Originalism and Positivism

Much ink has been spilled by left and right over supreme court nominee Alito's 1985 job application to work in the Reagan administration, on which he wrote that he found no right to abortion in the constitution. And he's right, of course. It's patently obvious that the framers of the constitution did not intend to enshrine a right to abortion on our founding document.

Originalism is a two-edged sword for the pro-life cause. On the one hand, insisting on following the text and original intent of the constitution prevents justices from reading things into it which clearly aren't there: right to abortion, right to euthanasia, right to sterilize the 'unfit', etc. On the other hand, the constitution does not explicitly forbid abortion. If originalists like Scalia and Alito win out on the court, it will eventually rule that the constitution neither forbids nor allows abortion, allowing abortion regulation to return to the states.

For many pro-lifers, allowing the abortion issue to be decided by the people (despite the fact this would not go all their way) is considered a worthy goal on its own. But other pro-life advocates endorse a natural law approach to the judiciary, saying that in cases where positive law is silent, judges should rule according to natural law, and that in cases where positive law violates the natural law, that judges should over turn the positive law as invalid.

In an ideal world, I would without question side with the natural law side of the dispute. However, in the world that we currently inhabit, the application of this principle becomes more problematic. After all, it was judges trying to apply natural law (while being dangerously wrong in what it said) that has got us into so many of these problems in the first place. By encouraging judges who do seem to have a good understanding of natural law principles to run with them, we to an extent open the gate to justices with vastly wrong conceptions of natural law.

Yet those who insist that we should be strict legal positivists are endorsing something that is clearly impossible. One can argue that the pre-born are not specifically protected by the constitution. But then, are red-heads specifically protected by the constitution? Are those of Korean ancestry? Are people over six feet tall?

The framers of the constitution did not attempt to write a treatise or laundry list of precisely who was and was not a human, what was and was not commerce, what did and did not constitute cruel and unusual punishment, and what did or did not constitute property. They assumed that the meanings of these concepts were clear -- via natural law and cultural commonplace. Nothing can be understood by positive law alone. Even the most strict originalist or constructionist must by necessity allow assumptions about basic concepts such as "person" and "property" to creep into his thought.

At that point, the question is not "can a judge ever rule based on natural law" but "on what issues may a judge decide based on natural law". There is, perhaps, a case to be made that in particularly controversial issues, the choice should be left up to the people, in order that having more people involved in the decision may prevent the moral blindness of five out of nine justices from being made the law of the land. But this would be more a concession to the fact that many people are wrong in their assessment of the natural law than an admission that natural law does not in fact hold sway over us all.