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.
Dr. Matthew Mehan:
Welcome everyone to our event tonight entitled The Declaration’s Role in Constitutional Interpretation. Hillsdale College is pleased to co-host this event with the Center for the Constitution and the Catholic Intellectual Tradition or CIT, which is housed at the Catholic University of America’s Columbus School of Law. CIT promotes scholarship that explores the relevance of the Catholic intellectual tradition for American constitutionalism. CIT’s Director Joel Alicea could not join us tonight, but special thanks to him for helping bring about tonight’s event. I’m Dr. Matthew Mehan. I am the Associate Dean of the Van Andel Graduate School of Government here at the DC campus and an associate professor and your humble moderator. I hope to do very little moderating of these moderate souls.
Our guest from CIT is Professor Kevin C. Walsh. He’s the Senior Fellow and Director of CIT’s new project on judicial virtues. He is the Knights of Columbus Professor of Law. He teaches and writes in the areas of federal jurisdiction and constitutional law. His scholarship focuses on doctrines that define the scope of federal judicial power and his work has appeared in the Stanford Law Review, New York University Law Review, the University of Chicago Law Review and the Notre Dame Law Review to name a few reviews. Professor Walsh clerked for Justice Antonin Scalia on the US Supreme Court and for Judge Paul V. Niemeyer on the US Court of Appeals for the Fourth Circuit. He is a graduate of Harvard Law School, the University of Notre Dame, and Dartmouth College. And we will hear from Professor Walsh in a second.
Our first speaker, Dr. Brad Watson is our hometown hero here. He is the Associate Professor of Government here at the Van Andel Graduate School of Government on our DC campus. Before that, he served as our Distinguished Fellow in Jurisprudence. He teaches in the areas of constitutional jurisprudence, civil rights, modern American government, American political thought and political philosophy more generally. He teaches a mean Socrates class for our graduate program as well. Prior to joining Hillsdale, he was the professor of politics at St. Vincent College in Pennsylvania where he held the Philip M. McKenna Chair of American and Western Political Thought and was Co-Director of the Center for Political and Economic Thought.
He is a senior fellow of the Claremont Institute, a longtime board member of the National Association of Scholars and a past president of the Philadelphia Society. He has held visiting faculty appointments at Claremont McKenna, Princeton, where he was visiting fellow the James Madison Program in American Ideals and Institutions. He has authored or edited many books including Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence, Progressive Challenges to the American Constitution: A New Republic and Courts and the Culture War to name only a few.
Each of our speakers will make opening remarks followed by a brief conversation with yours truly. Then we will take questions for the audience. Do have them ready and do keep your thinking caps on as this is part of our series leading up to the Semiquincentennial and the Declaration of Independence launch and our national birthday. So without further ado, Dr. Brad Watson.
Dr. Brad Watson:
Thank you, Matt. I don’t usually have to bring microphones down, but Matt is such a giant among men to do that. The topic of our discussion tonight is obviously the Declaration’s role in constitutional interpretation and I thought I would start by telling you something that happened just about 40 years ago exactly. It was when the modern constitutional originalist movement was being born in the Meese Justice Department. About 40 years ago, a political philosopher did something that political philosophers don’t usually do. He wrote a law review article. Law professors do this all the time, but political philosophers don’t do it very often.
The political philosopher was Harry V. Jaffa, the Godfather of the Claremont School of Political Thought. He had long argued that the Declaration of Independence was central to proper constitutional interpretation because the Constitution was in effect the protective scaffolding around the natural rights proclaimed, though not created by the Declaration. In the words of Jaffa’s muse, Abraham Lincoln, the Declaration’s principle that all men are created equal as the apple of gold, while the Constitution is the picture of silver that frames and preserves it. The Constitution is made for the apple that precedes it temporally, morally and politically.
In this law review article, Jaffa takes to task many of his conservative contemporaries as was his want, if you knew Harry Jaffa. He began with Attorney General Meese, responding to Meese’s defense of a jurisprudence of original intent, which constitutional originalists would quickly refine into original public meaning. Jaffa insisted, contra-Meese, that it was none other than Chief Justice Taney in the Dred Scott case who expounded constitutional originalism with both eloquence and conviction. For Taney, so long as the Constitution remains unamended, shifting public opinion and newly pressing political exigencies should not enter into the calculus of a judge. It’s a new world. It’s the same Constitution.
Taney didn’t say that, but our current chief justice did in the recent birthright citizenship case as he leaned on text and tradition, including the tradition of judicial precedent. I think Jaffa would say the current chief justice is making the same sort of error as the earlier on. Why? Because both misunderstand the apple of gold, the apple that does not deny original public meaning but informs it. In other words, being a devote of originalism does not answer the question what original meaning is. And figuring this out must be more than a merely linguistic or historiographical exercise.
Jaffa continued to poke at his contemporary antagonists. He said the living constitutionalists of his day, including Justice William Brennan, present a Constitution of overarching principles uncontrolled by actual text. While Meese’s Constitution is, in Jaffa’s words, a text without overarching principles. Both Brennan and Meese were, in short, legal positivists. The former claiming the law is simply what the demands of history as discerned by judges say it is, the latter that it is merely the will of the people expressed in writing. For Jaffa, and I’m quoting now, “Modern liberalism as represented by Justice Brennan rejects the natural rights teaching of the founding for the same underlying reason that was rejected by Confederates because it had been superseded by the progress of science.” And he singles out particularly evolutionary science, whether it be Darwinian or Marxist.
On the other hand, Jaffa agreed with me since so far as the will of the people is the ground of all constitutional authority, but what Jaffa asks is the ground of the authority of the will of the people. Why should the people rule and what are the limits of that rule? The will of the people must be a rational will that cannot be arbitrary or despotic. We know this from the observable fact of human political equality, which is expressed so succinctly and poetically in the famous second paragraph of the Declaration, “We hold these truths to be self-evident that all men are created equal.”
And this is but a distillation of chapter two of Locke’s Second Treatise of Government, “There being nothing more evident than that creatures of the same species and rank born promiscuously to all the same advantages of nature and use of the same faculty should be equal one amongst another without subordination or subjection, unless the lord and master of them all should by any manifest declaration of his will set one above another and confer on him by an evident and clear appointment, an undoubted right to dominion and sovereignty.”
The Declaration’s understanding of sovereignty then, one that was supported by other great documents of the Revolutionary Period is something that is by nature the equal and inalienable possession of individual human beings. Jaffa, I think, presciently noted that Taney’s view of the Constitution was picked up by the radical new left in the 20th century, including in the 1968 Kerner Commission report on urban violence, which lamented that blacks had not been included in the constitutional settlement. Thus, according to Jaffa, confusing the compromises of the Constitution with its principles as expressed in the Declaration.
Political right, as Lincoln knew, is Aristotelian, not Kantian. In other words, one can know that the denial of natural rights is wrong, that, for example, slavery is wrong, yet not attempt to act on that knowledge categorically and immediately, prudence, including what public opinion is willing to bear must inform the actions of statesmen. Jaffa did not live to see our present 1619 moment, which simply I think restates the stent from the beginning ideas that have been floating around in the heads of intellectuals for decades, but I’m confident he would’ve said, “I told you so.”
Jaffa believed that the attorney general of his day, not to mention the chief justice, missed the central question in Dred Scott. It was not that the Supreme Court had usurped the powers belonging to Congress, though it obviously had, but whether all men, free or slaves, enjoyed equal natural rights. That is the standard by which to judge not only the court but Congress itself. Congress was right with the Missouri Compromise to attempt to contain the spread of slavery, but it might not have been had the compromise not been reached. Would Americans then have had no arguments to fall back on? Legal positivism simply will not do for understanding the demands of the Constitution.
Now, how and by whom those demands are enforced is a secondary and separate, though important question. As Jaffa put it, “The Declaration of Independence tells us why the political authority of the United States is also a moral authority.” In the absence of a ground in nature, we have seen the rise of a new science of jurisprudence that takes history as its guide. And this can be true even of people who think of themselves as originalists. One need only consider Justice Gorsuch’s wanton mockery of originalism in the Bostock case where his pretextual textualism, as I like to call it, led him to conclude that sex does not mean sex.
This conclusion pops out of a too-clever-by-a-half linguistic leisure domain, a brittle literalism, devoid of any interest in original public meaning, which would have been quite readily discernible had Justice Gorsuch looked. Even more discernible in this statutory, as opposed to constitutional context, than the original public meaning missed by Justice Taney and claiming the Declaration did not mean what it said. Indeed, for Jaffa, the man-woman distinction is the most obvious of all the articulations of the Laws of Nature and Nature’s God or in Justice Alito’s more prosaic descent. The question is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.
And in this case, as in so many others, the people acting through their deliberative institutions are sovereign, a sovereignty that is unquestionable so long as it does not clearly violate natural rights or constitutional provisions whose meaning is unarguable. And should it do so then and only then is the table set for high constitutional as opposed to legislative politics. So aside from informing and grounding decision making in particular cases, the Declaration goes directly to the problem of judicial supremacy, I believe, and the people’s undoubted right to challenge it whenever and wherever it appears.
Constitutional meaning in edge cases should never be liquidated by looking solely to the least republican branch of government. One surely need not embrace moralistic judging rooted in living constitutionalism in order to claim that constitutionalism requires moral reasoning. It is, of course, politically prudent to distrust the moral impulses of judges, but it is not politically prudent to deny moral realism in the name of prudence. Let me put all of this a different, slightly more philosophical way. If legal positivism is correct, America is not Lockean, but Hobbesian, for it was Hobbes who brought law down from the clouds and showed it to be the plain intelligible will of the sovereign, ultimately the sovereign people.
It was he who insisted for the modern world that justice is the interest of the majority or some governmental authority speaking in the name of the majority, but there must be more to it than that. In a republican system, the higher law under which we live comes from below, from the people’s reflection and choice, but that it should come from below is a conclusion of a higher law from above. We are the products of that higher law in so far as it creates us as beings with natures, politically equal, one amongst another without subordination or subjection. And we have access to the facts of nature because we are also created with minds that are uniquely suited to reasoning about such matters.
As creatures of our species and rank, we can know, as a matter of law, that not everything is permitted, not even those things that are not positively forbidden. Must then constitutional originalism rely or really exclude, excuse me, any higher law that’s not explicitly committed to the parchment of the document. If you reflect on Justice Curtis’s dissent in the Dred Scott case, he insists, when strict interpretation of the Constitution is abandoned and the theoretical opinions of individuals are allowed to control its meaning, we no longer have a Constitution. We are under government of individual men. But Justice Curtis was reading the same Constitution as Chief Justice Taney.
For Curtis, as for Lincoln, who quoted his judgment provingly, something underlay the Constitution that was not the express command of the sovereign. For who is to be sovereign and why is a matter that of necessity goes beyond the positive law. It goes to the kinds of beings we are, to the ontological questions, to the nature of reality itself rather than merely political things. A republican Constitution’s very nature and reason embody higher law and the idea that some things are wrong simply. They are not wronged merely because they have been prescribed by the positive law of the sovereign people and they’re not right even if they are encouraged or authorized by that law.
Popular sovereignty simply or the written constitutionalism that expresses it is neither the foundation or the true end in purpose of government, as the Federalist famously claimed that justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained or until liberty be lost in the pursuit. One can therefore say that ontology and customs that reveal it always inform the founders’ constitutional understandings and they always will, particularly in edge cases, be the keys to true originalism. Because the founders’ antecedent understanding of justice, it follows that holy scripture, the common law, Aristotle, amongst many other things, are fitting in proper matters of constitutional inquiry if we the people are need to determine the mind of the convention, the original public meaning of the document.
So let me wrap up with a few questions. What would a declarationist constitutional originalism look like today? Perhaps something like the reasoning of Judge Amul Thapar of the Sixth Circuit concurring only a few months ago in a Second Amendment case called United States versus Escobar-Temal. Judge Thapar says this, “Plain and simple, the people refers to the American citizens who consented to the government of the United States. Since illegal aliens aren’t citizens, they can’t assert the right of the people to keep and bear arms. To match the enlightenment ideal of consent-based government, the founders borrowed an enlightenment term to refer to the collective citizenry, the people. With that new label, the people, sovereign American citizens became rights holders.”
And he goes on, “Congress determines what qualifies an alien to become an American citizen. Short of citizenship, the executive branch decides when an alien may be entitled to other benefits. Congress and the president’s determinations about alien status are owed a special deference by the courts because the admission and exclusion of aliens is exclusively entrusted to the political branches. Illegal aliens are not part of the political community and must not entitle to the same rights as citizens.” So let me end then with a few more questions. Before we even get to the particular legal determinations, what does the Declaration have to say about judicial supremacy itself?
If we are created equal, then consent of the governed is surely the sine qua non of just government. Why then should the least republican branch, the Supreme Court, have such inordinate say over the political, moral and cultural directions of our republic? Should the more consensual branches not have at least an equal say in liquidating constitutional meaning? Secondly, does consent of the government not allow for an end to birthright citizenship, or at a minimum, birth tourism if the people deem it necessary to retain control of their republic? Thirdly, if we are created equal, is it not reasonable as a constitutional matter to demand, to argue for an immediate end to affirmative action or a legal recognition of the right to life? I’ll leave you with those questions and turn it over to you. Thank you. Get out of your way.
Professor Kevin C. Walsh:
Good evening and thank you to everyone here, especially our hosts at Hillsdale and the Kirby Center. I’ve heard so many podcasts that come from the Kirby Center in Washington, DC. It’s wonderful to be here in person with all of you. Now I’m going to take a slightly different tack. We’re going to have plenty to talk about. I sometimes describe my own kind of research agenda as a Professor of Law in the Catholic Tradition as operating at the overlap of St. Thomas Aquinas and John Marshall. And so this one’s going to be a little heavier on John Marshall than on Aquinas, but in part, what I hope to do is understand the Declaration of Independence as a legal instrument, making claims about natural law.
And so specifically my claims are these. One, the Declaration of Independence is a legal instrument. Two, the promulgation of which legal instrument gave rise to one people of the United States. Three, which one people is the authority that made and promulgated the Constitution of the United States, for which Constitution of the United States began to operate as fundamental positive law of the one people of the United States. Five, for the government of the United States that went into operation in 1789 and continues through the present. So I know that there’s that daisy chain, those claims, but I’m going to focus specifically on the way in which the Declaration gave rise to one people.
And the reason this matters is understanding the foundations of the Constitution as fundamental positive law, its foundations are in natural law and those are its foundations though. The account of a true law, according to Aquinas, would be an ordinance of reason for the common good, made by one with care of the community and promulgated. Now in the Preamble of the Constitution, we have, “We the people,” right? That is the subject and, “do ordain and establish this Constitution.” That is the verb. Those are the acts of doing. So we have a subject and we have the actions of ordaining and establishing and then we have the purposes, among which is to establish justice and there’s the other purposes there.
So my focus is on the people of the United States as the authority with care of the community, that particular piece of the Constitution as positive law. And so I’m going to develop these claims particularly as a lawyer with a focus on the natural law. So looking at the Declaration as a legal instrument focuses attention on what the Declaration does under the governing law. So the Declaration does what it does through what it says, right? More precisely some person or person does something or things with respect to some other person or persons using the Declaration as an instrument to claim and enforce and alter their respective rights under law.
So the point of studying the Declaration under the formality of legal instrument is to attend to who did what to whom under the law, not just who said what. And we can see this right at the end of the Declaration, for example. “We, therefore, the Representatives of the United States of America in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions due in the Name and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are and of Right ought to be Free and Independent States, that they are Absolved from Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved,” and then it goes on to talk about the powers of free in independent states.
So who’s doing what to whom, right? What are the actions here? So we have individual persons self-consciously acting in a representative capacity, the representatives of the United States of America. These representatives are organized into a particular unity of order, a general Congress assembled, and they’re appealing to a judge for the establishment of a fact about their collective intention, appealing to the supreme judge of the world for the rectitude of our intentions. Now, whose authority, right? On behalf of which principal, P-A-L, not P-L-E, right? On behalf of which principal or principals these agents are acting in this unity of order through their rightly ordered intentions as judged by the Supreme Judge of the world?
The principal, I assert, on behalf of whom these agents are acting is a single people, “Due in the Name and by Authority of the good People of these Colonies.” That’s the quotation. Now, what acts were done by the authority of this people and what changed about their government? So at the level of government, the united colonies are declared to be free and independent states. They, plural, right? These states are absolved from allegiance, meaning that the states and the several peoples are outside the Crown’s protection and know the Crown no allegiance. There is no longer any political connection between the new states and the state of Great Britain.
And I would add to this, all of those legal effects are best understood as having been actually accomplished under natural law and within the unfolding of divine providence. This is expressed right on the surface of the text. Think about when they’re saying to the status to which they are entitled by what? The Law of Nature and nature’s God and the concluding reliance on the protection, firm reliance on the protection of divine providence. So in place of the Crown’s protection, there’s a mutual pledge in the first-person plural among these real life representatives of our lives, our fortune and our sacred honor. So this is one people acting through their agents.
Okay. They are operating within the natural law and they are essentially in a relationship of justice, right? They’re appealing to the Supreme Judge of the world. Now, this is where I think it’s helpful to think about the virtue of justice as rendering to each their due, right? Acts of justice have a particular form. So an act of justice is an interpersonal act of rendering what is due. Another word for what is due in this is right, right? Both right and do correspond to the Latin term use in the Roman law formulation of the virtue justice, right? To render to each their use and justice is the virtue of the will, right?
So in justifying the collective act that they were taking, this is why the most relevant fact under the Law of Nature and nature’s God, that is the fact with respect to which the representatives placed themselves under the Supreme Judge of the world is the rectitude of their intention. They are making a right claim and they’re appealing for the rectitude of their intention in this act of justice. So now rights belong to persons. And the final claim here is that the people of the United States is a group person, okay? That it is this collectivity itself has the right, the right of the people.
And that’s why we can’t just focus on the transformation of the colonies to states. We also need to understand the people of the United States rather than just the separate peoples of the states. So this is when in this joint act of justice, this claim of right, we see that people of the United States that then is the authority for the Constitution later on come into effect. And so let me focus now particularly on the part of the Declaration where they describe what right they’re asserting, right? Whose right is this anyway? So the most familiar language, of course, is about the rights of natural persons, right? The three truths that, the collective, “We hold to be self-evident,” so those are familiar.
But there’s more truths that are included there. And these truths are about the purpose of governments in relation to these rights of natural persons and about the rights of people with respect to those governments and these truths are these, “That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the govern and that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it and to institute new government, laying its foundations on such principles, organizing its powers in such form as to them shall seem most likely to affect their safety and happiness.”
So as we’ve seen the transformation of the form of government from the united colonies to free and independent states is a do or a right that is being rendered in and through the Declaration, right? Whose right is this? Who is the title holder? According to the Declaration, it is the right of the people to alter or abolish a form of government that becomes destructive of those ends and to institute new government. So the claim is that one people of the United States acting through their representatives exercised this collective right, and then later on, of course … So that’s claim one, just understanding it as a legal instrument. I’m not going to unfold the other four claims. I just wanted them out there in case we come up.
But in my last little bit here, I just want to focus then on how this relates to the constitutional order that we have because understanding the nature of the union is essential to understanding the Constitution as a legal instrument. So in terms of originalism, the type of originalism that I believe is most sound is what I would call original law originalism. That is our law now is what their law originally was together with any changes since then. You need an account though of where and how and why law originates, that particular law originates and then you need an account of change that was made.
And the fact that … Well, whether this new law was the product of one people acting collectively or whether it was a compact, for example, among the states, turns out to have all sorts of implications for things like the scope of implied powers, legality of secession, the availability of a federal common law of crimes. There are all sorts of disputes in the early republic as this project is getting underway that turned on the nature of the union. And so why does it matter then to think about this so precisely? Well, I’d say now there’s two interlocutors that I have in mind.
One would be those who claim that the people of the United States is just a fiction in a Hobbesian way. We can label anything a person and give it rights. That’s true, but what is it that makes this collectivity and what is the account? And I’m happy to talk about that in the questions if we like that, the account that makes this a group person rather than a legal fiction. And the reason it matters, whether there’s a truth of the matter about the nature of the union is that perhaps the reason that some have given, right? The reason some have given for the interminable nature of some of our constitutional disputes is that, at bottom, we’re arguing about just competing narratives. There is no truth of the matter to be found and that’s helpful. If there is no truth, that’s helpful to know.
But if there is a truth of the matter, we need an account of what makes it true and why so that we can have reasonable disagreement. And then the second I think has to do, and this is where I have recourse back to the Catholic intellectual tradition is, is there an account of the unity of the people, the authority for our government that does not rest ultimately on social contract theory, that does not rest on a horizontal level of agreement among people? And that’s also where the fictional nature sometimes comes in because the contract that forms the polity is under most versions of social contract theory would be a hypothetical contract.
And so finally, what I’d say is, yes, there is an account and that is the shared pursuit of a common good through joint action when one of the common goods that’s pursued is the unity of order that enables pursuit of other extrinsic common goods for the Constitution of the United States that provides a form. And if you then look, and I’ll conclude, I only got to the Preamble, if you look at the Preamble, what you’ll notice is those are all common goods, justice, the common defense, the general welfare. Each of these is common goods. So what I’ve hoped to do is provide a natural law account of the authority underlying the Constitution as positive law.
Dr. Matthew Mehan:
Thank you both. So just a historical detail that leaps to mind something we’ve discovered in research here directed by our Dean Matthew Spalding that when the states first sort of became states, they actually sent word to the Continental Congress asking, “What are we to do?” And they actually sent back word, “Well, you should definitely form up as little mini-republics,” which is an interesting analog to some of what’s being discussed here, at least with regard to Kevin. I want to maybe press both of you on, first, where do you agree and where do you think there might be disagreement about the Declaration? I might point to fault lines second, but one, this notion of original law originalism sounds analogous to what, Brad, you were talking about with regard to having a reason to reach back to the actual original meaning that was put forward by the people.
Brad, do you want to sort of maybe tease that out of compare and contrast? Is there a vociferous agreement there or would you qualify? How would you describe the two accounts?
Dr. Brad Watson:
I think there’s a broad agreement. What I was saying is that, and I was channeling Jaffa, but not only channeling Jaffa, this is my settled view of the matter, that the constitutional settlement comes about through horizontal agreement, agreement of the people, but it only comes about through that horizontal agreement because there is initially a creation. We are beings of a certain kind, created. So we are beings in the image and likeness of God, created equal, not equal obviously in all respects. It’s a self-evident falsehood that everyone is equal in intelligence and looks and virtue and all of these things, but we are politically equal.
That is to say we are all endowed with reason, we are all capable of consenting to government. Therefore, we have a right to exercise that consent based on political equality, but that political equality is a creation. So I think of the establishment of republican government as a horizontal settlement establishing the positive law, but it ultimately depends on a creative act. So there’s the vertical creation that leads to the settlement. I don’t know if that’s clarifying, but I think we probably agree on that.
Professor Kevin C. Walsh:
Sometimes the language of horizontal vertical can sometimes … The vertical dimension that I was talking about in some sense was, if we think of a compact on a horizontal level, that is you and I make an agreement and we’re equal and now we have a deal, and so if you think of say the state, if you think of the Constitution as a compact, and I’m not saying you do, but a lot of people have, then the horizontal level would be at the state level. And what I’m trying to offer is an account by which the shared pursuit of the common good, and you might think of this as vertical in the sense of looking up, we’re all trying to achieve the same objectives.
So initially, it would be independence through war, right? So victory and war is a very good example of a common good and the shared pursuit of that creates a unity at the level of the people who are sharing it. So that’s all I was trying to emphasize there. I think the one part about Jaffa’s article, which I went back and reviewed in preparation for say, “What did he say?” and I think people toss around the legal positivist as an epithet for people who think that positive law is real law. And I think it’s very important to understand positive law without legal positivism.
St. Thomas Aquinas offers a very good account, a strong account of the necessity for human positive law. And this in some ways he points as well to divine positive law, which can have different formats. And so I think one thing that hasn’t changed in the 40 years since that article is that, in some of the kind of disputes that people have, in some sense, sure, I think legal positivist, you’re a legal positivist, I want to be careful not to use that for people who treat the Constitution as positive law. And the final thing and the reason for that in some ways is tied to judicial supremacy.
So I share a worry about judicial supremacy, but one way of that understanding the Constitution as positive law contains judicial supremacy is by you only have jurisdiction that is supreme, law-declaring authority that is supreme with respect to certain positive law as that is declared in cases or controversies. And we have positive law, the law of judgments, the law of remedies, the law of precedent that also contain that. When the constitutional interpretation is viewed as an act of interpretation of natural law, well then, at least, Catholics will have a problem of competing magisterium.
Dr. Brad Watson:
Could I ask a question because I did want to follow up on exactly that? I was giving, I think, let me characterize it as a relatively more political account of things. I think you were giving a more philosophic account of things. I was wondering on your account of things, and you’re obviously a lawyer and you’ve done some high-level fancy lawyering stuff, clerking for Justice Scalia. What is your view ultimately of judicial review and judicial supremacy? Is the Supreme Court fundamentally off the rails on your account of the origins of the constitutional settlement? Is it doing the right thing if only we get the right judges? I’ve tried to make my position clear that I think it is off the rails and I don’t think it can be squared with the Republican principle, but what does your account say about that?
Professor Kevin C. Walsh:
Yeah, I think we’re actually at a very interesting time on our current court where there is much greater attention to the legal and jurisdictional limits on the Supreme Court’s own authority to declare the law for everybody. So the way I would describe the judicial supremacy that I reject would be something like this. The Constitution means for everybody what the Supreme Court says it means in the course of resolving a case. So that would be a Cooper versus Aaron-styled judicial supremacy and that is inconsistent with the judicial role as understood.
Now, what form of judicial supremacy makes sense? I call it judicial departmentalism, but you could just call it bounded judicial supremacy, which is to say that the court’s resolution of legal matters is itself structured by law, the law of judgments, right? And this is a law that Lincoln would accept, for example, saying, “We’re not going to disturb that case, but we’re not going to take the principle.” There’s a law of remedies in the Supreme Court in the birthright citizenship national injunction case, showed that there are legal limits and recognized those, right? And that’s why the law of remedies is so important, because if you’re a judicial supremacist, it doesn’t matter what your remedial authority is.
But if your law declaration is incidental to your dispute resolution and that culminates in a remedy that binds certain people, then it matters what that is. So I’m encouraged that the Supreme Court’s paying attention to that. The final is the law of precedent and I think this is probably the more controversial part, but my understanding of precedent is that it would operate vertically within the judicial system. Those of us who might get dragged into the judicial system or council people who will get dragged into it need to be aware that lower court judges are bound by what the Supreme Court says, but that is totally combatable with combating the kind of judicial supremacy that we mostly worry about and my example of this would be the Dobbs case, right?
So when the Mississippi legislature passed its law, they knew that it was inconsistent with Casey but not with the Constitution. They knew they were going to lose and their only chance was going to the Supreme Court and getting the Supreme Court to overrule Casey. And in my view, the Dobbs case is an example of how a bounded form of judicial supremacy channels things in a good way, but notice it presumes that they’re non-judicial supremacists at the Supreme Court.
Dr. Brad Watson:
Yeah. I was wondering actually if you thought … I mean, for example, in the face of an obviously unconstitutional or anti-constitutional Supreme Court decision, do the people or the political branches have a right and a duty not to enforce that, to ignore it?
Professor Kevin C. Walsh:
Yes. But I think any well-counseled person would realize too the obligations of other actors in the system and things like that. So this is why I think … And of course, the reason why is, when you take an oath to the Constitution, judicial supremacy view is you’re taking an oath as if the US reports was stapled on the back of it and I don’t think a good lawyer can do that. And what’s interesting I think is, when lawyers and judges think from the internal point of view, they realize that judicial supremacy in the form of the latest diktat or of the Supreme Court as applying to everybody, nobody really believes it.
Dr. Matthew Mehan:
Hence, the desperate cry of settled law over and over again, right? It’s like, if you have to say, “I am king,” then you’re not much of a king, right?
Dr. Brad Watson:
Super precedent, super precedent.
Dr. Matthew Mehan:
This is probably … Well, we’re running out of time, so maybe I’ll save this for dinner afterwards, but I’ll take questions from the audience now. Yeah, please.
Audience:
Thank you guys so much for your talk. My question is about the relationship between positive law and natural law, because a positive law insofar as it’s not rooted in the natural law or runs counter to the natural law is no laws at all as the tradition tells us. And I was wondering, if it were the case that the rights claims made either by the fundamental law, fundamental positive law, something like the Declaration or something like the Constitution ran afoul of the natural law, whether it does might be disputed, would it be the obligation of the people to counter that or reject that part of the Declaration or the Constitution?
Dr. Brad Watson:
Well, it’s obviously such a hypothetical. You need to specify what you would be thinking of. We are always under an obligation to follow the natural law. If Jaffa is right, however, the political authority of the United States is equivalent to moral authority. There’s not going to be that tension or that inconsistency if you understand the Constitution properly, but there could always be interpretations of the Constitution by the Supreme Court or political actors that are incorrect and run afoul of the natural rights basis of the Constitution, proper understanding of natural law, in which case there is, I think, an obligation on the part of citizens and political actors precisely to restate not only what the Laws of Nature and Nature’s God say, but how the Constitution is consonant with that and the interpretation is wrong.
And in my view, there’s a positive obligation on the part of all constitutional actors to reject, as I’ve suggested, obviously anti-constitutional Supreme Court decisions and I can name a few. In fact, I argued explicitly at the time Obergefell was decided that that was obviously contrary to both the Constitution and nature and political actors should reject it and simply go ahead as if that had never been decided and continue with their laws concerning marriage. So I think there’s cases that can and do arise where political actors get it wrong, and yes, there’s an obligation to ignore it in my view.
Professor Kevin C. Walsh:
One way that I think about this is by saying what’s clear and then what’s arguable. So here’s what’s clear. A judge or any other person may never violate the natural law, right? They ought never themselves to commit a violation of the natural law. And in that sense, it applies everywhere, right? However, a lot of times what we’re talking about, at least when it comes to judicial interpretation is jurisdiction. Jurisdiction to do … So there’s one step to say, “I am not myself violating this law, so I will not order that that abortion is in the best interest of that child,” “I will not myself sign that death warrant ordering that person to do this.”
But most of the time what people have in mind in the harder cases is the saying that a law violates, say, the Constitution as positive law because it violates the natural law. And where the natural law fits into Constitution I think is trying to understand all of the law not as harmonious as pointing in different directions, as pointing in the same direction rather than in different directions, but for a judge to exceed that judge’s jurisdiction, right? To apply something, so law, that they don’t have jurisdiction or authority to apply in doing a legal act is itself a problem, right? So a judge exceeding that judge’s authority itself is a problem under the natural law and there is where it gets exceedingly difficult, but … Well, that’s where I’d leave it for now.
Dr. Matthew Mehan:
So recently, it was last Thursday at Catholic University here in town, there was an all-day symposium on Orestes Brownson who seemed to address and tried to synthesize as best as possible the tensions between the Constitution and the Declaration, something he dealt with before the Civil War, during the Civil War, and then in his Magnum Opus that he wrote right after the Civil War, Civil War that lost him to his two sons. And so I was wanting to see if you had any comment on how to maybe synthesize that and if you feel so inclined maybe to address some of the charges against Americanism that were leveled by the papacy later on towards the American former government and how it might also impinge the church and whatnot. I know that’s a very broad thing, but Brownson’s the bigger part of it.
Dr. Brad Watson:
I’m going to defer to my Brownson expert here. I’m not so-
Professor Kevin C. Walsh:
So on Brownson, in part, some of what I was talking about was drawn directly from Brownson. So there’s a couple of important distinctions that I think help in understanding his constitutionalism. And one is the distinction of what he says, “The Constitution of the people and the Constitution of the government,” right? So how did the people come together? How did the government come together? And part of what he’s fighting, he needs an explanation as to what was wrong with secession, for example. And so the description that I was talking about of the one people is Brownsonian through and through and I found that very helpful.
The second distinction, which is related to the first, is he talks about the Written Constitution and the Unwritten or Providential Constitution. And there were only echoes of that in what I said, but this one in some ways … So it’s important to keep these distinct, but understand the relationship between them. And so the Providential Constitution refers to the facts of unfolding within providence. And so here, he talks about how the nation, when you had the Declaration of Independence, yes, now people are pursuing a shared common good, a victory, but they don’t possess sovereignty as a fact until they win within a bounded territory.
So for him, political authority does rest also on possessing sovereignty as a fact. And the key move for him in answering some of his main interlocutors was that the states pursued and obtained sovereignty, but they were always united, right? They did it jointly, not severally. And I found that distinction very helpful. As to Americanism and things like that, I’d say Catholic social teaching on the United States of America, there’s a lot to it and so I don’t want to be super casual. I do think though that some of the observations made, for example, in Centesimus Annus about things like the separation of powers being important.
Some of the most important anti-totalitarian government sorts of things are examples of where the American experience has usefully informed articulation of Catholic social teaching. So I do want to resist the idea that it just goes in one direction. I think that the American history properly understood is helpful.
Dr. Brad Watson:
Just a quick point to bring this into the present day. Some of the most notable critics of the American regime today come from the so called post-liberal right, largely Catholic intellectuals. I think they drive far too big a wedge between the American founding and the natural law tradition. They insist the American founding is premised on a view of radical autonomy, it’s Lockean, which reduces to autonomy and we go directly from there to all the ills and degeneracy of our present moment. I think this is really unfair to the American founders and it leaves out so much such as the progressive rejection of founding principles, the Laws of Nature and Nature’s God, that the progressives themselves were screaming from the rooftops that they had to overturn the American founding.
They were not agreeing with it. They were not extending it. They were overturning it. And I think the post-liberals for the most part ignore all of that, but there has been a long line of, shall we say, suspicion, doubt or trying to bring the pieces together from the point of view of the Catholic intellectual tradition. And the current post-liberals, post-Americans, as I prefer, are the most recent radicalization of that, I think, but it is a radicalization and not an accurate representation of a founding, I think.
Dr. Matthew Mehan:
I would only add moderator’s privilege that you read past the headline on Americanism. It sounds like this horrible heresy, and therefore, America is bad, but in fact, it’s a letter about Europeans corking off saying, “You should be more like America, France, et cetera.” And then people wanted that to stop because it was a terrible interpretation of what they ought to do in Europe to implement American reforms, which no one according to natural law reasoning would’ve suggested from here there. And in the same breath, there’s tons of praise for America, even in the condemnation of so-called Americanism, which is being identified as a European illness ironically. So last question.
Derek:
Thanks so much for a very sophisticated and interesting conversation. It’s also rather timely too in some respects. Just two quick questions for each professor. So for Professor Walsh, what do you make on your interpretation of the Declaration as a legal document, I think of John Adams who thought, “It’s not going to be July 4th, it’s going to be July 2nd when we voted for independence.” And July 4th is more or less an afterthought. It was a Declaration of Independence. It was an explanation that we were offering in this document. And all the kind of legally operative language that you may see in the Declaration was first put into the Lee Resolution two days earlier on which they voted. So I wonder what Adams might think of your argument on that point about whether the Declaration really is actually a legally binding document that creates something new by doing what it does. Just one thought.
And then for Professor Watson, on the role that the Declaration should play and natural law should play in constitutional interpretation, I gather, I infer from you and from Jaffa that you think that, in some cases, judges should go to principles of natural law to interpret the Constitution. But I wonder what you think about the colloquy and dialogue between say the anti-Federalist Brutus and Hamilton on, it seems like that very point where Brutus is looking at the Constitution and saying, “This is what’s going to happen. The judges will go to these principles of higher law to interpret the Constitution and that’s very worrisome to us.”
And then Hamilton tries to reassure him saying, “No, no, you’re getting equity all wrong. These judges are going to be bound down by principles and precepts and precedent and are not going to be doing what, Brutus, you’re worrying about. “So for both of you, just curious to hear your reactions to those two historical moments.
Professor Kevin C. Walsh:
On the promulgation of the Declaration versus the voting on the substance of … The reason I focus on promulgation is because a particular account I’m trying to offer of the way in which one people forms, so is this act on behalf of one people, but then because of that act, there is an us and a them, right? So there’s a sort of a splitting of the one people when in the course of human events of one people. So in my view of one people splitting from another people and then that split, as it’s promulgated and then as it spread, as it goes around, there’s two sides. There’s not 14 sides. It’s, “Are you with us? Are you with them and for the existential stakes of self-government?”
And so that’s the reason I focus on the promulgation because it’s that that then puts the question, and as that question is answered, the people is constituted, right? Because the people who sign on to the project of pursuing victory and self-government, those are the people. That’s why I focus on that.
Dr. Brad Watson:
Yeah, thanks, Derek. That’s a good question. The anti-Federalists, of course, had … Their rhetorical project was to exaggerate the dangers of the Constitution because they got some things wrong. They just missed the mark on some things. I think those dangers didn’t materialize. One of the dangers that they predicted, or at least Brutus predicted, that did materialize I think is exactly this sort of wild unmoored federal judicial interpretation, which they saw would crush the states, extinguish the states as independent sovereign entities. Now, was that more or less by accident because they tended to exaggerate a lot of things, but they hit on the money there? I don’t know.
But I will say this, I think the center of gravity of opinion at the time of the founding, to the extent the founders thought about, shall we say, questions of legal interpretation at all, and Brutus did in that case, but on questions of legal interpretation, I think the center of gravity of opinion overwhelmingly was what I would call a Blackstonian understanding of the role of courts and judges. That is to say the supremacy of parliament in the American system, of course, it is not the king who is sovereign, it is the people who is sovereign, so there’s a shift of sovereignty, but ultimately, courts are going to express the will of the people and not directly challenge the will of the people as expressed in a clearly written Constitution.
And for the most part, courts are going to do things that common law courts do and this new Supreme Court, the only court that is created by the Constitution, is going to be called on to do something that an English court, in Blackstone’s interpretation, would never be called on to do. That is to say there are two parliaments in America, right? There’s the national parliament created by the Constitution and then there are the state parliaments, as it were, to use Blackstone’s language. So there would be a competition between parliaments, but I think, ultimately in the Supreme Court for the first hundred or more years of its existence did do this, it did occasionally adjudicate conflicts between these levels of government, and broadly speaking, it gave a pro-federal or Federalist conception of the Constitution, allowing Congress to do things, but it didn’t really become completely unhinged in the way Brutus predicted until much, much later, a good hundred years on when it was overtaken by progressive political thought that was infecting all the branches of government.
So there’s a sense in which Brutus was right, but it might’ve been right in a wild guess kind of way. He didn’t anticipate the philosophy of history, which would finally unmoor the court from English common law interpretive principles, deference to the sovereignty of parliament, those kinds of things. So there’s a sense in which I think Hamilton and the Federalist to the extent they thought about this, they were thinking that and it was right for a long time, but then things really go off the rail. So Brutus ends up being right, although not for reasons I think Brutus anticipated, but you are right.
But something has to intervene there. That wasn’t baked into the cake of American constitutionalism and Marbury v. Madison never established judicial supremacy. That’s just a myth made up by lawyers and Supreme Court justices, especially in Cooper v. Aaron, they just made it up.
Dr. Matthew Mehan:
I think John Adams might find it very fitting that he was wrong about July 2nd because a republic is ruled by law and the final ratification and promulgation of the law, which is an essential part of law, according to the natural law tradition, means that it isn’t quite all the way done and we’re not fully ruled by that law until it is ratified and fully promulgated on the fourth. So that’s my moderator’s take to close us out. Thank you very much. A round of applause.
Dr. Brad Watson:
Thank you.
Speaker 1:
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