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Scalia and the Jurisprudence of Original Sin

For those whose knowledge of Justice Scalia was limited to a casual acquaintance with the exquisite certitude of his judicial writings, the tone of his son’s moving homily—suffused, to what surely would have been the late jurist’s liking, with talk of grace and sin—must have been jarring. But Scalia’s judicial philosophy was always modest, not just with respect to the judge’s role in the constitutional orbit—that much is well known, or should be—but also when it came to the inherent limits of human knowing. Scalia’s was a jurisprudence not merely of original meaning, but of original sin.

It was thus deeply conservative, yet growing numbers of legal thinkers on the Right urge that it be jettisoned in favor of a jurisprudence rooted in profound confidence in human intellect. The libertarian critique of Scalia’s conception of the “Third Branch”—when concerned with judicial overreach, he was always quick to use that term to remind his colleagues of their place—holds that the Constitution can coerce us only to the extent we consent to it and is justifiable only to the extent it protects natural rights.

There is a missing modifier in this assessment: “right now.”  This approach to constitutionalism is ultimately apolitical and ahistorical. The law must be justified to individuals, in their individual capacities, right now. Sometimes the modifier is explicit, as in the most distinguished of the libertarian originalists, Randy Barnett, who, defending originalism, writes:

Short of making the claim of illegitimacy, however, we are bound to respect the original meaning of a text, not by the dead hand of the past, but because we today—right here, right now—profess our commitment to this written Constitution, and original meaning interpretation follows naturally from this commitment.

Libertarian originalists are typically led to outcomes compatible with the Constitution, with the result that most of them agreed with Scalia in nine cases, if not more, out of 10. Certainly Barnett’s scholarship on original meanings is among the finest in print. The dispute is often not what the Constitution means but rather why it obligates. For a school of libertarian originalism, the Constitution binds not because of any inherent obligation to the past or future, only its utility to the here and now. Original meanings are a method of interpreting the Constitution but not the reason it obligates us. It obligates us because we accept that it is good for us today. This is Tocqueville’s “philosophical method of the Americans,” in which tradition is useful only as information, not as authority.

These divergent means of justifying often similar outcomes—one because the Constitution is traditional, another because it is advantageous—differ substantially, and importantly. For if any coercion must be justified to every individual, and if the Constitution is subject to constant assessment right now, the assumption is that all of us, right now, are up to the task.

This method presumes, to begin, an equality of wisdom between our generation and the Framers, rather than looking on them with a reverence due to those whose prudence has proved itself. Indeed, the method generally undermines the possibility that wisdom might need to prove itself over time: that the supposed “dead hand of the past” might actually be more useful to us in our own time precisely because it has endured manifold varieties of circumstance and, far from dying along the way, survived them.

More important, and most revealing, this ahistorical approach explicitly denies that we are obligated to the past or to the future. It is a philosophy that would permit an individual to raze a great estate descended from generations past and owed to generations hence on the grounds that doing so is convenient right now. The Constitution does not bind us because generations can obligate one another, but rather because it is justifiable to us right now.

And crucially, it must be justified to each of us individually, not to a political community. This leaves little room for the possibility that the individual standing alone at one point in time may lack the wisdom to assess the fullness of natural rights, justice or even the best mechanical workings of a Constitution. That is partly because information is imperfect and, in the infinite complexity of society, accretes slowly, across generations. It is partly because man is a political animal, naturally equipped to pursue justice in society—whose mechanisms are inherently coercive—not excerpted from it.

But it is mostly because man is fallen and immersed in imperfection, which brings us to the philosophy of jurisprudence Justice Scalia embraced: original meaning tinged with deference to political institutions and tradition.

To say, as he did, that the Constitution as written is binding because one generation (and amending generations) endorsed it and it had not been changed is to acknowledge that, as Burke wrote and as Joel Alicea has emphasized, society exists and obligates over time rather than solely at current moments in time.

Madison, too, acknowledged as much in telling Jefferson that the improvements the dead made on the earth could bind the living, and in affirming the constitutionality of the National Bank on the grounds that Americans had assented to it for a generation.

It is certainly true that we can draw on the past, from Cicero to Aquinas, in attempting to ascertain natural law. But for judges to deliver it by decree, and to justify the Constitution to ourselves by the extent to which they do so, is still to measure our law in instants, not generations, and by individuals, not communities.

To defer, with Justice Scalia, to the Constitutional text as authoritative because the past—and the duty to transmit it to the future—can bind us, by contrast, is to acknowledge the limits of our own reason. Deferring to tradition in Constitutional interpretation—as he did on issues ranging from parental rights to moral disputes—is based on similar premises. Thus Scalia:

The provisions of the Bill of Rights were designed to restrain transient majorities from impairing long-recognized personal liberties. They did not create by implication novel individual rights overturning accepted political norms. Thus, when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down. Such a venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some abstract principle of First-Amendment adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court’s principles are to be formed.

We cannot discover the fullness of justice as isolated individuals at isolated moments. Human reason, to say nothing of the human soul, simply is not equipped for the task. To suggest otherwise is to flirt with unlimited claims for human reason. Experiments have been staked on such claims before. Conservatives do not typically associate with them.

Reader Discussion

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on February 29, 2016 at 10:52:02 am

Greg:

Very well said!

It has been remarked by some (Oakeshott, I think?) that civilization, culture, tradition (call it what you may) is but an ongoing conversation; to reduce it to a monologue, such as we appear to have done with our need for *right now* for each and every individual, is to severely limit the possibility of a proper outcome. Instead, we seem content to permit a profligate child to dissipate our cultural inheritance - and our law(s).

Consider how much more dire is the situation when we recognize that today "Reason" is the functional equivalent of "Relativism" - we are all, now, to be considered cultural oracles!

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gabe
on February 29, 2016 at 12:07:50 pm

Professor Weiner, I appreciate this post and share the sorrow over the loss of Justice Scalia.

For me, your post recall physics.

Physics is mass, energy and space-time from which everything emerges, including the god hypothesis and all of the intellectual constructs that spring from that hypothesis.

Physics started 13.8 billion years ago. From what, I don't know. There exists a not-disproved god hypothesis. Life on earth emerged from physics 3.8 billion years ago. The homo species emerged 0.003 billion years ago. Mitochondrial mom, from whom everyone alive descended, was one of the women living some 0.00014 billions years ago, and she may have had more than one mate. Her contemporary moms’ mtDNAs did not survive environmental and cultural evolutions. The god hypothesis probably came later. Monotheism emerged some 0.000004 billion years ago. Christianity emerged 0.000002 billion years ago in competition with extant monotheisms and philosophies. Constitutional law for the USA emerged 0.000000226 billion years ago. That’s 0.0075 % of the timeline since homo species emerged. USA constitutional law is very young relative to homo species and hardly perceptible in the timeline of what emerges from physics.

The natural law referenced in the Declaration of Independence emerged from physics, and the reference to nature’s god was a consequence of the god hypothesis. Without taking issue, the signers of the September 17, 1787 draft constitution for the USA, only 70% of the delegates of that convention, set the nature-god duality aside; it’s the best way to leave it to the individual, as physics would dictate, since the hypothesis is not settled. For the months October, 1787 through May, 1788, there was the potential for this country to be founded with freedom of thought.

However, some ratifying states required a bill of rights and assigned to the first Congress the responsibility for it. Representatives of a 99% factional Protestant and 1% Catholic, free society, would ensure the establishment of freedom of religion in place of freedom of thought. Congress could not wait for the Bill of Rights, which would come in almost 1792, because they wanted the divine appearance of legislative prayer: they hired ministers at the expense of the people by May, 1789.

James Madison, at least, was aware of Nicolo Machiavelli’s warning in The Prince, Chapter XI. I paraphrase with abandon: The politician-priest partnership can live high on the hog and do whatever it wants to the people, and the people neither rebel nor leave the country, confident that their personal god will relieve them from their present misery, at least in the afterdeath.

Humankind studies physics and what emerges from it and does the noble work of discovering how to benefit. Just last week, here in Louisiana, we had twelve tornedoes and were kept abreast of storm progress. Alerts changed to warnings when twisters were spotted. Our family has crouched in the central bathroom of our home, in and around a cast iron bathtub, whenever our location is under warning (during past hurricanes). However, some people died and about a hundred were injured; our past has perhaps made us incredulous to tornedo warnings not associated with hurricanes. Some of us were made aware last week. The accumulated discoveries of how to benefit from physics comprise physics-based ethics, which offers that “Third Branch” Justice Scalia spoke of but did not define, I understand.

Louisiana has had its share of priestly sex abuse. However, a current case brings to light the value of physics-based ethics to correct opinion-based ethics including its progeny, religion. Quoting theadvocate.com/news/14993398-123/must-priests-tell-police-of-crimes-against-children-discovered-during-confession-judge-to-decide-fri? “A provision of the Louisiana Children’s Code [LCC] that requires clergy to report allegations of wrongdoing, even if learned in the privacy of the confessional, is unconstitutional, a state judge ruled Friday in a long-running case involving the Roman Catholic Diocese of Baton Rouge.” The facts in the case seem clear. A woman, 22 years old, reports that in 2008, she told a priest that “a 64-year old parishioner was sexually abusing her,” and the priest did not help her, in conflict with LCC. At stake is the priest’s judgment that canon law respecting information learned during confession authorized protection of a 64 year old’s abuse of a 14-year old girl. So far, the court takes the position that its reading of opinion-based law is that the 14-year old just had to accept the abuse, and her insistence otherwise is unconstitutional. I perceive physics says “bunk” to this!

Physics-based ethics bluntly addresses a case that will probably go to the Supreme Court, where it will be at risk of majority opinion—no bedrock for civic morality. With physics-based ethics, the question is, “Did the old man diddle a girl” Yes. Council him to report it to the authorities and offer to go with him. No. Council the girl to report to her parents and go with her to deliver the report. In both cases, the priest is acting in the interest of the two parties and himself. Contrary to Church doctrine, a priest that helps hide child abuse as part of “saving a soul” may “burn in hell.” Likewise, the court can act in its self-interest—save itself from the flames of hell--in child-abuse cases.

A civic people, cultivating a young constitution will eventually make the necessary amendments to correct this conflict between opinion and physics—god’s and nature. The Church could expedite the process by modifying its canon to conform to discovered physics.

Writers in this forum often remind us that justice comes at the hand of the people. I write not as a law expert but as a person. I hope my thoughts are interesting to a few readers and apologize to those who don’t like thoughts from “Coventry.”

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Phil Beaver
on February 29, 2016 at 12:41:42 pm

Ok, Phil, how about this:

Physics IS original sin!!!!

Can you please go back to Coventry; perhaps, they may have a somewhat more pronounced interest in "diddling" than I suspect the folks at LLB have.

Your rather peculiar interests do not appear to be of significant concern to most of us.

JUST BLOODY STOP!!!!!!!!

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gabe
on February 29, 2016 at 14:59:13 pm

He reminds me of the guy who offers to say grace at the big family dinner, and uses the opportunity to give a 20 minute sermon while the food gets cold. Some people just don't get it. The guy has a mild personality disorder. Open Internet forums always attract his kind. It just goes with the territory. It's kind of sad, really.

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Scott Amorian
on February 29, 2016 at 15:00:27 pm

Lovely essay by the way, sir. Thank you.

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Scott Amorian
on February 29, 2016 at 16:08:46 pm

Whatever you think your ad hominem attacks accomplish and what they actually accomplish in this forum, they inform me this: In the conflict of civic morality versus Church canon, regarding a priest shielding a 64-year old man abusing a 14-year old girl, you take the side of abusing the girl. The girl's safety and security is vainly entrusted to the priest, and the priest risks his flames of hell to maintain the self-appearance of piety. I do not envy your position and also do not object to you holding your opinion. Rant away!

Also, your hypothetical for my behavior is not appropriate at all. I am more like the man at a bed and breakfast. When the hostess has served coffee another guest says, "If there are no objections, I will say grace." I respond, I did not pay to share your religion, so please practice in your closet, like some scripture instructs."

At home, at my table, someone always prays, because part of the family is Catholic. I remain silent. If someone visits who wants factional Protestant prayer, I ask them to say grace, and my family is not put out.

I have courted friendship with Muslims, but so far have not had one at my table. However, when I am invited to their event, I am reverent for their prayer, even though I do not understand.

But in a courthouse, I do not want to hear prayer. As Justice Kennedy says, I am so niggling I object. I hope he has some perception of doubt, even guilt, when he refers to my opinion as "niggling."

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Phil Beaver
on March 01, 2016 at 10:27:46 am

gabe,

Physics is energy, mass and space-time from which everything emerges, including error some people label "sin."

Lunching with some chemical engineering colleagues who were fretting about the status of the GOP, I remarked, "I think we have taken Christianity for granted." It was a constructive comment, but no one at table responded. Having learned from you, I wondered if they were unknowingly "sending me to Coventry," well aware of both group-think and ostracism. I taught them the phrase, and only one of five claimed to have known it.

Even though they have known me since 1967, they don't have the background of my current writing that you have, gabe, so you are in a better position to understand. I will try.

The conservative wing of the GOP, which I understand this forum sympathizes with, has a revolutionary opportunity to distinguish conservatism from socialist liberalism by deliberately, systematically replacing doubtable, Christianity-based morality with common-sense, physics-based morality. Christianity helpful as it is to people who reason through erroneous interpretation, is dead-ended. But the facts of physics are constantly being discovered through scientific study.

With this concept, a Christian would not think of physics as "sin" or personal god, but could defensibly attribute origination of physics to a Christian god. (At least, I, a non-Christian could attribute it to Jesus, by siting Plato and the Bible.)

In the 2016 political arena, you would not defend as "scripture" a book that seems to encourage the slave-master relationship, or at least would interpret that instruction as pertaining to the relationship between people who must work to earn their living and the people who have enough income from assets to not work.

Conservatives, championing physics-based ethics: For the first time in history, fiscal-conservative personal-liberals would have the better argument in debate with socialist liberals, Marxists, Alinsky-priests, nanny-staters, social democrats, the Church, and a host of other aggressors who disrupt common sense.

However, I think you and some other people in this forum fear the promise of uncommon justice through physics-based ethics, for reasons only each individual might know. Physics-based ethics clarifies issues by removing traditionally accepted pretenses from the discussion. For example, did an old man abuse a girl? If yes, escort him to the mental-care authorities or worse: Old men are expected to know the details of physics, like a girl has the potential to conceive some of 400 children, so abusing her is abusing many lives.

I'm reminded of one other story. When I resigned from church, in 1994, I held eight duties, the most precious of which was chairman of the family enrichment committee, after several years service. Under my leadership, introduction of classical literature, like Plato and Chekhov, into the forty-year cycle of Bible reading was being considered. My pastor begged me to reconsider the resignation, saying, "You are that person in our church who encourages us to move the edge of understanding. We need you." I responded, "I have known that for two decades and have suffered much pain (I did not know to call Coventry pain then). However, I am convinced I am wasting my person and am moving on to other work not yet identified." It took me another decade to climb out of the chains of indoctrination.

Despite your demands, I'm going to believe in this forum a little longer.

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Phil Beaver
on March 01, 2016 at 11:27:31 am

Sorry: "siting" should be "citing". Also, "is dead-ended" should be "seems dead-ended."

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Phil Beaver

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