Thursday, March 29, 2018

Interpreting the Bill of Rights

A member of the studio audience . . . well, not really, it was really my Philosophy of Law professor . . . asked a question regarding the interpretation of law.

It concerned an email discussion concerning Justice Paul Stevens' editorial calling for a repeal of the Second Amendment. After I posted some comments suggesting the difficulty in doing this and the reasons why some may oppose it, he responded with the following set of questions:

In light of our class in jurisprudence the question is where to look for guidance. In Natural Law, Legal Positivism, Legal Realism or where? Are any of these theories any good when it comes to the Second [Amendment] at least with respect to those who want it out and those who see it as sacred?

My answer was:

Positive Law vs. Natural Law

In discussing morality, I discover that people often confuse what I call an anthropological/sociological concept of morality with a philosophical concept.

The anthropological/sociological concept is descriptive - it asks what people believe to be right or wrong in a particular culture at a particular place and time.

The philosophical concept asks, “What is the right answer, if any?”

For example, was slavery morally permissible in South Carolina in 1850? The answer using the anthropological/sociological concept is “Yes.” The answer using the philosophical concept is, “No.” (NOTE: This is not to say that all philosophers would agree with that answer, but I would defend it. I hold that there are moral facts, and this is one if them. Yet, this moral fact does not change the correct anthropological/sociological answer.)

These are not conflicting answers. They are two different answers to two different questions.

We see this same distinction even in the hard sciences. We talk about ancient Egyptian astronomy, Medieval medicine, and Newtonian physics. In Newtonian physics, “Force equals mass times acceleration is true” is true. In Einsteinien physics (and in the real world, so it seems) it is false (but close enough for almost all practical purposes). Again, the statement that F=m*a is true in Newtonian physics but not in the real world is not a contradiction. The two statements are talking about two different things.

I see the dispute between legal positivism and natural law theory as being similar.

Legal Positivists are looking at the social/anthropological question of what the law is believed to be in a particular culture at a particular place and time. Legal Realism is an extreme form of Legal Positivism. It attempts to predict and explain whether (for example) the accused would be convicted or acquitted in a particular culture at a particular place and time, the way that a moral anthropologist might try to predict if a person in a culture would be praised or blamed.

The Natural Law theorist asks, “Should the accused be convicted or acquitted?” Or even, better yet, “Should the accused have even be put on trial? Should there even be such a law?”

These theories are not in conflict. They are addressing different questions. They only appear to be in conflict when people confuse the anthropological/sociological concept of law (positive law: what the law is believed to be) with the philosophical concept (natural law: what the positive law should be).

Natural Law theorists particularly contribute to this confusion when they identify what the law is and what the law should be, insisting that law that deviates from what the law should be is not law. It is still law in the anthropological/sociological sense even if it is false, just as “F = m * a” is true in Newtonian physics even if it is not true of the world.

The Separation Thesis
An important question in the philosophy of law concerns the Separation Thesis. This thesis holds that there is a fundamental distinction between what the law is and what the law ought to be. This thesis is often presented as a conflict between legal positivists (who say that an unjust law is still law) and natural law theorists (who say that an unjust law is no law at all).

If we recognize the distinction above, we see two types of separation thesis. There is a separation thesis that exists separately within either positive law or natural law itself, and there is a separation thesis concerning the separation of positive law from natural law.

Imagine a judge who must decide the case before her. Let us assume that the judge is a legal positivist who thinks that she ought to judge the case according to the law and that she ought not to let her moral opinions influence her decision.

The judge fails before she even begins. Her first decision involved answering a moral question – whether she morally ought to apply the law as written and morally ought not to allow her moral principles to impact her decision. In answering this question, she has already allowed a moral opinion to impact her decision.

In fact, I find it difficult to see how anybody who is not a moral nihilist (who rejects the very idea of morality) can prevent moral principles from impacting a decision. The decision constitutes an action. As an action, it is governed by moral principles. There is an “ought” and “ought not” applicable to what she does.

Of course, on the natural law side, there is no problem linking natural law to natural morality. Natural law is simply an expression of natural morality.

So, on the anthropological/sociological descriptive side, we have a positive law (the descriptive law at a particular place and time) linked to positive morality (the descriptive morality of a particular place and time). On the natural law side we have a natural law linked to natural morality.

Then there is the question of a “separation thesis” between positive law/morality and natural law/morality. In this case, the answer is, “Of course there exists a separation, just as there is a separation between Newtonian physics and the physics of the real world, Ancient Egyptian astronomy and the real-world facts concerning the stars and planets, and Darwin’s theory of evolution and evolution as it exists."

Bridging the Gap
Having said this, there is a way to bridge the gap between positive law and natural law. I will argue that we find an example of this in the Bill of Rights.

The Bill of Rights contains phrases such as:

  • The right of the people to keep and bear arms, shall not be infringed (Amendment II)
  • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. (Amendment IV)
  • No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation (Amendment V)
  • Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. (Amendment VIII)

These terms: “right”, “unreasonable”, “due process”, “just”, “excessive”, and “cruel” are value-laden terms. They require a judgment of value.

The question to be answered here is whether these terms are best understood as using the sociological/anthropological sense of the term (the beliefs about value that exist at the time), or the natural law sense of the term (the moral facts).

The doctrine of “originalism” seems to prefer the anthropological/sociological concept. Under this interpretation, the person interpreting the amendment is invited to try to discover, through an examination of history, what the term “right”, “unreasonable”, “just”, etc. meant to the people living at the time that they were writing the amendment. This requires a study of history, anthropology, sociology, and the culture at the time the Constitution was written. In a sense, this “freezes” the Bill of Rights in a certain era and keeps it in that era until some deliberate act (e.g., an additional amendment or revision) applies a new set of anthropological/sociological facts.

The alternative to this is that these terms use the natural law sense of the term. Under this interpretation, the Amendment refers to a moral fact that exists in the world independent of anybody’s beliefs or opinions. There exists, in the real world, a right to be secure in one’s persons, houses, papers, and effects. There exists, in the real world, an objective fact of the matter as to whether a search is reasonable or unreasonable. On this interpretation, it does not matter what the founding fathers believed. They could very well have been wrong. What matters, instead, is what the moral facts – the natural law – say to be right, to be reasonable, to count as due process, to be just or excessive or cruel.

As I see it, even the legal positivist would have to come to the conclusion that the value-laden terms in the Bill of Rights (and other parts of the Constitution) refer to the natural law - to the moral fact of the matter, not to the beliefs of the founding fathers.

This is because, as a matter of anthropological/sociological fact, when the founding fathers made moral claims, they assumed the existence of independent moral facts and they were using moral terms to refer to those independent facts. They were not using those terms to refer to their beliefs about those facts. So when they wrote about “The right of the people to be secure in their persons, houses, papers, and effects” they assumed that there was, in the world, a thing called a “right” and that this thing, whatever it is, is that which the people had. They did not have this right in virtue of the fact that the founding fathers believed it. Nor could one infallibly determine its size, scope, or limitations by examining the beliefs of the founding fathers. The person who wanted to see the size, scope, and limitations of this right had to look at the right itself and determine what these limits were in fact.

This view of morality is blatantly obvious in looking at the Declaration of Independence.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men . . .

This is not talking about a right that exists only because the founding fathers believed that it exists. This is talking about a right that exists in fact – and the purpose of governments is to secure rights that exist in fact. Consequently, to determine what the right is that the government needs to secure, one needs to look, not at the beliefs of the founding fathers, but at the right that exists in fact.

Of course, all of this assumes that there are rights that exist in fact. If there are no such rights, then this would imply that the Bill of Rights is empty. The right of the people to be secure in their persons, houses, papers, and effects cannot be abridged by any law if there is no right to abridge. The right to bear arms cannot be violated if there does not exist, in nature as determined by natural moral law, a right to bear arms that can be abridged.

And, of course, on this interpretation, judges are being commanded by the Constitution to apply – not their own moral opinions to the case – but the moral facts insofar as they can determine what those facts are.

The Second Amendment
This comment emerged in the context of a discussion of repealing the Second Amendment. On this view, if we look at the intentions of the founding fathers the amendment says that there exists in nature a genuine right to bear arms, and its size, scope, and limitations exist in nature as a matter of fact. We then need to investigate that right to determine its size, scope, and limitations in fact. If there is no such right in fact, than the Amendment is empty. No law can infringe on a right that does not exist in nature. The assertion in the Bill of Rights that such a right exists does not make the assertion true. And if it does exist, we still need to look at the right itself to determine its size, scope, and limitations - whether it applies to the private ownership of thermonuclear bombs or whether there is no such right.

We get to this answer regardless of whether we follow the path given us by the Legal Positivist or the Natural Law theorist, on the grounds that the authors of the Second Amendment themselves were Natural Law theorists.

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