In the new issue of First Things, Justice Antonin Scalia reviews a book on the philosophy of law by Steven D. Smith: Law’s Quandary (Harvard University Press).
Scalia’s essay is a fascinating discussion of the relationship of religion to law, and a concise summary of the contrasting liberal and conservative views of the Supreme Court.
Early on in its analysis, Law’s Quandary sets forth three “ontological inventories” — three categories describing what we in twenty-first-century America “believe to be real”: everyday experience, science, and religion. The last is excluded from the book’s ensuing analysis because of the “norm prescribing that religious beliefs are inadmissible in academic explanations.” . .
It turns out that neither everyday experience nor science forms a sufficient basis for a philosophy of law, leaving Smith with the quandary that forms the title of his book:
[Smith’s] book describes what he believes to be the quandary but does not resolve it, examining and rejecting various solutions — except, of course, the classical [religious] one, which is out of bounds because it violates the “norm prescribing that religious beliefs are inadmissible in academic explanations.” The book’s last paragraph acknowledges that “perplexity is not a resting place” but concludes that “we would perhaps be wise to confess our confusion and to acknowledge that there are richer realities and greater powers in the universe than our meager modern philosophies have dreamed of.”
Hmmm. Richer realities and greater powers than our modern philosophies have dreamed of. Could there be a subversive subtext here?. . . .
Scalia’s description of the liberal versus conservative approach to the Supreme Court turns precisely on his belief that justices are not priests, and thus are not the source of the law:
Modern governments, or modern governments in the West at least, are thought to derive their authority from the consent of the governed, and the laws they prescribe are enacted by the people’s representatives. Such a system is quite incompatible with the making (or the “finding”) of law by judges — and most especially by unelected judges.
[T]here are means of converting democratically enacted law . . . into a sort of common law prescribable by judges. We have done this with the federal Constitution. One such means is simply reading text to say what it does not say — so that the assurance that no person shall be deprived of life, liberty, or property without due process of law becomes an assurance that fundamental liberties shall not be eliminated; of course, it is the judges who get to decide, in common-law fashion, what liberties are fundamental.
Another means consists of asserting that a text does not retain the meaning it had when it was adopted but, rather, changes meaning to conform with current practices, or current attitudes, or . . . whatever a majority of the justices thinks best. Thus interpreted, the Equal Protection Clause, for example, which at the time of its enactment plainly was understood not to prohibit a state from restricting marriage to persons of opposite sex, could now contain that prohibition. Depends on what the judges think. . . .
Try this thought experiment: Imagine that George W. Bush is able during his term to nominate a third Supreme Court appointment, producing a five-vote conservative majority. Imagine further that the new conservative majority, considering themselves legal priests, find that the Constitution’s prohibition against the deprivation of life without due process embodies a "right to life" of an unborn child.
The result would be not merely the overruling of Roe v. Wade, but its mirror image: a judicial decision finding a new constitutional right that no legislature could overturn. All abortion would be rendered illegal overnight, with only such exceptions as the new conservative majority deemed not to be an “undue burden” on the newly-declared constitutional right of the unborn.
The only thing that prohibits such a judicial dictat is the view the proper role of the Court is not to declare the law but to interpret statutes (and a Constitution) duly enacted by the people. Under that view, the difficult issues surrounding abortion are — like many other issues not resolved by the Constitution — to be decided by the people, informed by their religious beliefs and governed by their decisions about the type of society they wish to create.
(P.S. The judicial “modesty” that Scalia supports might also cause a conservative justice, observing the doctrine of stare decisis, to leave Roe v. Wade in place, rather than overrule it).