Sola Constitution

July 11, 2005 § 15 Comments

Conservatives tend to think that getting back to the text of the constitution will make things in our legal regime better: that some form of positivist constitutional originalism will save the day. This impulse is as laudable and yet as much in error as Protestant attempts to get back to the original Church through positivist Bible originalism.

In a lengthy comment thread over at Open Book, a commenter says the following:

I definitely don’t want judges deciding cases on their understanding of natural law. That gives far too much power to judges as the Framers would have understood. Finally, even if the Constitution could be understood as leaving room for natural law interpretivism, your position would still require that Constitutional provisions that are inconsistent with natural law be disregarded. Thus, the Consistution is not the law of the land, but whatever a judge says is natural law is.

The tremendous irony here is that the opposite is the case. Positivism in religion – sola scriptura – has resulted in religion being whatever the individual interpreting the Bible says it is. It has resulted in more than ten thousand different Christian or pseudo-Christian religions. And positivism in law has the same effect. What many conservatives don’t appreciate is that positivism and postmodernism are not opposed to each other but are directly connected faces of the same underlying basic irrationality; an irrationality that results in license to ignore the natural law.

I empathize with originalist positivism as the impulse to put a check on judicial power; but in fact it has the exact opposite effect. Just as Scriptural positivism emancipates the “believer” to construct whatever religion he wants, so legal positivism emancipates the judge to construct whatever law he wants.

In other words, whether this is immediately intuitive or not, failure to embrace constitutional positivism does not rob the constitution of all meaning. In fact, embracing constitutional positivism would rob the constitution of all meaning. Sola scriptura and sola constitution both arise from a desire to rigorously confine meaning to a text; and ironically, both ultimately rob the text in question of all meaning.

As long as the Right in America fails to understand this, and continues to reject the natural law in favor of textual positivism, it will continue to fail in its faux opposition to the excesses of modernism and postmodernism.

Note: post has been updated to clarify that the basic problem is textual positivism or the rejection of the precedent authority of natural law, not originalism-qua-originalism. HT to William Luse.

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§ 15 Responses to Sola Constitution

  • TS says:

    Hmm… I (and most conservatives) see “sola constitution” simply as a way to have issues of morality be decided by voters instead of robed judges. Scalia admitted that they don’t have any greater claim to insight into issues of morality than the common man or woman. Since the elites have given up on God, it’s better to have issues decided by “the first hundred people in the Boston telephone book than the Harvard faculty,” to quote Bill Buckley.

  • William Luse says:

    You’re right, TS, better to have the common man vote on a matter, because he is more likely than a judge to put some limits on a liberty. But Zippy’s also right, in that the text of the Constitution must acquire its moral direction from pre-existing principles. Now if we could only agree on what those principles are.

  • zippy says:

    One difference between the Bible and positive law is that positive law is constantly under revision. So if a judge makes a particularly eggregious ruling it can at least in theory be corrected over time by the addition of clarifying statutes and constitutional amendments. If what we are looking for is structural checks on the power of judges, that is where the money is. Banishing the natural law through a positivist originalism will have the opposite practical effect to the one desired.

  • William Luse says:

    Could a judge’s originalism be based on natural law rather than positivism?

  • zippy says:

    I can’t imagine why not. In fact interpreting positive law without reference to legislative intent is as irrational as interpreting positive law without reference to natural law. The problem with positivist originalism (e.g. Bork and Scalia as opposed to the intellectually superior Thomas) is the positivism, not the originalism. The reason Bork and Scalia are viewed as the better intellects (than Thomas) by the Right is because their positivist tendencies reflect the dominant Protestant approach to interpreting text, i.e. without reference to precedent natural law which trumps textually constructed interpretations. But in fact Thomas (as far as I can tell) suffers less from irrational positivist tendencies than either of the other two men.It isn’t that the constitution-qua-constitution has mystical emanations and penumbras: it is that the constitution can’t mean anything at all without precedent natural law – precedent natural law that trumps interpretations of the constitution and even the putative legislative intent behind it – as its foundation. A constitution can be the supreme <>positive<> law of the land, but no positive law can trump the natural law without literally descending into irrationality.

  • c matt says:

    A good example, I would submit, is the Constitutional non-definition of person. The Constitution itself does not define it, so where do you look to get a suitable definition?This one area where I would disagree with the Scalia “leave it to the legislature” approach on abortion. There has to be a Consitutional definition of person or else the protection offered to persons under the Constitution is meaningless. If the legislature gets to decide who is or is not a person, what good is having Consitutional limits on what the government can do to persons if the legislature can simply define you out? Thus, to some extent, I do agree with Roe supporters that the SCOTUS is the place where the definition of Consitutional person needs to be decided. Obviously, I think Roe got the answer wrong, but the SCOTUS is where it needs to be answered. This is where natural law needs to step in and inform the Constitutional text.

  • William Luse says:

    Wouldn’t the better way to define person come through a constitutional amendment? At least then we’d know the definition had run its course through the people’s representatives. If the SCOTUS, with its current makeup, were to define “person” today, that definition would begin at birth. Otherwise, they’d be admitting that they had approved and continuously upheld, via Roe v. Wade, a constitutional right to murder a person.

  • zippy says:

    There are necessarily additional extra-textual questions which have to be answered by the judge <>now<>, either explicitly or implicitly, unless we want to resort to trial by the legislature (that is, to make the legislature the interpreter of the positive law in addition to the promulgator of the positive law). In that case the text of the law becomes truly advisory only, and the actual law reflects purely the will of the legislature at any given moment. If the text has to remain fixed at the time of making an actual judgement (no matter who is making the judgement) in a particular case, then it is necessarily incomplete.The text of the positive law quite literally cannot be made complete for the same reasons that the text of Scripture cannot be made complete. If we make it a requirement that the text of positive law has to be interpreted as complete then we have contradicted ourselves, with all that that implies, although coming to a rigorous understanding of why textual completeness is rationally impossible can be pretty nonintuitive. We didn’t know for a rigorous fact that textual completeness is impossible (except under certain pathologically simplified circumstances) until the twentieth century, although the Catholic Church has taught it with respect to the Bible since at least the Council of Trent.There are really two issues:1) Where do all of the concepts that we rely on but which cannot be made comprehensively explicit come from when interpreting the positive law, given that the positive law is always necessarily incomplete? and2) What happens when positive law attempts to contradict natural law?If “positive law loses” is not the answer to #2 then perhaps the America is indeed illegitimate in a troubling sense, because the American founders clearly acted on the principle that natural law trumps positive law whether they explicitly stated it in that way or not.Note that with #1 we can’t just say “the government has no authority when the positive law doesn’t explicitly say so” because that is a way of asserting the Godel-completeness of positive law, and is thus quite literally a self-contradictory requirement. This is not necessarily intuitive, but it is provably true: a requirement for completeness results in a contradiction, which results in the arbitrary emancipation of the will, which leads to anarchy/tyranny (since anarchy and tyranny are the two political modes of the will unrestrained by reason).

  • TS says:

    “Sola Constitution” is also different from “sola Scriptura” because there is a mechanism for amendment to the Constitution but no such animal for Scripture. As for Bill’s point, agreement on pre-existing principles will not be found. The Founders assumed a belief in a Judeo-Christian God, but they didn’t imagine atheism would be a viable option. Without those pre-existing principles all that is left is to become a more naked democracy.

  • zippy says:

    <>“Sola Constitution” is also different from “sola Scriptura” because there is a mechanism for amendment to the Constitution but no such animal for Scripture.<>That doesn’t help as much as you might think though. The positive law may be revisable, but the positive law that must be interpreted by a judge is fixed at any given moment, for any given judgement. “Sola constitution as amended” is every bit as irrational as “sola constitution”.The problem with <>sola scriptura<> isn’t the <>scriptura<>, it is the <>sola<> (coupled with the fact that the scriptura is formal: that is, it is a text).A text – even a revisable text – literally does not <>mean<> anything at all <>in itself<> (sola).A lot of modern Catholics (especially converts from Protestantism I have noticed) seem to think (though probably not explicitly) that it is possible to reconcile positivism with meaning in the Church because the Magisterium has the authority to clarify old text with new text. In this view Tradition can be made explicit in text and the Magisterium expresses its authority in text and so meaning still comes to us in the form of text alone, but text revisable by the Magisterium. The “revisable by the magisterium” bit is what makes this different from sola scriptura, in this view.But ultramontane positivism doesn’t work. It is every bit as irrational as sola scriptura.

  • William Luse says:

    Then the only way to get natural law “into” the Constitution is to amend it to say so. What TSO said the founders understood to be underpinning the text of the constitution has been abandoned, and the only way to return it is via a “positivist” statement that pays homage to its lord, i.e., something to the effect that nothing in this constitution shall be construed to contradict the law of God as it has been understood throughout the history of Christendom, etc. I don’t think the <>sensus fidei<> of the American people would permit this. It seems an impossibility, and therefore I long for it.

  • zippy says:

    <>…and the only way to return it is via a “positivist” statement that pays homage to its lord,…<>I would adjust this to say “explicit” rather than “positivist”. Positivism denies the force of meaning to anything which has not been made explicit (and thus denies meaning entirely, which is why positivism leads directly to postmodernism). Saying something explicitly is not inherently positivist. Denying the authority of the nonexplicit is positivist.

  • c matt says:

    <>Wouldn’t the better way to define person come through a constitutional amendment?<>running the defintion by the people has its own dangers, of course. We are both working under the assumption (and in my case, the somewhat delusional assumption) the Court or the People will get the definition right. Natural law provides the right definition of person. Whether the People or The Court follow it is another issue, which is why reliance on the People or the Court is always tricky.

  • William Luse says:

    I would concur with “explicit” over “positivist”. I was trying to be ironic, to poor effect.

  • […] becoming transubstantiated incarnations of authority itself.  The crafting of positive rules, the writing of text onto paper, is not a sacrament. Bureaucracy cannot become a substitute for fathers, daycares cannot become a […]

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