"You shall know the truth, and the truth shall make you odd." ~Flannery O'Connor

Saturday, November 26, 2005

Law's Quandary and Justice Scalia

Stephen D. Smith's Law's Quandary (LQ) is the sort of costly, scholarly book I used to read when I was in academia but is now a luxury I cannot afford. If I read it at all, I'll have to wait for some university library in central North Carolina to acquire it, and then drive to it. That would be a day in my life, which I don't often have open; I've done that only three times in the last ten years. In many such cases as this, I hope instead to encounter a reliable review in lieu of the book so that I can at least get acquainted with the most substantive issues. That hope is too often vain; but not this time. I am as relieved as delighted to engage with Justice Antonin Scalia's trenchant review of LQ in the November issue of First Things. That my favorite jurist is reviewing such an important book in my favorite journal is a rare treat indeed.

As quoted by Scalia, Smith frames law's quandary thus:

Since at least the time of Holmes, lawyers and legal thinkers have scoffed at the notion that “the law” exists in any substantial sense or that it is not reducible into our discourse and practices. Law is not a “brooding omnipresence in the sky.” We have rejected any such conception of law . . . because we perceive, correctly, that our ontological inventories (or at least those that prevail in most public and academic settings) could not provide any intelligible account of . . . this “preexisting thing called ‘The Law.’” At the same time . . . [there is] cogent evidence suggesting that we still do believe in “the law.” . . . Our actual practices seem pervasively to presuppose some such law: our practices at least potentially might make sense on the assumption that such a law exists, and they look puzzling or awkward or embarrassing without the assumption.
Like Scalia, I shall assume that such a description is true. "We," meaning contemporary Americans who think seriously about the philosophy of law, believe implicitly in something called "The Law." That belief is what drives all forms of judicial activism. But the prevailing legal positivism cannot give an adequate account of what "The Law" is and indeed rules out even trying. Since both Scalia and Smith well explain why that is so, I shall take for granted the existence of such a quandary. The interesting question is whether we must live with it rather than think as necessary to resolve it.

Scalia argues, in effect, that the only alternatives to the quandary are complete "textualism" on the one hand and the sort of ethical monotheism that forms the historical context for natural-law theory on the other. In other words, we can either be really, really strict "originalists" or we can be natural lawyers in the classical sense alluded to in the Declaration of Independence ("the laws of nature and of nature's God"). Refusing both alternatives—which is now the norm on faculties of law—leaves us unable to explain a belief that the profession is as unwilling to abandon in practice as to acknowledge in theory. Our choices thus are three: (a) originalism; (b) religion; (c) incoherent arbitrariness.

Most American jurists embrace (c), the core of the quandary, not because they like it but because they dislike (a) and (b) more. In that respect, they are hardly unique or even disturbing: for example, most Americans rightly find our health-care system too costly, unwieldy, and exclusionary; but it stays pretty much as is because just as many people dislike the alternatives even more. So we keep paying and paying: health-care costs consistently rise at a rate well above that of general inflation even as more and more Americans become unable to afford the care they need. In the long run, that is politically as well as economically unsustainable; and the same goes for the spiritual cost of the jurists' incoherent arbitrariness. The very people who ought to be most keenly aware and solicitous of the philosophical basis of the Republic refuse on principle to acknowledge it. How long can the Republic last amid such a quandary?

The evidence of breakdown is becoming ever clearer. Freedom of religion has come increasingly to mean what it never used to mean: the exclusion of religious values and expressions from public life, even as most Americans believe in a Higher Power and most of them in the God of ethical monotheism. Similarly for the right to privacy: freedom from government intrusion into the home without due process has come to mean the right to determine for oneself whether to count unborn children as persons with a right to live or not. Yet nowadays nobody would find it acceptable to let rich people decide whether their black employees are human beings, and thus have a right to be paid, or not. Remember slavery? The Supreme Court upheld it, asserting that, constitutionally, a slave counted only as three-fifths of a person; whereupon Americans fought a hugely bloody war over slavery whose result made Dred Scott a dead letter. Today, the main casualties of being defined into non-personhood are too small and voiceless to vote. Those who strive to defend them are dismissed as "religious extremists." Somehow it's forgotten that the abolitionists were too.

Want more examples? Civil marriage now consists in a an open-ended contract severable by the will of one party, regardless of the other's will. When children are involved, that party is usually the woman; so now, in most states, family law has come to consist more and more in a set of rules for replacing fathers with money. For you uninitiates, that money is called "child support." It is extracted on pain of jail; as a result, not a few honest men can and do serve jail time if they are unfortunate enough to lose their jobs. Thanks to the legal fiction of "no-fault" divorce, debtor's prison, which many of our forefathers came to these shores to escape, has returned with enthusiastic public backing.

Indeed, many men without any history of criminal behavior now live literally under the gun—and I'm not even going to get going on domestic-violence restraining orders, whose legitimate purpose as originally conceived is now routinely abused to preordain custody decisions when no evidence of physical violence has been presented. Only a few father's-rights activists, dismissed of course as "extremists," seem to think all this unconstitutional—never mind the staggering social costs, which go hand in hand with the cost of all the other things I've cited, and more things I haven't. Needless to say, the people most directly responsible for maintaining such a regime either cannot or will not come to grips with the true costs. It is now fashionable to lament the psychological and economic costs of "father absence;" but many who do so continue, knees jerking, to support policies that facilitate it and sometimes even mandate it. Family life in this country has become increasing fragile and chaotic with the full support of people who ought to know better.

I am astounded that people who are nowadays brave and honest enough to call themselves "feminists" believe that laws severely restricting abortion would be unconstitutional infringements of privacy but that, at the same time, dragging a man from his home and off to jail on the basis of an unsusubstantiated accusation, only to be informed at a hearing that he no longer has the right to associate with or even contact his wife and children, is not such an infringement. That is what happened to two men of my acquaintance during the last two years. Neither had any criminal record, and neither was ever charged with a crime. They just served the 48 hours in jail mandated by state law in these cases. Cognitive dissonance, anyone? That such Kafkaesque, ideological absurdity is now enshrined in our laws is possible because we are forgetting The Law to which laws must conform.

So what is to be done? Originalism—at least in the non-threatening "texualist" form entertained by Smith—is pretty much out. Hardly anybody—left or right, secular or religious—wants judges to limit themselves at all times to "the intent of the framers." A good reason for that is that it's unclear whether such a thing is even relevantly ascertainable in the most interesting cases. Smith gamely argues that it is, claiming that the meaning of a given form of words consists merely in what its author or speaker intends. But philosophically that view is untenable, and Scalia has great fun demolishing it. So that leaves us with (b): religion.

Thus Scalia concludes:
As one reaches the end of the book, after reading Vining’s just-short-of-theological imaginings followed by Smith’s acknowledgment of “richer realities and greater powers in the universe,” he (she?) is sorely tempted to leap up and cry out, “Say it, man! Say it! Say the G-word! G-G-G-G-God!” Surely even academics can accept, as a hypothetical author, a hypothetical God! Textualists, being content with a “modest” judicial role, do not have to call in the Almighty to eliminate their philosophical confusion. But Smith may be right that a more ambitious judicial approach demands what might be called a deus ex hypothesi.
Will jurists have the courage and honesty to embrace the hypothesis of God? I doubt it: not even with four Catholics now on the Supreme Court and one awaiting confirmation. Most American Catholics are more reflexively American than Catholic; when the two conflict, the former usually wins. If I were a lawyer, that's what I'd want to spend my time trying to change. But then I'd be as poor as I was while a graduate student—after deducting for child support, of course.
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