The last post on Terri Schiavo

Mike Parker sent me an e-mail yesterday after the autopsy of Terri Schiavo came out. His e-mail was quite courteous and nice but he was gloating. That’s OK — if the autopsy had shown results more favorable to my position on Terri I probably would have gloated also.

Bottom line for me: The autopsy results don’t change the primary reasons I was in favor of allowing Terri to live. Read more if you want to know why.
If you’re sick of this whole issue, please click someplace else.

1)Terri Schiavo was still alive when allowed by the courts to be dehydrated to death. This simple fact cannot be negated by any autopsy. Her body still functioned in some way. Was she completely blind (according to the autopsy, she was)? Well, videos showed her eyes following her mother around the room. There are apparently medical conditions that allow the “blind” to see or to appear to be seeing. This is irrelevant. We are not justified in killing blind people or disabled people. From an LDS perspective, the key question is whether or not her spirit was still resident in her body. Logic would say yes, but we have no way of knowing for sure. Bottom line: in my opinion, we (meaning society) allowed a husband to kill his wife.

2)The autopsy results do not change the primary facts of the case regarding Michael Schiavo’s claim that his wife would have wanted to be allowed to die. We will never know for sure. Michael Schiavo could not produce any written evidence. Given the lack of evidence, I believe the courts should have erred on the side of keeping her alive, especially given her parents were willing to take care of her indefinitely. Michael Schiavo’s behavior for the first few years belies his claim that he knew for sure she wanted to be allowed to die — otherwise, why did he try so hard to keep her alive for several years? But the autopsy results apparently make it difficult to support the position of some (I am not one of them) who claimed Michael Schiavo abused his wife and perhaps caused her condition. That must have been a hard pill for him to swallow, and I feel for him.

3)My major concern throughout this has been in creating a “culture of life” in our society. From an LDS perspective, we should be especially conscious of this issue. The Book of Mormon has made it abundantly clear that we need to be aware that in the last days society will begin to devalue life. That was the primary result of the two genocidal wars mentioned in the Book of Mormon. Many supporters of allowing Terri Schiavo to die have seemed to worship death rather than life. See this eloquent article by Peggy Noonan. Why are people so intent forcing this woman toward death? Yes, some of them have good reasons and I’m not maligning the many eloquent commentators on this blog. But really, what do we lose as a society by allowing Terri’s parents to take care of her? We lose nothing. But as a society we indeed lose when we begin to devalue life. By the way, this is the primary reason I am opposed to capital punishment. We lose nothing as a society by letting murderers rot in jail for the rest of their lives. But we lose as we begin to play God with the value of their lives.

I have many other reasons for opposing what happened to Terri Schiavo, but this should be sufficient for now. Passions run very high on this issue, so be gentle. Please.

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About Geoff B.

Geoff B has had three main careers. Some of them have overlapped. After attending Stanford University (class of 1985), he worked in journalism for several years until about 1992, when he took up his second career in telecommunications sales. In 1995, he took up his favorite and third career as father. Soon thereafter, Heavenly Father hit him over the head with a two-by-four (wielded by the Holy Ghost) and he woke up from a long sleep. Since then, he's been learning a lot about the Gospel. He still has a lot to learn. Geoff's held several Church callings: young men's president, high priest group leader, member of the bishopric, stake director of public affairs, media specialist for church public affairs, high councilman. He tries his best in his callings but usually falls short. Geoff has five children and lives in Colorado.

127 thoughts on “The last post on Terri Schiavo

  1. “But really, what do we lose as a society by allowing Terri’s parents to take care of her? We lose nothing.”

    We lose respect for the rule of law, which you eloquently counseled as a remedy for third world environmental depredations on the Ozymandias thread.

  2. Geoff, I continue to be on the same page as you are, all the way to saying this was “murder”. It is way beyond me how anyone can justify starving this poor woman, toward what end? I am ashamed of our country, and all the powers that be, for allowing this to happen.

  3. OK I’ll bite. On what? I’m the first one to admit I’ve done things for which I need to be cleansed, but not as many since my baptism.

  4. Geoff:

    Thanks for posting something on this in response to my email. And I laughed when you described me as “gloating” — the message I sent you was the fifth or sixth version of what I originally composed. You should have seen my first draft! [g]

    Seriously, I appreciate your clarity of thought in articulating your position. I disagree with you, but I think you’ve made the best case possible for your side of the argument.

    So I’m not even going to counter your points, and simply let you have the final word. I think we can both agree that this situation has been a terrible tragedy for Terri’s family, and hope that perhaps there can be some measure of healing between them as time passes.

  5. Head to BCC my friend…. (In the least you’ll get a good laugh)

  6. I’m really sickened by the attention you continue to give to this, and you should be ashamed of your bogus, “I’m wrong, but I’m not really wrong” post. You request, “…be gentle, Please.” But your post is not gentle, your attitude is not gentle. There are no winners in this case. It is one of the unfortunate events that some, hopefully few ever have to experience and for you or any other pundit to blast off about it, completely disrespectful, completey sad. You don’t get to have an opionion on this because unless you’ve experienced it you have no idea what those involved have faced and will continue to face. Mind your own backyard.

  7. A point of agreement:

    The people “gloating” because of the autopsy are concluding FAR too much from the medical tests. They prove nothing about consciousness or the soul, and therefore don’t really treat the central issue. I find the degree of misrepresentation (admittedly on both sides throughout the controversy) going on in this matter to be simply sad. It is worth noting that the allegations of mistreatment against Michael Schiavo (abuse, etc.) are apparently not borne out by the autopsy results. That’s really what they can tell us. They do not tell us whether or not Ms. Schiavo was conscious. People claiming that they do need to explain how science can measure a person’s soul.

    But two points of disagreement:

    Despite Geoff B.’s thoughtful treatment of these issues I find the prospect of “an LDS perspective” difficult. Perhaps you mean “one of the many LDS perspectives.” But your many posts on this subject do not read that way. In the absence of clear, compelling revelation on the subject we should be cautious in our claims about what the Saints “should” believe.

    In part that is because our society does stand to “lose” something if courts can decide these matters in place of the family. If courts are allowed to substitute their judgment for the relevant family judgment (admittedly the sticking point in this case) the primacy of the family declines. That’s a pretty serious cost to pay for a “culture of life.” I want such a culture too. I’m not sure I want one at the expense of family-decision-making.

  8. I still don’t understand why so many people we so anxious for this woman to die. It was, and remains, none of my business.

  9. HL, I have no problem with the free publicity as long as you spell my name right. But the truth is I don’t spend as much time on the bloggernacle as many people, so I hadn’t seen your post on BCC. But, hey, if it drives more traffic to M*, I’m all for it. Still don’t understand why I should be ashamed — isn’t this still a free country and aren’t we all allowed to have opinions? Seems like the whole country had an opinion on the Terri Schiavo case. Can’t I have one too?

  10. JCP, you make a valid point. I don’t pretend to speak for the Church on this issue (and the Church has remained notably silent as far as I can see). Probably more correct to say, “according to my reading of theology/morality as a Latter-day Saint” or something like that.

    Your last point and Bill’s are not relevant for me because we have no evidence for what Terri Schiavo really wanted, just suppositions and hearsay by a husband whose own behavior did not back up his claims.

  11. “Your last point and Bill’s are not relevant for me because we have no evidence for what Terri Schiavo really wanted, just suppositions and hearsay by a husband whose own behavior did not back up his claims.”

    I don’t understand why the importance of family-decision-making is irrelevant. Let me try to make the point another way. I’m perfectly prepared to believe that the husband was too creepy to make the decision. Perhaps that’s right. Perhaps he’s a bad guy (although the autopsy suggests otherwise). But if a court looks into that question and decides: “He’s not creepy enough to be disqualified from making the decision,” I see no alternative but to accept his judgment.

    Sadly, the court didn’t exactly make the decision I described above (Schiavo asked the court to act as guardian). But if courts can substitute their judgment for that of the spouse we are walking down a VERY dangerous road. All I am asking is that we recognize that this judicial power can be used for good or ill: but it is a very powerful tool. Letting the courts decide rather than the family is a significant change from where we stand now. One can dismiss this potential change as “irrelevant,” but I think that to do so without argument is hardly compelling.

  12. I asked my wife what she would want done if she were in Terry’s situation.
    She told me to follow the spirit.
    I will

  13. Because Terry could not speak for herself is precisely why the courts had to make a judgement. Because their decisions over many years did not correspond to your preferred outcome, you set this aside as irrelevant. That does not seem to me to be a healthly respect for the rule of law.

  14. we have no evidence for what Terri Schiavo really wanted

    First of all, other than to say that the Schiavo case was a mess and a tragedy, I am not going to really talk about Terri Schiavo, but more about the rule of law to which we adhere.

    As a nit-picky lawyer, I must take exception with the phrase in italics above. We had a lot more than “no evidence”- in fact, multiple courts found that the evidence met and exceeded a “clear and convincing” evidentiary standard for determining what Terri “would have wanted.” That is a very difficult burden to meet- as a young litigator it seems difficult to meet even a “preponderance of the evidence” standard- “clear and convincing” is quite a difficult threshold to meet and several judges agreed that this burden had been abundantly carried in the legal sense. When this happens, the judges are obligated to obey the laws put in force by the government.

    Perhaps this means that we should raise the evidentiary burden to even greater heights (and perhaps infringe on patient autonomy by so doing). I guess it comes down to whether we value patient autonomy or life more. If we value life over autonomy, then we will err to the side of life and against autonomy. If we value autonomy over life, then we err to the side of letting the (incapacitated) patient get his/her desire for end-of-life care, even if it means we make a few mistakes.

    This is all a big balancing act as to what we want to place more value on. Geoff wants to place more value on life than on autonomy. Those arguing against Geoff perhaps place more value on personal autonomy than on life.

    Geoff- you live in Florida, right? You ought to spearhead or join a movement to get a bill through the Florida state government which would require those hoping to terminate medical care on behalf of a loved one to meet a standard of “beyond a reasonable doubt.” You should try to get the majority of your fellow citizens to agree with you that life is to be valued above personal autonomy in situations like this- Justice Scalia said this over and over again in a recent talk I heard. The courts in this situation did no more than obey and apply the law, which at the moment requires, for better or worse depending on your values, no more and no less than clear and convincing evidence. When almost every judge before whom the matter is argues finds such evidence, there is little room to dispute that the evidence was “clear and convincing,” but there is plenty of room to argue that the evidentiary standard is basically flawed and needs to be heightened.

    But asking the judges to refuse to grant a request to terminate medical care that is supported by the requisite evidentiary standard is asking them to turn their backs on the laws put on the books by the voice of the people- which is exactly what we get upset with judges for when they overturn anti-abortion and anti-sodomy statutes right and left. We can’t rail on “activist” judges for overturning a legitimate anti-abortion statute based on some ephemeral penumbra and then expect judges to suddenly ignore a “clear and convincing” burden of evidence, the burden currently required by Florida law, to “err on the side of life.”

    The best recourse is to take it to the legislature, which unfortunately does not help Terri in this situation. Anything else requires activist courts, making their own laws in contravention to the democratic will of the people.

  15. That was long. The point is- I believe it is important to create a “culture of life”, but we must do so through democratic processes, not through one or two judges who are trying to stand up for their convictions in contravention of laws passed through the democratic process.

  16. activist judges…

    how about an activist and partisan legislature, seeking to circumvent the judiciary for political ends? What happened in congress was a joke.

  17. Steve-

    I completely agree with that. It was a complete sign of disrespect for the State of Florida, its laws, and its people.

    I don’t think that matters for how the people of Florida ought to seek changes from Florida’s government rather than commenting on what a travesty it is that Florida’s judges actually upheld Florida’s laws.

  18. That may be so. Frankly, Florida is a real mess. I think we should demote it to a territory.

  19. Jordan, the courts may have found the evidence “clear and convincing,” but to my knowledge the only evidence of Terri’s desires were recollections her husband remembered of a couple of off-handed comments she made. Unless there is something more substantial, the courts that found such evidence “clear and convincing” deserve everyone’s scorn.

  20. Steve, I’m not sure that Florida is such a mess compared to, for example, New Jersey or Massachusetts. But I suppose you’re still upset by the 2000 elections — despite numerous independent vote counts showing that Bush did indeed win Florida. The left refuses to face reality about that and many other issues these days, unfortunately. Why don’t you “move on?”

    As for the activity of the legislature, the Florida legislature passed legislation in 2003 along the lines suggested by Jordan. The executive signed the bill. And of course the judiciary overturned it. So much for respecting the people’s will and balance of power in government.

    All you lawyers out there have very short memories and of course can argue 10 sides of every issue. It was not too long ago that the federal executive branch was called in to right the wrongs of the legislative and judicial branches and the left cheered (rightly so). It was called the civil rights movement. Would it have been wiser in those days to allow the legislative and judicial branches in the South to do what was then the people’s will in that region? Obviously not. And we should also not forget the “rule of law” that prevailed in Missouri, Illinois and Ohio, where in most cases the judicial, executive and legislative branches all got together to drive out some unwanted members of a religious sect. Joseph Smith was way out of order asking the federal government to intervene. He should have respected the “rule of law” and done nothing, of course.

    Our much-vaunted judiciary branch has come up with some real doosies lately. In 1973, they invented a “right to privacy” in the Constitution out of thin air. In the 1960s, they decided against all judicial precedent that praying in schools was somehow establishing religion, no matter how bland the prayer. Not to mention the pledge of allegiance case, Lawrence vs. Texas, and on and on and on. And if the legislative branch deigns to pass legislation contradicting our judicial dictators, the laws are repeatedly overruled (witness the partial birth abortion situation).

    So, to repeat, in 2003, the people of Florida used the legislative process to pass what was known as “Terri’s law.” The governor signed the law. And the judiciary decided on its own to overturn it. If the judiciary truly respected life and understood its importance, this never would have happened (nor would the US Supreme Court have invented new rights from the Constitution) and Terri Schiavo would still be alive today. Ironically, the Florida judiciary used the excuse of “right to privacy” to overturn the desires of the people of Florida.

    U.S. history goes through waves. There are times when different branches of government are out of control. FDR certainly was in the 1930s when he tried to pack the Supreme Court (and the people turned against him for it). Right now we are witnessing a time that will go down in US History as a lamentable period of judicial overreach. In general, judges are forgetting their correct roles and trying to become legislators. They are forgetting to be originalists when it comes to the US Constitution. And they are forgetting that one of the primary purposes of government is to protect and preserve life.

    This attached article gives a more complete rundown on the Terri Schiavo case for those of you not bored to tears by this whole discussion.

  21. Matt,

    There has to have been at least one rational jurist amongst all the judges who heard the case. And as an attorney, you know what a fearful burden it can be to meet a true “clear and convincing” standard. Since the standard is high, and the most judges are rational and take their job seriously, and the finding was upheld time and time again on appeal, I must assume that the burden was met and that the evidence presented must be more compelling than what you describe.

    But I’m also open to consider that it wasn’t. However, operating under the assumption that the evidentiary burden was carried by Michael Schiavo, the only recourse I can see without resorting to “activist” judges is to go to the Florida legislature and petition for a change of the law.

  22. That’s too bad, Geoff. See what happens when we allow judicial activism? But since the law wasn’t on the books in 2005, regardless of how it was expunged, how can a judge (assuming there was clear and convincing evidence) uphold the law of the State of Florida without granting the relief sought?

    If the judge did anything else, then it would be judicial activism in the same way that the judiciary misbehaves when it strikes down duly passed Florida law such as “Terri’s law” based on rights emanating from imaginary “penumbras.”

    However, I think there was more at play than the “right to privacy” when Terri’s law was not upheld. Wasn’t that law passed illegally, without the due legislative process required by the State of Florida?

    I am a huge advocate of democracy, and not such a fan of “judicial activism” regardless of what result is achieved.

    And I am appalled at the Schiavo situation, but I do not think it helps to lash out at the court, which in this one situation at least, seems to have been applying the law of the State of Florida as it existed in 2005.

  23. Would it have been wiser in those days to allow the legislative and judicial branches in the South to do what was then the people’s will in that region? Obviously not.

    Personally, and I will be stoned for saying this, I think that the Courts overstepped their bounds in those days. The court should have suggested that the legislatures be redressed, and left it at that. The civil rights movement still would have happened (perhaps a little slower) but it would have been done through the legislative process instead of by activist judges.

    (of course, I am open to changing my mind given the right argument)

  24. And for what it’s worth, I am a stark advocate of “erring on the side of life” (one reason I oppose the death penalty). But we need to redress the proper body to actuate that desire. Therefore, just as I have realized that the court should not be the proper body to overturn the death penalty, the court in this case could not really do anything to help (assuming there was clear and convincing evidence presented, which trial, appeals, and Supreme Court (state) said there was). We should instead petition our fellow citizens until our voices are hoarse to legally pass the laws to protect life, if that is what we want.

  25. “Right now we are witnessing a time that will go down in US History as a lamentable period of judicial overreach. In general, judges are forgetting their correct roles and trying to become legislators. They are forgetting to be originalists when it comes to the US Constitution.”

    Geoff, you’ll forgive me if I’ve heard that one before. Like, ever since Marbury! Seriously, there is no real evidence to support your conclusion that judges are any more activist now than ever. You just happen to have a pet issue that is currently under debate. If you didn’t have a horse in the race, I doubt you’d see this as “a lamentable period of judicial overreach.”

  26. “All you lawyers out there have very short memories and of course can argue 10 sides of every issue.”

    Geoff: short memories? maybe. But our ability to see different sides of an issue is a talent that perhaps you should also cultivate.

  27. Steve, there is a difference between arguing 10 sides of every issue and having convictions. During the 1980s, I learned a lot about the modern-day Left. I worked for the Nation magazine, voted for Jesse Jackson in 1984 and moved to Nicaragua in 1986 filled with a zeal to help the poor and oppressed. Unfortunately, I learned to my dismay that it was the left itself that was oppressing the poor. So, I have seen the other side of many issues with real world experience that might surprise you.

    Your claim that “there is no real evidence to support your conclusion that judges are any more activist now than ever” is, if you will pardon me, ridiculous. Every serious legal scholar notes that the Warren court started a trend toward judicial activism that was unprecedented. Some of this activism was good (the civil rights movement, for example) but some of it was extremely harmful to our country. If you will study the school prayer cases, for example, there were virtually no citations of judicial precedent — the court twisted the establish clause beyond recognition. The court had decided on its own that prayer in school was not a good thing and invented a reason to implement it. That, my friend, is called judicial activism. The Warren court’s legacy extends today to places like Massachusetts where judges invent a “right” to SSM, once again, out of thin air. Yes, judicial activism is alive and well and, yes, unprecedented.

  28. Now, now.

    I’d wager that Steve has convictions too. ;)

    Bringing “judicial activism” back to this case, I think that my convictions against an active judiciary lead me to say that if the judges had made any other decision (assuming the evidence was clear and convincing) I would have been very disappointed because the judge would have been applying his personal convictions and not the law of the State of Florida.

    A judge must apply the law, even where the law conflicts with a personal conviction. For example, if the law says a prisoner must be sentenced to death, the judge must sentence in accordance with the law. Anything more or less is judicial activism- a lawless judiciary. However, the judge CAN express his disgust with the law and make a sincere plea that people petition the legislature to change the law- pleas that are often heeded. But if one judicially shapes the law to fit one’s own personal convictions as a judge, then one is no better than those who invent rights emanating from so-called constitutional penumbras to fit their personal political agendas/”convictions.”

    The judges who overturned the Terri law (assuming that it was overturned based on some “penumbral” right and not because the law was passed illegally) were perhaps crossing the line as Geoff points out.

    The answer to avoid such fiascos as that which happened in Terri’s case is to convince your fellow citizens to join you in petitioning the legislature to change the laws governing end-of-life decision making (and not in the midnight hour as the 2003 legislature, but well in advance of such a catastrophe). Florida should have seen this coming after the Nancy Cruzan mess in Missouri during the mid 80s. That’s when the US Supreme Court said that it was not unconstitutional for the Missouri state laws to require the very high burden of clear and convincing evidence of a patient’s previously expressed desire to terminate medical care, and found that the father in that case who was seeking to terminate the medical care did not meet that high burden. (Of course, the case was remanded and more evidence was presented which then DID meet the burden, and Nancy also starved to death.) The point: Florida saw this coming 20 years ahead of time, and if they cared enough they would petition the legislature until their voices were cracked and hoarse to get good laws passed.

    It’s all pretty sad. The problem in this case was not with the judges, but with the law. Change it! Do your duty as a citizen! :)

    [Editor Note: Fixed Link]

  29. Geoff B., you’re out of your depth on this one, I’m afraid, although I cannot match your level conviction (being a lawyer). Are you suggesting that somehow the Warren court still exists, or that it was a trend? That’s a bizarre claim, certainly not one noted by “every serious legal scholar” — I’d like you try to prove that one! I don’t really want to engage you on this point, because we are are talking on different levels: I am a lawyer, and you are a political activist. My knowledge of the law will not disabuse you of your views. And your views are no substitute IMHO for legal analysis.

    As for your real-world experience, well gosh, I’ve only read about the real world, but even the books I’ve read tell me that you seem to be swinging from one extreme to the other. Have you tried being a moderate? Maybe you could be an extreme moderate.

  30. Sigh.

    Geoff.

    Your claim that “Every serious legal scholar notes that the Warren court started a trend toward judicial activism that was unprecedented” is incorrect. Just flat out, on the face of it, wrong.

    The Warren court did hand down a number of decisions that had long-reaching effects.

    However, the court has always gone through stages where it has been more aseertive, and stages where it has been less assertive.

    If “activist” means writing without precedents — your apparent definition — then the most “activist” court in history would have to be John Marshall’s. Marbury v. Madison, for starters. Add McCullough and Gibbons and other ground-breaking cases.

    The Warren court is, at best, tied for second with the depression-era court, which launched a major wave of its own “activism” with Lochner and continuing though until it rolled back Lochner with West Coast Hotel.

    Another candidate for most “activist” court is Taney’s court, which invented the idea of substantive due process and invented a due process right to hold slaves in non-slave states.

    Now, a colorable argument can be made that the Warren court matched the Lochner court and/or the Taney court. An argument can be made — though it’s probably a loser — that Warren was more “activist” than John Marshall.

    You can cite to conservative legal scholars like Judge Bork, who think that the Warren court was particularly activist.

    But “Every serious legal scholar notes that the Warren court started a trend toward judicial activism that was unprecedented” is just flat-out wrong.

    I doubt that any legal scholar or person who follows legal scholarship would make that statement, even conservatives. The truth is that all sorts of legal scholars think that the Warren court was just doing its job, and was not particularly activist. Off the top of my head, a list of people who would probably disagree with the sentiment that “the Warren court started a trend toward judicial activism that was unprecedented” would include Tribe, Ackerman, Ely, Dorf, Black, Fiss, Sunstein, Dworkin, Tushnet, Eskridge, Delgado, Minow, Chemerinsky, . . . the list goes on and on.

    There are probably things that you’ll disagree with in the scholarship of some of that list. There are things that I disagree with in their scholarship. And there are areas in which each of them has criticized the Warren court. But I doubt that any of them would get on board for your assertion that “the Warren court started a trend toward judicial activism that was unprecedented.”

    Which is why your broader claim — “Every serious legal scholar notes that the Warren court started a trend toward judicial activism that was unprecedented” — is demonstrably wrong.

  31. Kaimi, sigh.

    Now I understand even better why you’re a lawyer. Once again, you pick at a piece of the argument without taking on the meat of it. Do they teach that in law school? (I just cut out a lot of more nasty stuff that I wrote that would not fall under the category of “showing an increase of love.”) Ok, I stand corrected. The Marshall court was the most activist because it was inventing a lot of new stuff for a brand new nation. The Warren court was either the second or third most activist. Oh brother.

    As for Steve, those are pretty tough words for somebody whose most cogent argument seems to be “POACHER.” OK, now it’s time for showing an increase of love. Steve, I’m sure you are a very nice guy but I can’t agree with your perspective. We’ll just have to agree to disagree.

  32. Geoff,

    Actually, they do teach it. String together 30 pages of that kind of argument, and it’s called a legal brief. :)

    Example: “Plaintiffs have no standing to bring this claim — Even if they do have standing, they don’t meet the statutory requirement — even if they do meet the statute, they’re past the statute of limitations — even if they’re not barred by limitations, they haven’t properly asserted a claim — even if they have, they haven’t alleged facts to support their claim — even if they’ve got facts, they can’t show any damages — even if they had damages, it was their fault for failure to mitigate.” (That’s not based on any particular brief, it’s the general form).

  33. The Warren court is, at best, tied for second with the depression-era court, which launched a major wave of its own “activism” with Lochner and continuing though until it rolled back Lochner with West Coast Hotel.

    Since Lochner was decided in 1905 and West Coast Hotel in 1937, and the Great Depression was from 1929 to 1941, describing the court as “depression-era” is a little misleading.

    What you are leaving out, Kaimi, is the influence of FDR’s 1937 Court Packing bill in ending the “activism” of the court.

    In 1937 President Roosevelt explained to the American people:

    …it is perfectly clear that, as Chief Justice Hughes has said, “We are under a Constitution, but the Constitution is what the judges say it is.”

    The Court in addition to the proper use of its judicial functions has improperly set itself up as a third house of the Congress – a super-legislature, as one of the justices has called it – reading into the Constitution words and implications which are not there, and which were never intended to be there.

    We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men.

    I want – as all Americans want – an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by the arbitrary exercise of judicial power – in other words by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts which are universally recognized.

    To reign in the Judgislation, FDR proposed the Judiciary Reorganization Bill of 1937. Since the Constitution leaves the number of judges on the Supreme Court up to Congress to establish, the bill would have changed the composition of the court by granting the President the power to appoint an extra Supreme Court Justice for every sitting Justice who had not availed himself of the opportunity to retire at age 70.

    The Bill failed to pass, but the threat of packing the court was enough to cause Justice Owen Josephus Roberts to switch his vote on decisions related to New Deal legislation, including in West Coast Hotel which signaled the end of the activist court.

    The funny thing of course, is that the activism of the Court during FDR’s era was perpetrated by Conservative Judges appointed by Harding and Coolidge who used the court to invalidate New Deal legislation, and it was the liberals who were complaining that unelected judges did not have the right to impede the will of the people as represented by their legislators in Congress and the approval of their elected President’s signature.

    The complaint is the same, it is just which party is complaining that has changed.

    The question should be: is the complaint legitimate? (regardless of which party is making it).

    Should unelected Judges be able to strike down legislation that is supported by the majority of people through their legally elected representatives in congress and the White House?

    If they do, then what of the “Democratic” part of our “Democratic Republic”?

    And if there is no Natural Law to trump Majority Rule upon which Judges can found their rejection of the will of the people, upon what other grounds do they claim the right to do so?

  34. Max,

    You’re right about that FDR’s reaction to the “horsemen” (as the conservative bloc was called) was to propose court-packing. And yes, Roberts was “the switch in time that saved nine.”

    The funny thing of course, is that the activism of the Court during FDR’s era was perpetrated by Conservative Judges appointed by Harding and Coolidge who used the court to invalidate New Deal legislation, and it was the liberals who were complaining that unelected judges did not have the right to impede the will of the people as represented by their legislators in Congress and the approval of their elected President’s signature. The complaint is the same, it is just which party is complaining that has changed.

    Yep. There have been various “activist” courts though the country’s history, and they’re not limited to either side of the political spectrum.

    Should unelected Judges be able to strike down legislation that is supported by the majority of people through their legally elected representatives in congress and the White House?

    If they do, then what of the “Democratic” part of our “Democratic Republic”?

    And if there is no Natural Law to trump Majority Rule upon which Judges can found their rejection of the will of the people, upon what other grounds do they claim the right to do so?

    Now you’re going back to John Marshall and the entire judicial review process.

    Judicial review is, by its nature, counter-majoritarian. A court can’t invalidate legislation unless that legislation has been duly passed through the normal, majoritarian political process. And most theories of judicial review focus on the idea that the constitution sometimes requires counter-majoritarian action to prevent political majorities from oppressing political minorities.

    You ask:

    Should unelected Judges be able to strike down legislation that is supported by the majority of people through their legally elected representatives in congress and the White House?

    The counter-question, of course, is:

    Of what use is a constitution if the naked “will of the people” — 50% to 49.9%, or anything greater — must always be upheld by judges?

    Why not just toss the constitution and simply let the legislature do whatever it wants?

  35. Of what use is the legislature if nothing–Constitutional text, history and tradition, and large majorities of voters and of the legislature–can dissuade the courts from doing what they prefer?

  36. Geoff: “As for Steve, those are pretty tough words for somebody whose most cogent argument seems to be “POACHER.””

    Nice. And, may I say, completely accurate!

    Let me repeat what I said above: I am a lawyer, and you are a political activist. My knowledge of the law (and apparently, a law professor’s!) will not disabuse you of your views.

    If you want to get snarky, fine — I snark with the best of them. Just don’t go slinging muck and then using lines like your “increase of love” one. It’s a mockery of the scripture, and you know it. Your political views are ill-served if you want to jokingly excuse your own insults.

  37. Thanks for your response Kaimi. Your counter question is excellent too. This is clearly a complicated issue.

    It seems to me that the judges counter majoritarianism is highly selective and arbitrary. They may at whim, it seems, strike down marriage laws discriminating against one minority, while upholding majoritarian laws that plunder the riches of another minority.

    Is the naked will of 9 judges better than the naked “will of the people”?

    Why not just toss out the constitution and establish a 9 member oligarchy?

    We might as well go back and argue the Federalist vs Anti-Fedralist debates.

  38. We seem to be agreed that there has to be some middle ground. Judicial review is a proper response by courts, else the constitution would mean nothing. And judges must be constrained in some way in their exercise of judicial review, else they simply become a mini super-legislature.

    Now, on some points on which we might disagree.

    I think that judges are constrained pretty well. First, judges are generally appointed through the political process. As such, they are likely to represent the will of the people, or at least not be too far removed from it. It seems unlikely that any truly arbitrary judges, or judges who made decisions just based on personal whim, would be appointed.

    Second, judges may be removed from office if they are truly handing down arbitrary decisions or making power grabs. Impeachment is a limitation on judicial power.

    Third, the judiciary is constrained in a number of ways that the legislature is not.

    The judicary is not at all a unified body. The vast majority of law is not made by the Supreme Court at all, but by state courts and lower federal courts. (For example, your marriage example relates to action by a state court, not a federal court).

    The Supreme Court, in the current environment, acts mostly as an overseer of lower courts, and as a protection against overreaching by state courts (as regarding federal issues) or appellate courts.

    Also, the judicial branch, on the federal side, may not rule on matters not before it — the “case or controversy” requirement of standing. This constrains the court’s ability to change legal standards.

    All of these are constraints on the ability of judges to act as a counter-majoritarian body. The end result is that the judiciary is indeed counter-majoritarian, but usually not sharply so.

    It’s an imperfect solution, but I don’t know that a better one exists. After all, if power is taken away from courts and given to some other entity, then who will watch the other entity? It’s the old question of who watches the watchdog.

  39. I should add:

    Fourth, judges are constrained by tradition, by procedural norms like stare decisis, and usually by intellectual honesty. Most judges do the best they can to resolve difficult cases that are before them.

    There is room for honest disagreement over the scope of many constitutional rights, many points of constitutional structure, the place of different actors in the political and legal sphere, and so on.

    A lot of judges make decisions that I disgree with. I rarely think that those decisions are arbitrary or are caused by judges simply going on power trips. There is an enormous pressure on judges to be thorough and intellectually honest. I think that most judges internalize this sentiment and hand down decisions that they beleive are the proper application of legal principles.

    I’ll disagree with them on the specifics of any number of decisions. But the trend towards character assassination of judges is one that I think is strongly misguided.

  40. Kaimi and Max, I’d like to take your discussion in another direction. I believe most Christians believe in moral absolutes. The 10 commandments, for example. We can argue until the cows come home about what should influence the courts and whether judicial activism is a good thing. I for one would have to admit that a bit of judicial activism in overturning some of the recent decisions with which I disagree (Roe v. Wade, school prayer, Lawrence v. Texas) is not necessarily a bad thing. So, my position is tough to defend — I am against activism with which I disagree but in favor of activism with which I agree. (In my biggest fantasies, I imagine judicial activism that involves instituting a flat tax and mandating free trade, for example). So, I admit it, my position is inconsistent.

    But to what extent should the court be motivated by moral absolutes that are part of the natural law? Wasn’t that one of the real intents of the founding fathers? The moral environment of the founders was one in which anti-sodomy laws would never have been overturned, for example. (Let’s avoid the whole slavery issue in this because it’s getting away from my major point and was clearly an issue with which the founders struggled morally).

    My point is, wouldn’t judicial activism supporting natural law be more consistent and in line with the intent of the founding fathers than judicial activism that directly contradicts natural law? I’m truly interested in your perspectives.

  41. Geoff B., in all seriousness, let me say this: there is no such thing as natural law.

  42. Steve, we definitely have to disagree there. Perhaps it’s an issue of definitions? I’d love to here what you mean by that.

  43. “I am a lawyer, and you are a political activist. My knowledge of the law (and apparently, a law professor’s!) will not disabuse you of your views.”

    Before the appeals to authority get out of hand, lets be clear that plenty of lawyers and even, gasp, law professors, would disagree with Steve Evans and Kaimi W.

    Here’s an example:

    Kaimi, whether or not you are right that courts ought to be constrained by all the factors you list, in practice they’re not. Just as, say, the Magna Charta and the theoretical duty of parliament to look after the interests of the colonies were only cold comfort by 1776.

  44. Geoff-

    Moral absolutes would be good motivators if we lived in a society where everyone agreed what those moral absolutes were. But we don’t, sometimes even in the Church (!) agree what certain moral absolutes are, so how can we possibly expect a court in our imperfect society to rely on these moral absolutes to arrive at just decisions?

    The best remedy in such a society is to trust the will of the people. And when the majority of the people desire bad things, we know what the scriptures say about that. That is also how we can be most effective- by trying to influence those within our sphere of influence to vote in the direction of what we consider to be moral absolutes.

    As Justice Scalia said when he visited Michigan last year: just because it’s easier to persuade 1 to 9 individuals of your position does not make it the right thing to do. If you have a problem with something in society (like something which does not comply with moral absolutes) then convince enough of your fellow citizens and pass a law. And again, we know what the scriptures say about the state of society when we are unable to convince our fellow citizens to pass “righteous” laws- and they don’t say that we should start pestering the judiciary. If we can’t pass laws based on some semblance “moral absolutes,” then what does that say about the state of society in general?

    And if judges continually overturn laws so passed, that is a problem. But it is not a problem which should be rectified by resorting to the same tactics.

  45. JMax, I wouldn’t describe myself as a utilitarian, but I think that notions of natural law are useless when discussing government. I am much more of a legal positivist.

    Perhaps I need to explain, Geoff. Borrowing from the Wiki, “In jurisprudence, natural law is the doctrine that just laws are immanent in nature (that can be claimed as discovered but not created by such things as a bill of rights) and/or that they can emerge by natural process of resolving conflicts (as embodied by common law).”

    In reality, concepts of natural law are most used as a means of defending religious or moral standards that are not themselves embodied in law. In other words, natural law a favorite means to try and argue that something doesn’t have to be law in order for it to be defended by a judge. Typically, the content of natural law translates to “whatever pet issue I have in mind.” I find that idea ridiculous, and contrary to the role of the judiciary.

  46. I’m going to have to apologize because I called for a debate on natural law and now I have other obligations that will keep me away from a computer until Monday. I will be following this on my blackberry (but can’t post a detailed post for obvious reasons if you’ve ever used a blackberry). In short, I firmly believe in natural law exactly along the lines of CS Lewis’ Tao. Read this for an excellent essay on the Tao and CS Lewis’ take on natural law. Time to go.

  47. Adam: “Before the appeals to authority get out of hand, lets be clear that plenty of lawyers and even, gasp, law professors, would disagree with Steve Evans and Kaimi W.”

    Adam, you’re absolutely right. I wasn’t trying to say that my position was irrefutable. Rather, I was trying to say that Geoff’s was irrefutable, because no legal argument could ever change his mind.

  48. no. 50: should read “natural law is often a favorite means…”

  49. Your idea of natural law is highly debatable, Steve Evans. For example, John Finnis, one of the leading defenders of natural law theory today, would never suggest moral concepts had the force of positive law, unless there were some positive law that explicitly tried to refer to those moral concepts. For him, natural law is that complex of moral principles that explains what the law should try to do (not necessarily what it does) and which explains when obedience to the law is morally compulsory.

  50. A lot of this is far too deep for my often interrupted day to absorb, but I do appreciate this commment here:

    13 I asked my wife what she would want done if she were in Terry’s situation.
    She told me to follow the spirit.
    I will

    It brings up a good question. What would you want done to you if you were in this situation? I’d be very interested to hear what our views are on this? Do we think that it is “selfish” or “sacrificing” on either side of the coin? (ie to die leaves a bereaved loved one which could be selfish for you, or are you thinking it’s sacrificing so the loved one doesn’t have to care for you etc. etc.)

    Some thoughts: I had a Grandmother recently who suffered from Alzheimers and didn’t know herself or anyone around her, swore constantly and was a negative nasty prescence to be around. (not the sweet mild tempered woman I grew up knowing) How painful it was for her husband to be accused daily of having affairs etc. Yet on the flipside my sister in law works with geriatrics and is able to pull severe Alzheimer’s patients out of complete stupors through music – they remember lyrics to many songs but not even there own name! There is so much we do not know about the human mind/body. (I’m not saying she should have been put under by any means – of course NOT! But It really made me reflect on what I would want done to me in that situation? I still don’t have an answer.)

    The arguments here I aslo see as being very similar to the controversy over abortion and even stem cell research – not that we should pursue that thread here, but I’m intrigued by the statements of whether Teri’s spirit still resode in her body. It reminded me of something I saw at too young an age that has stayed with me since. My father is an OBGYN and I found this tape called “The Silent Scream” in our old video collection and I thought – cool, an old horror movie. Which of course was not what this was. It was an in-vitro video of an abortion being performed. You could see clear as day that fetus jump before being aborted as if the fetus knew what was about to happen. My point – we have no idea when the spirit actually enters the body, so do we really know when it leaves?

    All interesting somewhat confusing thoughts here today.

  51. Um, Steve, Legal Positivism is directly rooted in Jeremy Bentham’s philosophy of Utilitarianism. So I guess your answer boils down to “Yes.”

    Regardless of whether you believe that there is a Natural Law, it is hard to deny that the Declaration of Independence was made by an appeal to Natural Law, by which King George’s actions were judged. The Constitution was designed (other than the unfortunate, but prudent preservation of slavery for the sake of getting it passed) to create a Government based upon the Natural Law philosophy articulated in the Declaration.

    I’m sure you have alternate views concerning what justifies the form of government the Constitution establishes as legitimate, but do you claim that it was, in fact, established upon those justifications and not upon the philosophy of Natural Law?

  52. which explains when obedience to the law is morally compulsory.

    Adam- obedience to natural law or the law of the land?

    Thinking about what you just said I now wonder if that train of thought leads to the idea that judges must resort to so-called “judicial activism” when natural law is in opposition to the law of the land and obedience to natural law is morally compulsory. That would be a somewhat principled way to explain which causes judges must stand up for. But the problem as I see it still remains (for me) how to define “natural” law in such a diverse society.

  53. Adam, Jordan, yes, modern iterations of natural law theories are actually fairly complex, and I find myself more in favor of them than the black/white version I put out there. But by and large, the conventional theory of natural law should be pretty close to what the wiki said.

  54. Jordan: Your observation ties back to my earlier question: :…if there is no Natural Law to trump Majority Rule upon which Judges can found their rejection of the will of the people, upon what other grounds do they claim the right to do so?

    Like Geoff B., I find C.S. Lewis’s articulation of the Natural Law, or the Tao as he sometimes called it, in both Mere Christianity and The Abolition of Man to be applicable.

  55. J Max: “do you claim that it was, in fact, established upon those justifications and not upon the philosophy of Natural Law?”

    I don’t make any claims about what the Founders wanted, but yes, Natural Law was in vogue at the time.

    Last time I checked, I thought that you could believe that there is no law without legislation without being utilitarian. Utilitarianism in law, i.e., laws should be crafted so as to produce the best consequences, isn’t the same thing as positivism, i.e, that there is no essential connection between the law and justice/morality. Yes, Bentham, Austin, etc. are utilitarian, but I’m not really speaking as to that part of the equation.

    BTW, I am making no claims as to how God operates — just want to make clear that divine law, etc. is entirely separate from notions of natural law we’re talking about. No one’s suggested otherwise but thought we should clarify.

  56. “Thinking about what you just said I now wonder if that train of thought leads to the idea that judges must resort to so-called “judicial activism” when natural law is in opposition to the law of the land and obedience to natural law is morally compulsory”

    This is a topic on which there is much debate. Important loci of debate are
    (1) just because a positive law violates the natural law does not automatically mean that I’m entitled to break it.
    (2)even if I’m entitled to break a positive law, that does not necessarily mean that I’m entitled to do it qua judge. Perhaps that only gives me the right to recuse myself in this particular case or to at the very minimum make clear that one’s judicial rulings are based on one’s moral views and are not statements about the positive law.

  57. ” I am making no claims as to how God operates — just want to make clear that divine law, etc. is entirely separate from notions of natural law we’re talking about. “

    I disagree. Natural law as I understand it means more or less ‘the moral principles governing societies,’ with which I imagine God is heavily involved.

  58. Adam,

    I’m a little confused by your assertion. Which exactly of the constraints are no longer applicable?

    Is it that judges are no longer subject to impeachment?

    Are they no longer appointed by politicians who are elected through the normal political process?

    Are they no longer constrained by case-or-controversy, federal limits on state law, and so forth?

    Or are they no longer honest?

    If you’re saying the fourth, then I guess we simply disagree on the issue. Judicial honesty isn’t something that can be shown empirically. However, I’ve met some judges, and I continue to think that most judges seek to be intellectually honest and to make correct decisions.

    I also tend to think that broad characterizations otherwise — which amount to “all judges who disagree with me must be dishonest” — are inappropriate character assassination at best. It should be possible to disagree with Judge X or Judge Y without resorting to attacks on those judges’ integrity. At worst, such statements are a social harm in themselves, as they undermine public confidence in the rule of law.

  59. Adam, I think that God has little to do with the moral principles currently governing society — and what happened to you throwing Finnis at me and then turning back to the 18th century Natural Law? Are you some sort of time-traveler?

  60. Fair enough. You’re just spouting off more stuff than I would expect from one not formally trained. Impressive.

    Anyone else have any good book recommendations for me to read up on naturallaw theory and to catch up with the “loci” of the debate amongst advocates of natural law as mentioned by Adam?

  61. Jordan,

    Major proponents of natural law include Finnis and Lon Fuller (in the famous Hart-Fuller debates). Other major participants in the discussion include Coleman, Raz, and Dworkin.

    One internet source that I located through google, but which seems to cover most of the basics, is at http://www.iep.utm.edu/n/natlaw.htm .

  62. “Adam, I think that God has little to do with the moral principles currently governing society”

    I think we’re talking past each other here, Steve Evans. When I say ‘the moral principles governing societies,’ I mean, how shall I say this?, the same thing as ‘the moral principles governing individuals.’ Many individuals do not recognize the 10 Commandments as obligatory, and many that do recognize them don’t follow them. But they’re Commandments none the less. Same with societies. Just ‘cuz they haven’t incorporated a moral principle into their positive law, or don’t even recognize the moral principle, doesn’t mean it doesn’t govern.

  63. Kaimi,
    which of those items you cite functions as a practical restraint, as opposed to a theoretical one? None of them much.

  64. “Just ‘cuz they haven’t incorporated a moral principle into their positive law, or don’t even recognize the moral principle, doesn’t mean it doesn’t govern.”

    This is where we diverge. I assert that yes, in fact, such a moral principle doesn’t govern. It can’t! How can something govern if it cannot enforce its will??

  65. Steve,

    That’s been a problem for natural law theorists since day one. There are various positions on this.

    One historically important position has been that natural law is a sort of default rule that may be overruled by positive law. (Sometimes with a sort of “clear statement rule” requirement).

    John Marshall seemed to follow this view. In The Antelope, he wrote that slavery was counter to natural law, but that the positive law allowing slavery overruled the natural law prohibition.

    Of course, this brings us back to the even bigger question — whose natural law? John Marshall or you or I might think that it’s clear that slavery is counter to natural law. But the Romans didn’t think so. And it’s not even particularly clear that God thinks so. He didn’t condemn it in ancient Israel, and He didn’t condemn it particularly harshly in modern times, either. Neither Joseph Smith (until 1844) nor Brigham Young was a particularly ardent abolitionist, and the church never took an official position against slavery.

  66. (aside: I like the the direction this conversation has gone, and I am learning a lot. Thanks Jordan, Kaimi, Geoff, Steve, Adam, and all. Let’s make such conversations more frequent.)

  67. The natural law side of this argument is probably more interesting for the audience. But I think a point about “original intent” is very much in order here, particularly since the claim is that it was the original intent of the founders to adhere to natural law.

    Stipulate, for a moment, that natural law actually exists. How would we know the founders intent on this or any other issue? When we ask about “their” original intent do we mean the signers of a particular document (e.g. the Constitution)? Or do we mean the states that ratified that document (James Madison claimed that this was the real controlling authority). Or do we mean what people commonly believed back then? Since these understandings of the document are likely to be different, we had better have an answer for this question.

    Some might argue that it doesn’t really matter, because these distinctions are details and probably won’t alter the big picture. But consider Madison and Hamilton. No one wrote more eloquently about the constitution than they did. But when in government the two of them were genuinely surprised to find that they vigorously disagreed about the meaning of the constitution and what powers government should have.

    So let’s not toss around the phrase “original intent” too easily. If James Madison and Alexander Hamilton can’t agree on what the document meant, I doubt we’re going to be able to figure it out.

  68. Oh what fun!

    First I think that it makes sense to break out a couple of sense in which the term “natural law” can be used:

    1. It can refer to moral realism, namely the claim that there are objective moral standards.
    2. It can refer to the idea that objective moral standards can be deduced from the teleological structure of nature.
    3. It can refer to the idea that there is a necessary connection between law and morality.

    First, it ought to be clear that one can subscibe to any one of these versions of “natural law” without subscribing to the others.

    Second, Steve is just plain wrong about natural law arguments, the exalted authority of wiki not withstanding. He claims:

    “In reality, concepts of natural law are most used as a means of defending religious or moral standards that are not themselves embodied in law. In other words, natural law a favorite means to try and argue that something doesn’t have to be law in order for it to be defended by a judge. Typically, the content of natural law translates to “whatever pet issue I have in mind.” I find that idea ridiculous, and contrary to the role of the judiciary.”

    The most vigorous contemporary defense of the necessary relationship between law and morality was launched by Ronald Dworkin. (He believes 1 and 3 above, but not 2). Furthermore, Dworkin’s theory of adjudcation is aimed at disintigrating precisely the distinction that Steve implicitly adopts between positive law and moral conclusion by arguing that (1) law necessarily requires interpretation; (2) interpretation necessarily requires normative judgements; and, (3) moral normative judgements are preferable to immoral moral judgements. For the record, I am not a huge fan of Ronald Dworkin, and I think that a great deal of his philosophy is based on knocking down straw man opponents, but I don’t think that he can be reduced to Steve’s vision of natural law.

    (As others have pointed out Finnis and Fuller have also offfered version sof natural law considerably different than that offered by Steve.)

    It is also worth noting that even positivists can claim that there is a connection between moral and legal truth. Imagine that we had a law that said, “It shall be illegal to treat prisoners in immoral ways.” There is a big debate between what are called inclusive and exclusive legal positivists as to how one should treat such a law. I’m no expert on these debates, but as I understand it the dispute boils down to the question of whether “immoral” in this law should be treated as refering to a social truth (what people of a given society regard as immoral) or a moral truth (what actually is immoral). This is an important debate because there are provision of the constitution that seem to take something like this form, e.g. the Ninth Amendment and arguably the Due Process Clauses.

    Finally, I don’t see that there is any necessary connection between legal positivism and utilitarianism. In English speaking jurisprudence you can trace a genealogical line back from H.L.A. Hart to John Austin to Bentham, but the legal claims are seperable from utilitarian ethics. Put in more precise terms, of the three sense of “natural law” offered above, one can subscribe to 1 and 2 without subscribing to 3. Bentham objected to natural law jurisprudence because he thought that it stymied legal reform and decreased utility. However, there is nothing about the claim that law and morals are seperate that commits one to any particular theory of morality.

  69. So, amidst flurries of legal theoretics, what of the original poser:

    What do do when judges forget they are to adjudicate; not legislate?

    Regardless of whether you think Court X (or Courts of Decade X) was more or less activist that Court (Decade) Y, the issue is how to preserve the balance of powers that the Founding Fathers instituted. While Nate nicely explained that adjudication requires interpretation, and hence can be mistaken/abused as legislation…which way forward out of the current mess?

  70. Kaimi: Joseph Smith proposed freeing all slaves [via buying them and then freeing them] as part of his presidential platform. However, your larger point remains valid.

  71. On the difficulties of original intent and original understanding.

    Let us not forget that the proffered alternative is for judges to try to figure out easy things like, oh, the nature of morality, the direction of American society, the world-wide gestalt of foreign law (see here: http://stuartbuck.blogspot.com/2005/06/originalism.html), etc.

  72. That’s right, Adam.

    Justice Scalia has often stated that originalism is imperfect and flawed, but that the alternative theories are more flawed. And you have it nailed, Adam. If we aren’t using originalism to guide us, what else is there and how effective is it in comparison?

  73. Which is harder: to discern the nature of morality or what a group believes? If we can’t talk to the group, can’t even be sure we know who is in the group, and the group members themselves strongly disagree, it is not clear to me that figuring out morality (or things like the direction of society, etc.) is any harder than discerning group sentiment.

    Perhaps we shouldn’t trust judge-discerned morality any more than judge-discerned history. But given the nature of the tools they acquire, their comparative advantage may be in moral calculation rather than historical inquiry. That’s not to say that I really think they are “discerning” what is or is not moral. Much of the time they just seem to be endorsing their own set of moral preferences. Perhaps we really should just think of them as legislators expressing a particular point of view (at least when they are unconstrained by precedent).

    Judges have a hard job. I’m glad it is not mine.

  74. Originalist arguments often (though admittedly not always) look like enacting your own set of preferences, then justifying it with a selection of references to some historical quotations or precedents. I don’t understand how that is any more flawed than enacting your own preferences without the historical window-dressing.

    If you claim to be accurately representing the views of some particular group (i.e. the founders), you will need a lot more nuance and caution than I have seen in the typical decision.

  75. Nate, I know better than to engage you in debates on natural law, but how dare you assault the Wiki?! Dworkin is a big name, but if you are going to discuss the basic concepts of natural law, is he the one to turn to? Frankly, the Wiki may not reflect current (or even semi-current) trends very well, but if someone was approaching the issue as a neophyte, it’s not far off (in other words, you are a source snob).

    I have a feeling you just wanted to say that I was plain wrong. Relish it, Oman — relish it, while you can.

  76. “I have a feeling you just wanted to say that I was plain wrong.”

    Pretty much ;->

  77. So, JCP, is it your position that its better to be openly wrong than to be hypocritical? I’m against hypocrisy myself, but somehow that doesn’t make me feel any better.

  78. Adam Greenwood:

    It is not obvious to me that people are being “openly wrong.” Sometimes I like the decisions. Sometimes I don’t. Did you have some other standard (I don’t understand) in mind for “wrong”?

    But originalists are not actually doing what they say they are doing. I find that disquieting.

  79. An interesting question is whether the Framers were themselves originalists. Would they really want us sitting here, 200 years later, saying “what would Jefferson think of this?” Is there textual support for that idea?

    Or is it possible that they would say “you’re nuts — apply your own modern understandings!”

  80. The Framers’ views on jurisprudence were complex and subtle. They would reward your study.

  81. Kaimi, I think it is entirely consistent with the Framer’s intentions for us to follow our own understanding of their intentions.

  82. So your an original intent guy, Steven Evans? I wouldn’t have thought.

  83. My understanding of the Framer’s intentions is that we should disregard their intentions, unfortunately…

  84. Adam Greenwood writes:

    ” “openly wrong” = “openly enacting your preferences” “

    Is it really better to enact your preferences, but call it something else?

  85. JCP: You put forth then, that it is not possible to follow the law, and that Judges are constrained to “enacting [their own] preferences” by some sort of post-modern “we are all biased” theory?

    What are you trying to say? Or are you trying to put words in Adam’s mouth, suggesting that his definition is about “hiding” preferences behind some theory of jurisprudence?

  86. Adam Greenwood can certainly speak for his own ideas.

    I am saying that originalism does not solve the interpretation problems it purports to solve. If delegates to the constitutional convention who spent years of their lives crafting and then eloquently defending the constitution could not agree on its meaning then it is VERY unlikely that we can discern the intent of the “founders” (whatever that concept means, exactly) now. I agree that this sentiment has echoes of post-modernism, but since the evidence comes from the 18th century the label is a bit of an anachronism.

    Because the original intent standard is so ill-defined I do not think it is much more than an ex post facto justification for a justice’s preferences.

  87. Kaimi: Most sophisticated originalists are not intentionalists. Scalia, for example, explicitly disclaims intentionalism in _A Matter of Interpretation_. Rather, he argues that what we should look for is original meaning. The idea here is that the words of the constitution have a determinate meaning, but that langauge changes and that the correct understanding of the constitution is the one yeilded by reading it in light of the language in which it was written rather than in light of current ideologies or current language. Hence, the originalist inquiry is not “What did Thomas Jefferson think?” (besides which, of course, Jefferson had nothing to do with the drafting of the constitution), but rather “What did ‘establishment of religion’ mean in the 1790s.” The distinction is subtle but important. Although Ed Meese and other originalists have used the idea of “original intentent,” the dominant position is “original meaning.” It is important because originalism is frequently carictured as a sort of hopelessly childish exercise in filial piety and historical mind reading rather than being charitably understood as a serious and quite plausible theory of legal meaning. This also means, of course, that it is by no means obvious that the framer’s interpretive theories matter one way or another for the value of orginalism. For example, I think that Scalia’s originalism is best read as a claim that a commitment to democracy requires a rather hard edged version of legal positivism. I pretty sure that this was not an approach that would have been widely recognized or subscribed to by the Founding generation. On the other hand, since Scalia’s theory is a claim about jurisprudence rather than history, I don’t see that this point really amounts to much.

  88. Isn’t there a pretty important connection between the _meaning_ of a document circa 1790 and the _understanding_ of that document at the same time? Even if we move to the more sophisticated version of originalism and try to avoid thinking of “original intent,” I think we are still left with the problem that the understanding of the document when it was drafted (or ratified?) is crucial for discerning its meaning.

    If that’s right, than an originalist theory of jurisprudence can’t cleanly escape from making historical claims about how the constitution was understood at the time. Perhaps it is a caricature of originalism to suggest that it is involved with mind reading (though a Supreme Court seance sounds like fun). But I don’t think it is a caricature to say that originalism is a theory of jurisprudence facing tremendously thorny issues of historical inquiry–issues that are often swept under the rug.

  89. OK, I’m back. As many of you may have guessed, I raised the natural law issue because of its applicability to modern-day jurisprudence. I think this thread has shown that our laws are based on the founders’ understanding of natural law and that natural law is relevant (of course others may read the thread differently, but that’s my take). I personally am an originalist (I’m guessing nobody is surprised) and my reading of history is that the founders wanted us to be originalists. Ponder how many of the founders wrote for the future (think of Geo. Washington’s speeches on the importance of religion in society). Again and again, they warned us that this new system of democracy would only work if we maintained a moral society based on religion. What does that mean? It is a clear appeal to natural law and traditional morality and the importance of the Christian religion in maintaining traditional morality. You really have to ignore history completely not to catch the drift of the message the founders were trying to send to us. I find it eerily similar to the messages Mormon and Moroni try to transmit to our generation. In both cases, very wise souls looked at history and saw that as people forgot God the societies they created began to fall apart. In a practical sense, capitalism and democracy both cannot work in an amoral society. I am very afraid for Europe right now because of the lack of religious conviction there — we may see Europe plunged into chaos again during our lifetimes, and it is very frightening.

    So, what does this have to do with Terri Schiavo? This is a heart-wrenching case with sincerely good people on both sides trying to make good decisions in difficult circumstances. I don’t believe that all of the people who wanted her husband’s will to prevail are wrong-headed. Some of them have very good reasons, including Jordan and Bill and others who have posted on this issue. But I simply have to disagree with them. I think they are ignoring the biggest issue and one of the biggest lessons we are intended to learn on Earth — the importance of life. Respect for life should be one of the main driving forces of law. Why? Because of natural law and all it teaches. And I regret to say that many of our best legal minds now cannot see the forest because they are arguing about individual trees. There’s a lot of that going on in this thread alone. So, I’ve had my say. Thanks for participating, all of you. I’ve learned a lot on this thread (and I’ve got a lot more to learn).

  90. JCP: I would agree that contemporary understandings are important for discerning original meaning, but this is quite different from the claim that what we are looking for is the hidden or latent intent of the drafters (or ratifiers or whoever counts as a “founder”). You are right, I think, that this approach faces serious historical difficulties, but it is worth pointing out that originalist scholarship is frequently very historically nuanced. Judicial opinions, of necessity, are less so, but the same could be said for case law of any jurisprudential stripe. The opinions of the Warren Court, for example, are conisderably less articulate and more ad hoc than is Ely’s defense of them in _Democracy and Distrust_.

    Goeff: I have to admit that I am quite confused by what you are saying. You claim to believe in natural law and originalism. The problem is that originalism is a form of positivism, not of natural law. Now it may be that what you are claiming when you say that you believe in natural law is that there are objective and timeless moral truths. This claim, however, does not imply any particular theory of adjudication of jurisprudence. Justice Scalia, for example, is a legal positivist who believes quite strongly in the seperation of law and morals, but given the fact that he is also an observant and fairly conservative Catholic, I think we can also assume that he is a moral realist.

    It seems to me that your quip about legal thinkers, forests, and trees is more an attempt to plaster over and avoid dealing with certain contradictions in your own position than it is a serious critique of said legal thinkers. If legal thought seems unnecessarily difficult and complex, it is worth remembering that it is dealing with difficult and complex issues. Appeals to the atavistic wisdom of the The Founders does nothing to change this fact.

  91. Nate Oman:

    It’s a very fair point about the difference between scholarship and legal opinion. I guess I find it frustrating that less scholarly originalists (an admittedly somewhat undefined category) very often cite “history” to help prove their claims. That would be fine with me if they were willing to engage on the historical debates.

    But too often, they are not actually interested in the actual history. They are interested in the slim portion of the history that can be quoted to buttress their case. To me that looks very much like the antithesis of what they claim they are doing. Perhaps that shouldn’t trouble me since you are right that jurisprudence is a different field from history. But as a (VERY) amateur historian it does bother me that there is a nontrivial amount of extremely misleading rhetoric involved. I would go so far as to suggest that it is often intentionally misleading.

  92. JCP: I think that most serious originalist are willing to engage in historical debate. That is definitely what one finds in the law reviews.

  93. “Adam Greenwood writes:

    ” “openly wrong” = “openly enacting your preferences” “

    Is it really better to enact your preferences, but call it something else?”

    Not at all. It’s hypocrisy. But ‘solving’ hypocrisy by being open about the evil one is doing is no solution at all. The real solution is to stop doing evil. And its simply wrong that all originalists are always hypocrites.

    If delegates to the constitutional convention who spent years of their lives crafting and then eloquently defending the constitution could not agree on its meaning then it is VERY unlikely that we can discern the intent of the “founders” (whatever that concept means, exactly) now.

    What you ignore is that while the founding generation may have attributed a range of meaning to the Constitution, there were certainly meanings that no one attributed to it and meanings that everyone agreed on. Originalism is underdeterminate but not, as you seem to think, indeterminate.

    The originalist inquiry is not “What did Thomas Jefferson think?”

    Thank goodness.

    (besides which, of course, Jefferson had nothing to do with the drafting of the constitution)

    Thank goodness.

    The problem is that originalism is a form of positivism, not of natural law.

    Let me quibble. Some natural law folks use natural law arguments to justify a kind of positivist approach to judging. I remember a debate between Raz and Finnis. They were really going at it hammer-and-tongs, but after a while it became clear that their disagreements were more inherited then real. Finally Raz says something like ‘What’s the disagreement here. It sounds like you think exactly the same as me, except you think that thinking that way is compelled by morality.’ And Finnis says, ‘yes, but finding out what morality compells is important.’ And that was the end of the discussion.

  94. ” ‘solving’ hypocrisy by being open about the evil one is doing is no solution at all. The real solution is to stop doing evil.”

    Is this supposed to be a justification for originalism? It sounds like an admission that people are just doing right or wrong, not that any particular method for interpreting the constitution is preferred. If you use a different interpretative method to arrive at the “right” answer is that OK?

    I am perhaps too harsh on originalists, many of whom may act in good faith, but apparently without a serious knowledge of the subject matter. But good intentions are no excuse. Of course it is not true that ANY meaning of the constitution is plausible (an ironically broad reading of what I wrote!). But the range is tremendous.

    I still think the (mostly ignored) example I gave above is useful. Hamilton (and the federalists of his generation) thought that the constitution empowered the Congress and the President to do more or less anything–as long as the constitution did not prohibit it. Madison believed (or came to believe) that the constitution permitted only a very limited set of governmental actions (at least until the Louisiana purchase). This basic disagreement is echoed in many, if not most, of our modern arguments. Thus when originalists pick one of the two sides and claim “this was the original understanding of the constitution” they are being incredibily disingenuous. Either they haven’t studied the founding much, or they are intentionally hiding part of the record.

  95. That seems to tie into Dworkin. I realize he has a mixed history but his argument that natural law is simply the idea that social mores can be discovered and that not all ajudication need to have a compelling independent support b/c it can lean on the idea that the roots of social morality exist independent of our explanation of it–is compelling, although problematic.

    Though it seems like a complete end run to define natural law by appealing to general social morality–whgich I think is what he does. Although it does seem right that there could exist a general popular morality that a vast majority of any populace would agree with.

  96. JCP,
    See Comment #89

    “openly wrong” = “openly enacting your preferences”

  97. Adam Greenwood:

    I guess this didn’t help me understand. Is it wrong to do it openly? Is it wrong to do it at all? Is it wrong to arrive at an answer that contradicts the understanding at the time of the founding, even though the thinking in the period allows for a huge catalog of contradictory answers?

  98. Hamilton (and the federalists of his generation) thought that the constitution empowered the Congress and the President to do more or less anything–as long as the constitution did not prohibit it. Madison believed (or came to believe) that the constitution permitted only a very limited set of governmental actions (at least until the Louisiana purchase).

    Its incredibly disingenuous to say that the view you describe as Hamiltonian was really present at all during the enactment and ratification of the Constitution. The Federalist argument that the Constitution should be ratified despite its not having a bill of rights was that the Constitution only granted certain limited powers to the federal government so the government wouldn’t be able to infringe rights anyway. And, when a bill of rights was eventually passed, amendments 9 and 10 were added lest anyone think that having an express bill of rights meant that Congress and the President could otherwise do whatever they wanted.

  99. Adam Greenwood:

    Re: #109

    I have not said it is right or wrong to enact your preferences into law. I have said it is wrong to do it and pretend you are not doing it.

    Re: #108

    One of the most prominent delegates to the convention, author of the Federalist (!), and a cabient member in the administration that sets the first precdents for government power holds an opinion (see for instance his memo to Washingtonn on the question of a national bank, his speeches about executive power during the convention, and Federalist 70 among other things) and you claim that it was not present in the period? I am baffled.

  100. My apologies. Egregiously bad spelling in #110. I guess I should proof.

  101. Re #109:
    -How do you know they’re pretending? Isn’t it possible they’re just mistaken?
    -Even if they are pretending, why do you care if you don’t think enacting their preferences into law is wrong?

    Re #108:
    In Hamilton’s speeches in the convention he advocated extreme central government views that were rejected by the rest of the convention. Which is why we still have states at all, e.g. The partial exception was his advocacy of a unitary executive ( a President, not triumvirate or a council). His advocacy of a unitary executive, which is repeated in Federalist 70 (see here: http://usinfo.state.gov/usa/infousa/facts/funddocs/fed/federa70.htm) has nothing to do with the view that the federal government could do anything it wished, absent an explicit textual bar.

  102. “How do you know they’re pretending? Isn’t it possible they’re just mistaken? In which case they’re not hypocrites.”

    I believe I said this above (see the last sentence of #104).

    “Even if they are pretending, why do you care if you don’t think enacting their preferences into law is wrong?”

    I never cared for deception.

    Hamilton advocated a lot more than a unitary executive. Federalist 70 is about an “energetic” executive, and that view is fully fleshed out in the memo I cited. How this could have nothing to do with the powers of the national government is quite beyond me.

    You seem to be able to know what the “convention” meant when it did something. That’s quite impressive, if true.

  103. I never cared for deception.

    Fabulous. So your main complaint against originalism is that maybe its just a mistake but maybe its a harmless deception?

    Hamilton advocated a lot more than a unitary executive. Federalist 70 is about an “energetic” executive, and that view is fully fleshed out in the memo I cited. How this could have nothing to do with the powers of the national government is quite beyond me.

    There’s no reason to think that Hamilton’s advocacy of a unitary, energetic executive, would have been understood as advocacy of the central goverment having unlimited power. Its beyond me.

    You seem to be able to know what the “convention” meant when it did something. That’s quite impressive, if true.

    Hamilton’s proposals weren’t even seconded. I call that rejection.

  104. JCP: It seems to me that your arguments are essentially ad hominem, namely that originalists are being dishonest and hypocritical in their arguments. It is worth pointing out that strictly speaking this claim — even if true, which I think is doubtful — is irrelevent to the truth of originalism as a jurisprudential theory. Those who offer Ely-esque arguments about representation in support of constitutional attacks on heterosexual marriage may be hypocritcal in that their real objection is entirely substantive rather than procedural. However, this is neither here nor there with regard to the validity of the procedural arguments.

    The fact that originalism does not provide perfectly determinate or satisfying responses to all questions of interpretation does matter. ANY theory of interpretation is going to run into problems of indeterminacy and underdeterminancy. To the extent that we take determinacy as a desirata, the question is no “Is this indeterminate?” but “Is this more or less indeterminate than the alternatives.”

    Finally, your characterization of Hamilton’s views are a bit cartoonish. He didn’t think that Congresa and the President could do anything that they desired. He thought that they had broad powers to pass laws dealing with interstate commerce. Hardly the same thing.

  105. JCP,

    While there were some differences in interpretation between Hamilton, Jefferson, Madison, and Washington, I think that your characterization is misleading and exaggerated.

    Hamilton did not think that the constitution empowered the Congress and President to do “more or less anything” that was not explicitly proscribed by the constitution, as you assert. Hamilton believed that certain powers were implied by those powers that were enumerated in the document. According to him, a power need not be explicitly granted in order for Congress to exercise it, if the power was for the attainment or goal of a granted power.

    The majority of congressmen at the time, many of whom had participated in the constitutional convention, agreed with Hamilton and passed the bill establishing the First bank of the United States. Jefferson and Edmund Jennings Randolph opposed Hamilton’s Loose Constructionist view, as did Madison at the time, and wanted Washington to veto the Bill. After some debate, Washington accepted Hamilton’s view
    and signed the bill chartering the Bank.

    The Hamilton believers became the Federalist Party and the Jefferson Believers became the Democratic Republican Party. But loose constructionist view quickly became the dominant view in both the parties. Despite his previous opposition, when Jefferson became the third president, he accepted the loose constructionist view in his Louisiana Purchase. Despite his earlier opposition, as the fourth President, Madison happily signed the bill chartering the Second Bank of the United States.

    Without significant ideological difference, the Federalist party faded out of existence. James Monroe ran almost unopposed. The fight reemerged later within the party itself and The Democratic-Republicans eventually split into the Whigs and the Democrats (largely thanks to Andrew Jackson and his own view of “Democracy”) Then, just before the Civil War, the Whigs were replaced by the Republicans.

    I don’t think that enumerated powers vs implied powers interpretation disputes amount to the kind of interpretational controversy that refutes originalism. They were not disagreeing about the reasons behind a bicameral legislature, separation of powers, or the meaning of rights enumerated in the Bill of Rights. They may have disagreed some about whether it was necessary to enumerate the rights, but the vast majority of the founders agreed as to what those rights were and upon what grounds they could be claimed (Natural Law).

    The Anti-federalists, such as the pseudonymous Brutus, and a few of the delegates to the convention who left refusing to sign the document, were those who actually opposed the ratification of the Constitution and it was to refute their publications that the Federalist papers were written. So their views cannot be considered as an alternative interpretation of the Constitution because they did not support the Constitution in the first place. That is like characterizing anti-mormon views of the book of mormon as interpretational disputes among believing members.

    The Lockean-Natural Rights view was dominant among those that signed and ratified the Constitution. The people (specifically of New York) rejected the Anti-federalist views and accepted the arguments of the Federalist papers and ratified the Constitution. Natural Law was a foundational view underlying the entire process.

    I believe it was John C. Calhoun (certainly not a “Founder”) who is the founder of the modern rejection of the natural law in Constitutional interpretation. Calhoun believed that the Constitution was defective and he rejected the Enlightenment concept of natural rights upon which the Constitution was created. He thought that the founders were wrong. He proposed foreign doctrines like concurrent majority, interposition, nullification and unilateral secession to replace what he considered the flawed thinking of the founders. Read his writing here.

    Between the nullification crisis in the early 1830’s, when even the Democrat Andrew Jackson rejected Calhoun’s views and threatened to send federal troops in response to South Carolina’s threat of unilateral succession, and the 1850’s, Calhoun was able to make his anti-natural law views the dominant doctrine of the Democratic Party, upon which the south justified both Slavery, its rejections of a legally valid presidential election, and its attempt at illegal unilateral succession.

  106. I should clarify that Calhoun introduced his own, new formulation of “concurrent majority” not based upon natural rights. A natural rights analog did exist in the Constitution.

  107. Legal theory expert Larry Solum just posted on his blog a very useful discussion of the countermajoritarian difficulty.

    It’s a bit lengthy as blog posts go, but it covers most of the issues relating to countermajoritarianism and legitimacy, and points out a number of other resources on the topic. If anyone is interested in these topics — and it sounds like many here are — I would highly recommend looking at Solum’s summary of the debate.

    It is available at this link.

  108. OK. I’m in a lot of trouble …

    My apologies for a long post. Perhaps subheadings make it more navigable to those (few) that are interested.

    DECEPTION:

    “So your main complaint against originalism is that maybe its just a mistake but maybe its a harmless deception?â€

    I do not think the deception is harmless if people are led to believe that there is a pretty clear and true interpretation of the constitution. Generally I think deception is a bad thing. This is my main complaint. I am not sure that originalism is more or less determinate than other theories, largely because I know so little about the other theories. But I do believe that the strong claims often made for originalism require serious qualification. I seldom see such qualification.

    AD HOMINEM ATTACKS

    Regrettably I wasn’t clearer (though I think I have been above; see for instance, comment 104): some originalists are, no doubt, acting in good faith. And perhaps they have found a way to both

    1. determine whose understanding of the constitution matters and,
    2. figure out a way to get a clear message out of such a heterogeneous set of opinions.

    I have never seen anyone persuasively do this without simply asserting that some of the understandings of the document are not relevant (see some discussion here for examples). If we can pick and choose which understandings matter then, yes we can have an originalist understanding that is quite clear. I do not know how we exclude certain points of view. Others may understand how to do this correctly.

    But if I have not been clear enough let me try again: originalism is a seriously flawed method that is often abused; this does not mean that every adherent is a liar.

    HAMILTON’S VIEWS

    Nate Oman is probably correct to chide me for putting the Madison/Hamilton disagreement in such stark terms (I am cartoonish!). But I think there are lots of examples of Hamilton’s views on the subject that are really close to what I asserted above (in #104):

    “Hamilton thought that the constitution empowered the Congress and the President to do more or less anything–as long as the constitution did not prohibit it.†(By the way this last part of the statement is quite important; I never asserted that Hamilton envisioned a government of unlimited power.)

    Hamilton in writing to Washington about the bank asserts if the ends of government are “proper†(interestingly, he never defines that term) the government is “sovereign†to do what it pleases, while Jefferson (and Madison) argue that certain means were clearly prohibited.

    I take Hamilton seriously when he writes: “the special powers of government are sovereign, as to the proper objects.†Hamilton was not some sort of squishy moderate: he’s ready to give the national government powerful tools.

    I’m prepared to give other examples, but this is already too long.

    And the reason I rely on this bank example is that it is one of the very first attempts to figure out the meaning of the constitution. In some respects, this makes the historical episode a better tool than the actual convention debates for understanding the originalist debate.

    UNDERSTANDINGS

    Quoting the anti-federalists (though I have not done this) is perfectly fair game if you think it is the contemporary understanding of the constitution that can guide us. Here I am adopting the nuanced version of the argument suggested above in #100. But if we adopt the “intentionalist†story I agree with those who have said that we will need mind-reading.

  109. if the ends of government are “proper†(interestingly, he never defines that term)

    Might it not be “proper as judged by the innate sense of morality in mankind–ie According to the Natural Law.

    After all, these are men who believed that the propriety and justice of the actions of King George could be judged based on truths self-evident to mankind. It seems plausible that Hamilton would have applied this same measure to judge the propriety of the ends of any government, and that Washington would have agreed with him on this matter.

  110. It seems to me that regardless of intricacies of theories of jurisprudence, the greatest advances in our society have been made by an appeal to natural law: the abolition of slavery, women’s suffrage, civil rights. The advocates of these movements appealed to an inherent sense of morality to make their case.

  111. Max,

    But on the flip side, the opponents of those movements also appealed to morality and natural law to support their positions. The opponents of those movements still use such language — visit a white-supremacist site and you’ll see endless discussion of the “nature” of the races and why they can’t or shouldn’t mix. Similar arguments were made about the “weaker nature of women” and so forth, in opposition to women’s rights.

    The opposition to the civil rights movement was often couched in natural law, religious terms — we don’t mix with Blacks because God doesn’t want it that way.

  112. While you are right, Kaimi that some of the opponents of these movements tried to couch their arguments in terms of Natural Law or Divine Law, the whole point of Natural Law is that it appeals to inherent morality that resonates with mankind in general.

    There is a difference between using language that claims support from the natural law, and successfully appealing to the natural law.

    C.S. Lewis:

    Every one has heard people quarrelling. Sometimes it sounds funny and sometimes it sounds merely unpleasant; but however it sounds, I believe we can learn something very important from listening to the kind of things they say. They say things like this: ‘How’d you like it if anyone did the same to you?’ – ‘That’s my seat, I was there first’ – ‘Leave him alone, he isn’t doing you any harm’ – ‘Why should you shove in first?’ – ‘Give me a bit of your orange, I gave you a bit of mine’ – ‘Come on, you promised.’ People say things like that every day, educated people as well as uneducated, and children as well as grown-ups.

    Now what interests me about all these remarks is that the man who makes them is not merely saying that the other man’s behaviour does not happen to please him. He is appealing to some kind of standard of behaviour which he expects the other man to know about. And the other man very seldom replies: ‘To hell with your standard.’ Nearly always he tries to make out that what he has been doing does not really go against the standard, or that if it does there is some special excuse. He pretends there is some special reason in this particular case why the person who took the seat first should not keep it, or that things were quite different when he was given the bit of orange, or that something has turned up which lets him off keeping his promise. It looks, in fact, very much as if both parties had in mind some kind of Law or Rule of fair play or decent behaviour or morality or whatever you like to call it, about which they really agreed. And they have. If they had not, they might, of course, fight like animals, but they could not quarrel in the human sense of the word quarrelling means trying to show that the other man is in the wrong. And there would be no sense in trying to do that unless you and he had some sort of agreement as to what Right and Wrong are; just as there would be no sense in saying that a footballer had committed a foul unless there was some agreement about the rules of football.

    Now this Law or Rule about Right and Wrong used to be called the Law of Nature. Nowadays, when we talk of the ‘laws of nature’ we usually mean things like gravitation, or heredity, or the laws of chemistry. But when the older thinkers called the Law of Right and Wrong ‘the Law of Nature’, they really meant the Law of Human Nature. The idea was that, just as all bodies are governed by the law of gravitation, and organisms by biological laws, so the creature called man also had his law – with this great difference, that a body could not choose whether it obeyed the law of gravitation or not, but a man could choose either to obey the Law of Human Nature or to disobey it.

    This law was called the Law of Nature because people thought that every one knew it by nature and did not need to be taught it. They did not mean, of course, that you might not find an odd individual here and there who did not know it, just as you find a few people who are colour-blind or have no ear for a tune. But taking the race as a whole, they thought that the human idea of decent behaviour was obvious to every one. And I believe they were right. If they were not, then all the things we said about the war were nonsense. What was the sense in saying the enemy were in the wrong unless Right is a real thing which the Nazis at bottom knew as well as we did and ought to have practised. If they had had no notion of what we mean by right, then, though we might still have had to fight them, we could no more have blamed them for that than for the colour of their hair.

    I know that some people say the idea of a Law of Nature or decent behaviour known to all men is unsound, because different civilisations and different ages have had quite different moralities.

    But this is not true. There have been differences between their moralities, but these have never amounted to anything like a total difference. If anyone will take the trouble to compare the moral teaching of, say, the ancient Egyptians, Babylonians, Hindus, Chinese, Greeks and Romans, what will really strike him will be how very like they are to each other and to our own. Some of the evidence for this I have put together in the appendix of another book called The Abolition of Man; but for our present purpose I need only ask the reader to think what a totally different morality would mean. Think of a country where people were admired for running away in battle, or where a man felt proud of double-crossing all the people who had been kindest to him. You might just as well try to imagine a country where two and two made five. Men have differed as regards what people you ought to be unselfish to – whether it was only your own family, or your fellow countrymen, or every one. But they have always agreed that you ought not to put yourself first. Selfishness has never been admired. Men have differed as to whether you should have one wife or four. But they have always agreed that you must not simply have any woman you liked.

    But the most remarkable thing is this. Whenever you find a man who says he does not believe in a real Right and Wrong, you will find the same man going back on this a moment later. He may break his promise to you, but if you try breaking one to him he will be complaining ‘It’s not fair’ before you can say Jack Robinson. A nation may say treaties don’t matter; but then, next minute, they spoil their case by saying that the particular treaty they want to break was an unfair one. But if treaties do not matter, and if there is no such thing as Right and Wrong – in other words, if there is no Law of Nature – what is the difference between a fair treaty and an unfair one? Have they not let the cat out of the bag and shown that, whatever they say, they really know the Law of Nature just like anyone else?

    Perhaps you and Steve Evans don’t believe that there is any such thing as the Natural Law, but looking at what Lewis has to say here about quarreling, it would seem that your continued livelihood through the practice of law depends on the fact that people have an inherent morality which, when violated, leads them to seek an attorney. (an attorney is a professional quarreler if he is anything else!)

    Lawyers would find themselves in quite a bind if they could ever successfully convince the general population that there was no Natural Law and the people were to act upon it. Why hire a professional quarreler if, since there is not shared standard of fairness anyway, all you can really do is fight like animals!

    Trial by Jury, too, seems to depend on the idea that your peers will have a shared standard of justice to which the lawyers appeal beyond the law.

    In fact, contrary to the dishonest instructions given by courts to jurors telling them falsely that they must find guilt or innocence according to the law, juries have the right to not only judge the accused, but to judge the equity of the law itself. Juries may decide innocence in spite of and directly contrary to the law. John Adams declared of jurors: “It is not only his right but his duty…to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” This right of Juries to Nullify the Law has been upheld repeated by the Supreme Court.

    The fact that Jurors have the right to nullify the law based upon their own innate sense of morality would seem to be grounded in the Natural Law.

    Which brings up a question, Kaimi: if the judges in our nation really are so generally honest as you say, why is it that they continually mislead juries into believing that they must decide the cases they hear according to the law and neglect to inform them of their right to nullify? Sure, the Supreme Court ruled in Sparf vs U.S that just because juries had that right did not mean that the court was obligated to inform them of such…but just because it is legal does not mean that it is right (which is the whole point of natural law anyway!).

    Of course, since you do not believe in the natural law, perhaps you will just say “To hell with your standard! There is nothing wrong with lying to jurors about what their rights and powers actually are!”

  113. Kaimi, you make a fascinating point. If you think about it, those in the wrong have been spouting half-truths and false innuendos since the Garden. Wasn’t Satan’s temptation an appeal along the lines of the ones you mention? Wasn’t Cain attracted to the wrong types of arguments? And on and on it has gone. Yet, this does not change the fact that there is a right and a wrong way. Cain chose the wrong way — but Seth chose the right. There were two ways to go and two choices. One chose the path of God and the other one didn’t. Enoch was presumably even more righteous. The people we should follow are the ones who appeal to the natural law of the right way — even though we know that there will be others who will attempt to appeal to the natural law of the wrong way. I’m confident the Spirit will guide me to follow the right way (and I’m lucky to have a living prophet who shows the right way — I’ve never heard of him justifying racism or slavery but I have heard him appealing repeatedly to “doing what is right,” meaning following natural law.)

    Just because people try to twist natural law and lie about it does not mean it doesn’t exist — in fact just the opposite. It’s more likely to exist if the adversary tries to appeal to that standard with half-truths to try to justify something that is wrong. That means the natural law is more innate than we realize.

    Think for example of secret combinations. When people make secret combinations they make an oath not to reveal them. (The Mafia has the standard of omerta, for example). In so doing, they are twisting natural law in their favor. They are making a “covenant” not to reveal a secret thing — a bad secret thing. In a way, they are imitating the covenants we make with our Heavenly Father to do good things. If there were no natural law, they would never make the covenant and they would be allowed to reveal the secrets without penalty — whatever is bad would be good and vice versa. But in reality, we all know there is something wrong with oath-breaking — when you make a promise you should keep it, even if you are a thief. By what standard is it wrong to break oaths? By the standard of natural law, of course! Natural law even exists among the wicked but they have decided to ignore parts of it for their own convenience.

    Ignoring natural law is a very dangerous thing. We do so in our society to our peril.

  114. I’m not mad at anybody and have no clue if there’s a fight. Too long posts with too big words.

    So, whoever said they’re in trouble, I’m fine with you :)

  115. Max Wilson writes,

    Which brings up a question, Kaimi: if the judges in our nation really are so generally honest as you say, why is it that they continually mislead juries into believing that they must decide the cases they hear according to the law and neglect to inform them of their right to nullify? Sure, the Supreme Court ruled in Sparf vs U.S that just because juries had that right did not mean that the court was obligated to inform them of such…but just because it is legal does not mean that it is right (which is the whole point of natural law anyway!).

    The question of jury nullification is complex. It’s not at all clear the there is any “right” to nullify. In fact, that’s about as generous a formulation as you’re likely to see. The majority of people who write on the topic think that there is no right to nullification, hands down.

    You seem like a fan of nullification. I’m probably more a fan than most legal academics — heck, I’ve written an article on the topic — but I certainly wouldn’t assert that there’s anything like an agreement about a right to nullification. I think that nullification has a place in our society, but I think that the limited nullification allowed post-Sparf is quite adequate. Nullification, after all, is itself a drastically undemocratic process, whereby twelve jurors can single-handedly undo prosecutions brought by prosecutors who are either elected or appointed, and who are trying to enforce laws created by the democratic process. Even proponents of jury nullification tend to agree that it is radically undemocratic in nature, and they base their support on the idea that sometimes nullification serves other useful purposes. And of course, everyone discussing the topic must address the fact that nullification has been used both for good (such as colonial jury refusal to enforce British penal laws) and for evil (such as Southern jury refusal to enforce criminal laws where they involved violence against civil rights activists).

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