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?)

Some problems for originalist jurisprudence

It is important to realize that our country's was founded on something of a moral contradiction. On the one hand we have the Declaration of Independence, (all men are created equal), and the Bill of Rights, which suggests that we all are supposed to have rights, and yet large portions of the country practiced Negro slavery (including the author of the Declaration), and women were denied the right to vote until the 20th century. Because the South dropped out of the body politic through secession, we were able to amend the Constitution in order to end Negro slavery. Thus, through amendment, we were able to make our laws more morally consistent. But the Supreme Court didn't help reach this, it produced the dreadful Dred Scott decision. Women got the right to vote through constitutional amendment. But separate but equal held sway until Brown vs. Board of Education. At that time there were certainly enough Southern states who would have prevented a school desegregation amendment had one been proposed, since you need 3/4 of the states to amend the Constitution. Under those circumstances, the originalist slogan "if you don't like the Constitution as it is written, amend it," would never have worked. Now maybe a originalist argument could have been made for school desegregation, but the actual jurisprudence in Brown seems not to have been that. The originalist has to be prepared to tolerate what they perceive as a deep injustice, hoping for a future amendment, if they can't pull the required change out of the text of the constitution. And to my mind, that is a price to pay.

On the other hand, an out of control judiciary can maybe make the wrong decision, and a lot of people think that that is what happened in Roe. But when I was a kid people talked about an out of control judiciary, but when they did they usually complained about decisions like Miranda, which protected the rights of the accused? Was "You have the right to remain silent," now a staple of every cop show going as far back as Hawaii Five-O, a misguided decision? Unfortunately, I think I want the court system protecting the rights of the accused. I can't trust the body politic, who is generally motivated by "law and order," and can be swayed by such things as the Willie Horton ad, to provide sufficient political will.

And then you've got to ask if judicial activism started with Marbury vs. Madison. After all, judicial review isn't even specified in the Constitution.

I think I want my judiciary to be able to strike down injustice even if that means stepping beyond the borders of original intent, even if that leaves the door open for the judiciary to make some wrong decisions. I think the implicit doctrine at the foundation of the Constitution is the principle of equal rights for everyone, in spite of the fact that it got enshrined in the text of the Constitution only imperfectly.

There's a lot to think about when you select a judicial philosophy.

I wonder who was making the originalist arguments at the Council of Nicaea? The Arians were arguing that you couldn't find homoousion in the text of Scripture, so you couldn't define orthodox Trinitarianism as Christian doctrine.

If fetuses really are persons, if every conception of personhood that places the onset after conception is arbitrary, then shouldn't the equal protection clause of the 14th Amendment be applied to them?

Abortion, Roe, and legislating from the bench

It seems to me that the case against abortion has been hitched to the conservative objection to "judicial activism." The hope for overturning Roe has been connected to the claim that had the SCOTUS refrained from "legislating from the bench," the ruling would have been avoided and state laws would have stood.

But if pro-lifers are right in supposing that fetuses are person from conception and we can know that, then the conclusion should not be to remand the issue to the states. The correct conclusion would be to press a case on behalf of fetal life based on the equal protection clause of the 14th Amendment, striking down all permissive abortion laws. That might be legislating from the bench, but wouldn't that be the correct for the court to make, on pro-life assumptions?

Abortion and constitutional law

In debating the abortion issue, people sometimes conflate the moral question of abortion with the legal question as to whether abortion laws are constitutionally justified. The following four positions are compossible.

1) Abortion is always morally wrong, (except in cases where the life of the mother is in danger) but as a matter of constitutional law, Roe was correctly adjudicated.

2) Abortion is not always morally wrong, and Roe was correctly adjudicated.

3) Abortion is morally wrong, and Roe was not correctly adjudicated.

4) Abortion is not always wrong, but Roe was not correctly adjudicated.