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.