Speaker 1:
Welcome to Ordain and Establish, a podcast of the Center for the Constitution and the Catholic Intellectual Tradition at Catholic University. To learn more, visit our website at cit.catholic.edu.
J. Joel Alicea:
Okay. Let’s get started with our second panel of the day, the Declaration and Constitutional Interpretation. One of the enduring questions in American law is whether the Declaration should play a role in interpreting the Constitution, and, if so, what that role should be. It’s a question that featured in the debates over slavery, and it comes up regularly in debates over originalism. It has received fresh attention lately because of the renewed focus on natural law and its relationship to constitutional interpretation.
And we have a terrific panel to examine these and other issues. I’ll briefly introduce them in the order in which they will speak. Kevin Walsh is my colleague. He’s the Knights of Columbus Professor of Law and the Catholic Tradition here at Catholic University, where he serves as a Senior Fellow and Director of the Project on Judicial Virtues at the Center for the Constitution and the Catholic Intellectual Tradition. He clerked for Judge Niemeyer on the Fourth Circuit and for Justice Scalia on the Supreme Court. He’s a graduate of Harvard Law School, the University of Notre Dame and Dartmouth College.
Charlie Capps is an Associate Professor of law at Arizona State University. He clerked for Judge Gruender on the Eighth Circuit and served as Deputy Solicitor General for the state of Missouri. He’s a graduate of the University of Chicago Law School, holds a doctorate in philosophy from the University of Chicago and graduated from Stanford undergrad.
Kathryn Kimball Mizelle is a judge on the US District Court for the Middle District of Florida. She clerked for Judge Moody on the Middle District of Florida, Chief Judge Pryor on the 11th Circuit, Judge Katsas on the DC Circuit, and Justice Thomas on the Supreme Court. She’s the graduate of the University of Florida 11th College of Law and Covenant College.
So please join me in welcoming our panelists.
Professor Walsh.
Professor Walsh:
Okay. Good afternoon. I am coming at the question of our panel or the theme of our panel, Declaration of Independence and Constitutional Interpretation, primarily as a lawyer. I am an originalist about the Constitution and specifically I would say original law originalist. Therefore, I better have an account of what the origin of our constitution is. And that’s what I’m going to focus on. In particular, I mean, considering the relationship between the Declaration and the Constitution, I’m going to focus on the Declaration as a whole, but for the Constitution, I’m going to focus primarily on the preamble. My principal goal is to support the claim about the Constitution, namely that the Constitution of the United States has served as supreme and judicially enforceable positive law since the government of the United States began to exist and to act in 1789. Now, in that sense, my argument is about the entire Constitution, including the supremacy clause, the oath clause.
Now to support my claim about this written constitution, my focus will be on the preamble, particularly the people of the United States. So my basic claim is that there has been one corporate we the people of the United States since 1776. This one people of the United States in 1776 is the authority for the Constitution as positive law. So the sort of interlocutors I have in mind are those who would say that the people of the United States is a fiction. That in fact, a lot of the debates that seem interminable in constitutional law is because we’re arguing about sort of a fictional authority and that for certain key things about the law, so for example, the nature of the union, that there is no truth of the matter. Well, if there’s no truth as a matter, then of course the arguments can’t be resolved by appeal to the truth of the matter.
So it really matters whether we have a real authority for the Constitution. So President Abraham Lincoln’s Gettysburg address has been mentioned. So I’ll start with that. Of course, he dated the birth of the United States to 1776. And of course, this was only analogous to human birth and a nation is not born the way that a natural person is, but the similarity to human birth is that the timing of the nation’s birth is like the timing of a human’s birth, namely separation from the mother. Again, the mother country is only analogous to a human mother, but the similarity is real in that the new nation is born through separation from the mother. So a theological analogy can be found in God’s providential government of the universe through the angels, which includes guardian angels for each nation.
And if we think, when did the United States get its guardian angel? So Aquinas says that human beings get their guardian angel at birth, not at conception, not at baptism, at birth. And he has some reasons for this. But one of his reasons is because separation. So now, again, a nation being born is not like an individual being born, but if this analogy kind of carries through, then a nation would receive its guardian angel at the time of its birth. With this kind of framing in mind, I’d like to undertake a fresh reading of the declaration and see the formation of the United States of one people of the United States through that separation.
Now, before we do that reading, it’s helpful to have some other distinctions on the table. So these distinctions are necessary because the truth in the claim that the people of the United States is a fiction. So the truth in that claim is that the United States, the people of the United States is not a substance like a natural person, right? But this doesn’t mean that the one people of the United States must be a fictional person. There’s a third category, namely a group person. This kind of person possesses a unity of order rather than substantial unity. And for these other distinctions, I just highly recommend Russell Hittinger’s collection of essays On the Dignity of Society for his discussion of a group person. And he just says a person is whoever and whatever is a locus of rights and responsibilities. Now, a natural person possesses a unity of rational substance. A fictional person is a person only by construction of law.
Now, how about a group person? This kind of person possesses a unity that is neither the unity of a substance nor a unity merely imposed upon things in the fashion of illegal or mental fiction. So what is a unity of order? A unity of order is a unity in which each individual retains his own identity and operations, yet the social whole is more than the sum of its parts. One way in which a social whole is more than the sum of its parts is the social whole counts as a subject, a person, an agent in its own right. And so lawyers will call this a moral person or a legal person. And of course, in the Catholic tradition, we have the mystical body of Christ.
So the one people of the United States is a group person rather than a fictional person. The reality of this unity of order is formal and final rather than material. So the first panel talked about the formation of the unity, and I’d say the final cause of this unity of order is shared pursuit of a common end. So wherever, this is now Hittinger, wherever there are plural, rational agents aiming at common ends through united action, and where the unity is one of the intrinsic goods aimed at, we have a society. And this kind of group person will hold itself out to the world as something distinct in dignity. And his example comes from the Declaration of Independence. Now, he highlights the free and independent states.
But my claim now, turning to the Declaration, is that the best example of the group person is the good people of these colonies by whose authority the signers of the Declaration of Independence purported to act. Okay? So the distinguishing feature of a true social whole pursuing a common end through united action is precisely the kind of fact that probably our best American Catholic commentator on the constitutional order, Orestes Brownson. This type of shared pursuit of a common end through united action is exactly where Brownson in his book, The American Republic, will locate the unity of the people.
Think about it. The Declaration of Independence, not just what it said, but what it did. It accomplished a common end through united action. The Revolutionary War also accomplished a common end through united action. And indeed, the example that Aquinas uses in his commentary on the Nicomachean Ethics when he’s discussing a root person is in fact, or one of his examples is an army, right? Because an army as a whole has an activity that is not reducible to each of its parts. And then the parts also can sometimes act that are in a way that’s not the whole. So an operation proper to the whole is what characterizes this unity of order.
So Aquinas’ other example is a crew rowing a boat, right? It’s the combined operation of everyone rowing the boat. So Aquinas did not prophecy the continental armies escape from New York City. It’s later crossing of the Delaware or its victory in the Battle of Trenton, but each of these historical facts is an example of the action proper to a group person.
Okay. So the Declaration itself.
In the course of human events, it begins, right? It has become necessary for one people to dissolve the political bans which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature is God entitled them. So here we have the act of one people that simultaneously accomplishes two things. First, it dissolves this one people’s Declaration dissolves the ban, the political bans that connected them to another people. Secondly, it causes them to assume among the powers of the earth the separate and equal station. Okay. So whereas modern social contract theory hypothesizes a fictional agreement in which separate individuals enter into human society, the Declaration of Independence accomplished the division of one political society into two, with those two societies now relating to each other in a state of nature that continued to be governed by the laws of nature and nature’s God.
And of course, this explanation and declaration is given out of a decent respect to the opinions of mankind. The idea is they had to declare the causes which impel them to the separation. The them separated is the one people separating from another. Now that’s all in the first paragraph.
Second paragraph, of course, we’ve heard the deriving the just powers from the consent of the government and the equality, all men are created equal. And I’ll just note, the equality of all men is a function of their being created and those rights are endowed by their creator.
Okay. Third paragraph. “Governments are instituted among men to secure the unalienable rights that are then endowed by the creator.” So this is the part that talks about deriving just powers from consent to the government. Now, my claim is the best way to understand this is the consent of the collective people considered as a single grouped person, not separated natural persons considered as individuals. How do I support this reading? The collective capacity to withdraw such consent because of the failure to protect the unalienable rights of the government finds expression in quote, “…the right of the people to alter or abolish government whenever any form of government becomes destructive of these ends.” So there’s an important distinction between the people and the governments that they form. Okay. And then this is not just to alter or abolish, but to institute, right? The quotation to institute new government laying its foundation on such principles and organizing its power. So this is the people that then acts in the Constitution.
So I’m going to skip over the part about prudence, but again, you have collective deliberation and justification that is given. The familiar kind of recitement of tyrannical acts ends this way. “We have petitioned for redress in the most humble terms. Our repeated petitions have been answered only by repeated injury.” Who is this we? Now, the very next sentence says, “A prince whose character is thus marked by every act which may define a tyrant is unfit to be the ruler of what? A free people, a free people, a free people.”
Okay. Then finally, and sort of wrapping up this initial opening remarks, we have familial language to describe the relationship between the people separating and the people being separated from. “Nor have we been wanting and attentions to our British brethren. We’ve appealed to their native justice and magnanimity, et cetera. They too have been deaf to the voice of justice and of consanguinity.”
The conclusion then is one of separation. “We must therefore acquiesce in the necessity which denounces our separation and hold them as we hold the rest of mankind, enemies in war, in peace friends. This family separation is the closest analogy in the life of a people to the separation of mother and child resulting from the child’s birth.”
Now, finally, the concluding paragraph, right? The signatories are making this declaration. They’re doing something. It’s a speech act as the representatives of the United States in general Congress assembled. So here we have the United States of America as a unity of order. In general, Congress assembled also a unity of order. Now, the representatives appealed to whom? The Supreme Judge of the world for the rectitude of our intentions. So the rule by which the rectitude of their intentions is to be measured by the Supreme Judge of the world could only be the laws of nature’s God identified earlier.
So with these representatives of advocates, the Supreme Judge of the world presiding, the laws of nature’s God as the applicable law, the signatories acted in the Declaration and they acted in the name and by the authority of the good people of these colonies. That name was the United States of America. The authority of the good people of the colonies was the authority of the one people of the United States that then gave rise to our Constitution.
J. Joel Alicea:
Thank you, Professor Walsh.
Professor Capps.
Professor Capps:
Well, let me start out by thanking Professor Ali Sayan, the sponsor of this Conference. It’s a real honor and a pleasure to be here and participate in it. So the most familiar part in the degeneration is that line that Professor George quoted a moment ago about all men being endowed by the creator with unalienable rights. But I want to begin with a less familiar line from the Declaration. Before declaring independence, Jefferson acknowledges that prudence will dictate that governments long-established should not be changed for light and transmit causes. I think this is an important observation and it’s one that recognizes the crucial role that the rule of law plays in a flourishing society. The basic function of the rule of law is to solve coordination problems. Coordination problems arise whenever people would benefit from organizing their conduct under a rule, but no rule in particular stands out as uncontroversially the rule to follow. Sometimes the reason why no rule stands out is because the choice among rules is arbitrary.
So think about which side of the road we’re going to drive on. It doesn’t matter. We just have to pick one. Other times, the reason why no rule stands out is because the choice among them is contentious. So for example, we have to fund the government somehow. How should we do that? With an income tax, with a consumption tax, with tariffs, something else. It’s contentious, but we need to choose one of the options. Now, solutions to coordination problems can arise organically as people coalesce around a custom that eventually becomes a norm. But customary solutions to coordination problems, especially large scale coordination problems involving thousands or millions of people, they tend to be inefficient and they tend to be slow to emerge. And they’re unlikely to emerge at all if the solution to the problem is not just arbitrary, but contentious.
So there are serious limits on the ability of custom on its own to yield solutions to coordination problems. It’s much better when someone is designated as an authority to stipulate solutions to coordination problems that we then all accept. The problem is that allocating the authority to solve first order coordination problems is itself a coordination problem. There are lots of people who at least arguably would be fine for the job. We just need to pick one or perhaps several. And it’s no good trying to solve this coordination problem by appeal to yet another authority because then we’d face the coordination problem of picking that authority. The only kind of solution that’s available to the higher order coordination problem of allocating the authority to solve first order coordination problems is a customary solution. The community just needs somehow to coalesce around a custom regarding whose solutions to first order coordination problems to accept.
This is what happens when a legal system takes hold, and it’s a remarkable achievement for a community. Customary solutions to large scale coordination problems are always hard to come by, and they’re especially hard to come by when any solution is bound to be contentious as allocations of authority inevitably are. So Jefferson was right. Prudence does counsel against overthrowing the rule of law for light and transient causes. This doesn’t mean that the American revolutionaries were wrong to cast aside the rule of British law, but it does mean that we should be grateful and not take for granted that the former colonies managed to coalesce around a political settlement as good as the one that’s memorialized in the Constitution of 1789. And certainly, now that we’ve remedied the Constitution’s greatest flaws by enacting amendments, including among others, the 13th Amendment, that’s just one example, our collective commitment to the law of 1789, as lawfully amended, is a blessing that we should cherish and defend.
One threat to the rule of law is the ideology of utilitarianism. By utilitarianism, I mean the doctrine that one should act so as to bring about what one takes to be the best consequences. Why is utilitarianism a threat to the rule of law? Well, the benefits of coordination depend on the cooperation of the community generally, and whether any one person respects the rule of law usually makes only a trivial contribution to the extent to which the community as a whole respects the rule of law. So the utilitarian might want and hope that everyone else is going to respect the rule of law, but if she’s consistent as a utilitarian, she herself has only a very small utilitarian reason to respect the law herself.
Now, for the most part, the law can provide for the fickle allegiance of utilitarians or others by backing its requirements with the threat of sanctions, but that generally doesn’t apply to the officials whom the public has entrusted with administering the law.
So consider judges. It’s true that lower courts can be reversed by higher courts, but reversal doesn’t come with a sanction, and the Supreme Court, of course, can’t be reversed by a yet higher court. The buck always stops somewhere. There are going to be officials who are entrusted. They occupy positions of public trust, and the law just doesn’t have the same ability to use the threat of sanctions to modify the results oriented calculus of utilitarian officials. So as a result, the prevalence of utilitarianism among judges … Oh, and I should add. I mean, the way that our law generally approaches this problem is to require officials to take an oath to the Constitution. The problem is this is not going to do any work for the utilitarian because doing something because you swore to do it is acting for a backward looking reason, the fact that you took an oath to do it.
And of course, the utilitarian is going to countenance only forward-looking results-based reasons for action. So the prevalence of utilitarianism among judges and other officials who occupy positions of public trust is likely to lead to a lack of genuine respect for the law. There might be strategic feigned respect for law sometimes, but no genuine respect for the law, especially in constitutional decision-making where the stakes are high. Now, a few utilitarian judges are not going to threaten the system, but the problem grows as the ideology spreads. The effectiveness of pretending to respect the rule of law and the need to do so in the first place, both diminish as utilitarianism becomes more popular. It’s hard to hide what you’re up to if everyone else is doing it too, and it’s no use anyway if the only reason to hide what you’re up to is to prevent everyone else from doing it to.
Now, at some point, if utilitarianism becomes more popular, the coordination under the rule of law will simply begin to unravel. Judges will stop pretending to-… Of law will simply begin to unravel. Judges will stop pretending to apply the law when the utilitarian calculus recommends doing otherwise. Executive branch officials with the army at their command will stop pretending to follow judicial order when the utilitarian calculus recommends doing otherwise. The House and Senate will stop pretending to treat guilt of a high crime or misdemeanor as required when the utilitarian calculus favors impeachment and conviction and removal. The president will openly issue pardons as political favors and direct the Department of Justice to initiate politically motivated investigations and prosecutions on the ground that empowering the politically right-minded and disempowering the political wrong-minded will lead to better outcomes.
Some of these things may be happening to some extent already in our nation. The farther we proceed down this road, the harder it will be to turn back. Each side of the political divide will recognize that the other has no respect for the rule of law. Each side will then figure that abiding by the rule of law is no use. Why fight with one arm tied behind your back? If any norms remain unbroken, then it’s better to seize the advantage of being the first to break them, given that the other side is sure to do the same when the opportunity arises.
Now, in closing, I want to suggest that Catholicism can help to counter the threat that utilitarianism poses to the rule of law. To see how, we need to distinguish between rules that are transparent to the goods that they serve and rules that are opaque to the goods that they serve. So consider the rule to stop and look twice in both directions before crossing the street. Generally a good idea. But if you have only a few seconds to dart out into the street and grab your toddler before she’s run over by a car, then it would be crazy to stop, pause, and look at both directions. The rule of thumb to stop and look twice both ways has normative force precisely insofar as it is instrumental to goods such as life and health. Its role in some practical reasoning is, as it were, transparent to these goods. There’s reason to follow the rule of thumb when, but only when it promotes the goods that it serves.
For utilitarians, moral principles such as the prohibitions online or adulterer or the injunction to be true to your oath, they’re all like this. They’re rules of thumb that we have reason to follow when, but only when they get to lead to good results. In other words, they’re transparent to the goods that they serve. Not so for Catholics. For us, moral rules have normative force insofar as they constitute the part of divine law that is written into our human nature, namely the natural law. To be sure, the natural law promotes human flourishing, but its role in sound practical reasoning is opaque to the goods that it serves. The decisive reason that we always have to follow the natural law is independent of the results to which following it would lead in the particular case.
Catholicism is thus unlike utilitarianism, in that the prevalence of Catholicism reinforces rather than undermines the rule of law. By separating the normative force of moral rules from their teleology towards goodness, Catholicism encourages cooperative behavior, where utilitarianism encourages free writing. Ironically, we bring about the best consequences, not by aiming at them directly, but by heeding the voice of God and conscience.
J. Joel Alicea:
Thank you, Professor Capps. Judge Mizelle?
Judge Mizelle:
Thank you. Thank you for including me in the symposium. Honored to share my perspective on the Declaration and its role in constitutional interpretation. Thinking about my remarks, I thought again during my best catch or my views. I carry around and I frequently cite the Constitution, with my law of ours, we toast to the Declaration. Perhaps that is oversimplification of the respective rules, but I think it’s a useful one nonetheless. I find it best to refer to the exact text of the Constitution when discussing a provision in no small measure, because I did swear an oath to uphold that document. But one must, as a result, always start with the Constitution itself. But if you do not understand and appreciate the shared principles of the declaration, you will likely err in interpreting the Constitution.
Let me explain. First, it is the Declaration, not the Constitution that created the country. To be sure, the Constitution is the new controlling government or new guards under which the people sought to secure certain unalienable rights. But the Constitution itself did not break from Great Britain, nor did it dissolve political bans. The Declaration did that, and in so doing, created the United States. By breaking with Great Britain, the founding generation transmitted a portion of their political authority to a new government with the hope that this new government would promote the common good. A view our moderator notes is located in the Thomistic tradition. The founders also explained to the world why the break was just, enumerating the many grievances committed by the king. But the declaration did more. It sought to articulate the aim and nature of just government, namely to promote the common good and secure fundamental rights.
Now, the founders viewed the common good as objective and not inherently coextensive with majoritarian preferences, but informed by the laws of nature and of nature’s God, and in some instances, manifested by customary rights of Englishmen. Foremost, among these principles was the self-evident truth that all men are created equal, endowed by the creator with certain unalienable rights, including life, liberty, and the pursuit of happiness. As Justice Thomas has explained, the Declaration referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. The frame was held that legitimate government must be focused on the common good, and that wherever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute new government, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to affect their safety and happiness.
Of course, that’s the Constitution that the people attempted to create, a structure to protect these fundamental rights, but not necessarily to prescribe them or otherwise direct their manifestations in law. That job, the Constitution leaves to a virtuous citizenry who understands what comprises the common good and elects similarly virtuous officers to enact and execute such laws. Thus, for our system to achieve its goal of protecting and promoting the common good and protecting fundamental rights, government officers, including judicial officers, must understand these principles.
With that in mind, I turn to constitutional interpretation. As I said earlier, one must start with the text of the Constitution, but the Constitution is by design a structural document that divides power among the various branches of government to neutralize aggrandizement of any one branch. Unlike many modern constitutions, its focus was not on laying out all the rights of citizens. The Constitution instead focused on preserving liberty and protecting unalienable rights by diffusing power among different branches.
To interpret a document that is designed to safeguard rights via structural protections, one must appreciate the very rights the document sought to safeguard. Otherwise, the common error of a historical literalism or clause bound to textualism will arise. We cannot divorce the meaning of the Constitution from the rights and principles it was created to protect, as understood at the time. Any sort of hyper or overly technical focus on text alone is not necessarily methodologically nefarious or motivated out of consequentialism. Rather, it might be attributable in large part to the reality of linguistic drift that seeks to impose a modern meaning on historic terms, or perhaps a misappreciation for such background rights and principles altogether.
The Declaration’s principles thus infuse and inform constitutional interpretation. In essence, the Declaration confirms what the Constitution assumes, that there is some preexisting body of law that informs the more indeterminate provisions of the Constitution. Of course, some text is strikingly clear. Age requirements for office, voting minimums for Congress, or the amount in controversy under the Seventh Amendment. Further interpretation with reference to history is not needed in such instances. Indeed, as a general matter, clear text controls over contrary history or tradition. But much of the Constitution, particularly the Bill of Rights, was not written to define with exactitude the rights, but to recognize their existence. Thus, interpretation of those provisions must operate on an understanding of certain background principles.
What does this mean in practice? I think the Supreme Court’s recent focus on history is right, particularly pre-ratification history and the principles that undergird our country’s traditions. There is much academic debate about the meaning of history and tradition and what constitutes good methodology for originalist judges. I do not intend to engage with those nuances today, but I will say that I think the court’s focus is turning in the correct direction.
I offer two examples. First, in Bruen, the court looked to history to inform the understanding of the Second Amendment and the right to self-defense. As noted in Heller, “The Second Amendment codified a preexisting right. The semantic meaning from the text alone is insufficient to demark the lying limits on the exercise of that right.” Because it recognized that the text does not fully capture well-established historical limitations on the scope of the Second Amendment’s right to self-defense, the court rightly and necessarily turned to this nation’s historical tradition of firearm regulation.
I offer another example in Franchise Tax Board versus Hyatt. There, the question was whether states retain their sovereign immunity from private suits brought in courts of other states. Opponents argue that the court should find no right to sovereign immunity in another state’s courts because no constitutional provision explicitly grants that immunity, including the text of the Eleventh Amendment. The court, however, rejected this approach as a historical literalism. Instead, the majority looked to constitutional structure and the pre-ratification understanding of sovereign immunity, including the Declaration of Independence, establishment of free and independent states.
The court also looked at the immediate enactment of the Eleventh Amendment in the wake of Chisholm versus Georgia, which permitted suits against states and federal court by citizens of another state. And on that record, the court found that the state’s sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution. I could offer many more examples of court opinions pointing to the importance of history, and they also acknowledge that the Constitution assumed the existence of natural or customary rights, a point that the Declaration makes explicitly.
Now, as we celebrate the 250th anniversary of our country, I note that the Supreme Court has cited the declaration less than 200 times in opinions, and I doubt we’ll see a spike in citations to the Declaration going forward. However, I do anticipate that much attention will focus on what the founding heir held as background rights and principles that the original Constitution and Bill of Rights sought to preserve and protect. This inquiry might prove, especially illuminating when considering the Declaration’s list of abuses that the colonies suffered by Great Britain and that justified the separation.
And that leads me to my last point about how federal judges implement much of the above. First, by way of limitation, Article III circumscribes the judicial rule through structural limits in several ways, most notably by the requiring a case or controversy. Other limitations include the kinds of relief available. So for example, any equitable remedy must align with the principles of equity, traditionally exercise with a high court of chancery in England at the inception of our country.
Substantively, one might ask, “Well, what if the law of the sovereign conflicts with the natural law, which governs?” I agree with many respected jurors that my role as a judge is not to rewrite any statute to promote the common good as I see it. Instead, the Constitution by design limited federal judges’ ability to make consequentialist determinations and to right those kinds of wrongs, even wrongs that do not promote the common good. And as a Catholic judge, I must respect the limitations on my own authority for the common good. And in so doing, I actually promote the common good. But in the realm of constitutional interpretation, I would be derelict in my Article III oath if had I not tried to understand what those background rights and principles were when interpreting a constitution designed to protect them.
J. Joel Alicea:
Thank you, Judge Mizelle. Well, as Professor Promisel said in his panel, when moderating his panel, there’s a lot to talk about with all of your presentations. So I’m going to ask you questions, but you should feel free to not necessarily ignore my question, but at least take a detour into responding to what each other said at various points, okay?
And I want to start with something that seemed to unify the three presentations, because you all addressed quite different topics, but it did seem to me that the unifying theme was the need to recur to philosophical foundations in order to better understand the Constitution, whether that philosophical foundation was in thinking through who promulgated the Constitution and the Declaration, that’s what Professor Walsh focused on, to what end the Declaration was promulgated and the Constitution was promulgated, Professor Capps focused on, or the meaning of what was promulgated, that’s what Judge Mizelle focused on.
And each of you seemed to indicate that there were resources within the Catholic intellectual tradition that could help us recover those philosophical foundations or perhaps better illuminate those foundations in thinking through the declaration and the Constitution. But as our first panel today really focused on, the Declaration and the Constitution were not written by Catholics for a Catholic audience. They emerged out of Protestant intellectual milieu. Does that create any problems in trying to take advantage of the kinds of resources in the Catholic intellectual tradition that each of you was appealing to in thinking through both the Declaration and the Constitution?
Professor Walsh:
You want me to go for it? I can.
Professor Capps:
I don’t think it’s a problem. I would say that what we get in the Declaration of Independence can be described as what Cass Sunstein would call an incompletely theorized agreement. So it’s something that, although it is true that most of the signatories were not Catholic, there was only one who was Catholic, the principles there can be endorsed by both Protestants and Catholics and indeed people of goodwill who aren’t Christian at all. So I don’t find it to be a problem. I think the Catholic faith provides us with maybe the best foundation for the incompletely theorized agreement that we get in the Declaration of Independence.
I’ll also say, and here I’m agreeing with Professor Muñoz, it’s true that some of the founders and the signatories of Declaration of Independence harbor some anti-Catholic bias, but I just don’t see how this anti-Catholic bias somehow infects the quality of the Declaration of Independence. To think otherwise is just to commit the ad hominem fallacy as far as I can tell.
And to the extent that sometimes people say we should have… The principles at our spouse in Declaration of Independence, they don’t represent some incompletely theorized permit to which a Catholic could sign onto, because if you’re Catholic, you should really support a monarchy or something like that. We hear that sometimes. I just disagree with that. I mean, if someone could show me and prove to me that the Catholic Church has taught as a matter of doctrine that we’ve got to have a monarchy, then I would submit my judgment to the authority of the church. But until then, I’ll say, I think it’s a terrible idea.
And it also explains, I think some of the fact that unfortunately the Catholic Church hasn’t done such a great job when it has gotten entwined in politics, might explain some of the anti-Catholic bias of the founders. The Catholic Church is a divine institution, but it’s very much a human institution. Christ promised that it wouldn’t go astray in terms of faith and morals, but he did not promise that there wouldn’t be simple popes or mistakes made when the church tried to intervene in politics. And the history of the church trying to intertwine itself with politics is a complete disaster. And that’s probably what motivated Jefferson to say things like, “I hope that the end result of the American experiment is sort of the end of whatever it was, and so forth.” Well, we’re throwing out the baby with the bathwater. But it’s understandable, that the associated Catholicism with an unhealthy entwinement of church and state. We should not throw out the baby, but we should throw out the bath water.
Professor Walsh:
Yeah. If you think about the sources of the inheritance that’s reflected in the Declaration and the Constitution, it’s Greek philosophy, Roman law, Biblical religion. These are the same sources that the church through its doctors has been synthesizing well before the United States was doing that. And this is why when, for example, if I’m trying to justify the Constitution as positive law, it makes sense to refer to classical natural law understanding, ordinance of reason for the common good made by one with authority and promulgated. And this is part of the inheritance that they also were working with.
And so, I think American Catholics, the sort of main strand that is more kind of, yes, you can be a good American and a good Catholic, is definitely the built better than they knew. There is a built better than they knew strand to it. I would highly recommend this book called Images of America by R.L. Bruckberger, it’s fascinating. But he was a Dominican chaplain to the French resistance in World War II, and he came over after World War II, and this is kind of his reflections on America. And kind of like John Courtney Murray writing a little bit later, he is kind of explaining how the American Revolution was quite different in its principles from the French Revolution.
And to that effect, it’s kind of when… I think the Catholic intellectual tradition has resources that our country needs to understand itself. So for example, if you try and explain the unity of one people, right? Well, it makes sense to talk about shared pursuit of a common good. That is what explains and organizes the historical facts that are there. And to this end, I did have one quotation, I sometimes describe my research project as where Aquinas and John Marshall overlap. And there is, in terms of statesmen, it’s John Quincy Adams, I think, who had the best explanation of the unity of the people.
And here’s a letter that John Marshall wrote to him. John Quincy Adams had sent him his oration, because they were doing… They, like Lincoln, were treating the July 4th as America’s birthday. So there’s constant anniversaries. And he says, Marshall says to him, “There’s one idea that I was particularly struck. It is that the Declaration of Independence itself is also a declaration of a previously existing union, that the independence of the States is a graft on the stock of the Union of the States and is nourished by that stock. I firmly believe that they exist, flourish, and must perish together.” This is 1831 during the sort of nullification crisis in South Carolina. And I think having a tradition that can explain these historical facts is a big advantage, because it organizes the truth of what happened.
Judge Mizelle:
Well, in terms of the methodology that I think is required to do my Article III job, I’m not sure the inquiry focuses on whether the original meaning of those principles or rights was Catholic or not. I think any Article III judge ought to do it the way I said, because I think that originalism in that form is probably required by the Constitution, regardless of whether the declaration was signed by primarily Protestants and not Catholics. So in terms of how I go about doing constitutional interpretation, I’ve never thought about it as a, I need to marry it up to Catholic intellectual tradition.
And I guess too in full disclosure, I’m a convert and I was trained in a Protestant Calvinist tradition. Now, one that very much was liberal arts, and so I got Western civilization. And I always just kind of without probably the clarity of thought that these panels today have presented, just assumed that there were true principles in the Declaration that were consistent with whether their Protestant signatories conceptualized of them, or the Catholic intellectual tradition. And I’ve seen some of the debate, that it helped clarifies maybe where there’s divergences, but from the first panel, I very much agreed that the truth is truth. And even if it wasn’t in the same format perhaps as other format perhaps as other countries had seen it. I think that doesn’t take away from the truth that was contained in the declaration.
J. Joel Alicea:
Well, one of the truths that you all put on the table was Professor Walsh’s argument that the American people were a single group person, acting to declare their independence and then to promulgate the Constitution. You gave a Thomistic recovery of how it is that you can have group action as a single person. You define that as pursuing a common end through united action, which seems sensible to me. As an initial matter, I’d just be interested if Professor Capps or Judge Mizelle disagreed with your argument that the American people were a single group person in promulgating the Constitution and the Declaration.
Even beyond that, let’s just accept for the sake of argument that you’re right, Kevin. Can we really say that the American people today remain a single group person when they have such deep disagreements about the nature of justice, about what the ends of government should be and how to pursue them, about the nature of the human person? Are they really still united in common action towards common ends?
Professor Walsh:
I guess… Go ahead.
Judge Mizelle:
Well, one question actually, your remarks the whole time I kept thinking about is what do you do with the states, the free and independent states, and then their need to round by the Constitution? And how do you deal with the dual sovereignty system within your framework? That’s more a question than comment.
Professor Walsh:
Yeah, and so among the people that disagree with me would be Thomas Jefferson, James Madison, Andrew Jackson, perhaps. There’s a whole… John Calhoun. And then even people like maybe Daniel Webster. So some of it is the reason it matters and whether there is a truth of the matter, apart from agreement or disagreement. I got John Quincy Adams fine, but what I need is an argument and a framework for unifying those facts. I will, though, what’s interesting about Marshall’s letter that I read is that it was a letter, right? But if you think about the nature of the union, it’s really… Marshall’s in third place, Washington as leading the army. So I think this holds up in terms of the common action. So Washington and Lincoln, wartime presidents, and then Marshall is kind of the bridge. So in McCulloch versus Maryland, as you know, the kind of linchpin of his argument is that the government of the United States was formed by the people of the United States.
Now, where does state sovereignty come from? I’d say the state’s sovereignty as a form of government, they existed, but never independently. So this is Orestes Brownson argument, is that they always did it jointly, not severally, that that was their action. And this of course, had consequences because if the government was a compact, then you can withdraw from that compact. If the United States though is formed by one people that has different consequences. In terms of right today, I would say that yes, this is why originalism makes sense, is that the Constitution as positive law began operating in 1789 when the government itself started operating. And then we and you are administering justice under law, and it’s that same law. So we do need an explanation of how it is that one polity can persist over time. And as evidence of continued continuity, I’d point to that as one of them, as well as all of the other goods identified in the Preamble, like why do we have the Constitution for a more perfect union?
You know the Preamble. Those are all common goods. And so as long as we are treating the Constitution as our law that is serving as a coordinating device for shared pursuit of these common goods, and it’s that shared pursuit, kind of all of us looking up to those common goods that then unites us.
Professor Capps:
So I think the account is very interesting, Professor Walsh, but I do have some questions for you. So first, let’s start out with the idea of a groom agent as constituted whenever the members of the groom are acting together for the same end, I believe was something like that.
Professor Walsh:
And when the unity of order is one of the common goods aimed at.
Professor Capps:
I see. Okay. Well, that might help to answer my initial question. Okay. I’ll set my first question aside. So okay, let’s just run with that. This is a question I made more than an objection. I’m just trying to understand what did you do… Because how many signatories were 56 to the Declaration? There are a lot more people, of course, in the colonies who didn’t sign on. And in fact, there were people who didn’t support the revolution. Are they members of the group agent? And if so, how can you say that they were also acting for the same end? There’s an analogous problem because some people will try to give similar accounts of the attention of the legislature. How do we attribute an action or an intent to legislature as a whole? And they run into the same problem with dissenters with the majority votes for an act, how can you say that the whole legislature was cooperating for a common end when you have some people who voted no?
But it seems to me you’re almost, maybe you might been in a worse position because the standard move that those people make is to say, “Well, these people, the dissenters, have a sort of standing commitment to acquiesce to whatever the majority votes for.” I don’t know if that solves their problem, but I don’t see anything analogous in the case of the Declaration. You had lots of people in the colonies who just weren’t on board and hadn’t committed in advance to any kind of procedure by which they would say, “Okay, because these 56 people signed on, we’ve committed ourselves in advance to acquiesce it to what they say.”
Professor Walsh:
Yeah, so that’s very helpful. And I think the first claim I make is that if we think like lawyers of the time, they were clearly… And politicians at the time, they were acting in a representative capacity. And so they said, “We’re acting in the name and by the authority of the good people of these colonies, in the name of the United States of America.” And if you accept that, which people accept it in that form of government, that you can have representatives, the fact that they’re not present really doesn’t matter. As to the sort of legislator analogy, this is in part, right? The oath is a technology, right? Every officer has to do that. I chose the judicial oath, but every officer also has the oath as well. So at least for the governmental agents, again, it’s sort of… I think that that’s addressed as to… There was one other point.
Oh, I know it was the… Oh yeah, who are they and what law? Remember, they were making a legal argument and who was their judge? They appealed to the Supreme Judge of the universe for the rectitude of their intentions and they trusted to divine providence and they mutually pledged each other their lives, their fortunes, and their sacred honor. That seems like a pretty hardcore agreement rather than just a sort of acquiescing and procedural rules.
And so whether the legal argument was successful under the law of the time and things like that, I understand that that is debatable, but the purpose anyhow of listing all the tyrannical acts was to induce a kind of unanimity of sentiment, right? So to commit to this act of separation, and then how do we know who’s in and who’s out? Well, this is a lot easier when you’re at war, right? Are you on team? Which team? And it switched from the Culpeper minute men John Marshall was into the continental army, right? Are you on the people who are seeking this common good of victory in pursuit of self-government, political liberty, or are you with the other side?
And so I think that the truth is, yeah, they can say different things, but they didn’t have authority until they had power and they didn’t have power over the territory until they won the war. But that winning, I think, can be explained best by shared pursuit of the common good, not imagining some social contract.
J. Joel Alicea:
Yeah. I’ll just jump in and say Professor Walsh is more than capable of fending all comers on his own, but I’ll just jump in to add to some of what you were saying there, Professor Walsh. Just the first recommendation, if you’re interested in this discussion, read Richard Ekins’s book, The Nature of Legislative Intent, which gives the philosophical case for how you can have group intention in a legislative setting and that that’s a coherent concept in group action. And he uses a lot of same arguments that you were drawing on, Professor Walsh, from the Catholic intellectual tradition.
I do think that one way to think about this debate is to ask, well, what would the alternative view be? And if you don’t think that it’s possible to have group action in the form of a united group person, that has really troubling implications, right? Because A, it’s hard to understand what it is to even have an American society, any society, right?
We’re just like a collection of independent actors who are just living in the same place at the same time, but have no actual unity that subsists beyond that. That’s very troubling. And it’s exactly the kind of logic that leads to succession, which is why, as you were saying, John Calhoun disagrees with your view. And it would also be a real problem from the Catholic intellectual tradition perspective in thinking about the nature of law, right? Because then law is being promulgated not as some ordinance of reason from a lawmaker as a group person, but just as like a babble of just a bunch of people talking at once with different intentions, different ordinances of reasons and not actually acting in unity as one entity. And so that seems to me also to be a real problem for the alternative perspective. But Professor Capps, we want to push back or jump in?
Professor Capps:
No, that was good.
J. Joel Alicea:
Okay. Professor Walsh, anything else to add on this?
Professor Walsh:
I’ve got more Marshall quotes, but I’ll save them.
J. Joel Alicea:
Yeah. You never run out of Marshall votes. That is a reliable source. So I want to go to Professor Capps’ argument now. So he argued that utilitarianism is a real threat to the rule of law because everything is just kind of a pro tanto reason. It’s defeatable in light of whatever the end might be and the best consequence it might be. And you say, well, both sides of the political spectrum, once they begin violating legal and other norms, it just becomes this race to the bottom and soon that the rule of law just unravels. But I want to push back, not from my own view to be clear, but from the view of some who I’ve been in conversation with before, I think some scholars within the Catholic intellectual tradition might push back by saying, “Well, yes, the rule of law is certainly a good, and it’s part of the common good, but there are other goods.” There’s the good of justice, there’s the good of the family, and it could be that a particular legal rule, while consistent with the natural law in general, leads to a bad outcome in a particular case.
And then wouldn’t the good of preserving the family, for example, require you to give way in terms of strict adherence to the positive law as a form of rule of law as a coordinating mechanism in that kind of instance? And so for those who think that right now, the Catholics and people of faith in general are under grave threat from a lot of legal rules in our regime, they might be tempted to say, “These legal niceties cannot hold.” They have to relent in the face of these other goods that need to be prioritized in the moment. What’s your response to that?
Professor Capps:
Yeah, so a few things. First thing is, I agree actually that the rule of law, it’s not an absolute obligation to comply with the law. It’s a pro tanto obligation. And so it can be defeated by Tonderberry considerations. It’s just that if you’re a Catholic, the analysis is not the true utilitarian analysis of added the consequences on both sides because if that’s the case, you give almost no weight to the rule of law because of course, you want everyone else to be filed with the rule of law, but they’re going to do what they’re going to do. And your compliance by yourself with the rule of law is the contribution to… Combines overall with the rule of law, which is what is important for purposes of the benefits of coordination is just trivial. But I do agree that, yeah, the obligation to obligations of cooperation, the obligation to comply with the rule of law, it is pro tanto, is defeasible.
It’s also true that, and this is one of the dangers of utilitarianism is that once enough people don’t respect the rule of law and are cooperating, there’s no one to cooperate with. And so the obligation to cooperate the rule of all is in vanishes is because there is no rule of law, whether locally in a particular domain or globally.
Now, a couple of other things. The first is that I do think things are different for the public official. For example, the judge who’s taken an oath. So I think that your obligations, if you swore to an oath, it’s pretty much absolute. A lot of people think this position is too extreme, so perhaps you disagree. But I think there’s some tricky questions around, well, what if what you swore to do is something that’s inherently immoral? So you take an oath to kill the person who killed your brother or something like that. Then there’s a moral dilemma about what you do in that sort of situation. Do you still have an obligation to comply with oath? Okay, maybe not.
But send aside edge cases like that, you’ve got to do what you swore to do. No, you can resign if the law has become that widget. But otherwise, I agree with Judge Mizelle. It’s not about … The natural law itself would need to apply the positive law, not to override the positive law, even if you think that the states are really high.
The last thing I’ll say is that, although I don’t want to diminish the threats to people of faith and particularly Catholics, especially on hot-button social issues where the church is teaching and to become more popular and she’s like abortion and sexuality, but there are real threats to Catholics who stand up for what the church teaches on these issues, real social and professional consequences. So I do say that Catholics face a kind of soft persecution and in some quarters on these issues.
But with that said, I do think it’s important not to indulge in the kind of victim complex and the kind of persecution that those of us in relatively elite sectors that society face in terms of like social ostracization may use some professional consequences. It’s really nothing compared to like the early Christian murders. And you should have we cited the fact that, despite these problems, we live in the, as far as I’m concerned, the best country in the history of the world, you shouldn’t take that for grant.
Judge Mizelle:
May I agree with what I said earlier too, which is I’ve taken an oath to uphold the Constitution and federal law, and I must comply with that. I think the questions I’ve seen this arising are when the judicial actor becomes materially cooperating with evil, and that’s certainly how like Judge Pryor, for example, has conceptualized of it. But I can say as a district court judge who doesn’t even have the benefit of appellate review to distance myself from the standard of review, I’ve never had an instance where I thought following the law requires me to materially cooperate with evil. Even if I think the law is unwise, unjust, doesn’t give the best party or the party most virtuous the resolution. I’ve never had a matter of conscience that would preclude me from following the law in those individual cases and render judgment for the party in accordance with the law.
J. Joel Alicea:
Professor Walsh, do you want to add anything?
Professor Walsh:
Yeah, I thought I just … The interesting thing about the relationship between natural law and positive laws, is we always think, or there’s multiple relationships in some ways. Positive law is needed to complete natural law in a lot of respects. And this also goes to the question of like, what were the states? So we had this kind of issue jurisdictionally, right? You’re creating one Supreme Court of the United States and you have all these other state high courts and then everyone is taking an oath and that covers the supreme law of the land and things like that. Who has jurisdiction to be final?
And one of the ways they solved it was by limiting the Supreme Court when they were reviewing state decisions only to be deciding the federal law issues. I actually think one of the reasons for that, why that was very prudent, is that take something like a natural law principle against ex post-facto legislation. This is a problem, right? We’re holding you to a standard that you couldn’t follow because it didn’t exist and we’re going to…
And the Supreme Court, when it decided, it says, “Well, our federal constitution, our ex post facto clause that applies to the states, that only covers criminal law, but a lot of other jurisdictions in the states had them covering civil laws as well.” And the natural law can’t resolve which determination was embedded into federal law. And so natural law in that sense, in some ways, is incomplete and lower and requires further specification before it can be applied. And it’s not always a kind of conflictual thing where you can have multiple positive laws that are consistent with the natural law. And generally we have a rule then of priority, but that’s why it’s really important that we understand the Constitution as positive law because the injustices that have been done in its name need to be corrected and we want to be able to contain the damage that say the Supreme Court of the United States can do in the name of federal law by having this containment policy and then being able to argue that it’s wrong.
J. Joel Alicea:
I wanted to turn now to Judge Mizelle’s argument, which was that we need to understand the principles of the Declaration to better understand what the Constitution means, especially the individual rights provisions of the Constitution where the text isn’t really giving you a lot of detail. It’s instead pointing you to preexisting rights outside of the text, pointing you to a source of positive law and philosophical concepts, natural rights concepts outside of the text. And the Judge, I think, was saying that you have to recover that in order to properly understand what, say, the right to keep a bear arms meant at the time. And Bruen, as you said, is pointing in exactly that direction.
Let’s say that that’s right, that you have to recover that kind of historical context, those types of principles to really understand what’s going on with a provision like the Second Amendment. Does that start to create a problem for the good of coordination that Professor Capps put on the table? Because if you have to have that kind of deep exploration and recovery of historical and philosophical principles to understand what parts of the Constitution mean, it seems like only a small group, like a privileged elite will really understand what the Constitution means at any given time, and how can we coordinate around a rule that the vast majority of people don’t understand?
Is there a problem here if the mechanism that the founders used in promulgating texts that requires this kind of background principle, does that create a problem for the coordination function of law? And then as a subsidiary question, is that especially a problem for originalism?
Judge Mizelle:
Short answer, no. Let me explain why I think. So one, I wish it wasn’t a matter of recovery, right? If we had a more robust perhaps classical education, myself included, it wouldn’t be such a foreign thing for us to go back to history and try to reconstruct or understand, I should say, what these preexisting rights and principles were. So in some ways it’s just a result of the reality of where we’re at in our own knowledge, not a fault of originalism or even of the Constitution not enumerating the rights. And I think, as I mentioned, I think a lot of modern constitutions try to do this, right? They enumerate the rights, but then become useless and I do this, right? They enumerate the rights, but then become useless in actually protecting them. I guess one thing is just a matter of lack of education on our own part. Two, I don’t think it’s a problem for the coordination principle, in that, and no one yell at me, but if the judiciary explains what the law is and individual cases, I’m not saying judicial supremacy, but right, that idea that Marshall explained, then in some ways the coordination principle’s already been honored, in that the judiciary decides how the law is to be interpreted for that particular case. That explanation, I think, does deserve clarity to the public. In that respect, I don’t think it’s a problem as if nobody knows what the law requires for a few reasons.
One, those opinions by the Supreme Court, I think, should be as accessible as possible to an educated citizenry about their right, and two, a lot of the Constitution is not as indeterminate as the Bill of Rights are, so it’s not like we have no idea what we coordinated around. I think that’s kind of a fallacy idea, so I think there’s a little bit of that going on. Then, what would the alternative be if you didn’t have some ultimate, I think you refer to it as the first order, who decides kind of question. What would the alternative be, that a document specifies every kind of particular instance so there’d be no mistake of clarity as to how a right or provision would apply in a particular situation? I don’t think it’s a problem with originalism at all.
Professor Capps:
Yeah. That’s very well said. I agree with that. I just love to add, I agree with what he said about each judicial opinion. It reminds me of something the judge I clerked for always said, which is that he considers his audience when he drafts an opinion to be the losing party, not the losing party’s attorney. The losing party. He wants the losing party to be able to understand why he or she lost the case. Might not like it, but at least understand.
Professor Walsh:
Yeah. I think it can be a bigger problem than perhaps, and let me give an example from the Second Amendment. Every Second Amendment case, as you know, is a 14th Amendment case, in so far as it goes against a state or something like that. So, already we have an issue of whose tradition, right? The court said this nation’s tradition of historical firearm regulation, but then we have, I think, some tensions between what a lot of people really think the Second Amendment protects and say the wording of the Second Amendment. It talks about the right of the people to keep and bear arms. What kind of right is this? Is that even implicated by a law that prohibits the sale and purchase of guns?
It’s not obvious to me that it does. If rights are objective, and another recommendation, I see Father in the back. I’d recommend his article, “Do have rights?” But our very notion of what a right is, and I think unless we’re very careful, I’m not saying, of course, judges can be and are careful, but I’ve read the 14 Second Amendment opinions that just blow right by the idea that maybe the right is to the actual activities of keeping and bearing, and the mischief that it was addressed was against dispossessing people of their guns, and did not intend in any way to address the commercial sale of firearms, try explaining that to people who really know what the Second Amendment is, but here’s the silver lining, right?
I think this is exactly, it’s the nature of law, and the fact that it’s promulgated, that we can, as lawyers, have a conversation and a reference point for, “Well, what was that right that was promulgated?” We do have to be careful that we’re not importing a 20th or 21st century conception of what a right is, but that just means we’re fallible, but we know that, that the promulgation of it can help. So, I kind of take back a little bit, but I worry. I worry that I don’t think like an 18th century lawyer well, that I’ve absorbed so many things or a 19th century lawyer, right? So anyhow, I’m worried, but I still think originalism makes sense, because it’s law.
Judge Mizelle:
May I respond? So, a couple of things, I think this is why judges have to be extremely careful, because we have our 21st century lights of what words ought to mean, and that strikes us as not meaning this or not meaning that, and that’s why I think it’s so important to have an actual historical understanding of the principles that were held in common at the time. One thing too, just because you had a right to something, it didn’t mean it wasn’t regulable. It didn’t mean that the state or the federal government couldn’t regulate it in some manner, so this is why I think Bruin does a good job of saying we need to point to the tradition of regulation to know how the state can regulate it in a constitutional manner, but to go back to my first point, I think a lot of it has to do with the fact that we ourselves do not understand the founding principles, and as a result, maybe the modern man has a different view of what the Second Amendment protects than perhaps what the founders would’ve thought.
J. Joel Alicea:
Yeah. I’ll just add that, if we’re covering the history and tradition of the 18th century can be difficult and can lead to gaps in knowledge, guessing whether five justices think that something is a particularly compelling state interest is even more indeterminate and even more difficult to coordinate around. One last question before I open it up to the floor for Q&A, it’s the big question. We’d be kind of dancing around this in our discussion, but from the perspective of the Catholic intellectual tradition, the Constitution has read against the background of the Declaration. Is the Constitution basically just, and therefore binding positive law in that sense? If it is just, why? How do I know that? And if it’s not, wow, that’s alarming, and I’d like you to explain why it’s not, so please.
Professor Walsh:
Yes. This is just one other thing, is in answering this question, I kind of want to resist a little bit, the framing of it. I don’t know. Well, no. I’ll just take the question, right? So, what is an unjust law, right? An unjust law would be something that deprives someone of their due, right? And yes, you can have injustice, so you can have unjust human positive laws, but where does that due come from? That due has to come from law. Law precedes justice in this sense, that is something is owed to somebody because of a prior ordering, right? I do think the ability to interpret positive law by reference to natural law can help here, but there are other times where maybe it made sense that Justice Curtis resigned from the Supreme Court. I do think, though, that one of the gravest injustices of Roe versus Wade, I think things would have been worse though if American Catholics didn’t participate in American society in any particular way.
So, it is just enough to continue this thing going, and I do think you always do have to have that check, because there is the law that says, “Well, there are certain things that I will not do and I cannot do, but that is, I will not commit an injustice, but can I take an oath? Absolutely, to support the Constitution?” What I couldn’t do, and this is interesting, this sort of autobiography perhaps, but that question is why I needed to know if judicial supremacy is the law. As a lawyer, when I take an oath to uphold the Constitution, to demean myself professionally, and things like that, if every single unjust decision was tacked on to the back of the thing that I was taking an oath to, no, I couldn’t. So, our law has been the instrument of many injustices, but I will participate in the system, and we need fundamental law, and so I’d say it’s better than the alternative.
Professor Capps:
Yeah, I agree. I mean, I think the Constitution isn’t perfect, but I think that’s obvious, so I take the question to mean, is the Constitution sufficiently just to command our allegiance? The answer to that, you said it’s a big question, I guess it’s a big question, but it’s easy to you. Yes. I mean, the question would be harder if, prior to the reconstruction amendments, prior to the 19th Amendment, there were greater moral flaws in the Constitution back then, but today, I mean, I’m not going to try to give you a theory of justice that will fully explain exactly why the Constitution is sufficiently just to merit our allegiance, but I look around and look at the unprecedented degree of prosperity and freedom that we enjoy in this country.
I mean, I realize that things aren’t perfect, but for those who say things were better off when we were in medieval times under feudalism, I just don’t think that’s true. I think that’s like totally romanticizing the Middle Ages. I think we have it really, really good today. I would say you don’t need to have the theory of justice, sort of ready to pull off the shelf to explain why the Constitution is sufficiently just, a constitution that we have today is sufficiently just to our allegiance. On the contrary, I would say it’s a constraint on any plausible theory of justice, that it’s got to have that entailer, which is to say in your theory of justice on which the United States Constitution that we have today is not sufficiently just to merit our allegiance should just be excluded straight away as not a plausible theory.
Judge Mizelle:
I sure hope so, because I just uphold the Constitution, so I hope I’m not doing something that’s unjust. I think it’s consistent with the Catholic intellectual tradition, that there are various forms of government that could exist without one being necessarily superior to the other. I think ours has certainly produced extraordinary human flourishing, and I can’t think of any provision of our current Constitution that is unjust. I think the real work of our Constitution is that it’s the manifestations of the powers that were left to the legislature and the executive branch that really determines whether or not our laws are just, right? So, that’s really why, I think, I said in my remarks, virtuous executive officers, and virtuous lawmakers and judges, matters ultimately for justice to be seen in America.
J. Joel Alicea:
Excellent. Okay. It’s now Q&A time, so if you have a question. Professor DeGirolami?
Marc O. DeGirolami:
Thank you, Zach. Thank you very much for a wonderful panel. I enjoyed all of it greatly, and very stimulating comments. I want to come back to a question that Professor Alicea asked early on in his remarks of Professor Walsh, but then people got interested in very interesting but difficult issues of collective agency and legislative intention, and that is the question of that, if Professor Walsh is right, that the Declaration contemplated a single people, that a single people brought that Declaration into being, Professor Alicea then asked, “But it doesn’t seem to a lot of people today like there is a single people. We seem, actually, quite fragmented.”
With all due respect to Professor, I agree. It’s a pretty good society if you look around. There’s flourishing, but people don’t feel that way. People feel alienated and disconnected. Many do. So the question is, what can legal educators do? What can judges do within the confines of their office? How can they adjudicate, let’s say, within the super structure of originalism to give people a sense of connection that we are one? It’s always seemed to me that in constitutional law, which is what I teach, we just sort of skip over the question of who the people are. Those chickens might come home to roost, in ways that perhaps we don’t see because we’re so invested in the system, we pledge allegiance to it, and so on, so that’s the general question I have for you.
J. Joel Alicea:
Anyone want to lead off?
Judge Mizelle:
I answer. It goes back to perhaps I deferred to you in Joel’s question, in that I think unlike most countries in that human history, our country was created around a shared principles. I think young lawyers would benefit from knowing what those principles are, right? So, this goes back to education of, what does it mean to be American? It means to adhere to a particular set of ideals, so I think that would be one meaningful way to help people feel like less disengaged perhaps, as to when they swear allegiance to the Constitution, what does that mean?
Professor Walsh:
So, how to put it? I think that our tradition, in some ways, helps. We talk about the law needs to serve the common good and Aquinas, but says the intention of the lawmakers promote civic friendship and to recognize, I think being able to recognize forms of unity that are not, and to understand the truth of the human person as relational, right? And that we participate in these multiple societies, I think, can help. I think that, actually, a little bit of Thomistic social ontology can go a long way, and we may need to work on the presentation, but helping people understand who they are as human beings, as social, as members of true societies, family, church, and the polity as a society and not just a power structure. I don’t know though.
J. Joel Alicea:
Okay. Other questions?
Christopher Dodd:
Hi. Christopher Dodd, second year law student here at the Catholic University of America. My question is, I guess, primarily for Professor Walsh, but any of the panelists, please feel free to answer, and Professor Alicea, in some sense, sort of stole my question, so I’m going to make it a little bit more pointed. Let’s stipulate that Article Three has the rough contours of what Judge Mazell has articulated as the judicial rule, and then we’ll stipulate that Article Three is formally, materially, and efficiently consonant with a true law. What is the best argument, in your opinion, that that stipulated Article Three is ordered toward the common good?
Professor Walsh:
Okay, so we’ll start with the Preamble. As I said, so the Constitution is designed. It tells us which common goods is serving. A more perfect union, that itself, that union is the first common good named in the Constitution. To establish justice, what does it mean to establish justice? Justice is a common good, right? It’s when each receives what is due to them, and so we need a judicial establishment in order to establish justice. It’s not even just Article Three, right? But then, Article Three then needs to be specified by statute, and so to me, I think you look at the judicial oath. It’s basically unchanged. There are some amendments in 1990, but Section Eight of the Judiciary Act of 1789, the judicial promise that they make, sometimes it’s simplified to say like, “I promise to apply the laws.” Well, when you look at the whole thing, it’s biblical and biblically inspired.
And so, that’s my best argument, is that to administer. “I, judge, promise to administer justice, to do equal right, to rich and poor alike, and to faithfully and impartially carry out my duties as ex district court judge under the laws and Constitution of the United States.” In other words, the promise that Congress requires judges to take is to administer a common good of justice and to take some of the sources of partiality that would prevent people from getting their due and to single them out, this comes from Deuteronomy, and the idea of what a judge was in the divine republican, in the people of Israel. And so, I think there is the kind of, when I mentioned Greek philosophy, and I talked about Aquinas, that was his commentary on Aristotle’s Nicomachean Ethics and his Nicomachean politics.
Roman law is sort of the best system of law. They were really good at it, and so my answer, ultimately, is it is a synthesis of these traditions that got their domains right, biblical religion, Greek philosophy, and Roman law in a lot of ways. It wasn’t ruined by all the stuff that came later, and new insights have developed. Final point is a benefit that we have as Catholics in particular is the social teaching of, in particular of recent decades, read Chentasimosanas, right? Read John Paul II, read Benedict the 16th, read Francis, read Pope Leo the 14th. Check out his speech on the jubilee of justice. We have teachers, or we have the church as mother and teacher, and this is the way that law ultimately operates, is as a teacher and we have teachers to help us understand this thing that we internalize. That’s my argument.
J. Joel Alicea:
So, we’re pretty much out of time, so I’ll just quickly add to that very eloquent answer that, in asking this and thinking about this question, is Article 3 oriented to the common good? It’s important to keep in mind that you don’t have to achieve the whole common good to be oriented towards the common good, right? And so, Article three limits judicial power in all sorts of ways, federal, judicial power, in all sorts of ways for the sake of the common good, even though each individual federal judge is only going to be able to do one, small piece towards the common good.
That’s partly because we depend on state court judges. We have Chief Justice Muniz here from the Florida Supreme Court. We depend on state court judges to actually adjudicate the vast majority of our cases and further the common good in their domain. With that, I think we will wrap up. We will have a 15-minute break before the start of the next panel. Please join me in thanking our panelists.
Thank you for listening to Ordain and Establish. Subscribe to our podcast, and if you’d like to learn more, visit our website at cit.catholic.edu.
