Readers of Law and Liberty have heard—and perhaps even used—the famous phrase about free speech that is often misattributed to Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.” One wonders, though, whether this formulation actually makes much sense.
Between the breathless whispers that Judge Neil Gorsuch intends to impose either medieval Catholicism or, worse, Oxford sensibilities from the bench through the mechanism of natural law and the fear that he might otherwise glide into the legal positivism of which Justice Scalia was unreasonably accused lies another possibility: The Constitution can neither be interpreted through natural law nor reduced to positive law. It is more profitably understood as fundamental law.
It is good to be reminded, at the fourth centenary of his death, that William Shakespeare (1564-1616) approached the relationship between law and liberty as a matter of arguing both sides of an interesting question.
When America’s most sophisticated social scientist warns that America is on its last legs, it is time to start paying attention. Charles Murray has come to the conclusion that Donald Trump is “an expression of the legitimate anger that many Americans feel” about the state of the country.
The Trump phenomenon was to be predicted, writes Murray in a recent essay. “It is the endgame of a process that has been going on for a half-century: America’s divestment of its historic national identity.”
For those whose knowledge of Justice Scalia was limited to a casual acquaintance with the exquisite certitude of his judicial writings, the tone of his son’s moving homily—suffused, to what surely would have been the late jurist’s liking, with talk of grace and sin—must have been jarring. But Scalia’s judicial philosophy was always modest, not just with respect to the judge’s role in the constitutional orbit—that much is well known, or should be—but also when it came to the inherent limits of human knowing. Scalia’s was a jurisprudence not merely of original meaning, but of original sin.
Talk about a teachable moment: I couldn’t believe it when I found a reference to “natural law” in a Washington Post article about Rowan County Clerk Kim Davis’ ill-fated conscientious objection to our new marriage regime. I couldn’t resist taking it to my students, all sophomores in a core class where we’re currently reading and discussing John Locke’s Second Treatise of Government.
In the past, I have noted that there are three main arguments for originalism: 1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law).
Here I want to explore a type of theory that intersects between the second and third categories: a theory that views the original meaning as the law, not based on positivism, but based on a normative or idealized conception of the law.
If one looks back at some of the old originalist theories, I think it is possible to read them as adopting an idealized conception of the law. The law is not what the rule of recognition requires, as in the positivist theory. Nor is the law what would lead to the best results in general, as some versions of the normative theory hold. Instead, the law is determined through an idealized conception of the law.