the imaginative conservative logo

Textualism is a compromise, or rather a lowest common denominator, that can allow for a renewal of the rule of law. Still, it rests on a great loss—that of the common mind of our people…

 Neil GorsuchNeil Gorsuch, President Trump’s nominee to fill late Justice Antonin Scalia’s spot on the Supreme Court, might follow other recent Justices, casting aside his principles in pursuit of progressive praise and/or political ends. But his many important written opinions give us no reason to predict such a change—as they might have with previous appointees. Rather, Judge Gorsuch’s record indicates that he will be an entirely appropriate successor to the late Justice Scalia. Like Scalia, Judge Gorsuch has dedicated his career to understanding the text and public meaning of the Constitution and other relevant statutes, carefully applying them to the case at hand. Like Scalia, he will bring to the Court an understanding of the inherent limits of the judicial role in adjudicating under, rather than making law.

This is not to say that Judge Gorsuch is a Scalia “clone.” One of the more surprising characteristics of his career is that he has managed to develop into a grounded, textualist judge of great common sense despite his privileged background, Ivy League education, and cultural connections. Who could picture the traditional Catholic Scalia attending a church run by a priestess who enthusiastically participated in the recent “Women’s March” in Washington, in which was spewed vast amounts of vulgarity in the name of false civility and all-too-real abortion? Yet such is the case with Judge Gorsuch and his Episcopalian congregation.

Cultural context aside, Judge Gorsuch displays significant intellectual differences from Scalia. But the central difference here is of little relevance to judging today. And that is both good and bad news for our legal order.

The difference relates to the natural law. Scalia, reared within a religious tradition that holds natural law central to every person and community’s ability to pursue virtue in this life and beatitude in the next, dismissed that tradition as irrelevant to the craft of judging. Judge Gorsuch is a devotee of the “New Natural Law”—that instrumentalist reduction of the natural law tradition to Kantian universalist precepts and casuistry propounded by John Finnis and a few American followers. It is unnecessary for Judge Gorsuch to disavow applying New Natural Law in his decisions because, properly applied, it would have little impact there.

The many critiques of the New Natural Law have been effective enough that it has never grown beyond a small circle of practitioners and acolytes. Its details need not detain us here. But it is important to note a few basic tenets about this theory so that we may understand what it says about where we are as a culture in our moral understanding, and where this leaves us in regard to law and judging.

As a derivative of natural law, Finnis’ philosophy retains an essential element placing its adherents on the side of reality in debates with modern progressives. That element goes by the old Greek name of teleology. Most sane people for almost all of human history understood that everything has an intrinsic end or purpose (telos). An acorn’s proper, natural end is to become a tree, a person’s end is to live a life of virtue in hopes of the hereafter, sex’s purpose is procreation, and so on. This does not mean that we should not enjoy the side-effects, shall we say, of the things of this world, or that we have a duty to see to it that every acorn becomes a tree (what would happen to the squirrels?). But it does mean that reasonable people will recognize that their lives will be better—more happy and virtuous—if they consider what they are doing and why, and recognize the integrity of activities like sex, as well as people, institutions, and even things.

Traditional natural law recognizes a hierarchy of goods rooted in God’s nature and the order of existence He established. Play is a good. But it must have its place, below higher, more ordering goods rooted in love of God. The New Natural Law replaces such theologically grounded ordering with a kind of logic of morality, rooted in a largely unexamined set of Basic Goods it posits as all equally valuable. The lack of a hierarchy of goods is troubling, here, but so is the lack of any attempt at justifying the goods themselves (they are supposed to be self-evident). What is lost in the process of reducing natural law reasoning to the derivation of rules of conduct from logical premises is historically grounded prudence.

What does any of this have to do with law and judging? Not much—any longer. Law, which by nature aims at justice, should be read so as to fulfill that aim where possible. The problem, of course, is that almost no lawyers today have any clue as to the nature of justice. They believe it means “equality,” or “rights,” or some other vague generality, rather than respect for the reasonable expectations of the members of a community. And this is why natural law can have no real place in modern jurisprudence: judges and lawyers are too corrupt to read it as even a child could have understood it, say, 100 years ago, and so cannot be trusted to rely on its largely self-evident principles in pursuing their craft.

Herein lies the good and the bad news about natural law in judging today. Over the last 150 years intellectuals and lawyers have waged a war against natural law in America. Beginning with the rise of that execrable mask for judicial tyranny called “legal realism” legal academics in particular have asserted that the natural law is mere propaganda—a series of lies got up to cover elites’ will to power and, in particular, to stand in the way of Progress toward a more egalitarian, centralized, and hygienic society. There were many clear instances of brutality and rank bigotry embodied in progressives’ actions (eugenics was for decades a central tenet of progressivism and upheld in court as such). Nevertheless, disdain for religious thought and action combined with impatience for the tradition-bound nature of law led legal elites to reject law’s natural moorings and to snuff out pockets of resistance to its increasingly dominant ideology. Natural law thought and thinkers were driven out of the academy by hiring committees and editorial boards and off the bench by ideological smears.

The result was far worse than a mere loss of jobs and “intellectual diversity.” It was the loss of a common mind. Sadly, the New Natural Law provides no guidance for recovering that common mind—beyond the undeniably useful recognition of teleology’s reality. What it and Scalia’s rejection of natural law as a guide to judging share is a reasonable aversion to the dominant “realist” or “pragmatic” norms of legal judgment.

Jurisprudence today posits that law is power, but also that law should be a tool for imposing the “correct” policies and institutions on society. The goal is to serve people’s “rights.” Like Basic Goods, today’s rights are merely assumed; to question them is to be taken as lacking basic reasoning skills, or to be enslaved to contemporary power structures. Rights, on this view, entitle us to specific things, including abortion, marriage, self-expression, and all kinds of goods related to self-development and recognition. That these goods would have been rejected with revulsion by the Framers of our Constitution is, when acknowledged, taken to be a criticism of those Framers.

Legal texts that fall into the hands of the majority of judges who adhere to this ideology or come under scrutiny by our virtually single-minded legal academy are read in light of whatever good happens to seem most important to elite opinion at the time. Whatever the text happens to say, it is interpreted as “really” serving this overall, higher and more abstract good, then reinterpreted to demand political action furthering that goal. Thus the “right to privacy” was ginned up out of disparate “emanations from penumbras” in the Constitution, then further distorted as a guarantee for the right to kill unborn children. Same-sex marriage provides another relevant example, as would many more arcane uses of this technique of distortion-through-abstraction.

Textualism is the only antidote to this fundamentally dishonest perversion of law. It insists, quite simply, that the text of a Constitutional provision or other statute must be read and applied according to its accustomed meaning at the time of its drafting; it cannot fairly let alone legally be read to mean something more abstract. Textualism is and should be universally demanded by a free people as the basis for judicial decision-making because it is the only method of interpretation that recognizes law as law—fixed statements forbidding or demanding particular actions by persons and institutions.

The good news for law today is that textualism has gained some significant traction among judges (it remains all but banned from the law schools). Given contemporary society’s Will to Ignorance regarding traditional natural law, this is a very good thing. In effect, textualism can substitute for a proper understanding of the norms embodied in law an understanding of the words of the law sufficiently freighted with historical understanding to go most of the way toward proper interpretation. Thankfully, the New Natural Law’s casuistry, formulaic as it is, need not trump textualism; it is thin enough to allow for textualism to rule in its adherents’ opinions.

But textualism is merely the common sense of the law; it is not the whole of legal reasoning. Here it is important to recognize the very real weaknesses in Scalia’s own jurisprudence. He was a master of legislative construction. He knew how to read legislative texts better than perhaps any other man of his era. But law is not just texts. It also entails understanding of circumstances and reasoning from previous cases. Law is about custom. Even in purely statutory systems, law must recognize and uphold people’s customary understandings of terms and practices. It must recognize the common law—that long tradition of judicial decisions that formed the rules of conduct and common understandings undergirding American law to this day.

Common law in large measure is the enforcement of customary understandings of what is prudent, reasonable, and in keeping with one’s agreements. Scalia often asserted that ours is no longer a common law system. Because of our legislatures’ and administrators’ penchant for imposing new rules, this has become increasingly the case. But it still is not fully the case, and our transformation to a civil (written, statutory) system has come at great cost to our traditions and our freedoms. Human beings cannot help but look to law, as to all things, in normative fashion. A rule is a rule because it is deemed in some sense good for the community. Why else would we view it as legitimate, why else follow it, other than out of a fear most of us would find dehumanizing and rebel against as soon as we could? The problem is that we have lost our ability to reason through to the normative groundings of law. Progressives have simply asserted their own ideological goals in the stead of traditional norms. Unfortunately, textualism cannot counter this tendency, seeking only to avoid it through single-minded attention to the printed page. And there are simply too many assumptions rooted in all texts for us to effectively stop progressives from hijacking them,

The alternative is a common law understanding of law that looks to historical context in finding the legitimate purposes of statutes and customs. Sadly, that understanding has been replaced by self-serving word games in service to judges’ current prejudices and preferences. How did we come to this pass? By rejecting our common law heritage, along with the natural law frame of mind in which it once operated.

Before the rise of legal realism, the essentially universal form of legal interpretation was what today is called “intentionalism.” Judges attempted to get inside the minds of the drafters of legislation, or Constitutional provisions, to discern what they would make of the specific dispute under consideration. Would the Constitution’s Framers think that wearing a shirt with an obscenity written on it to a judicial hearing was protected as “free speech?” Of course not. Therefore, the person fined for doing this has no constitutional claim to assert in challenging that fine.

The problem with this form of judicial reasoning is that we often do not know what a law or Constitutional provision’s authors would think of a specific dispute. Legal realists seized on this fact to discredit intentionalism. Moreover, the pursuit of specific intention within the morass of law and regulation put into effect since the New Deal produced a great deal of self-serving and disingenuous “evidence” in the form of political speeches and fabricated testimony intended to capture “the spirit of the times.” No longer sharing the (teleological) view of the world that animated the Framers, most judges are simply not qualified to determine the meaning or intent of their handiwork. Scalia, and Judge Gorsuch, have done America and its law a favor, then, by dismissing such attempts as inappropriate to a judge’s office. Instead, they insist that we focus entirely on the “public meaning” of a statute. Dictionaries and other clear evidence of the meaning of particular words and phrases from the time can tell us what the text itself meant to the reasonably intelligent reader of that text. If the drafters meant something else, well, then they should have done a better job of drafting. Law, after all, should not surprise those to whom it applies, for people cannot follow a law they do not understand, meaning that such a law is not really a law at all; it is just empty phrases covering the will of the rulers.

Textualism is a compromise, or rather a lowest common denominator, that can allow for a renewal of the rule of law. Still, it rests on a great loss—that of the common mind of our people. Where once Americans understood that, for example, someone who murders his grandfather cannot inherit under that grandfather’s will, today the question would be “where is the law on that?” Natural law tells us that it is the very nature of law to forbid people from benefitting from their own wrongful acts. And this rule for centuries was recognized by judges steeped in the common law tradition. Unfortunately, today our judges are more likely to demand that policies be shaped to further their own ideological agenda than to uphold generally recognized standards of right conduct.

Traditional natural law recognizes that law is a branch of ethics. As for ethics, it is a form of moral reasoning rooted, not in ideological abstraction, but in the nature of our being, both in its universal aspects, and in the particular, historically developed norms that define right conduct within particular societies. We have lost this understanding. Regaining it is the task of generations, and will come to lawyers last (or nearly last) of all. And until it comes to them—until judges are sufficiently imbued with a traditional understanding of right conduct, intrinsic purpose, and the role of custom in defining law and cabining power—we cannot look to natural law in court for protection against ideological bad actors on the bench. We should work to renew our common, natural law mind; in the meantime we must embrace those who in turn have embraced the modest common sense of textualism.

Books on the topic of this essay may be found in The Imaginative Conservative Bookstore. 

Print Friendly, PDF & Email
"All comments are subject to moderation. We welcome the comments of those who disagree, but not those who are disagreeable."
3 replies to this post
  1. I wonder if Mr. Frohnen is conflating two issues:

    (1) the proper scope of the common law (and the role of the courts in articulating the common law); and

    (2) the proper approach to deciding cases brought under the U.S. Constitution (which has a defined text) and federal statutes (also defined texts).

    It has been a long time (longer than I like to think) since I finished law school, but, if I recall correctly, there is a very limited (even non-existent) scope for the federal courts to articulate common law. Erie Railroad v. Tompkins, 304 U.S. 64. That has historically been the province of the states, building upon what the original colonies inherited from England. A federal judge (or a justice of the U.S. Supreme Court) is inevitably going to spend his or her time addressing the meaning and scope of a particular text–in which case textualism may not be merely the best available option–it may be the approach which best recognizes the relative powers and responsibilities of Congress, the presidency, and the Article III courts.

  2. Ontology, Epistemology, Metaphysics. Sneered at by self-avowed Practical Men, who haven’t a clue their “practicality” is rooted in the musings of some long-dead philosopher. From Metaphysics come Ethics, from Ethics come Politics, from Politics comes the Law.
    Than sound philosophy, the only thing more enervating to the wannabe usurper of the Rule of Law is the jest of a drunken poet mumbled in the tavern at closing time.

  3. Better than Warren, Brennan, and company, but, from my perspective, the Constitution was written for normal people, a higher percentage of which, I believe, existed in this country in the late eighteenth century than now. A literal interpretation of freedom of speech. I think, would have been perceived by a man of the tine as pertaining only to LAWFUL POLITICAL speech. It ought to be obvious that the Fifth Amendment was crafted to prevent a coerced testimony, and should be read literally. Lawyers and judges who, for whatever reasons, have interpreted it to mean that an accused cannot be forced to testify have, gone off the deep end. The accused is permitted to lie, but, if caught out, is subject to the charge of perjury. If the Founders had wanted to allow the accused the option of avoiding the witness stand, they could simply have left off the “against himself,” and saved posterity untold gallons of ink, not to mention denying fodder to fervent feminists. And. the main point to which the judges, politicians, and kibitzers, in general, have turned a blind eye, is that there is a process for amending the Constitution.

Please leave a thoughtful, civil, and constructive comment: