders, who agreed with Jefferson that “though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate would be oppression.”  This principle proceeds directly from the incontestable recognition that every human being has natural rights that must be protected.  Minority rights are not dependent upon whether the majority in its benevolence sees fit to provide certain procedural protections for minorities.

Originalism as Scalia defines it is nothing more than adhering to a set of procedural safeguards agreed to (for no apparent reason) over time.  If the American people should decide to adopt—through, say, an Article V convention—a series of amendments that replaces the First Amendment with government approved speech codes, government takeover of social media, and a state sanctioned religion; repeal the Second Amendment; and repeal the Thirteenth Amendment, what “originalist” argument could be brought to bear against such an effort?

To take up John’s final, mistaken assertion, that “Steve and Linda, it seems to me, would rather have judges today impose single moral views, derived from their reading of the natural law, upon the whole nation, regardless of whether a majority of the people today agree.”  Again, speaking only for myself, my answer is that nothing in my belief that the founding natural law principles of the Declaration of Independence can be taken to mean that I think judges should impose their own “single moral views.” At the same time, I do not believe that that whatever “a majority of the people today agree” upon should be the deciding factor in any given judicial decision.  The natural law principles which inform the Constitution and give it meaning are not complicated, nor are they obscure, nor do they require years of philosophical study. 

The people are sovereign; whatever power the government possesses was delegated to them in a written Constitution by the people who retain their sovereignty; government exists to protect the natural rights to life, liberty, and the pursuit of happiness of every citizen (i.e., every party to the social contract); that the people put in place in the Constitution a government sufficiently powerful to protect their rights while simultaneously placing limits on that government, which limits are intended to prevent the government from becoming tyrannical and becoming destructive of the people’s natural rights.  From these basic truths, our founders developed uniquely American institutions, including: federalism, the separation of powers; checks and balances; and the explicit protection of certain important, fundamental rights.  These basic natural law principles form the foundation from which a true “original intent of the framers” is not only discernable but actionable.  Every important legal/political controversy currently before the Court could and should be viewed and decided in light of these basic principles.