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William Pryor--of personalities and constitutional law

Years ago I was privileged to hear Alabama's Judge Roy Moore speak. During that presentation he ran a clip of his cross-examination for "acknowledging God." The man who carried out that cross-examination and Moore's eventual removal for retaining the Ten Commandments in the face of a SCOTUS determination of "unconstitutionality" was William Pryor, currently a front-runner for the next SCOTUS nomination.

The clip made a big impression on me. It was the impression of a man so wedded to the idea that the rules (as he perceived them) must be followed that he was tone-deaf to what I can only call creepiness. Specifically, the creepiness of asking a man if he will continue to acknowledge God and trying to get him in trouble for doing so. One got the odd impression that Pryor thought this was the only way to get a straight answer from Moore--by speaking Moore's language. If Moore was going to call it "acknowledging God" to continue to display the Ten Commandments, then Pryor was going to adopt that language in order to get Moore to admit that he would defy the Supreme Court. Something had gone badly wrong.

Yet when Pryor's name was mooted for a possible SCOTUS nominee, I nonetheless was cautiously optimistic. Why in the world would I feel optimistic at all?

Here was my reasoning: Pryor has said some extremely negative things about Roe v. Wade. Pryor has a strong reputation as a constitutional originalist. He's even supposed to have ended a prayer by saying, "Please, God, no more Souters." The Democrats wouldn't confirm him to the federal bench, and he's on the 11th circuit because of a recess appointment by Bush. Pryor and Moore had even been friends before that incident, and Moore still spoke of him with respect when I heard Moore speak--as a friend who had felt he must take another path. Almost as if the whole incident were some sort of tragedy. So there are real considerations in favor of Pryor as a good, constitutionalist justice.

Recently a friend introduced me to the personality type concept of the "lawful good" character. I may get this wrong, but my impression is that a lawful good guy is the kind of person who, if he were a policeman, would stop the husband speeding to the hospital, take the pregnant wife there in his squad car, and then turn around and give the husband a ticket.

In other words, he's hyper-scrupulous, even annoyingly so, but he's basically on the side of the angels.

I immediately recognized William Pryor. As a lawful good guy, he felt that he had to prosecute Judge Moore. But as a person who understands both constitutional law and right reason, he realizes that Roe v. Wade was an abomination, both morally and legally. And he has said so explicitly.

A person like that, I reasoned, is likely to make a very sharp distinction between what thinks he is required to do as a judge or even prosecutor at a level lower than that of the Supreme Court and what he has the lawful authority to do as a justice of the Supreme Court. His comments at his confirmation hearing in 2003 about Roe v. Wade hardly sound like the words of a man who would hesitate for a moment, if he were actually on SCOTUS, to overturn Roe. And a fortiori, since Obergefell is even more recent a decision and even more of a legal abomination, he should be eager if on the Supreme Court to overturn Obergefell. That's what the Supreme Court has the power to do with its own earlier precedents. It is not bound by them in the same way that a lower court allegedly is bound, or that a "lawful good" guy would be likely to consider himself bound at a lower court level.

Thus far, my reasoning for supporting Pryor and thinking he might make an excellent SCOTUS justice is very similar to that of John Malcolm, who recently defended Pryor's record in National Review.

But now we come to the "other hand." Of the three cases Malcolm discusses, the one that is most worrisome in my opinion is Glenn v. Brumby. Malcolm attempts to argue that here, as well, Pryor (who joined in the majority opinion, though he did not write it) was merely following higher-court precedents. Says Malcolm,

As a lower-federal-court judge, Pryor is required to follow Supreme Court precedent, even if he disagrees with the Supreme Court’s ruling. The outcomes this obligation produces may be undesirable.

But can Glenn v. Brumby really be explained in that way? In Glenn v. Brumby the 11th circuit ruled that discrimination by a governmental employer, on the basis of a man's having a sex change in the midst of his employment and thereafter demanding to be regarded as a woman, is against the 14th amendment. Even though this applies only to government employers, this is a fairly radical conclusion. It makes the equal protection clause treat "transgender" individuals as a specially protected class under the Constitution itself, at least for purposes of governmental employment.

Moreover, on the way to its conclusion concerning the 14th amendment, the ruling interpreted Title VII of the Civil Rights Act as applying to transgender individuals, prohibiting such discrimination as "discrimination on the basis of sex." This, of course, applies much more widely. See here for a summary of the influence of the case.

So was Pryor somehow forced to these radical conclusions by what he (as a "lawful good" guy) would view as his duty to follow SCOTUS precedents? If he really thought that, that weird over-interpretation of his judicial duty is concerning in and of itself.

The reasoning of Glenn strikes me as quite tortured, and all the more tortured when viewed from anything remotely resembling an originalist constitutional interpretation. In brief compass, the reasoning goes approximately like this. (Needless to say, these are not quotes from the actual decision, but you can read that yourself.)

SCOTUS has interpreted the 14th amendment to prohibit discrimination on the basis of sex, so we have to follow that. In the SCOTUS precedents on the subject, the opinions keep referring to gender stereotypes and repeatedly regard laws that differentiate between men and women on the basis of gender stereotypes to be unconstitutional. Moreover, in Price Waterhouse v. Hopkins, the SCOTUS ruled that it violated Title VII for a company to discriminate against a woman for being "macho," because this was requiring her to follow feminine gender stereotypes. People who think that they can turn themselves from men into women are also failing to follow gender stereotypes. Discriminating against them for doing so is thus discriminating against them for a failure to follow gender stereotypes. So therefore, the SCOTUS precedents on sex discrimination and the 14th amendment and on Title VII mean that we have to hold that a government agency's job discrimination against someone for trying to turn himself from a man into a woman and demanding that he be considered a woman is sex discrimination, which is against the 14th amendment (because SCOTUS says governmental sex discrimination is against the 14th amendment). QED.

But the SCOTUS precedents in question were not about the issue of transgenderism at all. Indeed, in the majority of the cases, decided in the 1970's, and in Price Waterhouse, decided in the late 1980's, transgenderism wouldn't even have been on the radar. To take Price Waterhouse to mean that the relevant federal law was, on any originalist construal of the law, meant to cover people who literally claim to be the opposite of their biological sex is a major stretch. In charity alone we shouldn't interpret SCOTUS to be doing anything of the kind, as that would be a rank twisting of Title VII. And, while I hold no particular brief for the originalism of the Supreme Court, there is no need to take it to have been saying that or requiring that. And something similar goes for the various other decisions cited in Glenn requiring that government enactments not assume gender stereotypes (such as that women tend to marry earlier or that a husband's income tends to be more important to a family than the wife's). Feminist those rulings undoubtedly were. Non-originalist (insofar as they pretended to be interpretations of the 14th amendment) they also undoubtedly were. But they certainly did not say that the 14th amendment applies heightened scrutiny to discrimination against transgenders!

The Glenn decision also cites other court decisions at its own federal level (the circuit level) and even at the district court level (lower than itself) that draw similar conclusions about transgenderism from the SCOTUS precedents. But so what? Those courts are (at most) the peers of the 11th circuit, not its legal authorities. Their rulings are not, even on a scrupulous construal, binding upon the 11th circuit! At the most, opinions cite such other opinions as a kind of "strength in numbers" kind of thing: See, we aren't out of the mainstream. Our peers think the precedents and case law mean this as well.

Well, whoop-de-do. But if William Pryor is any sort of originalist, that should not move him, especially if it doesn't come from a court whose rulings he has to follow.

Malcolm doesn't seem to understand this latter point, for he also intones,

The Eleventh Circuit acknowledged that, before Price Waterhouse, several courts had held that anti-discrimination laws did not afford protection to transgendered persons against sex discrimination. But it noted that since then, “federal courts have recognized with near-uniformity” that federal anti-discrimination laws “encompass[] both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.”

Bandwagon much? There is no particular virtue to unanimity in legal, biological, and moral insanity at the circuit court level. Nor should such unanimity be contrived by any circuit court judge who ought to know better.

Instead, the circuit court should interpret the federal law, not to mention, heaven help us, the Constitution itself, in a more minimal fashion to begin with. Then if SCOTUS decides to insist on a transgender interpretation, that's on their judicial consciences. Instead, Glenn itself added to the body of case law that insisted on an unnecessary application and extension of old SCOTUS precedents to cover transgenderism.

What all of this raises is the specter of a Justice Pryor who has conjured up entirely unnecessary (unnecessary even from a scrupulous legal perspective) precedent-following rules for himself. And if that is the case, then what of Roe and Obergefell? Will he turn out to be the kind of justice who punts to stare decisis about them, even when he is in the coveted seat of Supreme Court justice?

This seems to me an entirely rational worry in the light of Glenn v. Brumby.

Yet even so, I don't know whether that is, in fact, where Pryor is coming from. And if he isn't, he could be crackerjack, given all the other good things he's said. Not just theoretically crackerjack but actually crackerjack.

Unfortunately, that leaves us right where we all too often are when it comes to SCOTUS and Republican nominations: Taking a gamble.

I would prefer if possible to be somewhere better. So if there is someone who is as smart as Pryor, as principled as we're told Pryor is, has said as many good things as Pryor, but doesn't have the liability of having concurred in a case like Glenn, I would prefer to fight for that person to replace the late, great, Antonin Scalia. Can such a person be found? And if found and appointed, can and will he be confirmed?

Comments (26)

What's your thinking on Neil Gorsuch?

Great commentary, Lydia. I didn't realize that Pryor presented so many red flags. He was my top pick, with Gorsuch a close second. Pryor's got his flaws, to be sure, but it seems to me there's at least no chance of him becoming Kennedy 2.0.

Despite having some serious conservative bona fides, Gorsuch is an Episcopalian, which is by far the most consistently heretical mainline Christian denomination in existence. Big red flag.

Hardiman, although apparently a practicing Catholic, is concerning because he doesn't seem to have much of a track record on several important issues.

Decisions, decisions.

I had never heard of Gorsuch until today, to be honest. So I have very little opinion about him besides what anyone else could google. He has a reputation as a strong originalist, and one article states that the resemblance both in style and substance between his opinions and Scalia's is "eerie," except in one area of administrative law. (Where arguably Gorsuch sounds like he's more concerned about the separation of powers and the Founders' vision than Scalia.) He has virtually no paper trail in cases applying his putative originalism to the hottest social issues of abortion and homosexuality, though of course if he is indeed a committed originalist the overturning of Roe and Obergefell should be no-brainers on legal grounds alone. (Should.) He has a book opposing the legalization of euthanasia, so obviously he doesn't think it's a constitutional right!

In some ways, his record is less rampaging than Pryor's. It doesn't sound like Gorsuch has ever publicly prayed, "Please, God, no more Souters!" nor publicly called Roe a legal and moral abomination. On the other hand, I've seen nothing indicating a worrisome opinion concurrence like Glenn v. Brumby. This is not to say he's a dark horse (a la Souter). It sounds like more good is known about his legal philosophy than about that of a dark horse.

That's all I've got right now.

Let's not forget that we're hoping for more than one SCOTUS replacement and also that more than one attempt may be necessary for Senate confirmation. So in the end several of these people we are hearing about may end up being put up for confirmation at some time or other.

It's funny, the day after you posted this, I ran across a case for my work that Pryor decided. Had nothing to do with any of these matters, but it was an odd coincidence.

One thing that always struck me as slightly worrisome about Antonin Scalia's version of principled construal of the laws, and, especially, of the Constitution, was that he seemed to view the Constitution as "foundational" in the sense that there could be no other source of rule more fundamental. So, I believe (going just by memory here) that he explicitly said in a speech that if the Constitution itself had an explicit right of abortion, that would be final and he would rule in favor of that rule in deciding cases. I find this worrisome for two reasons, which ultimately are connected but still distinct.

First, as a Catholic, I believe what the recent Popes have all said about the state's obligation not to permit abortion: that it is not only wrong to SUPPORT abortion through state organs, but it is a positive defect of law that it should not protect the lives of the unborn, and any state that fails to so protect is guilty of a grave defect, one that its authorities have an obligation to correct.

This is so because all human law - even as basic as the Constitution - is law only because it receives its force from the eternal law. That human law is binding is a feature of law that it receives from outside itself, which comes from the bindingness of eternal law. Law that contravenes the eternal law cannot be binding, it cannot be authoritative, for it makes no sense for eternal law to say A and a lower down law (that depends on eternal law) to say not-A. That's oxymoronic. Setting aside for the moment the complexities of federal vs. state, and judicial vs. legislative capacities, a higher "law" that overturns a state legislature's law protecting the unborn is no law.

Secondly, such a view of law as Scalia's view seems to smack of legal positivism, at least a little. I have made this point in many other posts here, but it bears saying again: all human laws, including the Constitution, only have meaning within a larger context. That context, at a bare minimum, includes the whole language of which the stated law is constructed: each word has variations of meaning in different contexts, and so while a single word has a determinate meaning considered on its own, it also harbors the possibility of several other related and extended meanings, as well as connotations that lend it to metaphors, idioms, and other (still determinate) meanings that are not the first denotation of the word. Complex constructions like a Constitution or any other group of laws have very complex determinate meanings that can never be wholly expressed explicitly with fullness and finality, the meanings of the explanations will always rely on and refer to still other facts and ideas that need explaining.

And alongside the language itself, the culture which gives life to the language is a cause of the determinate meanings. For example, the Constitution as originally written was formulated in a Christian culture that assumed, at the heart of nearly every conscious member, a belief in God, and the Constitution makes sense in such a culture. Attempts to sever that Constitution from a culturally assumed belief in God have been disastrous to construing the meaning of the Constitution, getting ever stranger and more convoluted and more insane as we go along.

It seems to me that by not allowing for the Constitution to look to anything but itself (or "the people") for ultimate authority, Scalia may have inadvertently played into the hands of the legal positivists who would not allow its meaning to be rooted in anything more definitive than "what we want those words to mean now". At least, that's my sense, though I could have it wrong.

I don't know if Pryor holds the same reservations about allowing fundamental law to look to more basic principles than itself, and I don't know to what extent he may or may not have legal positivist tendencies. I do know that most law schools (or, at least, their professors) have legal positivism as such a prevailing attitude that they are not even aware of the extent to which they have drunk that kook-aid. I would want, for any SC justice, an explicit recognition of the dangers of legal positivism and at least an implicit sense that law cannot be law if it contradicts eternal law. Like Judge Moore, for example.

I tire of Republicans trying to push through SC nominees whose leading achievement regarding abortion is a "we can't say what he would decide" stance. Is there some principle that says that we should not get justices who think the same way about law that we do? Who simply agree with us on the fundamental realities that undergird law? Whose opinions about specific cases is relatively predictable because their thinking is clear and principled and coherent in adhering to sound conceptions of law and the state? Why must we "take a gamble" that feels like flipping a coin rather than like trusting the judgment of someone we know closely?

Tony, what you're raising is something on which we will probably disagree, but here's my take on it: When the SCOTUS rules, its job is to interpret a law. Scalia is a textualist and I am more of an original intent person, but we are both originalists. What this means is that SCOTUS could never say that a document *meant* something that was contrary to its actual, human meaning, nor that it pronounced on a topic on which it did not pronounce, because that would be a lie. Hence, in the highly unlikely event that the Constitution were, say, amended by the due amendment process to say, "Abortion is a constitutional right, and no state may get in the way of a woman's exercising that right," then that would be in the document, and there would be no way to say that it wasn't in the document without telling a lie. If the judge's primary job is to interpret and apply what is actually contained in the human document, then a justice of the Supreme Court would have to "rule" (meaning, make statements about the meaning and application of the document) in accordance with that part of the text or else recuse himself from the case or quit. Even if he believed that this is this were a diabolical portion of the constitution which is no true law because it is contrary to the natural law, he would have to admit that his position *as a judge* gave him no special authority to tell the states to go ahead and enforce laws that were contrary to it. That's (on our theory) just not a power granted to the justices of the Supreme Court. A "ruling" is not supposed to be a ruling as to what should happen or how the country should be governed according to the True Laws (in some larger sense) but rather just a statement of interpretation and application of human documents.

This has nothing to do with a metaphysical statement that there is no higher authority than the human documents. If one is being asked to rule on the _constitutionality_ of some law, then "Is this constitutional?" is a question of the meaning of the human documents, and one is called upon to tell the truth about that, regardless of whether the contents of the human documents are unjust.

A more plausible scenario still would be that a state law is, in fact, unjust but not unconstitutional. This was Scalia's position concerning state laws that permitted abortion. He believed, on historical grounds, that the Constitution did not in fact require that the states not discriminate in law against the unborn. Hence, it would be a *lie* to "strike down" such state laws and require the protection of the unborn, because to do so the Supreme Court would have to say that they were *unconstitutional*, but in fact he didn't think the original meaning of the Constitution was such that those laws *were* unconstitutional. He believed that the constitution didn't address the issue.

Now, of course, there are other judge positions that *do* include various powers involving actual right and wrong. To name two, family law judges often are supposed to rule on the best interests of children. Criminal judges sometimes have the power of sentencing based on their notion of whether a crime was mitigated, etc. Those judging acts have far more of a connection with "how things should be." But if one is saying whether a law is unconstitutional or not, the question of whether it is just or unjust, in tune or not in tune with the natural law, is much, much farther removed. At the most it might have historical relevance--e.g., that the original audience probably didn't think that the death penalty was "cruel punishment" or that the original meaning of "depriving a person if property without due process" would not have extended to refusing to give someone the insurance money for which he killed his uncle.

But if the Constitution really explicitly said something unjust (such as endorsing abortion), there it would be in black and white, and if called upon to interpret *that document*, one could not really get away from that fact. Or, contrariwise, if one really believed that the Constitution *did not* prohibit some unjust state law, then one would be responsible as a justice of the Supreme Court to tell the truth about that.

Tony and Lydia,

I don't have much to add to the debate between natural law theorists and originalists at this point (I lean towards the originalists only because of the mischief that has come from trying to 'interpret' the Constitution by progressives) but it is worth pointing you both (and our readers) to some of the great stuff in the Claremont Review of Books by Harry Jaffa (a strong defender of natural law and someone who thought Scalia was deeply mistaken) and his intellectual opponents on this subject:

1) http://www.claremont.org/crb/article/original-intent-and-the-american-soul/

2) http://www.claremont.org/crb/basicpage/the-logic-of-the-colorblind-constitution1/

3) http://www.claremont.org/crb/article/the-disputed-question/

My favorite quote of all three pieces is probably from the last in which Michael Uhlmann responds to Jaffa by opening with the following sentence:

In replying to Professor Jaffa, I find myself in the company of William F. Buckley, Jr., who once wrote, "If you think Harry Jaffa is hard to argue with, try agreeing with him."

Lydia, I admit the tension.

This has nothing to do with a metaphysical statement that there is no higher authority than the human documents.

I find it more than a little worrisome, in regarding the originalist position against the natural lawyer, that the RIGHT place to posit "but that contradicts the natural law" , the place to _assert_ the "higher authority" is never located. It isn't in the states, it isn't in the federal executive arm, nor in the federal legislative arm, and (as here) not in the federal judicial power. Hence it resides nowhere. Which, I think you will grant, is a bit of a problem for effectively admitting that there is a higher authority.

Scalia is a textualist and I am more of an original intent person, but we are both originalists. What this means is that SCOTUS could never say that a document *meant* something that was contrary to its actual, human meaning, nor that it pronounced on a topic on which it did not pronounce, because that would be a lie....

Now, of course, there are other judge positions that *do* include various powers involving actual right and wrong.

As I understand it, we borrowed from English law the conceptual distinction of the difference between a "court of law" and a "court of equity". The difference is supposed to be that in a court of law a judge ONLY has the capacity to rule on "what does the law provide here" and nothing further. A court of equity can go further, a judge can in addition to ruling on "what the law says", also rule on whether that outcome is what the legislator intended (for example), or more generally, on justice, equity, "right and wrong" as you use them. A court of equity CAN say "the law provides X, but that is clearly unjust / contrary to the intent of the leglislator, and I rule Y", at least with some limited scope of Y. Setting aside contract terms that are "unconscionable" is an exercise of equity.

However, many American courts, and virtually all appellate courts, are considered to be "courts of law and equity" and have more powers than to just determine "what does the law say".

It is of course very valuable to have someone as careful as Scalia (or, I think, even more careful, like Thomas) shouting from the rooftops "but that's not what the law says" in the face of activist judges who try to convolute the law into what they want it to say. A judge who has the power to rule on equity should be VERY conscious of when he is invoking that power, and should be humble enough to recognize when the law does not establish a rule that he would prefer. And (this is where the demand that judges should be WISE comes from) the difference between matters of prudence (which is the venue of the legislator's bread and butter) and matters of fundamental principle.

I am not sure of the recognized limits of the power of equity. Surely there are some. I imagine that largely the powers are negative, striking down, rather than creative. Nullifying a provision of a contract (or a whole contract), is negative: it does not consist in replacing an unconscionable provision with a good one that you think would have been better. If so, a judge who is faced with a state that WON'T protect the unborn is in a different situation than faced with a state that has tried to protect the unborn with a law, but for a so-called "higher" law that would forbid such a law.

I can see a judge saying "I have no power to interfere with the federal (Constitutional) law that forbids NC from protecting the unborn from murder. That power belongs with the Xxxxx office. It is within the power of Xxxxx to state that the provision of the Constitution here is null because it contradicts the natural law and the eternal law, if it so decides." But if the SC is considered to be the final arbiter of "the law", and if the judge there says the FIRST sentence but not the other 2, then we have a problem. Then we have a situation where we have allowed the "higher authority" to be lost in the shuffle of the separation of powers and checks and balances and "the will of the people is the ultimate authority."

If there "really is" a higher authority, then it "really is" true that a hypothetical Constitutional provision that forbids the states to protect the unborn would be no law. If due to our heightened reverence for procedural justice in identifying how to locate "right law" we refuse to credit any human authority with the right to assert that such provision is no law, then haven't we elevated procedural justice over substantive justice? We would be demanding of every lower authority who KNOWS that such Constitutional provision is lawless to act as if it had force because procedurally it was enacted as if it were valid law. If we had a lot of people with backbone, (like the WV county clerk) to say "no, I won't", we might instigate a small scale insurrection, but they would be saying it to higher level authorities who (like the putative judge) think their "higher duty" is to the procedural law, and will put all of them in jail - even though they are actually doing the _right_thing. I don't think we can laud lower-level authorities (or laymen) for standing up to "the man" when the man is wrong, if we cannot also laud the higher authorities for taking up the same war cry. Even if "the man" happens to be a Constitutional provision.

We have repeatedly raised the point in these pages that there is a substantive difference between truth and error, and between the majority supporting truth and the majority supporting error. We need not cede that claim to the claim of "procedure" as if the latter is more essential than the truth to which it is ordered. There will ever be tension in human affairs between the real "right" and the "end result of this process designed to locate right"; covering with that tension by fiat doesn't actually solve it.

I find it more than a little worrisome, in regarding the originalist position against the natural lawyer, that the RIGHT place to posit "but that contradicts the natural law" , the place to _assert_ the "higher authority" is never located. It isn't in the states, it isn't in the federal executive arm, nor in the federal legislative arm, and (as here) not in the federal judicial power. Hence it resides nowhere. Which, I think you will grant, is a bit of a problem for effectively admitting that there is a higher authority.

On the only occasion when I had the privilege to hear Scalia speak in person, he explicitly addressed this, stating that the legislature is the proper place to invoke the natural law. Legislators ought to consider the higher authority, natural law, etc., when deciding whether to propose or pass legislation. He even said that he believes in the natural law. And I'm sure he would add that another proper place is when the executive has to decide whether to sign or veto a proposed law. He can bring in any considerations he regards as relevant, *certainly* including the "higher authority."

Another place that I would add such considerations belong is in the realm of civil disobedience. But note: Civil disobedience is precisely *not* exercising one's *granted powers* as an agent of the state, whether judicial, legislative, or executive. Civil disobedience expressly exists outside of the realm of positive law, because it is disobedience to positive law on the grounds that a particular law is unjust. Hence a judge cannot, in the nature of the case, engage in civil disobedience qua judge. That would be a contradiction in terms.

I would also add that never (as far as I know) in the entire history of the country has the Supreme Court struck down any law of the state or federal government on the grounds that it was "contrary to equity" while admitting that it was, in fact, perfectly constitutional. All Supreme Court assertions of power to strike down laws have been made *under* the Constitution--namely, putatively based (if only on the "penumbra") of certain clauses *of* the Constitution. When that is a misinterpretation, and the judges must know that, these are lies.

But I sometimes get the uncomfortable feeling that natural law theorists wouldn't mind too much if someone who agreed with them, who happened to be on SCOTUS, declared a law unconstitutional that was, in fact, perfectly constitutional but was *unjust*. I really doubt that one would hear them objecting that he should instead have created a constitutional crisis by saying, "There is nothing actually in the Constitution that this law violates. But I think I have a right to rule on the equity of the law, so I declare it null solely on the grounds that the law is unjust. Since I'm a member of the Supreme Court, I think I have the authority to do this even though no Supreme Court opinion has ever openly been based openly, solely on such reasoning. Do with my opinion what you will."

Hadley Arkes has expressly stated that he was happy (for "natural law" reasons) with the SCOTUS ruling that upheld as constitutional, justified by the commerce clause, the assertion of the power of the federal legislature to punish a small, local business that bought some of its food (or was it soft drinks?) in such a way that the food crossed state lines and discriminated on the basis of race. On the grounds that their purchase of merchandise "affected" interstate commerce. That this is a gross distortion of the original meaning of the commerce clause (which Arkes does not really bother to contest) did not matter one whit to Arkes, because he deemed the outcome just. I don't think he even bothers to address the fact that such a broad interpretation of the commerce clause is what has made the 10th amendment effectively null.

Notice that what Arkes *correctly* understood is that there was no way for the court to *uphold* the policy he favored while declaring it unconstitutional. If the court had said that the federal govt. had no power thus to micromanage every business in the country to that extent and that the commerce clause gave them no such power, that the act in question, or at least the act as thus interpreted and applied, was therefore contrary to the 10th amendment, that would have been it. That policy would have been struck down and at least those smaller businesses that did not traffic in interstate commerce directly would have been allowed to discriminate in public accommodations. There is no mechanism for the court to say, "This is unconstitutional, but we uphold it anyway." Declaring it unconstitutional is nullifying it, for the court. As Arkes saw, the only way for them to obtain what he saw as the just outcome was to twist the constitution in order to uphold the law. Hence judicial integrity is sacrificed for outcomes.

Speaking of Judge Roy Moore, Moore is a past master at the art of never going beyond his granted powers while causing all manner of obstruction. He explained carefully on the occasion when I saw him speak that he did *not* engage in civil disobedience by refusing to remove the 10 commandments, because no court had issued a court order directed specifically to him, telling him to remove the 10 commandments from his courtroom. Brilliant! As he pointed out, the mere fact that the federal court ruled (incorrectly, in his view) that his 10 commandments display violated the Constitution did not constitute an order to him to remove them. Similarly, in recent years he's again gotten in trouble for ordering that no marriage licenses be issued in Alabama pursuant to Obergefell, because (as I understand it) Obergefell does not a) actually overturn Alabama marriage law, b) create any mechanism *within* Alabama law for the issuance of marriage licenses to homosexuals, c) include a court order to Alabama justices of the peace to issue marriage licenses. Again, brilliant, and legally quite correct. I believe he was removed from office for that as well. I'd have to check that out. Presumably Moore picks his battles partly on the basis of natural law considerations, but from what I've seen he also makes sure that, if one gets into the nitty-gritty, positive law is on his side as well.

Lydia,

I'm glad you brought up Arkes, because along with Jaffa, they are probably the two most serious thinkers on the right who defend the natural law tradition. However, as you point out in your comments, such a defense causes all sorts of mischief and leads to philosophically bad outcomes:

"As Arkes saw, the only way for them to obtain what he saw as the just outcome was to twist the constitution in order to uphold the law. Hence judicial integrity is sacrificed for outcomes."

I'd rather be forced into civil disobedience and/or do the hard work of changing bad laws instead of twisting logic and the Constitution to fit them into some sort of natural law framework.

As far as my research has been able to establish, the equity rulings of the U.S. federal courts do not and are not intended to take the form of entirely *nullifying* a state law or federal law or (on the other hand) declaring that a state or federal law is *allowable* and should stand even though unconstitutional. Much less ordering states to create new laws ("You must protect the unborn," for example) sheerly on the basis of considerations of justice. The nearest I can find to this is issuing an injunction against application of a state law *during the time* when its constitutionality is under federal judicial scrutiny. But in that case the ultimate fate of the law in question is supposed to rest upon the *interpretation* of the Constitution itself, or at least a claim to be doing so.

Lydia,

Good news about Trump's pick Gorsuch: the Family Research Council had him as their recommended choice. This bodes well, I think.

But note: Civil disobedience is precisely *not* exercising one's *granted powers* as an agent of the state, whether judicial, legislative, or executive. Civil disobedience expressly exists outside of the realm of positive law, because it is disobedience to positive law on the grounds that a particular law is unjust. Hence a judge cannot, in the nature of the case, engage in civil disobedience qua judge. That would be a contradiction in terms.

So, let me see if I have this right. State X passes a law telling you to do something immoral, and you have the human right - as a human, not as an official - to refuse to comply. That is, you have a God-given right to do right, not to do wrong. But of course, you may suffer legal consequences: fines, jail, perhaps even a death sentence. Your refusal to comply isn't based on some power granted to you by the state, but granted by God in giving you free will and a conscience.

So you refuse, and the police detective gets a warrant for your arrest, and hands it to the sheriff to arrest you. The sheriff comes to your door, and tells you "I have a warrant to arrest you. But you and I both know that the so-called crime you committed is no crime, and I refuse to cooperate with the state law that is an immoral law. Somehow, I find myself 'unable' to apprehend you. Gee, I failed." The sheriff doesn't do this act as "an agent of the state", but as someone empowered by God with free will and a conscience to refuse to do something wrong.

You are committed to saying, it seems to me, that the sheriff is actually doing something WRONG, by not complying with outward form of his duties to carry out arrest warrants duly handed to him under the form of law. It "isn't his job" to decide whether the "crime" really was a crime or not.

But as far as I can tell, this line of reasoning also requires the Kim Davis's of the world to go ahead and sign the marriage licenses, if not immediately after the SC decides Obergefell, then after the state legislature writes the law requiring it.

But let's make it a little more pointed: you are a Roman legionary in 290, and Diocletian has ordered Christians killed. Your local governor has ordered you to behead these 3 children. And you say..."yessir, your lordship, because the order has been given under rule of law, and I have no authority to withhold my obedience from my lawful superior in carrying out the Emperor's law."

I am not asking for a court (not even the Supremes) to create law. Don't want them to, and I think that the cases where courts did things like take over school districts were abominations. But I don't think a judge gets to use an escape clause like the legionary's because he is a state official, whereas an ordinary citizen has not only the moral right but the duty to refuse to comply with laws that demand they do something directly immoral.

So, where does a JUDGE's "right to conscience" land as a human being given free will and a conscience, when he knows just as well as the private citizen that the so-called "law" is immoral and must not be obeyed? Does he claim, like the legionary, "It's my job to say what the law says here, not to decide whether it's a good law"? Or does he, like the citizen, refuse to cooperate with an immoral law? Can a judge have fewer rights to conscience than a private person? In what form should a conscientious objector judge's rights of conscience take, if not refusing to cooperate with the immoral law? (I accept, for this, that it does NOT consist in saying (a) that the law "really" means something else, nor (b) that the law violates some higher human law when it doesn't. He doesn't get to lie or make up law.)

Whatever form that resistance takes: now suppose that 6 judges of 9 on the SC are in this boat. They have the power, together, to issue a ruling that recognizes their rights of conscience. What form should THAT take?

No, I don't say that the sheriff or legionary is doing wrong, but his action is not and cannot be invoking his status as sheriff or legionary. He's precisely *refusing* to carry out his duties as sheriff or legionary. Maybe that's the right thing to do in the scenario, but it's not an act in which he can invoke the authority vested in him as sheriff.

The problem is that the only parallel for a judge would be recusing himself from the case. This is because a judge who *rules* on the case is being called upon to tell the truth about the content of the law. There is no act of "arresting" someone or ordering that someone must die or anything like that called for from the judges. Their role is to make a judgement on (let us say) the constitutionality of the law. So, suppose that a state law expressly permits abortion and that our 6 out of 9 justices believe, with Scalia, that the Constitution doesn't forbid this but also believe that the act is wrong. If they don't recuse themselves from the case, then in issuing their ruling they are acting *as judges*. And in acting as judges what they are called upon to do is to say what the constitution says. And, they believe, the constitution doesn't require the state to protect the unborn.

Unlike the sheriff, who has a certain amount of prosecutorial discretion and who, moreover, is being called upon to do something wrong, they are (once they decide not to recuse themselves) not in a situation simply not to act at all. They have to issue a ruling. Moreover, the act they are being called upon to make is not a wrong act, such as arresting someone or killing someone innocent. It is an act of telling the truth about the content of the Constitution.

I'm afraid that it is you who are creating a problem here by requiring that "a ruling that recognizes their rights of conscience" must be a ruling that *positively enacts* the natural law by *requiring* the state to protect the unborn. But that isn't a power given to them in their ruling any more than it is a power given to you or to me, who are not justices of the Supreme Court at all! In other words, you (and many natural law theorists) have a misconception of the Supreme Court as a kind of "highest power to administer justice in the land" or "panel of rulers dispensing wisdom" or whatever, so that they do have the power to require that goodness be done and are acting against conscience if they know the good and do not require it in their rulings. But that's not what their rulings *do*.

The opinion of a justice of the Supreme Court (which he is of course free to write in his ruling) that a state law permitting abortion is unjust and wicked has no more *force* to *strike down* that state law than your or my opinion to the same effect. He can write that in there. Maybe he should as a gesture or a symbolic act of protest. But it won't functionally *change* the legal situation, unless he says that the law is *unconstitutional* (or, say, contrary to some federal law that he is also tasked to interpret and apply). And if he believes that he cannot say that in good conscience, because it would be false, then he literally has no mechanism and no granted power for requiring that the state protect the unborn. To pretend otherwise would be a bluff at best and another lie at worst.

Notice that Kim Davis or the hypothetical sheriff or legionary don't prevent someone else from coming in and doing the wrong thing. And no doubt someone else will. The couples for whom Kim Davis refused to give "marriage" licenses did get them. If one officer won't arrest the Christians or execute them, someone else will. The people who refuse to cooperate are just refusing to actively do something wrong themselves, and good for them. It's a symbol and (to some slight degree) an obstruction.

It's difficult to see any clear parallel for a federal judge, and certainly not any behavior of the federal judge that would actively *do* something to bring about the good or actively resist the evil.

If the actual constitution enacted enough evil stuff (if the liberals got constitutional amendments instead of lazily turning to judges to change the meaning of the existing constitution) I could envisage a situation where a man of conscience might feel that he would be cooperating too much with evil by striking down just state laws by interpreting and applying an unjust Constitution.

Scalia said that if he became convinced that the death penalty is always wrong, or always wrong in our society, he would believe that he needed to resign from SCOTUS. His reasoning (given in a First Things article) was that the SCOTUS is effectively permitting executions to take place by refusing appeals or by hearing appeals and stating that due process was observed. I'm not sure he was right about that, since due process either was or wasn't observed even if execution is wrong. But I understand his point about functionally cooperating with permitting executions to go forward. The situation where the Constitution itself embodies evil through its positive statements (which thank God we are not in) would seem to fall even more into that category where one could not in good conscience be an active part of applying the evil to overturn the good. So if (God forbid) that were to happen, I think eventually a good justice might have to resign from SCOTUS altogether.

Notice that Kim Davis or the hypothetical sheriff or legionary don't prevent someone else from coming in and doing the wrong thing. And no doubt someone else will. The couples for whom Kim Davis refused to give "marriage" licenses did get them. If one officer won't arrest the Christians or execute them, someone else will.

Yes, I noticed that, and accept the conclusion.

The problem is that the only parallel for a judge would be recusing himself from the case. This is because a judge who *rules* on the case is being called upon to tell the truth about the content of the law.

What about a judge who TAKES the case, and then SITS on it indefinitely? I.E. tries to straddle the line between NOT taking the case, and taking it and ruling with a "bad" ruling (depending on whose definition of "bad" we are avoiding). This way he prevents (at least as long as possible) the evil law from being enforced, WITHOUT saying "the law doesn't mean that".

I'm afraid that it is you who are creating a problem here by requiring that "a ruling that recognizes their rights of conscience" must be a ruling that *positively enacts* the natural law by *requiring* the state to protect the unborn.

Please, Lydia, I have said otherwise. I am advocating for a lesser position than this, a purely negative one: that the judge NOT "positively enforce" a law that violates the natural law. One way - as you say - is for the judge to not rule by resigning or by recusing himself. One supposes that a legionary could resign as well, though "recusing himself" doesn't seem to have been an option. But it is not clear that a good judge resigning is actually prudent, because if all good men leave positions of power because the power has become corrupt, the result is certainly an increase in evil, not a remedy of evil. (Might as well start planning the revolt at that point.)

What I am exploring is if he has ANOTHER option besides that of resigning or recusing. I discovered one possible one: temporizing permanently, holding off from cooperation with the evil law by a POSITIVE ACT of assent, indefinitely. I wonder if there are any possible while actually ruling. You think not; I beg leave to explore.

But that isn't a power given to them in their ruling any more than it is a power given to you or to me, who are not justices of the Supreme Court at all! In other words, you (and many natural law theorists) have a misconception of the Supreme Court as a kind of "highest power to administer justice in the land" or "panel of rulers dispensing wisdom" or whatever, so that they do have the power to require that goodness be done and are acting against conscience if they know the good and do not require it in their rulings. But that's not what their rulings *do*.

Going back in history to olde England, probably the leading description of the judicial power is "to say what the law is."

One of the most pertinent features of common law states vs statutory/civil law states is that under common law, "what the law is" did not merely mean "what does the explicit civil statute say, as controlled by higher explicit statutory law". It is more fluid, includes custom and "the unwritten constitution" within it, as well as the range of "case law" that was not always perfectly self-consistent. To "say what the law is" then, was not a matter of reference and mapping from one set of written (definitive, hierarchical) rules to THIS written rule (the current decision), but a matter of ELICITING from the whole range of history, custom, and case law the correct rule that applies here and now. "Judgment" involved a prudential element that is difficult to capture, it is resistant to stated rules precisely because it considers situations in detail.

Admittedly, in "civil law" countries "the law" is generally viewed as having more structure in its own right, and the judicial role also may be different. A court, especially a lower court, may have as its role strictly the determination of "what the law says" in terms only of the written civil law. Its powers may actually be spelled out with just that written limitation. A hallmark of civil law countries to try to spell out all standards as part of the written law.

I see it as very reasonable, in the case of the latter, to say of a judge appointed expressly to "say what the written civil law is" that he has no power (as judge) to express an opinion beyond the written law. Yet the US has as its heritage that it stems from a common law system, and while many CLAIM that it "is" a common law system, it is more probable (in my estimation) that it is a hybrid. Which would imply that one cannot simply say of a judge here - especially of the higher courts - that his role is MERELY to "say what the written law is". There is more to it.

Even the Constitution is interestingly quiet about the issue, as it assigns the judicial powers, but nowhere attempts to define them. One must suppose that the intent was to continue with the meaning of "judicial powers" what that term had already meant at the time. This is also consistent with the heritage of common law, which tends to rely on customary usage rather than explicit statutory framing of every matter.

Given that, it is at least theoretically possible that the higher judges in the US have a power to consider not only the explicit terms of the written constitution and lower written law but other factors that sit as a "source" of law, including e.g. custom. Indeed, I think that this is certainly an obligation for them. For example, it is fairly easy to suppose that if a matter were to come before the Supremes (or a state supreme court that was not really referable to the federal jurisdiction) where the interpretation of the Constitution (without reflection on custom) were balanced on a knife's edge, they not only may but must use custom if that can weigh the determination one way or the other. I think that severing us from customary law (because it is not written), the way the positivists would do, is damaging to us as well as not a necessary conclusion from what we were designed to be.

At the same time, I think that it would be contrary to the founders sense of what they were doing to suppose that when they were constructing the Constitution, they were trying to design a "fundamental law of the land" that had no need of any prior or underlying "sources" of law. It stands to reason that they didn't, because they didn't attempt to define all the core terms as part of the law. Yes, perhaps it is the case that the Constitution is the fundamental written law of the land. But "written" really is a needed qualifier in there. There is more, the part that is unwritten.

So, what is at work here, Lydia, is a different sense of the exact limitations of "the judicial power". In common law states, perhaps lower court judges are definitively limited to "saying what the written law says", but this would not apply to higher judges.

And, again, I AM NOT asking for judges to write positive law.

For example, it is fairly easy to suppose that if a matter were to come before the Supremes (or a state supreme court that was not really referable to the federal jurisdiction) where the interpretation of the Constitution (without reflection on custom) were balanced on a knife's edge, they not only may but must use custom if that can weigh the determination one way or the other.

But that could be fully justified on originalist grounds. I, as a more "mental" originalist than Scalia or Pryor (or, I gather, Gorsuch), would say that such a background was probably "in the minds" of the authors of the clause in question, if only implicitly, and hence can be taken as a guide to what they probably meant. The textualist originalist would be more likely to say that that background would have historically guided the way that the text would originally have been understood. But both of us would be getting at an _historical_ point concerning original meaning. Rather than saying that somehow the natural law as embodied in custom is incorporated into the Constitution in some more mystical or less historical sense--because right and wrong are the fundamental source or all law or something like that.

I discovered one possible one: temporizing permanently, holding off from cooperation with the evil law by a POSITIVE ACT of assent, indefinitely.

No higher federal judge rules on a case alone. In the final analysis, this would be tantamount to recusing. His colleagues would go ahead without him.

Notice, too, that even if you had a majority of justices who wanted to try the idea of "sitting on" a case, they could be forced to act. Imagine the following scenario (which I believe will never occur in real history). The Constitution contains an evil clause making abortion a fundamental right. It's been passed as an amendment. A state has a pro-life law. The Circuit court has ruled that the state law is unconstitutional, which as a matter of positive, written law, is accurate. So now if your hypothetical justices do *not* rule, the lower court ruling is in place in the meanwhile. The governor and judges of the state believes that his law has been struck down by the circuit court, and there is likely to be great hesitation on their part in enforcing it. The Supreme Court "takes" the case, but with the intention of "sitting on" it, because the only alternative would be ruling that the law is, in fact, unconstitutional, which they are loathe to do (pitting the wicked Constitution against the just, or more just, state law). But because the immediately previous ruling is the last federal ruling, the state of great hesitation on the part of the state to carry out its pro-life law will remain in place unless the SCOTUS *vindicates* the state law by overturning the lower court ruling and declaring the state law constitutional, which cannot be done in good judicial conscience.

So the "sit on it" option doesn't even have the desired effect.

But that could be fully justified on originalist grounds....But both of us would be getting at an _historical_ point concerning original meaning. Rather than saying that somehow the natural law as embodied in custom is incorporated into the Constitution in some more mystical or less historical sense

Many constitutionalists say that the Declaration stands as one of the behind-the-Constitution sources of law and principle - and that the Declaration points quite clearly to the natural law. This was in my inbox today, in a book review about "After the Natural Law":

There was a time when our country understood this well enough to acknowledge, in our own Declaration of Independence, the existence and primacy of natural law in pointing to the "laws of nature and of Nature's God" as the source of human rights. However, our Founding Fathers did not discover natural law, but inherited it from thinkers going back to the dawn of Western civilization (to say nothing of the biblical indications of a moral law written in the human heart).

Also, some constitutionalists claim that the natural law was considered by jurists of the day as one of the sources of law and principle, especially in regards to customs that were consciously held to express the natural law. As, for example, certain elements of custom about marriage.

So, (if this is valid historically), while there are certainly customs that have nothing to do with natural law, there were also customary usages which expressly referred to natural law as part and parcel of the custom and were understood so judicially. THESE customary usages, which expressly connected to an apprehension of the natural law, would constitute valid sources and principles for interpreting written law WITHOUT going all mystical.

So, you are OK with saying custom, and that part of natural law known to be embedded in custom, constitutes the background of "original intent" which determines the meaning of the Constitution (or any other written law, I suppose), and I am saying that there are sources of law and principles that are not found in the written law, but are within reach of the judicial powers. What about parts of the natural law that are implicit in the norms and customs of the time, but had not yet been clearly elicited as belonging to the natural law, but were only vaguely considered at the time?

So, you are OK with saying custom, and that part of natural law known to be embedded in custom, constitutes the background of "original intent" which determines the meaning of the Constitution (or any other written law, I suppose)

In some specific cases. I fear that Scalia and Bork are right that "person" in the 14th amendment would not, in original meaning (textual or intent) have included the unborn. In fact, it appears that the part of the natural law that recognizes the unborn as a person for purposes of law was not (unfortunately) embedded in custom at the time, and other parts of the text would seem to indicate that only born persons are in view.

Many constitutionalists say that the Declaration stands as one of the behind-the-Constitution sources of law and principle - and that the Declaration points quite clearly to the natural law.

I think that gets much too broad. For example, there is nothing in the Constitution that even appears to imply that the federal government has the power to guarantee that people have the right to "life, liberty, and the pursuit of happiness." This is because of the care taken by the founders to keep the powers of the new federal government limited.

To figure out where or if custom might apply as an historical matter of interpretation, you have to have a specific clause in front of you and be asking what the claim is that common law (which might be based on part on natural law) is relevant to interpretation. The example that I like to give is that "nor deprive any person of...property without due process of law" was ruled not to apply to not granting a man an inheritance (or it might have been insurance) when he murdered the testator. The conclusion drawn was that the original meaning of someone's "property" would not have included property that he killed someone to obtain.

Similarly, on the negative side, we can look at the "involuntary servitude" part of the 13th amendment and conclude that, per custom, the original meaning of what that forbids does *not* include the military draft. Nobody at the time thought of the military draft as a form of slavery/involuntary servitude. I don't know if you would consider that an application of the natural law/custom as part of interpretation (?), but it's an example of the kind of historical investigation I have in mind.

Highly specific and only *indirectly* related to actual right and wrong.

The same would apply to parts of the natural law that were only vaguely understood. Since the whole endeavor is an historical investigation, it doesn't really matter so much how clearly the natural law was understood but rather *what* the understanding was of what the words of the text meant.

In some specific cases. I fear that Scalia and Bork are right that "person" in the 14th amendment would not, in original meaning (textual or intent) have included the unborn. In fact, it appears that the part of the natural law that recognizes the unborn as a person for purposes of law was not (unfortunately) embedded in custom at the time, and other parts of the text would seem to indicate that only born persons are in view.

That's part of where I was headed: different customs which in effect represented mutually contradictory stances about a natural law that that was not clearly apprehended at the time.

It seems plausible to say that, for a judge whose proper duties are limited solely saying "what did the legislature actually mean, in this sort of case he would be limited to saying "the legislature DID NOT actually mean one definitive thing, but was indeterminate with respect to X. If I could go back and ask them 'what do you mean' they would say 'we don't know'." If you are being really strict, I think that he would be UNABLE to then say further that "therefore, 'the law means X' ". That would exceed his authority. his conclusion would have to be "we don't KNOW what the law means".

It probably depends on the nature of the actual matter, but one could easily imagine scenarios where the EFFECT of such a statement, on whether the outflow of this judge's decision was going to uphold the lower law about X or not, would depend ENTTIRELY on the sheer happenstance of which pathway the case came to his bench: whether the law was upheld at the lower court, and the other party was the appellant, or vice versa. Which is, of course, a really obnoxious way to decide "what the law says", when the actual judgment is that "we don't know what the law says".

Of course, one answer would be to go back to the legislature and ASK for a choice on what the law means. In the case of constitutional provisions, this is pretty difficult to even attempt.

Another is to note that regardless of any apparent (from the historical record) or actual tension in how the legislature of the time thought (or implicitly thought) about matter X, it is virtually impossible that both opposing views were held absolutely equally. That is, 999 times out of a 1000, one view will be more dominant than the other.

I submit that ONE allowable paradigm for deciding how to locate that dominant view - especially in a culture which expressly adverts to natural law as an underpinning of positive law as a whole - is to locate which view is more substantively supported by the natural law. That is to say, if in the culture, X is supported by 5 customs, and ~X is supported by 5 other customs, the customs that touch more deeply to the true understanding of natural law can be understood to represent "the real intent", in the sense that this view "would have been explicitly intended had the implicit meaning of their different customs had been drawn out in plain view." Or, to say it another way, that result is more what was intended than the reverse.

But that stands as a way of USING natural law to decide what is implicit in the historical record in an indeterminate manner.

Do you object to that sort of paradigm? Or would you insist that the judge limit himself to saying "we don't know what the law is."

One concern for someone of this personality trait, as you make clear, Lydia, in this article is that, at least in the contemporary legal context, is that he likely subscribes to a positivist legal theory. The law's authority is based on fiat, and is found in the Constitution, statutes, precedents, etc., themselves. This leaves little room in principle for any attempt to show that the law itself has no authority, perhaps, say, because it is unjust.

Reminds me of Lewis' worry over the tyrant of conscience. If his tyranny is motivated by a good conscience, then we are clear and well screwed.

But that stands as a way of USING natural law to decide what is implicit in the historical record in an indeterminate manner.

Do you object to that sort of paradigm? Or would you insist that the judge limit himself to saying "we don't know what the law is."

I think I would object to it if it involved substantial interference with the legislative function. Say, for example, that one took this stance with regard to the personhood of the unborn and, based on it, the courts *required* the states to *write* laws, quite different from their current ones, that explicitly recognized the unborn child as a person equally in law with born persons. That is a very substantial intervention of the judicial branch in the functions of the legislative branch, and if the original meaning of the portion of the Constitution on which it is ostensibly based is that ambiguous, I cannot see that it is justified, because the court cannot say with confidence, "The Constitution means that you must do this."

In this particular case, I actually am afraid that I must say (as both Bork and Scalia did) that the matter goes farther: Customs were such at the time of the 14th amendment and for a long time after that it is positively likely that "person" in the 14th *did not* mean to include born persons. That is, it isn't really terribly finely balanced.

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