I like Johns point about incorporation of other founding texts. His erstwhile sparring partner Richard Epstein does even argue for incorporation of other norms beyond what is in the constitution, we don't need to make it hypothetical, and many liberals do favor incorporating a general common law in federal law!
I take John here to be rejecting a premise Lucretia takes as evident in her response, which is that the relevant synchronization point for the consent of the governed *as a justification for government* is the enactment or ratification of charter documents, not contemporary consent.
But John and Scalia seem to be arguing from the point of view that we only care about what dead men think to the extent that we want to learn from them and understand what their words meant, but thats not the justification for reading and understanding their words consistent with their original meaning. The justification for originalism and incorporating original meaning is *contemporary* desire for *contemporary* procedural safeguards, to maintain the ongoing and implicit consent of the living, not to persist the values and assent of the dead for its own sake.
1. Do preambles matter? If not, why did the drafters of both the Declaration of Independence and the US Constitution bother to include them? You declared "the constitution does not establish or refer to a moral theory." If this is the case, how do you interpret "secure the Blessings of Liberty to ourselves and our Posterity" clause in the Constitution's preamble?
The OED defines "blessings" as "the bestowal of divine favour and prospering influence; favour and prospering influence of God."
If the intent of the US Constitution was to create a more perfect union and to secure liberty -- freedom from arbitrary, despotic or autocratic control -- and that liberty was a blessing bestowed upon of from a divine entity, how is this not the basis of a moral theory?
2. Was the adoption of the US Constitution a "tear down" or a "remodel" of the existing governing principals for the United States in 1787? I.e, did it wipe away any prior consensus embedded in the Declaration of Independence? If so, what is the intent of the phrase "to create a more perfect union"?
I don't think its unreasonable to conclude that the framers' desire was "to perfect", not start from scratch, and they were perfecting upon a foundation first set when Jefferson wrote the preamble to the Declaration of Independence.
That moment in history, where in 1776 they declared independence from Britain, was to secure our unalienable rights that Britain was in the process of destroying. And to ensure there was no confusion Jefferson declared these rights were "endowed by their [our] Creator" and the signers agreed.
3. Can you elaborate on your premise that the US Constitution is a singular source of truth, and not just an additional book in the American Constitutional cannon?
You could go further back and contend agreements like the Mayflower Compact and Winthrop's "City on a Hill" sermon prior to the Puritans starting their journey to Boston also are a part of the American foundational canon that interweave governance and moral theory.
While other moral/religious faiths were established from a single foundational code derived from a single individual, the Judeo/Christian faith is sedimentary in nature. Over several millennia writings - both unattributed and from a host of prophets and disciples - were aggregated into the Jewish Bible and the New Testament. The culmination of this effort is Christian Bible. A bible that it is safe to assume all of the participants at the 3rd Continental Congress and the 1787 Constitutional Convention were very familiar with.
These men were seeped in the Judeo/Christian ethic and were conversant in understanding religious texts that were not derived from a single divinely inspired moment in time.
How do you reconcile a singular source of truth premise if alongside an original copy of the Constitution, we also display an original copy of the Declaration of Independence and a copy of the Magna Carta?
In many jurisdictions - perhaps most - it is murder if one intentionally or accidentally kills the mother of an unborn baby and as a result the baby dies. That law supports the theory the unborn baby is a living human and subject to, and protected by, the law of the land. Many if not all of those same states permit abortion, the killing of an unborn. Does this mean mothers of unborn babies are the only ordinary citizens in our society who are authorized to commit murder, outside officials in performing their duty?
"that a federal judge could find that natural law prohibited slavery"
Shows a fundamental (or willful) misunderstanding of natural law. In fact, the antebellum congress' runaway slave law, upheld by courts (and notably defied by some few individuals) was a violation of both natural law and of the bill of rights. It required civil disobedience, a civil war and another century or more to correct the fundamental flaw in the constitution.
"I take it — though I am certainly no expert — that natural rights philosophers now believe that human life begins at conception, and that therefore abortion constitutes the taking of a human life. "
Here, you bring up Dobbs again, and again engage in the ad hominem fallacy of arguing against a position that the opponents have not yet stated. The original offense "Here is an example. In their view, Dobbs was wrong because it did not go far enough." is compounded, not withdrawn. Putting words in their mouths, indeed.
The position presented is itself specious: even a non-expert should realize that the mother (and arguably, the acknowledged father) has natural rights - a Smithian "property" - as well.
I'm a long time listener to the various incarnations of podcasts featuring Yoo, Senik, and Epstein. I know you can do better than this.
I like Johns point about incorporation of other founding texts. His erstwhile sparring partner Richard Epstein does even argue for incorporation of other norms beyond what is in the constitution, we don't need to make it hypothetical, and many liberals do favor incorporating a general common law in federal law!
I take John here to be rejecting a premise Lucretia takes as evident in her response, which is that the relevant synchronization point for the consent of the governed *as a justification for government* is the enactment or ratification of charter documents, not contemporary consent.
But John and Scalia seem to be arguing from the point of view that we only care about what dead men think to the extent that we want to learn from them and understand what their words meant, but thats not the justification for reading and understanding their words consistent with their original meaning. The justification for originalism and incorporating original meaning is *contemporary* desire for *contemporary* procedural safeguards, to maintain the ongoing and implicit consent of the living, not to persist the values and assent of the dead for its own sake.
I have three questions for John Yoo:
1. Do preambles matter? If not, why did the drafters of both the Declaration of Independence and the US Constitution bother to include them? You declared "the constitution does not establish or refer to a moral theory." If this is the case, how do you interpret "secure the Blessings of Liberty to ourselves and our Posterity" clause in the Constitution's preamble?
The OED defines "blessings" as "the bestowal of divine favour and prospering influence; favour and prospering influence of God."
If the intent of the US Constitution was to create a more perfect union and to secure liberty -- freedom from arbitrary, despotic or autocratic control -- and that liberty was a blessing bestowed upon of from a divine entity, how is this not the basis of a moral theory?
2. Was the adoption of the US Constitution a "tear down" or a "remodel" of the existing governing principals for the United States in 1787? I.e, did it wipe away any prior consensus embedded in the Declaration of Independence? If so, what is the intent of the phrase "to create a more perfect union"?
I don't think its unreasonable to conclude that the framers' desire was "to perfect", not start from scratch, and they were perfecting upon a foundation first set when Jefferson wrote the preamble to the Declaration of Independence.
That moment in history, where in 1776 they declared independence from Britain, was to secure our unalienable rights that Britain was in the process of destroying. And to ensure there was no confusion Jefferson declared these rights were "endowed by their [our] Creator" and the signers agreed.
3. Can you elaborate on your premise that the US Constitution is a singular source of truth, and not just an additional book in the American Constitutional cannon?
You could go further back and contend agreements like the Mayflower Compact and Winthrop's "City on a Hill" sermon prior to the Puritans starting their journey to Boston also are a part of the American foundational canon that interweave governance and moral theory.
While other moral/religious faiths were established from a single foundational code derived from a single individual, the Judeo/Christian faith is sedimentary in nature. Over several millennia writings - both unattributed and from a host of prophets and disciples - were aggregated into the Jewish Bible and the New Testament. The culmination of this effort is Christian Bible. A bible that it is safe to assume all of the participants at the 3rd Continental Congress and the 1787 Constitutional Convention were very familiar with.
These men were seeped in the Judeo/Christian ethic and were conversant in understanding religious texts that were not derived from a single divinely inspired moment in time.
How do you reconcile a singular source of truth premise if alongside an original copy of the Constitution, we also display an original copy of the Declaration of Independence and a copy of the Magna Carta?
In many jurisdictions - perhaps most - it is murder if one intentionally or accidentally kills the mother of an unborn baby and as a result the baby dies. That law supports the theory the unborn baby is a living human and subject to, and protected by, the law of the land. Many if not all of those same states permit abortion, the killing of an unborn. Does this mean mothers of unborn babies are the only ordinary citizens in our society who are authorized to commit murder, outside officials in performing their duty?
This exchange of views is getting exciting!
"that a federal judge could find that natural law prohibited slavery"
Shows a fundamental (or willful) misunderstanding of natural law. In fact, the antebellum congress' runaway slave law, upheld by courts (and notably defied by some few individuals) was a violation of both natural law and of the bill of rights. It required civil disobedience, a civil war and another century or more to correct the fundamental flaw in the constitution.
"I take it — though I am certainly no expert — that natural rights philosophers now believe that human life begins at conception, and that therefore abortion constitutes the taking of a human life. "
Here, you bring up Dobbs again, and again engage in the ad hominem fallacy of arguing against a position that the opponents have not yet stated. The original offense "Here is an example. In their view, Dobbs was wrong because it did not go far enough." is compounded, not withdrawn. Putting words in their mouths, indeed.
The position presented is itself specious: even a non-expert should realize that the mother (and arguably, the acknowledged father) has natural rights - a Smithian "property" - as well.
I'm a long time listener to the various incarnations of podcasts featuring Yoo, Senik, and Epstein. I know you can do better than this.