Wednesday, March 16, 2016

I Now Consider My Piece on Scalia's "Originalism" [Repeated Here]To Be Mistaken. See The Previous Post by Rabbi Oppenheimer

Let me explain. Rabbi Oppenheimer (previous post) wrote: "I have written at length to discuss the not well known, but crucially important distinction that should be drawn between “Political” Conservatism and Liberalism, and “Judicial” Conservatism and Liberalism. Justice Scalia was a true Judicial Conservative, but not necessarily a political conservative. This is a very important distinction to understand."
Blogger: My error was to confuse Scalia's "judicial conservatism" with the political. With the Magisterium of the Church, I hold that there is a true "secularity" that is not "secularism" (See "Christi Fideles Laici" #15) because it contains within it the transcendent truth of the human person, made in the image of God whose prototype is Jesus Christ, God-man. Man is not an animal reducible to mere matter and soul, but is a person destined to eternal life - God likeness - and indestructibility. The temporal-historical order that live in is grounded on the meaning of the human person.

   The meaning of radical freedom for the human person is not merely choice of vanilla and chocolate but to determine self to be gift to others or to turn back on self and seek self. This is part and parcel of having Jesus Christ, Son of the living God, as Prototype and meaning of man. He is the very meaning of man, and the meaning of man's freedom.

   The grounding of the political order is the human person as capable of making the free determination of self. At this historical juncture in the United States (and majority of the world), we have chosen and crafted democracy - which is the most consonant with the meaning of the human person. It is self-determination as self-government - and it has been pre-eminently successful. 

   Scalia remarked at the Gregorian University in Rome (June 13, 1996) 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 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 no on other subjects. If you want minority rights on other subjects, you must persuade the majority that you desire those minority rights. Or else take up arms and conquer the majority. I mean you may always do that, or course. But, 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. Otherwise you do not want a democracy, you want a king to decide what is right. Because the minority may be right."

   Such a presentation sounds materialist as reductive. But when, as free, self-determining, reasonable persons, you decide that you will act according to the will of the majority as law, there is embedded in that law the Judeo-Christian anthropology of the value of the human person - in the very procedure. And the adjudication of the society can only take place according to that law. And, as Scalia says, if the minority find it damaging or false, it is not the place of the judiciary to change the law, but the intermediate groupings in the society to convince their peers to change the law legislatively. 
   You may object that this is not the concretion of the "natural law." But Scalia would respond that it is, since it is the result of the legislative powers of the human person to self-determine - in a democracy. It is the end result of the workings of natural law. When queried about the natural law, he responded to me once: "whose natural law, Brennan's or mine?" When asked: "Is it possible that some common, fundamental ethics can give something to the positive law?" he responded: "Yes, or course. And it must. But that process is achieved not within the context of government but outside the context of government. with free men and women persuading one another and then adopting a governmental system that embodies those Christian precepts. I am not saying that the American Constitution did not embody moral values that were central to Christianity. Of course, My court has said that. But once the Constitution was put in place, it is the Constitution that governs my actions. And it is that that must be amended, and it is amended to conform more closely to natural law, if you wish. But do it by not persuading me, I'm a worldly [read: secular] judge. I just do what the Constitution tells me to do."

In the light of the above, I retract what I wrote here for the Notre Dame Journal of Jurisprudence (Date??).

:JUSTICE SCALIA AND YOGI BERRA: "You Can't Beat Somebody With Nobody" - Hence Legal Text Trumps Truth = Legal Positivism 

When Justice Oliver Wendell Holmes was entreated by Judge Learned Hand: "Do justice, sir, do justice," he responded: "That is not my job. It is my job to apply the law."2 Holmes was also known to comment: "I always say... that if my fellow citizens want to go to Hell I will help them. It's my job"3 The recent remarks of Justice Antonin Scalia seem to fall under the same rubric: not justice but apply the law, and if that law is abortion, "the state should permit abortion, in a democracy."4 The picture that emerged from Scalia's speech and even more clearly and radically from the question and answer period at the end was that adjudication was less a process of administering justice than a technical and rigid application of a law which is the product of majority vote. In the case of abortion, however, Scalia, as in his reference to the Nuremberg laws, "would have resigned."5 

"You Can't Beat Somebody With Nobody"

In a 1989 article "Originalism, the Lesser Evil,"14 Scalia ranges over the topic of constitutional adjudication in search of criterion, be it "originalism" which means attending to the original meaning of the constitutional text (not without serious problems), or be it "non-originalism" which means consulting a conceptual agreement or consensus15 in the light of which the Constitution may be interpreted. Confronting the latter, he pins on it an aphorism of Yogi Berra (or perhaps a Mayor Daly): "You can't beat somebody with nobody,"16 since he finds no consensus on the meaning of the human person or on moral principle with which to interpret the Constitution now.

The question concerning the legal mind of Justice Scalia is the question of the absence of truth and the prevailing nihilism globally, the general loss of meaning. the dictatorship of relativism which gives prority to the outward, the immediate, the visible, the quick, the superificial and the provisional" (Pope Francis: Joy of Evangelizing) In the absence of truth, Scalia recurrs to a legal positivism of words. He remarks: "The central practical defect of non originalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned."17 The result is that Scalia, finding "nobody" as authoritative on the level of self evidence18 and therefore truth to direct and order freedom, takes the "somebody" of the constitutional text (and therefore the will of the people as ultimate authority). Anything not in the text does not exist. Religious freedom, freedom of speech, etc. become "invisible" until they reappear in the Bill of Rights as a concession that the majority wills to the minority. "The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights."19 Quantity in numbers trumps quality in truth absolutely since there is none.

All this comes down to say that the constitutional structure is built on the sand of lexicology. Although Scalia can lyricize philosophically "I love natural law"20 or, "(the governmental system)embodies those Christian precepts." However, in the real world of adjudication he speaks as judge: "(o)nce the Constitution was put in place, it is the Constitution [as text] that governs my actions." Obviously, this is correct for him to osay as judge since his mandate extends to applying the law. But it is not the whole story.

Scalia remarks that he "loves natural law," and he sees the Constitution as "embodying moral values that were central to Christianity." However, he reserves moral values to the sphere of private conscience. There can be no access to those values except by way of private persuasion ("We are fools for Christ's sake"21). In his explicit presentation, the public system of government is a "neutral" mechanical construct. He chides those who contradict this view when he responds: "To say, `Ah, but it is contrary to the natural law' is simply to say that you set yourself above the democratic state and presume to decide what is good and bad in place of the majority of the people. I do not accept that as a proper function." It is not a proper function because Scalia presumes by stealth the philosophy of Hobbes and Locke concerning the "state of nature" as the source of rights.

    But I hasten to add that the human person and his conscience is always above the democratic state. Historically John Adams formulated the very meaning of the democratic state from the dictates of conscience and the consciousness accruing to the experience of live Christianity.That conscience took semantic form in the Declaration of Independence and the Consitution. Scalia's pleads a distinction between the "Declaration" as "underlying sentiment" and Constitution as "law" and that it is law, not sentiment that rules the body politic. But it must be said that it is precisely the "underlying sentiment" that has become law, and without which this country would not have the law it has.(Gregorian 15-16)) 

 Rights are so anemic and so little attached to the person as person that they are "detachable" on entrance into the society and then returned, "secured," by the benevolence of the state. Like them, Scalia presumes that there is no self evident truth because there is no de facto consensus concerning the human person and his rights. The person has no rights in democratic society. "(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"22 (emphasis mine). The society is not built on natural law or self evidence but on the will of the people as emerging from the state of nature into a social contract. 

In "Originalism...," Scalia warns that "the main danger in judicial interpretation of the Constitution ... is that the judges will mistake their own predilections for the law. Avoiding this error is the hardest part of being a conscientious judge...Nonoriginalism which under one or another formulation invokes `fundamental values' as the touchstone of constitutionality, plays precisely to this weakness."23 

I would like to address this difference. Scalia sets up the difference with the metaphor of choosing between two librarians to hire. One speaks too loudly, the other too softly. He chooses originalism - the written law of Constitution24 ("values... fundamental to our society") as the librarian who speaks too softly in preference to going beyond the text of the Constitution by imposing one's personally preferred values, i.e., the librarian who speaks too loudly. I will argue that Scalia's choice of originalism (legal text) over nonoriginalism (the search for self evidence) begs the question as to the ultimate grounding of authority. From his standpoint as judge, it is proximately the will of the people. But, the will of the people cannot be the grounding absolute of authority since freedom always raises the question of truth, and the human will is not its own truth since the indeterminacy of human freedom gives witness to the "unfinished"25 state of man. To abandon the search for truth as the authority for freedom's use is to abandon the human person ultimately to being used by forces more powerful than himself. It would mean to abandon him to the tyranny of totalitarianism which in this case would have a democratic stripe. It would appear to be a "rule of law" but in reality it would be a dictatorship of the arbitrary will of individuals.

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