Last Sunday, Edward J. Erler replied to Mark Pulliam in their battle over positivist originalism and natural rights originalism. Erler’s relies primarily on the opinions of founders and leading politicians responsible for the 14th Amendment to show the natural rights basis of both the Constitution and the 14th Amendment. The emphasis on opinion outside of the Constitution perhaps obscures some fundamental points about proper construction.
The technical rules of legal construction—containing such exotic delights as in pari materia, ejusdim generis and expressio unius est exclusio alterius—can be fairly reduced to four basic common sense principles: (1) apply the plain meaning or common usage of the language; (2) where the language is still unclear, look to the other plain language within the document to interpret; (3) where a term of art used has a customary and historical meaning, apply that meaning; and (4) if 1, 2, and 3 are insufficient to resolve the ambiguity, the look outside of the document to the stated intentions of the leading authors or proponents of the document, if reliable statements can be found. Avoid conclusions that are contradictory, absurd, or render words or provisions meaningless. For originalism, we can add that where the contemporary and original meanings of plain language are different, the original meaning should prevail.
A charter can be examined adequately using only these rules in almost all cases. But where these methods, exhausted, continue to admit of two or more reasonable meanings, a construction at odds with the principles of the authority on which the charter rests ought to be discarded. After all, what makes a charter compelling and intelligible is the authority behind it. This is true whether we are speaking of a simple corporate charter, the Magna Carta, the Mayflower Compact, or the Constitution. For this reason charters invariably open with a reference to the source of their authority: a Delaware corporation—“pursuant to the General Corporation Law of the State of Delaware”; the Magna Carta—“John by the grace of God”; the Mayflower Compact—“In the name of God, Amen . . . the loyal subjects of our dread sovereign Lord King James by ye grace of God, of Great Britain, France, & Ireland king, defender of ye faith”; and the Constitution of the United States—“We the People.”
Let’s look at the source of the authority behind “we the People.” Generally, legal reasoning in Anglo-Saxon-derived systems involves inductive reasoning. That is, the legal interpreter looks at the particulars, cases, words in a contract, precedents and persuasive authorities, and reasons by distinguishing and synthesizing to a unifying principle. That principle is then applied to the particular matter. The Declaration of Independence, the very first legal document in which the United States is mentioned, relies on deductive reasoning. Because it purports to transcend a positive law regime (i.e., the laws of England) and the ground of that regime (i.e., the divine right of kings) it proceeds from axioms independent both of the positive law and divine right. These axioms cannot be demonstrated but can be adequately known without further evidence. The Declaration then applies those principles deductively to answer partially the question of what is justice: the ground of just laws is the consent of the governed. Obedience to the positive law— a quintessential feature of justice as understood philosophically since Plato (Crito) and Aristotle (Nicomachean Ethics)—is compelling on the ground of the consent of the governed, which is, in turn, compelling on the ground of natural sovereign equality.
The American form of government closely reflects the principles of the Declaration. The American form is a deliberately adopted and amended charter, periodically ratified with elections rooted in the principle of majority rule. Elections to offices are staggered, causing the government to embody a will separate from the momentary will of a majority and embodying the long-term consensus of a people. In a microcosm, it is also the meaning of a free individual, who is neither tool of someone else nor a tool of momentary passions. The administrative state has been criticized in these pages for displacing the long-term consensus of the people with the caprice of a clique of bureaucrats, as we have seen with career apparatchiks James Comey, Andrew McCabe, and Robert Mueller, subordinating consent of the governed to a national bureaucratic and credentialed caste. The positivist originalism says the principles of the Declaration are unnecessary—indeed are an impediment—to the just and fair (or correct) interpretation of the Constitution. The difficulty of arguing with the positivist position is it is almost entirely correct. Constitutional questions can be adequately, correctly, and more soundly derived in almost all cases using the principles of construction outlined above.
I say “more soundly” because a callow natural rights jurist who uses compact theory to resolve a problem that can be resolved using the basic rules of construction will substitute his intention for the intention embodied in the charter. If that happens the consent needed for justice is undone; the confabulations of a misguided scholar of natural right confuse the nomoi (conventions) of a charter with physis (nature).
I also say “in almost all cases” because a positivist originalism that eschews natural right is akin to dead reckoning without ever looking at the stars. This positivist originalism must attempt to inductively determine the authority of the Constitution without any fixed point of reference. In this exercise the interpreter is confronted with two reasonable conflicting inductive conclusions: (1) the Constitution is pro-slavery and is designed to protect the institution of slavery by protecting the slave trade, providing for fugitive slave laws and providing fractional representation of slaves and other persons not taxed, and (2) the Constitution is anti-slavery, confining the institution of slavery by allowing the prohibition of the slave trade after a date certain, tolerating the institution for the sake of the greater good of union, and facilitating the exclusion of slavery from the territories, until the institution dies a natural death.
The reasoning of the second interpretation is that of Lincoln in the Cooper Union Speech, which relies on inductive reasoning to show that in original intent the Constitution is anti-slavery. The first interpretation answers the question of what is compelling about the laws in a troubling way. We the people are an imposition of force, and force is what makes the charter compelling. This, in a nutshell, is a core position—apart from the compact of states doctrine which is so badly at odds with the plain language of the Constitution’s preamble that it should be ignored—of John C. Calhoun. It is also, looking back further, the position of the Athenians at Melos and Thrasymachus in Plato’s Republic.
So how does one judge whether the inductive reasoning in (1) or (2) is, in fact, the correct reasoning? On the one hand, the claim to authority of (1) has the allure of antiquity, practicality, and simplicity (not to mention circularity). Regimes are in power because they have the power to remain in power. But (1) is also contradictory, and must exempt itself from its own thought. The claim to authority of (1) has no independence of the power to enforce it.
On the other hand, the claim to authority of (2) has no such internal difficulty, provided one looks to the principles of the Declaration. The authority of the charter comes from the individual sovereign equality of individuals. Their claim to rule is inalienable even in defeat, and the Constitution’s inclusion of concepts supportive of slavery can only have been intended if the authors of the document understood themselves correctly—and those who did not understand can be dismissed—to have been a temporary compromise.
That said, given that Dred Scott is behind us and, with the adoption of the Reconstruction Amendments, the question of a pro-slavery or anti-slavery Constitution is also behind us, how is natural rights doctrine today more helpful than misleading?
First, the jettisoning of natural right in hopes of curing the insobriety of particular judges does not work. Those same judges will find a worse basis (e.g., historical right) on which to rest their judgments. We have today a doctrine of substantive due process that is divorced from the natural rights origin of the Constitution. In an attempt to determine what the meaning of “due” is in “due process” the judiciary has resorted to incorporating the Bill of Rights over and against the states in increasing measures of emanating in the penumbras, as the joke goes. Most of this jurisprudence has come from the Left—for example, Gitlow (1925), Mapp (1961), Gideon (1963), Griswold (1964), Roe (1973), and Bakke (1978)—but now the Right is in on the game, such as the MacDonald gun rights case in 2010. The best argument against this substantive due process is that such elaborate imputation to the word “due” violates the principle of consent of the governed derived from the equality of the Declaration.
Second, the best argument in favor of the substantive due process advanced in the name of a “living constitution” is the Constitution is at origin a pro-slavery document whose aged clauses are not venerable but are so contemptibly wicked that decency requires they be transmuted, without need for a process of consent, as the principle of the Constitution never respected consent in the first instance.
The first check on a jurist is temperament. Whether the jurist is inclined to adventure in natural right or living constitution substantive due process will always be a function in part of that jurist’s sense of self-restraint. I would no more want to fly to Mars on rocket ship designed by some fanatical Aristotelian than I would want to be judged by an unrestrained natural rights scholar. I would take the diligent student of field equations and a sober Rehnquist or Bork in both cases, on almost all questions. But on certain questions, like what to do on Mars once I get there and whether the word “due” includes plainly arbitrary and capricious methods, I might take my chances with the zealous Aristotelian or wild-eyed natural rights champion of academe.
But, more importantly, I don’t have to choose between a sober Rehnquist or Bork and an inebriate natural rights jurist. It is a false choice. All other things being equal, I would choose the sober natural rights scholar as my judge who does all the things that the Rehnquist or Bork jurist does and understands the source of authority of the Constitution.
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