Saturday, March 20, 2010

Reply to Hays on Jurisprudence

Steve Hays thinks my reflections on jurisprudence lead to an "anything goes" judiciary that will be completely out of control. It's either originalism or chaos. (Kind of reminds me of people in science who say it's complete methodological naturalism or chaos).

I don't think so. I think this is a ridiculous example of the slippery slope fallacy.

Look, when you ask whether the Bible has something to say about the abortion controversy, do you say "The Bible doesn't say anything about abortion. Nobody tried to get an abortion that is recorded, and we don't have God's reaction to it. So let's just be silent where the Bible is silent."

Of course not. You brought up something about children being a gift from God, and that that should motivate Christians to not get abortions. The penumbra of those Scripture passages makes your case against abortion. (Your argument is open to further evaluation, of course, but it's surely not wrong in principle).  The anti-abortion conclusions aren't strictly entailed. You have to allow for plausible extrapolations from a text if you want the text to be relevant to present-day life.

But the "penumbra" has got to be plausible. You can't just operate out of thin air.

Same with the Trinity. Is the Trinity strictly entailed by the New Testament? Perhaps not, but it provides us with the best and most sensible interpretation of what we find there. Presuppose it, and the NT hangs together a whole lot better than if you deny it. So I won't be visiting my local Kingdom Hall any time soon, despite the fact that the JW's just rang my doorbell and gave me a gracious invitation to visit them.

Let's take the Griswold case with contraceptives. The Court thought that if the authors of the Constitution intended to protect citizens' privacy in the case of search and seizure, that they were implying a right to privacy which would be violated by laws forbidding contraceptives.

This may be a bad extrapolation, but I have trouble accepting the objection to it on the grounds that it is an extrapolation. New situations arise. The Pill wasn't invented when the Bill of Rights was written.

What I'm criticizing here certainly isn't any opposition to Roe, about which I have considerably mixed feelings. (If it were up to me, late-term fetuses would be declared to have a right to life under the 14th Amendment). In fact I have repeatedly said that if one could show that there is no morally relevant difference between the death of a fetus and the death of an infant, then you could have an "equal protection" argument against the permissibility of abortion.

The Court is appointed by the President and nominations are ratified by Congress. Members of the court can be impeached. I don't think you can go from the acceptability of extrapolation to "anything goes, and the Court is omnipotent."

If you have a text that comes down to us from another era, you have new situations that weren't envisaged in the original document. However, there are still underlying principles from the text that can be applied. I do think Newman was right when he said doctrines develop. However, there are good developments and bad developments, and we have to do our best to distinguish these. In the case of the Constitution, we have no infallible Pope or Councils to guarantee the correct answers. (Well, actually, I don't think we have an infallible Pope in Christianity either. But that's a point on which I can count on you to agree with me, right?)


Anonymous said...

Seems very obvious. But as to your last question, uhm, we'll have to disagree. :)

Anonymous said...

Bob prokop writing:
Victor, as you know, I am the furthest thing in the world from an "original intenter" or a strict constructionist as regards the constitution.... except when it comes to the 2nd amendment. I would LOVE to have it interpreted in the following manner: The constitution gives Americans the right to bear whatever arms existed in 1789, and that's all. You may freely own a muzzle-loading, powder bag-requiring, single-shot musket. Anything invented since then is not covered!

Victor Reppert said...

I'm afraid original intent theory is whatever Antonin Scalia says it is, (unless Robert Bork disagrees) and he has ruled in favor of a general right to bear arms. Sorry, Bob.

Anonymous said...

Bob Prokop writing:
Imagine that! Scalia turns out to be a moral relativist! Who would have thunk it?