Posted on 12/06/2005 11:45:26 AM PST by Cicero
FYI, to NYer, perhaps your Catholic Ping List would be interested in this article from "First Things."
If I may put in my two cents worth, it seems to me that just about everyone believed in Natural Law in the late Eighteenth Century.
Originally, Natural Law could be derived from Divine Law, as Richard Hooker argues. But, in fact, it descended not only from the Bible (especially St. Paul's statement that "the law of God is written in the heart" even of the gentiles), but also from Aristotle, Cicero, and the Stoics.
The Founders got Natural Law filtered through figures like Grotious and Locke. With Locke, God is pretty well removed from the picture, but you are still dealing with what has been called "spilt religion." That is, it includes cultural assumptions inherited from more religious ancestors, even though the descendents are not religious themselves and may not know where it came from.
In the case of the Founding Fathers, most of them were either Protestant Christians or Deists. Most of them either would have said that law comes ultimately from God or that, so as to keep order in society, it is best to tell the people that it comes from God. Many scholars presume that all this is not spelled out in the actual text of the Constitution because they wanted to avoid an argument.
But "Nature's God" is mentioned in what one may call the preamble, as are "inalienable rights," a phrase that has long been treated as basic to the Constitution. As scholars have pointed out, rights can only logically be inalienable if individuals lack the power to choose to relinquish them, and that can only be the case because they are God-given and God-maintained. Thus you could voluntarily sign a document putting yourself into slavery, but because the right to liberty is inalienable, that document could not have constitutional force.
Ping?
Keep in mind that during the colonial crisis over Parliament's overextension of its powers in America (such through the tax acts, primarily), there's no record of it having occurred to anyone, on either side of the debate, to have a court resolve the question. It was understood that questions of natural law were to be resolved by the people themselves.
A brilliant article! Thank you for posting this.
Rehnquist and Scalia, Rehnquist more than Scalia, have been cautious about bringing natural law into their decisions, whatever they may privately believe (or have believed). Clarence Thomas seems to be the only justice who presently inclines in that direction.
But Scalia does appear to recognize in this article that if you believe that "law" is just "there," to be found and interpreted, then either it's in some vague nowhere in the empty aether or it comes from God. Earlier generations found it reasonable to say that it came from God, or at least was up in the sky somewhere in some Platonic realm of ideas.
Once you abandon that conviction, then there is nothing but the text to work with. But it's difficult to work with just a text. So people turn to supporting background materials. What did the Founders privately intend? Scalia argues that is irrelevant. What did the words mean to an educated, average person at the time? Scalia argues that is the best approach.
Proceeding from that assumption, it seems to me that "Nature and Nature's God" must inevitably enter into the way you read the text. If you leave that out, then you will inevitably come to read the words in a modernist and then a revisionist spirit.
I don't think we really disagree on this. What you said earlier just raised some interesting issues.
I have three questions for inquest, if he'd take them on, I'd be interested in his take on them. (1) What laws does the Supreme Court apply in federal territories and districts -- or do they have their own laws homegrown on territorial or district soil? (2) Does the Supreme Court rule on disputes between states, or on disputes between individuals in the states? That is, is the individual or the state standing before the court? (3) What was the majority opinion in Dredd Scott and is that good law?
2. SCOTUS has the power to hear controversies both between states and between citizens of different states. It also has the power to hear controversies between a state and a citizen of another state.
3. There were two main holdings in that case: One, that the due-process clause could be used to strike down actual laws (in this case the antislavery law in the territories), rather than methods of enforcing those laws. This illegitimate concept is what's known as "substantive due process", and it's been the germ of a whole field of judicial activism, including Roe vs Wade. The other holding was that black people couldn't be citizens, and there was no constitutional justification for that view.
I can't answer the first two, but I can respond to the third while you wait. Dred Scott was an escaped slave, and the majority opinion was that escaped slaves are property that must be returned to their owners.
The result of this decision, of course, was to further anger the Abolitionists, and eventually led to the freeing of the slaves in the Civil War.
But it raises some interesting question. You could say that the Constitution is neutral on the question of slavery. There were slaves at the time it was written, and they were not freed. The Founders deliberately failed to raise the issue. Probably they figured it would be a deal breaker if they did. But they wrote it in such a way that later interpreters could just as well say that "life, liberty, and the pursuit of happiness," and the word "person" in the Constitution, suggest that slavery was unconstitutional after all.
In the event, an amendment was passed specifically outlawing slavery, but some argue that it was not really necessary.
The present signicance of this question is that pro-lifers have suggested that the fetus is a person too. Liberal judges deny that. An opinion just the other day denied it, when a woman's fetus was killed. But in fact it is an interesting crux, and it may yet return some time in the future, much as the slavery issue did. Many have compared Roe v. Wade to Dredd Scott as the two worst decisions the court ever passed, and basically for the same reason: that they deny personhood to a class of human beings.
Saw this referenced on NRO Bench Memos. Bump.
Not exactly what Holmes said. The law has evolved through accident, misreading, and omission, but mainly by practice of the community. Inheritance led to recognition of private property. Judges merely acknowledge what the community already wants, and the law does not come down from above.
Well, actually, law has multiple origins. Part of it comes down from codified Roman law from Justinian. Part of it comes down from the decrees of princes. Part of it, especially in England, is Common Law. Part of it comes from Natural Law and theology.
Most of the expert lawyers in early days were clergy, and in Norman times both clergy and barons helped run the country.
In England until the mid seventeenth century, ecclesiastical law was an important aspect of life. Adultery was tried by the bishop's court, for instance.
That's true: the authority was often the one in town who could read at all. When they got around to allowing sworn statements, it was the notary who put the official mark on the contract, and since the only ones who could read were in the Church, the notary was a Church offical. It might not be clear in Holmes, but he took the law to be an evolving thing that came from the community, that is, even though the governing power might try to make law, they could only codify what the community already accepted. When the Governor tries to make law in opposition to what the community accepts, the reaction ranges from shock and surprise to rebellion; this is still the case, as the example of the USSC Kelo decision shows.
1)Are you saying that Dred Scott was the first time 5th amendment due process was used to strike down an act of congress?
2) What was the reason that the court gave for deciding that the law in question violated due process?
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