In the fantastic comments that followed yesterday’s post about judicial activism, Freedom21 asked a question that deserves its own post. She wanted to know if we believed that slavery would have ended earlier in the United States if our earliest Supreme Court Justices applied natural law, rather than merely interpreting the Constitution. I think the answer is “no.” Here’s why. . .
Natural law is the idea that certain rights are so fundamental to human beings, that they exist whether or not they are written into the government’s charter. In other words, these rights are so well understood to be “human rights” that they should be granted by courts even if the Constitution fails to include them. This is an enticing theory, but I see it as flawed because there is no consensus on what constitutes a natural right.
If there is no consensus, how can the court agree (after all, the Supreme Court works on the basis of majority rule). Additionally, if there is no consensus, are these really natural rights or are the judges just imposing their own utopian views upon an unwilling public?
Take the idea of slavery. Was there a large enough consensus in the legal community in the early 1800s that a majority of the Supreme Court would have considered freedom from slavery to be a natural right? The answer is “probably not.”
Since judges come from the population at large, there is no reason to think that their views would have been significantly different than the views held by the rest of the public.
With that in mind, consider that as a political issue, the idea of freeing the slaves really didn't take hold in the public until the middle of the Civil War -- and even then it was by no means an overwhelming majority belief. The right of equal treatment for all races was not achieved legally until the 1950s or later. The rights of women were not secured until well into the 1900s. Indeed, many of the things that we would consider natural rights today, would have been dismissed as fringe positions in the 1800s.
In fact, even today, many of the rights that you and I would consider “natural rights” are not recognized around the world. In Mexico, you are guilty until proven innocent. Germany will throw you in jail for flipping a Hitler or denying the Holocaust (this will soon be EU-wide law). Don’t offend a religion in France. Germany bans religions that it considers cults, and requires you to tithe (through your withholdings) to any religion you do join. Spain bans political parties that it considers terrorists. Sweden limits the names you can give your children. Want to be an imam in France? The government has to approve you. And be careful what laws you break (e.g. bribery), or they will strip you of your citizenship, shut down any corporations you own, and banish you from French territory.
So while many in the 1880s certainly felt slavery to be evil, it is not at all clear that there was a consensus at that time that being free from slavery was a natural right or that non-whites were entitled to natural rights. Thus, it is difficult to see how a majority of the Supreme Court would have chosen to declare freedom from slavery to be a natural right.
Moreover, even if the had, there would have been two political hurdles that would have prevented such a decision from taking effect. First, believe it not, the Constitution does not actually make the Supreme Court the arbiter of constitutionality. Until the Court’s “power grab” in Marbury v. Madison, many thought that each branch would monitor the constitutionality of its own actions. This power grab, however, changed that, and gave us the Court that we know today.
The other branches accepted this power grab in large part because the Court’s early rulings tread very lightly. If the Court instead had chosen to take such a strident position (banning slavery) against the political interests of the rest of the government, it is likely that the Executive and Legislative Branches would have smothered the Judicial Branch and stripped it of its powers. Thus, its ruling would have been discarded and slavery would have endured.
But even if the other branches accepted the Court’s ruling, that still would not have ended slavery. Indeed, the South had little choice but to accept slavery because its entire economy depended on slave labor. Abolition would have meant economic ruin to the South. Thus, if the federal government banned slavery, the South would have left the union at that point and we would have split into multiple countries -- a civil war would have been unthinkable right after the country was formed, especially with memories of the Articles of Confederation still fresh.
If the South broke away, the Northern states could no longer have applied political pressure to the South and there would have been no civil war. Therefore, not only would slavery have endured despite the Court’s ruling, but it likely would have lasted much longer in the new USA South.
Thus, I suspect that applying natural law would not have solved the slavery problem, and could, instead, have made it much worse.
Thank you so much!!! I am preparing a follow up but just wanted to say thanks for all the thought and effort!
ReplyDeleteSweden limits the names parents can give their children? Wha....
ReplyDeleteThough that could have come in handy here when some idiot decided to name their kids Adolf Hitler and Aryan Nation. I so wish I was making that up.
sqt, there are actually several European countries that require that children's names come from an approved name list.
ReplyDeleteBy the way, my list of examples was only for demonstration purposes. It is by no means an exhaustive list of rights that aren't recoginzed overseas or of countries who don't recognize those rights. In other words, just because I mentioned Sweden (for example) does not mean that other countries don't do it as well. And just because I mention a particular right and not others, don't assume that the others are recognized as rights overseas.
We are fortunate to live in perhaps the most free country in the world. Unfortunately, too many Americans (particularly those who like to criticize the US) just assume that the rest of the world is as free or moreso. It's not.
freedom21, you're welcome. I look forward to your response. I also understand that Lawhawk is preparing his own dissenting article on the issue of natural law generally. That should be interesting as well.
Thanks for the great article. It was most enlightening.
ReplyDeleteGreat article Andrew. My problem with the application of Natural Law is has always been, as you said, that what a person finds to be "natural and innate" varies not only from country to country but from region to region and culture to culture. It could be argued that the South prior to the War Between the States had a distinct and separate culture from the North, they were related to be sure, but for practical purposes South Carolina was as almost as different culturally from Pennsylvania as England was from the United States at the time. And you can subistiute any Northern and Southern state in that comparison pretty much and it'd still stand, with the generally muddy areas of Maryland and Kentucky being neither fish nor fowl.
ReplyDeleteWhich makes applying a general "American" interpretation of Natural Law at the time not only difficult but I'd contend completely impossible in a broad sense since the regions and even the states within regions were, for all intents and purposes, culturally foreign from one another. Not China to Denmark in foreignness but foreign just the same, if you read any accounts of people traveling between the North and South or vice versa before the war the mix of familiar and alien at the same time is a common motif. Think of it as traveling between the US and Canada now, much of it is so similar that you feel like you're still at home and then out of the blue something will smack you across the face (metaphorically speaking) to show you that you definitely aren't at home anymore.
It is an interesting problem that I come across often - the application of contemporary ideas on historical event. We tend to judge history by current standards of thought rather than in the context of their time. This is what get's Jefferson in trouble all the time. He was slave owner who never freed his slaves during his lifetime and even at his death, yet wrote the defining document on freedom. And moreover, no one thought how strange that Jefferson, a slave owner, should have written on the subject. It was only in later years, that someone made the connection of what is now an obvious hypocrisy. But Jefferson was a product of his time.
ReplyDeleteThere is another misconception that I find myself pointing out time after time - this idea of racial prejudice only existed in the slave-owning South. Having grown up in “slave-owning” state and having witnessed the tail end of the ravages of open racism, I was shocked when I moved to the Northeast in the late ‘80’s, only to find racism alive and well and living in New York City. At first, I chalked it up to being in a big city with so many more people to discriminate against. However, I have come to the conclusion that the Northern states lagged behind in racial equality because they chose to hold the bright light on the South as an extension to Sherman’s ravages of South, rather than hold the mirror on to their own racism.
As to your statement about women’s rights “not being secured until well into the 1900’s”, Sorry Andrew, that is just plain incorrect. Yes, women secured the right to vote in 1919, but we did not secure other more important rights until well into the ‘70’s and we had to torch a lot of lingerie in the process. (Such a waste of good lingerie!). Before that, women could not own and/or buy property, establish credit, or own businesses without the consent of a husband or father.
As with so many ideas, for racism to change, we had to change peoples’ minds and hearts as well as the law. The Civil Rights Act of 1964 did not end racism, but it was antidote to counteract the poison and started the change. I think it took longer to change peoples’ minds with than it might have without it, but that is a topic for another time.
You have that right Bev, I've spent a very little time in NYC and encountered more prejudice there in that short timespan than I ever did while spending much longer periods of time in the Deep South. I think you're right about some of the reasoning for it as well, the North spent so so much time judging the South that they forgot to look at the conditions and attitudes in their own back yards.
ReplyDeleteThat of course is not a blanket condemnation of Northern attitudes across the board or excusing Southern ones either, but I think that by focusing on one region even up to today many people don't bother to look at what sort of problems they have where they live. Look at how many hundreds, if not thousands of posts on liberal sites or conservative ones by liberal posters start out with,"Well those gun toting redneck racists..." while at the same time, sometimes even in the same post having no compunction about throwing out an Uncle Tom at a black conservative.
Andrew
ReplyDeleteI have a few posters on my sci-fi site from other countries. One from Canada and other from Bulgaria. I've had some interesting discussions with people who, on the one hand want to defend their country and on the other hand envy our constitution. Free speech comes up a lot-- we're very luck to have it and should never take it for granted.
Andrew, like you, I will need to put some thought into my response. As for the contemporary thought regarding natural laws I refer all to Calder v. Bull,1798 (3 U.S. 386). It is an interesting debate between regarding not only positivism and natural law, but also judicial activism and restraint.
ReplyDeleteA more thought out reply to come....right after that pesky-work-thing :)
Everyone,
ReplyDeleteGreat comments all! I think a key point to remember (one that several of you made) is that people's views about what is right or what is a right, vary greatly from region to region and from time period to time period.
And this raises two concerns: (1) when judging the actions of others, we should always keep in mind the circumstances (time, place, culture) in which they live(d), and (2) we should be thankful for, and defend at all costs, the freedoms that we enjoy in this great country.
Bev, you are right about women's rights, but I was really only speaking in short hand. The early 1900s is when many of the old "women are property" ideas finally shattered in the US. It took much longer to get to where we are today.
Cap/Bev, I've lived in the South and in the Northeast, and I think the thing I noticed the most was that the South made an honest effort beginning in the 1980s to put the bad parts of their past behind them. That meant getting over race. The Northeast, which felt it had never done wrong, never took that step. Which is not to say that there is not still racism (by all races) in either the South or the North (or anywhere in the world for that matter), but I think it explains why so many Southerns I know have been shocked to find such blatant racism in the Northeast.
Andrew: I agree entirely with your assessment of how natural law would have had no effect on the slavery issue, at least so far as the court attempting to eliminate it by judicial fiat. Chief Justice Marshall's establishment of the doctrine of judicial supremacy in Marbury v Madison was indeed a breathtaking power grab, but it wouldn't even come close to the Court declaring slavery to be a violation of natural law during the early years of the Republic.
ReplyDeleteI did mention, however, in an earlier post, how Justice Thomas might have found a way in Dredd Scott to use natural law to come up with a different result in that case. But he could not have used that same theory earlier on the issue of slavery itself since declaring a runaway slave to be a human being in Dred Scott for purposes of determining a limited issue relating to property rights is not the same thing as declaring the wording of the Constitution itself to be invalid as to the institution of slavery.
Where I diverge somewhat from you on the concept of natural rights is that contrary to your general discussion of the abstract nature of natural law, the concept as applied by Justice Thomas has specific guidelines. The natural law to which he refers is the wording of the Declaration of Independence, and the debates concerning the ratification of the Constitution, including but not limited to The Federalist Papers.
If the guidelines in those documents are not present in the case before the Court, Thomas leaves the natural law theory out of the discussion and joins Justices Scalia, Thomas and Alito in relying on the concepts of original wording and original intent of the Constitution to decide the issue without reference to natural law. Thus, Thomas might find a different result in Dredd Scott on the "property" issue but would not have been able to overcome the express wording of the Constitution in regard to the issue of slavery itself.
Your discussion of consensus is spot on. Not only would a Supreme Court decision prohibiting slavery during the early days of the Republic have been the end of the United States as it existed at that time, but indeed there would have been no United States at all because the South would never have ratified the Constitution in the first place if slavery had been prohibited by it.
I am simply amending your argument to consider that there was ultimate consensus on self-evident natural law truths contained in the Declaration of Independence which Justice Thomas is entitled to rely on. Once the Civil War Amendments were passed, natural law consensus embodied in the Declaration of Independence was made express in the Constitution.
Justice Thomas (and I) go out of our way to distinguish natural law in Court decision-making from natural rights. The two terms are often used interchangeably, but they are not the same thing. Natural law as Thomas and many legal scholars apply it has specific guidelines (above), whereas natural rights are the stuff of philosophy and theology and too abstract to be used in legal decision-making. Natural law theory should be used only when the clear wording and intent of the Constitution leave a void as to what is meant by the Constitution as it applies to a specific case before the Court.
Lawhawk,
ReplyDeleteYou make a very good point that I did not address. I think that most laymen would be surprised to learn that the Declaration of Independence has no legal meaning in our system. Or, more precisely, it is not a source of law and cannot be cited to as such.
The Constitution created our government and it regulates that government. The Declaration is more of a philosophical statement that was created to give meaning to a revolution. It has no operative relevance to the regulation of our government today.
That said, when you are looking at questions of interpretation, and you are trying to determine what was meant by the framers of the Constitution at the time it was written, I certainly support the use of these famous documents (the Declaration, the Federalist Papers, etc.) to help the court understand the theory (meaning/intent) behind the Constitution, because these are very much part and parcel of the theory that created our government
To that degree, I would certainly support Natural Law. But I am hesitant to go beyond that to the more free flowing theological/philosophical concepts that many consider to be a part of Natural Law, for the reasons stated.
Andrew: Exactly right. That is why natural law rarely rears its head in Court decisions since it can only be utilized for purposes of interpreting the Constitution when the Constitution is mute on a very specific issue. The Declaration and The Federalist Papers are not precedent, law or authority other than to assist in clarifying a specific point on which the Constitution is lacking in specific wording or clear intent.
ReplyDeleteThe main purpose of my comment was to distinguish the highly-limited use of natural law theory from the broad and philosophical concept of natural rights.
Hello all.
ReplyDeleteI wanted some time to gather my thoughts on the post and the comments so I could affirm and debate different parts of the argument.
(So please understand that when I say what I say, it's out of the utmost respect for each of you and your well reasoned, extremely intelligent conclusions on the matter.)
I disagree with the notion that natural law is "flawed" due to lack of a consensus. Natural law does not presuppose a consensus. A lack of consensus in fact does anything but affirm that natural law is not universal. Here I will bolster my opinion with LawHawk's view that a natural "right" is different from "natural law." Rights granted do not presuppose morality, natural law presupposes moral absolutism. While we may argue over which are and are not our natural "rights," I don't believe that natural law can be similarly assailed.
Why not? Simply because most healthy cultures seem to demonstrate a rather rigid set of beliefs ingrained not in legislation or precedent, but in the hearts of men. Stealing is wrong. Murders is wrong. Deception is wrong. Most cultures have historically viewed certain sexual acts as being healthy, and others devious. In short - there is no "interpretation" of Natural Law. Natural law is absolute.
This is where confusion enters into the discussion, and why this has become such an interesting debate on this blog. The first basic question one will ask is "why can't we reach a consensus on natural law if it is absolute?"
The answer is that cultures are not unimpeachably moral. As Alasdair MacIntyre might say, men are corrupt and unable to discern what may be morally obvious. Consensus will therefore cause negative affirmation; that is, the decisions and legislation on which a culture might agree may be the result of a perfunctory, feel-good standard. Ears become worn over time and lose the ability to hear certain frequencies, and hearts do the same.
Debate may and will arise concerning the ability of a judicial system to mold civil law around natural law.
If this is the case, how can natural law be used in the legal system? Simply put, natural law protects Americans from the zeitgeist reading of the Constitution. When the intent of the Constitution can't be determined (exegesis), natural law prevents a discursive ancillary interpretation based on the perceived "rights" of modern man.
I hope this response was coherent.
John: Have you been advising Justice Thomas? You have the concept capsulized, and it's why I lean toward his theory of constitutional interpretation. Natural "rights" would indeed be subject to the Zeitgeist and much too subject to the whim of activist judges. Natural "law" on the other hand has specific guidelines. It is no mistake that the Declaration of Independence says "we hold these truths to be self-evident."
ReplyDeleteThe other three conservative justices on the Supreme Court have brought us back from the brink by insisting on interpretation utilizing the original intent as found in the original words of the Framers. But where to look for the intent if the words are absent or ambiguous concerning the matter before the Court? The answer is "natural law" as set forth in the pre-founding documents, most specfically the Declaration. It is not found in The New York Times, the combined works of Freud, or the Daily Kos.
John & LawHawk
ReplyDeleteMaybe I'm not understanding the argument here, but if Natural "law" is a protection in and of itself, as opposed to Natural "rights," who is doing the interpreting of of the "law?" LawHawk, you mention the pre-founding documents and the Declaration. Aren't they just as susceptible to exegesis as the Constitution? I don't have a background to draw from to know if I'm interpreting the discussion correctly, so forgive me if this seems like a dumb question.
SQT: Excellent question. There is an ebb and flow of natural "rights" which have been kicked around in thousands of forms for thousands of years. Almost contemporaneously with the ratification of the Constitution, France declared the "rights" of man in a very different way from the Declaration of Independence and the Constitution.
ReplyDeletePerfect current example: gay rights. A hundred years ago, gay rights would have been an utterly dangerous thing to suggest. Today, a majority of Americans agree that gay rights (not gay marriage), in some form or another need to be protected.
On the other hand, natural law has developed through the entire course of western civilization into a body of thoughts which are considered so basic that they simply don't change from time to time and with changes in the political and philosophical times. The document which formally stated what the Founders considered to be natural law was the Declaration of Independence. It declared, for instance, that the natural right of the king to rule over his subjects violates the natural law of self-rule. The divine right of kings, already modified considerably in England, was declared in The Declaration to be in conflict with the natural law of all men being equal. The right of kings had to yield to the rule of law.
The Constitution is a uniquely American document. But it could not be written in such a way as to cover every situation, even in its own time. Thus, when a rule set forth in the Constitution left open the issue of what it meant, judges were required to interpret it. And what document would be the most uniquely American exposition of natural law? The Declaration of Independence.
Exegesis is an inevitable consequence of even the most carefully written of human documents. But exegesis requires ground rules that say "if you interpret the basic documents in such a way as to change the meaning of those words which are written, or torture those words so badly as to produce a result never meant by the written words, then you are creating new rules, not producing an exegetic version of the written rules." The latter would be hermeneutics, not exegesis.
Thus, natural law provides that "all men are created equal." A matter which can be judicially interpreted by using exegesis and natural law. "If all men are created equal, then gays should be allowed to marry" is not in the Constitution, or the Declaration of Independence, and may be a very good natural rights argument, but it is not a natural law concept which can be used to change the core documents which say nothing of the kind because no such concept existed at the time of the adoption of the documents. Thus, so the argument would go, gay marriage cannot derive from the Constitution and is therefore a matter for the legislatures, not for the courts.
Of course a more direct answer to your question is that natural law (exegesis)restricts only interpretation of the documents as they exist. As John Keats said, "the words of the Constitution can never mean [today] what they never meant [then]." If both the Constitution and The Declaration are unclear, then some exegesis is going to be necessary in any event.
Thanks for the explanation LawHawk. I gotta say, this is fascinating. I always thought of hermeneutics and exegesis as they pertain to the Bible, not the Declaration or the Constitution. Though, to be honest, I tend to use layman's terms like "modern interpretation" etc. etc. I feel smarter just typing in words like hermeneutics. I simply must throw it into a conversation and see if anyone knows what I'm talking about-- though I'd be really pretentious if I did that wouldn't I?
ReplyDeleteOkay, enough with the jokes.
I do appreciate the explanation though. It sounds as if I had already confused hermeneutics with exegesis, since I'm not used to using those terms. But I think I get the gist of what the difference is between natural "laws" and natural "rights" are and how they pertain to the modern legal system. Having this context in place while I look at the nomination of Sotomayor really makes me dislike her nomination.
Yep. You are looking at Sotomayor in exactly the right way. The rights of all human beings are in the Constitution and The Declaration, so must be interpreted (exegesis) in light of equality of men under the law.
ReplyDeleteThe sensitivities of racial/ethnic minorities is not in the Constitution or The Declaration, so to grant them special judicial attention is judicial activism (hermeneutics). The Constitution did not say it or address it, so it cannot mean now what it didn't mean then. More than that, since the Constitution did not address slaves as persons, the more recent 14th Amendment fills that gap by the only acceptable form of change. Equal protection of the laws, under natural law, cannot ever mean more attention to the rights of some people than to those of others. Too bad Sotomayor doesn't read our blog.
Take John Keats introduct and put it here. Much respect. I also mirror his statement that there are several assertions that require some attention. It was stated that there was no uniformity of thought regarding the status of men or slavery. During this time, the international slave trade had been banned, interstate slavery trade had been declared illegal, most of western Europe had eradicated (domestic)slavery, slavery, from a purely philosophical standpoint at nearly every point (morals versus economics). It seems as if the institution of slavery was much of a “do as I say not as I do” situation as abortion is today. Further, I maintain that even if public opinion is split, the system is a nation of laws not of men. To say that public opinion matters is to pay complete disregard to the (natural) law. Are judges to apply the law with a blind eye or to be swayed consensus? Natural Law claims that the conditions of legal validity are not exhausted by social facts. As the famous dictum of Saint Augustine has it: ‘lex iniusta non est lex’ (unjust law is not law). And he was black, so we know it mustn’t have been a race issue. It is with this application that I think that application of natural law (not natural rights) would have been the have been the turning point in the end of slavery.
ReplyDeleteAs for the claims that the economy couldn’t handle the release of the slaves; this is akin to saying that “illegals do the work that Americans won’t”. While it is true that the slaves were a huge reason why there was such an agricultural triumph in the South, it is not accurate from a purely economic standpoint to say that it would have not have been otherwise. Indeed, it would require quite the cliometric analysis to prove that point. I have always theorized that there would have been a North to South migration of those who were wont to find work in the North (especially among the discriminated classes like the Irish were arrived in droves and likely would have been able to contribute to the plantations and keep the agricultural industry sustainable, if not profitable). Strictly agrarian economies, with less fertile climates (like Sweden and its massive exportation of timber) that were able to survive with similar circumstances (Insert my tedious discussion about Gerschenkron/Rostow/Kuznets economic theories here ).
Then again, you all have done an excellent job at explaining already why everything I said is wrong :)
Freedom21,
ReplyDeleteWhat I would say about John’s point is that I’m not sure that everyone even agrees on those basic principles. Different cultures allow different levels of killing in terms of how they define self defense or how they treat negligent deaths. They also have different views on theft and graft and the such. Moreover, even if you accept these prinples as universal, that isn’t really where these debates arise -- they arise on issues like slavery, abortion, gay rights, free speech, religious freedom, etc. These are issues where there is no clear agreement that these things are rights. So how can a judge claim that these are natural rights?
On your comments, I am not saying that I think judges should make decisions based on politics. I don’t think they should consider politics at all. But the reality is that it happens all the time, then and now, and I think that for political reasons, it would have been impossible for the Court to ban slavery and make it stick.
Indeed, as you know, most of Constitutional law involves politically motivated compromises. Even Brown v. Board of education included a compromise. When a court rules, its ruling becomes law immediately. Thus, when the Court struck down separate but equal, that should have been the end of segregation the minute the order was entered. But to reduce the political pressure, the Court included a compromise to political expediency -- desegregate “with all deliberate speed.” In other words, rather than telling the other branches to “do it now,” the Court gave them time to implement this ruling through the political process. That’s a political compromise.
On the issue of abolition being a majority position, I have to point out that it certainly wasn’t in the South, and that most of the world (particularly the Arab world) did not follow Europe’s lead for some time. And while you’re right that the Northern states did abolish slavery, they also agreed to enter into a Union with the Southern states, knowing that they engaged in slavery and would continue to do so. Nor did they demand that the South give up that practice as the price for admission. They even accepted decisions like Dred Scott, which made them complicit in continuing the practice of slavery.
Finally, on the issue of the Southern economy, I’m not saying that it could not have been done differently given time. Indeed, look at the (somewhat less odious) sharecropper model as a system that could have replaced slavery. But at that point, the Southern economy was based on slavery, and changing the system would have been a huge risk that I don’t think the South would have been willing to make until they had no choice.
AP, you win!!!! Good stuff.
ReplyDeleteI would love to have a better post here but brunch did me in :)