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The Relationship Between Positive Law and Constitutional Interpretation

Kevin C. Walsh (00:00:01):
All right. Welcome everyone. Let’s open with a prayer. In the name of the Father, the Son, the Holy Spirit. Lead us Lord in your path and we will enter into your truth. Let our hearts be gladdened that we may fear your name. Let us take joy in your law, meditating on it day and night that we may be like trees planted near streams of water, that our leaves may not weather and that we may yield fruit and season.

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Come Holy Spirit, fill the hearts of your faithful and kindle in them the fire of your love. Send forth your spirit and they shall be created and you shall renew the face of the earth. Father, the Son, Holy Spirit.

(00:00:37):
Well welcome to this afternoon’s program sponsored by CIT, the project on constitutional originalism and the Catholic intellectual tradition at Columbus School of Law, the Catholic University of America. CIT is leading the scholarly exploration of the relationship between American constitutionalism and the Catholic intellectual tradition through programs like this one, through fellowships for law students, young legal professionals lecturers, and related events.

(00:01:06):
There’s a whole webpage, cit.catholic.edu. Go there. I’m Kevin Walsh, CIT co-director along with my Catholic Law colleague, Professor Joel Alicea and we’re pleased to present the program this afternoon on the relationship between positive law and constitutional interpretation.

(00:01:27):
Each of our speakers will provide an opening statement after which I will facilitate a discussion and then open the floor for questions and maybe answers. The first of our speakers will be Professor Steven Sachs, the Antonin Scalia Professor of Law at Harvard Law School. Next up will be Professor Jeffrey Pojanowski professor of Law at Notre Dame Law School. Both of these scholars are top-notch. I’ll skip what you can read about them on their faculty webpages and instead offer some recommendations about where you might start learning about their scholarship after this event.

(00:02:03):
So two of Professor Sachs’s law review articles on constitutional originalism have been particularly formative in my own understanding and more broadly influential. These are a 2015 article in the Harvard Journal of Law and Public Policy, Originalism As a Theory of Legal Change and a 2022 article in the Harvard Law Review, Originalism Standard and Procedure. So in the first Professor Sachs reframed thinking about constitutional originalism away from investigating original linguistic meaning and then asking about his contribution to the law instead of going towards investigating original law, presenting originalism as a theory about what our constitutional law is today as a function of the original constitutional law, plus any lawful changes since.

(00:02:56):
And then in Originalism Standard and Procedure, he contended for a reorientation from thinking about constitutional originalism as a method, methodology or set of techniques wrong to constitutional originalism as a way of understanding continuity with original constitutional law as an essential input into a criterion of correctness for our constitutional law today. Go read both of those.

(00:03:28):
Those are linked from the webpage by the way, I’ll read the rest of it too. Professor Pojanowski is an expert on the relationship between classical natural law theory and constitutional originalism. Matter on which he and I have co-authored an article in a book review. If there’s a tagline for that sort of shared project, it would be trying to understand the positivity of constitutional law without positivism.

(00:03:54):
I’ll leave the speakers to explain that, positivity without positivism. With respect to legal theory and jurisprudence more generally, I commend to you as 2021 Yale Law Journal review essay Evaluating Legal Theory and given our setting today, his 2019 essay in the Catholic Journal of Catholic Legal Studies, Teaching Jurisprudence in a Catholic Law School. Both will help you to make sense of how to situate your study of the law in our created and well-ordered universe. Professor Sachs.

Stephen E. Sachs (00:04:27):
Thank you very much for the extremely kind introduction and it was entirely true. All of you should go read my articles. I think I want to make three points during this opening today and they are points that I think will have wide agreement mostly on the first two, but I hope even on the third. And in summary, the points that I want to make are first, that whatever your views on constitutional law and whatever your views on legal theory, they ought to play well with one another.

(00:05:00):
Your constitutional interpretive theory ought to be responsible too, or sort of responsive to your theory about the law writ large. Secondly, that your theory about the law writ large should not necessarily be the same as what you think any one person ought to do, whether that’s the conscientious citizen, the conscientious judge, the conscientious police officer, the conscientious legislator, all of those people have many different kinds of duties that might even be rooted in or related to the legal system.

(00:05:32):
But what their duties are is just not the same as what the law is. What the law is is an input to those duties, it’s not the summon substance of them. And then finally, if you buy those first two principles, I think that it is likely that one might conclude that what the constitution requires, that part of our law, that’s constitutional law may be best understood in light of a theory of law writ large. That’s mostly about what people do around here, what the French constitution requires, what the confederate constitution required, what the constitution of Japan requires.

(00:06:08):
All these things are things you can’t know very much about without knowing a lot about those particular societies, those particular periods in history. It might be very much contrary to what we think anyone’s duties in a real moral sense actually would’ve been, a confederate constitution being the best example thereof.

(00:06:28):
With that very quick summary, I’ll go in somewhat more detail. So why should we think that our theory of constitutional law and constitutional interpretation ought to be responsible to a theory of law very writ large? Well, I think there’s a very strange phenomenon. I found it very strange when I was taking con law. As a law student, that you would read constitutional arguments and have very little sense of what made something a good constitutional argument.

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People would say, “I have a textual argument. I have a historical argument and I have an ethical argument and I have a policy argument.” And sort of all these arguments would be out there. And so one thing you could do is sort of the Philip Bobbitt route and just say, “People make all these kinds of arguments.”

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But on the other hand, they seem to think that some of these arguments are good and others bad for reasons. They seem to think that there’s some way of having arguments contest with one another and sometimes one argument is more persuasive than another.

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Well, something has to make that the case. Something has to make it the case that this particular argument and constitutional interpretation works to establish something as our constitutional law. Can the president remove the federal reserve chair at will?

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That’s a legal question. Whatever answer you give to that based on your reading of the Constitution and whatever else you think is relevant ought to somehow plug into a more general theory about what are good answers to legal questions. What makes an answer to a legal question, a good answer?

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Now that might be something that’s rooted in social practice and what we do around here. It might be rooted in moral principles or deeper commitments of justice, whatever it’s rooted in though, it would be very strange if constitutional law is just its own beast that has nothing to do with the rest of the law, nothing to do with makes for a good answer in tort law or statutory interpretation or anything else.

(00:08:16):
The first thing is just a plea for folks who do con law to try and have micro foundations try and have a theory of jurisprudence that they can hook their theory of con law up to and say, “This is why I think that’s the law.” On the second point, if we’re trying to figure out what we think the law is, I think it’s very important for us to differentiate that from our duties in a particular case.

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I’ll give the following, a hypo. You want to vote, you think as a conscientious citizen you ought to vote but through no fault of your own, you are late and the polls are going to close pretty soon. And you are walking to the polling station and the light is red and you are not at a marked crosswalk and there’s no cars anywhere and no children to be scandalized and you just decide to jaywalk.

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I think it is pretty clear to everybody that you have just violated the law, that you had a legal duty not to jaywalk and you broke it. Now it still might be the case though, that what you ought to do as conscientious citizen is jaywalk in order to vote. You can better fulfill your duties as citizen by jaywalking. The legal system would not agree with you. Legal system, if an officer were there and ticketed, you could not say, “But officer, I had to vote and be a good citizen.”

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That would not be a good defense in court if the ticket went to a judge and it would not be a good defense even to the officer as a matter of law. Now, it might be a good reason. It might be that all of political morality, if you were Hercules and thinking through everything at once and you decided, “You know what? Best thing I can do political morality wise is to cross the street and jaywalk.”

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It still would not be what you legally are supposed to do. It also is the same if you’re thinking about the duties of the conscientious police officer. Maybe the police officer ought to let you go. Maybe the police officer ought to say like, “Fine, don’t do it again.” Maybe the judge if you are in fact ticketed and hold before the court ought to come up with some silly reason why they get to dismiss that ticket.

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Maybe if you are a legislator, they ought to revise the law and create an exception for voting or something like that. But all of these moral questions are not the same as the legal question of whether jaywalking in your situation is legally permissible.

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That is an input to all of these things. If you’re a police officer, you definitely need to know whether it’s illegal before you ticket them or at least one would hope if you’re a judge, you at least should know whether it’s illegal before you render your decision.

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But whether what is a good decision, what’s the right thing for you to do in that context is not the same as the question, what was legally obligatory for you in that way? I think the question, what should you have done according to the law and what should you have done given the existence of the law sometimes will be different.

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According to the law, you should never jaywalk unless you have a necessity defense, which is very rare. Given the existence of the law, often you should jaywalk anyway.

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Bringing to my third point, this is why I think it’s very important for us, if you buy one and two, to often recognize that legal obligations, legal norms, legal permissions, may or may not be real robust moral permissions, obligations, norms, et cetera. Sometimes the law just tells you to do something wrong.

(00:11:46):
That is… Everybody can agree with that. Or almost anyone. A wide range of views about the law can agree with that. You don’t have to be what goes by the name of a legal positivist to think that that’s true. But if you do think that that’s true, it really raises the question, how much of moral input does the law have to have? How much is sort of necessary to the law?

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Because one can say, “Look, sometimes the law is just bad. Sometimes the law just commands bad things or allows bad things. Sometimes the law in the sense of something that’s done around here in France or in Japan or in the Confederate states or in the current United States of America, sometimes the law just commands what it shouldn’t or permits what it shouldn’t.”

(00:12:33):
In my mind, the cleaner way of understanding this is to look at the law as a sort of proposed system of norms. Actually, not as a subset of what you actually ought to do. It’s sort of a candidate for what you ought to do. If we think about, I don’t know, utilitarianism. They say we should always pursue the greatest good of the greatest number. Maybe they’re wrong about that. Lots of people think they are.

(00:12:55):
But we can understand what would be the case if they were right in the same way that we can understand what you ought to do if the law were right about everything. In that world, you should never jaywalk. The main worry that I have with the many attempts that one sees to meld what the law says you should do and what you really ought to do, even what you really ought to do given the existence of our legal system, is that it in some way makes life too easy.

(00:13:26):
Often the law is going to be unjust. Often it’s going to be unjust in ways that most people in society don’t even recognize. It’s a little dangerous for us to say that principles of justice are necessarily and inherently incorporated in the law because then, we might get too complacent. We might think that we don’t actually need to change the law because the principles of justice are already there doing our work for us. My sense is that often they’re not.

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Often, what the legal system says you should do is very much what you should not do. Given that, and it certainly is the case in lots of societies in history or around the globe. Given that fact we should be very careful about introducing moral principles and moral reasoning into legal reasoning because it deprives us of the ability to critique the law when the law has gone very wrong. I’ll leave it at that. I look forward to hearing from Professor Pojanowski and the rest of you.

Jeffrey Pojanowski (00:14:27):
Thank you. Thank you. Thank you for having me today. It’s a real pleasure. These are two of my favorite scholars in the legal academy. So the opportunity to sit with them is great. And the opportunity to be here at Catholic University at the Columbus Law School is excellent. What Kevin, Joel and Chad are doing here is great.

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I’m going to talk a little bit about how the classical natural law tradition thinks about positivity in law and how that relates to constitutions and constitutional interpretation. I think much of what I’m going to say here, and this is kind of standard procedure is not particularly groundbreaking but we’ll just try to do my level fumbling best to introduce what the tradition teaches us about these things that we can work with them.

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Now, it’s somewhat of a commonplace among natural lawyers to note that some of the earliest systematic discussions of positive law as an independent subject worth exploring and understanding on its own was by 12th century French theological humanists.

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One of the pathbreaking theorists and students of positive law was Thomas Aquinas. The classical natural law tradition is not opposed to positive law or doesn’t view positive law with great nerves, but rather embraces it and perhaps maybe Steve would suggest, maybe embraces it too much or makes us too complacent about it.

(00:16:02):
But a little bit about why the classical natural law tradition values positive law so much. The first is the basic human need for something like a legal system. To promote the common good and human flourishing, we need many things, but one of the things we need is at least somewhat comprehensive, systematic, social institution that identifies rights, privileges, responsibilities and renders them enforceable.

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Now it’s not everything. But there are some things that only law can do. We need authority for coordination and for protecting of persons. We need authority to restrain or punish the unjust, but we also need authority to coordinate people who mean well but need to prioritize projects and work well together.

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In any complex society, we’re not going to have unanimity. You’re going to need someone to say so to get things to flourish and to promote the common good in ways we couldn’t otherwise. A wonderful tool for that is a system of positive law, of deciding how we are going to do things around here with respect to these particular subjects.

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Now, there’s a couple features that are necessary for law to work or for positive law to do its job. One feature is a relative and a lot turns on relative. A relative isolation from all things considered reasoning. Thomas and all the natural lawyers will talk about look, there’s two ways in which the natural law relates to human law.

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One is by the process of derivation and one is determination. Derivation is more or less when you’re kind of reading off natural law to make human law. Laws against murder, rape, theft, all those other kinds of things. Where we basically bring down the natural law to the code book and implement it and give it force in society. The other is determination, where when the natural law speaks in a generality that reasonable people can disagree upon, but we need to make some sort of choice and have those choices coherent with other choices and they could have been otherwise.

(00:18:37):
But we need to choose. The hack neat example is what side of the road we drive on. But it can be more complicated things like marginal tax rates or things like that. But nevertheless… But even in the context of where we’re deriving law, where we’re kind of making murder laws or something like that, there’s aspects of determination.

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What are our elements? What are our degrees of murder? What is the sentencing? What are other burdens of proof? There’s a whole bunch of judgments in there that could have been otherwise. And even when we’re engaging in determination, when deciding what our marginal tax rate is going to be or what side of the road we’re going to drive on, we are deliberating and directed by the natural law. We care about traffic laws because we care about human safety, we care about tax laws because we care about fair distribution of burdens in society, et cetera.

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So it’s more of a spectrum. But to the extent law engages in determination, until it kind of renders the generalities of the natural law more specific, to do its job, it has to be relatively isolated from reasoning about what we would do in the first place.

(00:19:40):
Determination by its nature could have been otherwise if it’s within the realm of reasonableness and asking what I would do in this situation kind of takes away the benefits of having things determined authoritatively. I may not want a 25% marginal income tax rate and Steve may want 27 or 20, but we got to pick one and go with it and we can’t just be arguing about marginal tax rates.

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We need to be able to isolate the reasoning of the positive law to some extent for moral reasoning, for law to achieve its moral purposes of coordination that we get through authority. A second feature and this is where…

(00:20:23):
Again, this is another area where I sometimes get accused of being a positivist. A second feature is to kind of understand determination and for determination to do its work, we often have to go back to the origins. We have to decide what was determined at this particular point, what was the decision made when we’re facing a wide menu of options and we needed to pick something to cohere well with other aspects of the law and decide what we’re going to do here, I need to go back and find out what has been done.

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Otherwise, we’re just kind of going through the process of determination all over again. Again, positive law often kind of require is well, to understand the positive law, we have to often have to go back to origin. It’s not the only thing we do, but it’s really important. This all has implications for constitutions in how we interpret them.

(00:21:21):
The natural law says we need a reasonably just framework of government that works and there’s no celestial code book that’s going to give us that. There are un-choice worthy constitutions, but there are lots of choice worthy ones and we have to choose one and make the one that fits reasonably well for our polity, which means we have to make determinations.

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And for those determinations to work, they have to be somewhat isolated at least and in many circumstances from free moral reasoning. For them to work, we have to identify them and to identify them, we have to go back to the origins. Which is why there’s a kind of normative kind of moral, ethical, natural law, whatever you want to call it, argument for the importance of something like originalist interpretation in constitutional law.

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For constitutions to do what the natural law says we want them to do, we need to do something like originalist interpretation, at least part of the time. Adjudication is more than interpretation. But we need positive law to function well together and we need positive law within our constitution to do that.

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Now, in some ways the natural law tradition takes positive law more seriously than legal positivists. Its a bit of Steph’s worry actually when people talk about legal positive and sometimes unfairly or pejoratively treat as a purely neutral descriptive enterprise, understanding the law of France may be kind of an interesting intellectual project. You can do a book report on in the same way that the rules of American contract bridge are something we can learn.

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Natural law tradition says well, studying this is… Even if it is something we kind of isolate from moral reasoning, even if it’s something that’s kind of created or introduced into the system, it’s not an idle subject.

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We have it because we need it for human flourishing in the common good. There’s something special about this particular practice that we need to take seriously that’s different than figuring out, “Well, what was the law of Florence in the 14th century about Belmont?”

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It’s more pressing for people in 14th century Florence than it is for us now in a way because we very strong moral reasons for having a well-functioning working system of positive law. In some ways, the natural lawyer views the question of positive law as a more morally charged question or a more morally charged enterprise.

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In other ways, it matters less. Positive law as an object of study, although worthwhile on its own or while a subject of worthy inquiring in its own is not something we inquire in for its own sake. We have it, we care about it, we want to understand it because of overarching reasons that extend outside it and can be relativized to that.

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The ultimate question facing a person when they’re considering law is not just what is the law, the question is what ought I do. And very often what ought I do, the answer to that question will be informed by the law. But to the extent, we do follow what the law says in that particular circumstances, it won’t be just because the law said it, but because we have good moral reasons to abide by the laws of reasonably just legal system.

(00:24:40):
To loop back on Steve’s three points, the first one, I’m in complete agreement. To have a theory interpretation has to link up to your theory of law and why we have it. I remember being deeply unsatisfied with Bobbit’s modalities. He’s like, “Here are seven ways I think people argue about. Well, which one’s better?” And you want to know, you want to have your [inaudible 00:24:59] sort of argument about what makes a good argument and why we do that.

(00:25:03):
Secondly, the point, sometimes what the law requires will be different than what is good all things considered. I think that’s right. But interestingly, in some ways the natural law tradition is more committed, at least if you have a reasonably just legal system is going to be more committed as a matter of philosophical principle to a presumption moral obligation to obey the law.

(00:25:25):
Now, a positive psycho Joseph Raz would say no. The laws… At least or is more skeptical of a strong presumption. Here we’d say look, the jaywalker, you have a presumptive reason not to jaywalk simply because the law tells you to. It is not a matter of indifference whether you jaywalk or not, all things being equal or all things being close to equal, you have a very strong moral reason not to jaywalk. It’s not a decisive reason. You have other moral obligations and so what you ought to do, maybe you ought to jaywalk, but you’re going to have a strong morally… At least natural theory kind of builds into its structure, a presumptive reason to not walk jay if that’s the way to phrase, if that’s the way of saying things.

(00:26:13):
On the third point, yes, there is benefit and important to studying law in its own terms. Particularly in a reasonably just system that’s going to be very well developed, ordinary legal science will often look very much playing out logic games of the law.

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It’s going to be thickly nested with norms that hopefully kind of interlock and interweave and work well together. Because the natural law gives us a wide range of reasonably just orders, playing by the rules of the game will often be enough. And it’s really good to know what those rules of the games are.

(00:26:44):
But the natural law choices table, that’s only part of the picture of understanding the nature of law and law’s purposes. You have to understand that there’s… It’s the tip of the iceberg at least and you need to understand that. But there’s a broader picture that you need to understand about why we’re doing in the first place and I’ve talked long enough. So I’ll stop.

Kevin C. Walsh (00:27:10):
Now, Steve, before I follow up with questions to you all, is there anything that Jeff said that you want to respond to the way that he was like, “I’m going on these three points.” [inaudible 00:27:19]-

Jeffrey Pojanowski (00:27:19):
Steph emailed me what he was going to say yesterday.

Kevin C. Walsh (00:27:21):
At least secure the agreement on once.

Stephen E. Sachs (00:27:25):
No, I disagree with very little about of what you just said honestly and I very much appreciate the areas of common ground. I think a lot of it comes down to questions of emphasis.

(00:27:40):
One of the things they tried to drill into our heads when I was doing history as an undergrad, because medieval history remains the field of the future. If law thing doesn’t work out for me, I got that going for me. But there’s a danger that we will look at the law of bailment in 14th century Florence with an eye to what it can do for us now. In any area, the constant worry about presentism.

(00:28:08):
Now, obviously in some sense studying history would be totally crazy if you didn’t have some actual reason for doing it. Maybe idle curiosity is a good enough reason, maybe not. People study old bugs, people study all kinds of stuff that doesn’t seem to have any obvious use until it does. And then they…

(00:28:35):
But we don’t want the subject of our study to be overly shaped by the reasons that we’re trying to investigate it. We want to know what’s true and we can find out what’s true about the rules of the game around here and be dissatisfied and say, “My gosh. We really ought to amend those rules. Those are bad rules.”

(00:28:55):
It may be the case that we do have strong moral reasons to try and support a just legal order, to make our existing legal order more just, to make it more orderly. There are all sorts of real moral obligations we’ve got going on and I think that what the role of the positivist really is just sort of saying, “Calm down.” Let’s take this step by step and make sure that what we’re saying about the legal order is correct in light of its connections to actual social practice. And so that we’re getting our sociology as we do this.

Kevin C. Walsh (00:29:40):
Well, let me see if I can generate some disagreement and eventually get to the constitutional interpretation. We’ve heard a lot about positive law, but I think to do this, first I want to stick with jaywalking. I’m going to do speeding but it’s the same sort of thing.

(00:29:58):
I know someone fairly well who’s found himself as a father in traffic court for an infraction charged against one of his children, male or female, I won’t say. But it turned out that part of the instructions were bring your report card to traffic court. Okay, so bring your report card to traffic court. And I thought, well, I’m just not going to tell him I’m a lawyer. That would get us in trouble, but bring your report card. And then the judge says, “Well, I saw your report card and it looks like you’ll be charged with a non-moving equipment violation.”

(00:30:39):
So what you were alluding to in your jaywalking example, there’s ways that we can find us. Is the disagreement here how much a move that is internal to the law rather than some sort of extralegal thing. Because if it is, what I’d say is perhaps the person who thinks that the jaywalking rule or the rule against speeding is as universal, actually universal as the law is just wrong precisely about the law because the purpose of the law is to make good citizens. If that purpose is achieved through by means of getting people to traffic court and looking at their report cards, then it turns out that seemingly universal rule about no speeding or whatever is in fact not the law.

(00:31:32):
That I think would be consistent with, since we’re here talking about the Catholic intellectual tradition, it would go alphabetically, Aquinas, and Aristotle, right on the generality of law. What they say is the law, actually, it’s written in these generalities, but if you’re doing it right, applying the law correctly, you will also account for these particular things. And is it that the difference between that description and your description is just what counts as internal to the law? Is that all we’re disagreeing about?

Stephen E. Sachs (00:32:05):
I think partly. I think that it is certainly the case that one should not identify positivism or the idea of looking to positive social practice with just the words on the page. If it says that the rule is 65, well then clearly no one is ever going over 65 because…

(00:32:30):
So obviously you can get your sociology wrong by taking the formal rules for more than they are. On the other hand, you can also get your sociology wrong by mistaking formal and informal things and mixing them together. So for instance, maybe it’s the case that this judge or even many judges in this area have a practice of letting good students off if they’ve got a good report card, maybe they have other practices that might raise more red flags in our minds of who they will let off and who they will not.

(00:33:05):
It’s important for us to be able to distinguish that from something like the old Salak law that said, “Well, if you’re a Burgundian, you pay this much in a fine, but if you’re a Franc, you pay that much in a fine.”

(00:33:18):
And there are societies which will differentiate. So you can imagine a society that actually had a rule that said, if you’ve got all A’s, then we give you an extra pass on speeding or something like that. That would be a different set of rules they’d be working under than one in which that is a mere practice, even a common practice, but not seen as or understood to be part of the law.

(00:33:42):
One of the things that’s really hard is figuring out what’s internal and what’s external to any social practice. At what point do fashion and etiquette bleed into each other is wearing white to someone else’s wedding, a fashion fopar or an etiquette fopar or both. It sometimes can be hard to differentiate all of these complicated social practices, but that doesn’t mean that they don’t have boundaries and that we can’t often differentiate one from another. And just as a matter of getting it right, we should be careful about those lines and we want to be able to say, in certain circumstances, the judge was harder on defendant A than on defendant B and they had no legal grounds for doing so, even if we think that it might have been a good response in some way.

Kevin C. Walsh (00:34:31):
Do you want to follow up on that? Good. Yeah. Well then let me try and turn it to constitutional interpretation, so we’ve talked about jaywalk, we’re talking about the law. Are there circumstances or in what way do would we think of as moral considerations come into the enterprise of constitutional interpretation?

(00:34:59):
Let me actually, in case this difference matters and I think it probably does, constitutional interpretation by a judge in a federal court deciding a particular question. One way to ask this question is to come up with a scenario and say, “Is it positive law all the way down?” But that actually presupposes sort of one view and it might be… Well, surely it can’t be natural law all the way up. Where, if we’re trying to get at this boundary. Here’s a case. You have a federal lawsuit that was recently filed in North Carolina saying that North Carolina’s laws about access to abortion pills are preempted by the supremacy clause.

(00:35:50):
We’ll bring not preempted through the supremacy clause by federal legislation. We have two bodies of positive law. We’ve got North Carolina positive law. We have federal statute and regulatory scheme and then we also have a constitutional rule telling us that in case of conflict and insert preemption diagram, but that whole body of how we do things here in federal courts with preemption questions, the federal law prevails.

(00:36:21):
Where do considerations of justice come in? Where do considerations of the common good? Where do considerations of the people affected by the outcome of this case, where do they come into the judges’ interpretation and application of the constitutional rule of the supremacy clause, if at all?

Jeffrey Pojanowski (00:36:44):
I think they come in multiple levels in multiple ways. One of the enduring disagreements between Steve and is whether methods of interpretations are matters of positive law that we can just pick up or are there something at bottom normative about the way we argue? Kevin and I will argue at least there is an ideal or central case about what makes for good constitutional interpretation or what makes for good statutory interpretation in light of the purposes of why we have positive law in the first place, which is why we have this kind of normative argument for something like original law originalism.

(00:37:33):
There may be jurisdictions that don’t do that and the rule of recognition is you don’t do originalism or you don’t do something like that. We’d say well, your arguments and interpretive method need to be grounded in moral considerations about why we have the natural law in the first place.

(00:37:50):
The first cut question is the judge’s approach to answering these questions about preemption, statutory interpretation, proper reading of the Constitution. The method they choose, I think will be morally informed necessarily so. The kind of meta question about how you go about answering these legal questions will be a moral question. And then moving further down, there’ll be questions about jurisdiction.

(00:38:23):
What is my office and what is my role? Do I have authority to exercise moral judgment in this particular circumstance given what the law says here? Given my jurisdiction, does the content of the positive law delegate some moral judgment to me about what to exercise here?

(00:38:45):
And then at bottom and imagine it doesn’t. Imagine it kind of says, “You can’t exercise moral judgment.” And you think it requires you to choose something that’s unlawful. Scott’s been reading Russell G. Pearcet recently about judicial law obligation. Aquinas would say, “If you think you are asked to violate the natural law, you have to make a deliberate choice about whether or not violating it or complying with the law or violating the law would create scandal or you should comply.”

(00:39:19):
Or if I ask you to violate the divine law, you just can’t do it. But the result there is not saying what the law says is required by the natural law if you don’t have the office or the authority to do that. The answer is just to not enter a sentence or to recuse or something like that. There’s going to be moral considerations at multiple levels. Level of method about how you try to identify what the law is at the level of identifying what your office is and acting within the context of your office.

(00:39:45):
If your office gives you the authority to exercise moral judgment, you should, among other things, look to what the natural law requires. And if it doesn’t, then you have a question where you’re in the domain of what does the natural law or divine law require of me in this particular instance. That was really long, but I’m sorry. There’s a lot of levels there.

Stephen E. Sachs (00:40:05):
I would say it’s certainly true that moral reasons attached at a whole bunch of different levels. If you’re a judge, presumably you’ve already decided that this society’s legal system is good enough to be a judge in. There’s a reason why people might say, “Don’t be a Nazi judge in 1930s Germany. You should resign.”

(00:40:25):
You’ve already made that decision, hopefully that you think that our society is good enough to be a judge. There are already moral obligations you’ve taken on. If you’re a judge, you’ve already sworn an oath to support the constitution. That might carry various kinds of moral obligations.

(00:40:43):
It might be that the particular constitutional provision you’re looking at requires moral reasoning in terms. The excessive fines clause requires some concept of what makes a fine excessive. It is very hard to talk about that without engaging in moral reasoning in some fashion. Maybe you can argue that well, they were using it as a term of art and just compensation for takings isn’t really about justice in the sort of first best sense, but ultimately it’s totally possible for the particular thing you’re looking at to tell you, “Go out judge and do some moral reasoning and report back to us.”

(00:41:18):
So that’s entirely possible. I think Jeff is right that we do disagree to some extent on how much the method of interpretation is morally inflected. I think that there could well be good moral reasons for wanting something like original law originalism. I’m totally open to that just as there could be good moral reasons for someone in the UK to say that I’m going to proceed on the basis that the queen in parliament or now the king in parliament is sovereign.

(00:41:48):
You can have lots of different reasons for complying with that, not just the other people around here seem to do it that way but that I actually think it’s sort of a good way of running our society. But whether other people around here seem to think so, even if they’re wrong, is often going to be very important as an input to your moral reasoning.

(00:42:10):
If you ask me the same question about a similar statute in Australia where New South Wales had said, “No, we want to do something different as compared to the central government.” I would’ve no idea. I would just say like, “Gosh! I’ve got to learn a lot about Australian preemption doctrine.” There’s no way that I could intuit that from first principles and there’s no way that sort of my knowledge of the issue or my attempts at knowledge of the moral interests underlying the issue would be particularly informative there.

(00:42:40):
I would think that that just seems what one thinks about whether the central government or the local government had gotten it right as a moral matter would just not tell you very much about in this very complicated setup whose rule wins. It strikes me that the same is largely true of the US constitutional law.

(00:43:01):
I think that in a lot of instances, many, many, many commentators are way too quick to assume that constitutional law tracks what they think should actually happen. There’s not about people in this room, I’m saying writ large on Twitter, a lot of people are very confident. The guy who finds out that you’re in law school on the airplane and has some opinions about the constitution, that person is much too confident that what they think the right answer is will actually connect up to what the correct legal answer including constitutional law would be.

(00:43:37):
I would say that it is perfectly possible that the constitutional legal materials would block out most of the moral reasoning that we think is relevant if we’re trying to figure out whether this is within Congress’s, this power to regulate commerce or post offices or whatever the heck they’re claiming. And then maybe knowing why people thought it was a good idea to put that power into the Constitution and knowing what their moral reasons were would be very helpful, but it wouldn’t necessarily require them to have been right.

Kevin C. Walsh (00:44:15):
Well, maybe to enter into… So I’m trying to think… I’m get into the mindset where I could get a stronger disagreement among us to sharpen… For the purpose of clarification. If I were on Twitter in some of our live tweeting what you just said, I might say, well, sex is all wrong to say that, to frame it and we’ll maybe blame the moderator for sharply separating out moral reasons and legal reasonings. Because the legal reasons are moral reasons.

(00:44:54):
That is the… Not simply because it’s like the excessive fines clause or something like that or more that the excessive fines clause is more like all of law, that is we’re asking… We’re trying to adjust these two jurisdictions, whether it’s New South Wales or North Carolina or Newburn, North Carolina municipal law. We know that they’re generally trying to achieve the common good within their jurisdictions.

(00:45:20):
That should give me a legal reason, which has moral content to try as much as possible to give effect to the interests and to protect the people that they’re trying to protect so that maybe the framing of the question and thereby the way in which it was answered is just all wrong that it was just suggesting that moral reasons are kind of like New Jersey law in New York. Or the law of a different jurisdiction, different [inaudible 00:45:51] rather than almost a different kind of law.

(00:45:54):
And that most of morality is not about obligation or a lot of morality is just about what a just person and a prudent person would assess in that circumstance so that it was just the wrong question and therefore the wrong answer.

Stephen E. Sachs (00:46:10):
I think that is a useful way of framing such disagreements as exist. Which is, to my mind, it’s just contingent whether this jurisdiction is pursuing the common good or whether they have the first idea of what actually satisfies it. It could well be that they’re totally wrong about what promotes the common good and yet I can still understand what in their view are they going for here. What is the best read or the best understanding of the communication or the instruction they’re trying to give.

(00:46:48):
Again, we talked about the idea of candidate norms, proposed norms. You could say look, they think that jaywalking is bad. Yes, we understand that they’re just trying to make life better and avoid traffic accidents and all sorts of things but the choice that they have made is no jaywalking. Yeah, they’ve got this necessity defense but ultimately the scope of that necessity defense might be too narrow.

(00:47:17):
It might be that it doesn’t cover enough cases but we can know that by looking at what they tell us and what they say in their court cases and all that kinds of things without necessarily having to come up with a story about why the common good is in fact served in any real way by their setup. Maybe it just isn’t.

(00:47:36):
Maybe they’ve just made a mistake. And so the payoff there is that we want to understand, well, what does Newburn North Carolina think about jaywalking? An analytic question, it’s just distinct and it can sometimes incorporate common good kinds of questions but it doesn’t have to or it might get them wrong. And that’s the sort of intellectual separation that I really want to insist on so that we don’t make the mistake of saying, “Well, this is what would actually serve the common good. So it must be what Newburn really wants.”

(00:48:09):
Maybe not. We can’t be sure about that. And moreover, the worry that I have with saying that legal reasons are just sort of a subset of moral reasons is that it becomes then very hard to identify which subset. So there are lots of things that we have moral reasons to do because of what legal institutions have done.

(00:48:29):
Famous example that was proposed by someone who actually thinks that legal reasons are a subset of moral reasons is if you have a bad law, you have moral reason to try and get it repealed. That’s not a reason that you have because of what Congress did but it’s clearly not a legal reason. Your reason to get it repealed, it’s totally moral. The law says what it says. This is why it seems likely, especially when we have the really technical stuff like administrative procedures and whether the secretary is authorized after this date to do so on and so forth.

(00:49:03):
It just seems a lot more clean and simple to say, look, those things have whatever moral implications they have because they’re laws. It’s not that they become laws because of their various… Of the moral interests we take in them. It just seems easier to say, we can carve off all of the different social norms that are going floating around in the world and say, “These are some things that are useful to talk about as a package as laws.” And oh, let’s see what interesting moral consequences they have rather than doing it in the reverse order.

Kevin C. Walsh (00:49:38):
Well, my Twitter setup was clearly a failure because I went over any character limit that would’ve been… Not a good idea. Positive determinant limits have their purpose. Unless there was something you wanted to say in response to that, we could go to questions and just give a quick… Why don’t you give a quick thing while someone raised your hand and then we’ll bring the mic to whoever you are while he’s finishing his response.

Jeffrey Pojanowski (00:50:07):
Yeah, I think part of our disagreement is what we think counts as a satisfying explanation of the phenomenon. Part of me wants to respond, the reason you want to have this kind of clean demarcation to cordon off this area of the world is because that’s what makes law work well, and we want to have this institution called law to do these kinds of things. I think your desire for cleanness and coordinating off ultimately points up to why we need to have…

(00:50:41):
What are the moral benefits of positive law? That’s why you’re seeking those kind of theoretical desiderata about the cleanness of separating off, because we don’t get the benefits if we just kind of say, “Well, whatever they want is whatever happens to be true.” It’s useful because we think having a system like positive law when it works well, which it doesn’t always do and in the focal sense should is because it does cordon off these things for second order moral reasons. I think that explains your desire for intellectual tidiness.

Stephen E. Sachs (00:51:11):
If I can have a surreply on-

Jeffrey Pojanowski (00:51:13):
Yeah. Absolutely. Anything goes. Co-Tweet me, man.

Stephen E. Sachs (00:51:21):
I think a lot of it also comes down to how much of these are theoretical desiderata. Like how much of these are sort of theory-based reasons for saying it’s simpler, cleaner to understand it in this sort of way and how much are other kinds of evaluative reasons like it will produce a better world if we do this or it will be more just if we do this, if we think about these things in particular way, I’m trying at least consciously to emphasize the former.

(00:51:52):
Scientists when they’re trying to decide what should I study? Obviously they have lots of moral reasons that will affect, like should I study climate? Maybe that’s really important for me to do. I have a moral reason to do it. But we think that that’s distinct from a good scientific explanation of the climate, which might look way more to different kinds of questions like is this explanation revealing, is it parsimonious, is it elegant? Is it clear?

(00:52:19):
There might be other kinds of evaluative considerations that you’re worried about when you’re trying to say, “What’s a good theory of the climate?” I think the same might be true of law. It might be the way of very good reasons for caring about the law that are more broadly moral, but are set of reasons for thinking that this is a good explanation might be more theoretical in that way.

Jeffrey Pojanowski (00:52:42):
I withhold my sur-surreply.

Kevin C. Walsh (00:52:45):
Okay. Question.

Speaker 4 (00:52:47):
Hi, I don’t have a legal background, but I am an Integralist, and I wanted to know, how would you differentiate yourself from the interpretation of someone like Adrian Vermeule and company? What do you think he misunderstands about positive law?

Jeffrey Pojanowski (00:53:06):
I think the biggest area of disagreement between Kevin and I and someone like Adrian or Adrian’s approach, I think… Well, there’s a number of things but I think one of the key theoretical disagreements and I think it’s an interesting and a hard one, is and this how relative is the isolation of positive legal artifacts from moral reasoning?

(00:53:33):
To what extent can you identify a piece of law independent of moral evaluations, because the framework I’ve been imposing is like, all right, we’ve got this norm and we can decide whether we want to roll with it or not. He, along with [inaudible 00:53:52], says that move’s just not legitimate. You can’t do that.

(00:53:54):
There’s good strong arguments about why it’s hard, why his argument is a strong one. On the other hand, for determination to work, you need to be able to separate it apart. So I think that’s one of probably the biggest theoretical disagreement about the kind of nature of interpretation. It’s not a very satisfying hot take, but I think that’s kind of one of the key areas of disagreement, I think.

Stephen E. Sachs (00:54:18):
Yeah. I would share that disagreement and I’d also sort of go further in that I just don’t think law is a department of political morality. I think that political morality has an awful lot to say about the law, that law ought to be tested by political morality, that law sort of ought to comply with it. But I don’t think that law is just a subfield of political morality.

(00:54:41):
I think it’s its own thing, just like etiquette is its own thing and dodgeball is its own thing. And all of those fields of human endeavor ought to be well understood and critiqued morally, but that doesn’t make them part of morals.

Kevin C. Walsh (00:54:57):
And maybe we can achieve disagreement on the panel and that we disagree because in my view, law is a department of political morality. I share that with Professor Vermeule. I think that he understates the positivity of our constitution. That is, it gives…

(00:55:16):
So the title of our review was recovering classical legal constitutionalism offering an account within the classical natural law tradition of the positivity of the constitution as law. The actual historical constitution as law. I think perhaps there’s multiple layers of disagreement. The thing that I’d say is we had a lot of criticisms in our article and I think his main response has been that it was really long and that he’d be responding. And so it would be actually very fruitful to continue the conversation. Thank you for that question. Did you have a follow-up? Yeah.

Speaker 4 (00:56:03):
Just because I was remembering what you had talked about, I’m sorry, I forget your name, but when you were saying if don’t believe in the justice system, don’t be a judge in that system. Well, I’m thinking of people that might be a judge in America and disagree with how we handle the abortion issue, for example.

(00:56:19):
So is it beneficial to have people in the system that might ultimately want to redo it? They think it’s massively flawed, but are still trying to work within it to bring about good.

Stephen E. Sachs (00:56:31):
I’m not saying that you can only be a judge if you think that everything about our legal system is great. I’m saying that there is some threshold below which a legal system might fall, at which point we’d be like, “You know what? I don’t want to use my efforts to make this sort of better maintained. This legal system is so terrible that I essentially should be a revolutionary of some kind.”

(00:56:55):
Now, some people do that under the cover of the judicial robe. There might be circumstances in which that’s okay but you’re taking on additional sort of moral risk by doing that. But ultimately, you have to decide where your allegiances should lie and there’s a lot of ruin in a nation. There can be a lot of bad things in a society’s law and it can still be good to support that law overall. It can still be good to serve that society’s legal system but there may come a point where it’s no longer so great.

Kevin C. Walsh (00:57:32):
Well, I think that we’ll wrap up on the hour, unless there’s… Was there one more question? Yeah, yeah. Please. One more question and then we’ll wrap up.

Speaker 5 (00:57:42):
Hello. Just kind of quick question. What do you think is the constant relationship between natural law and positive law or when you’re adopting a constitution, it’s just at the beginning, the emergence of the constitution or there is a constant ongoing relationship between the two of them?

Kevin C. Walsh (00:58:04):
I’m happy to start, but I’m the moderator, but the latter for me.

Jeffrey Pojanowski (00:58:11):
I think it’s there at the start and it continues and persists the whole way. I was actually reading something by one of Kevin’s mentors, James Burden Murphy this morning and he was talking about how law has in some ways kind of… Any complete law, a positive law has kind of three layers. You’ve got the natural layer, the customary layer and the positive layer.

(00:58:33):
All human law that is well suited or that is choice worthy participates in the natural law and kind of implements or specifies some aspect of the natural law. The contours of it are often kind of shaped by positivity or its limits or shaped by positivity. But the natural law is its animating purpose and the positive law helps implement the natural law in concrete form today.

(00:58:59):
So it’s not kind of launches it and leaves. I almost kind of think of the natural law as kind of the root beneath the plant that kind of sustains it and keeps it going. That’s kind of metaphorical and lame, but that’s the way I think about it. Yeah.

Kevin C. Walsh (00:59:15):
Well, I’m just going to jump in real quick and we’ll go either from left to or from right to more right on the end. But I’d say everywhere. But getting to the point about jurisdiction, the natural law is pervasive inextricable from all positive law. However, when a judge is trying to decide what law to apply, part of the question in turn to the natural law tradition would say, has this become positivized in the way that would make it say also federal law?

(00:59:53):
It’s not like we apply federal law and then ask, “Should we add in natural law?” Natural law is already part of that law. But how far it has been made, a part of that law is a function of the positivization of the precepts and other aspects of natural law. So it’s not an add-on. It’s everywhere, but positive law can provide a cutoff. There may be some things that just have not or they run into a positive norm, like a statute of limitations or something like that. I’ll leave the last word for Professor Sachs.

Stephen E. Sachs (01:00:32):
Sure. What I would say is if one understands natural law as objective moral principles as it is sometimes described, those are always operative. There’s no point where oh, the positive law has run out, so now we get to think about morality. Like, no, you’re always supposed to be thinking about morality. The question is just whether these two things are the same, or whether one sort of incorporates or adopts by reference the other in various ways or is affected by the circumstances of the other in various ways. So moral reasons are always around and every person who’s part of a legal system has to be thinking about morality all the time.

(01:01:10):
There’s never a time where you’re sort of in a moral free zone. But that doesn’t mean that their positive law decisions are justified thereby. It might be that you’re getting your positive law wrong if you’re producing the moral answer.

(01:01:27):
As to how the positive law changes over time, I think that’s a positive question. Every society has to have rules of legal change as well as rules of legal substance. Otherwise, you don’t know whether that gentle breeze or passing claw just repealed the tax code. How would you know unless you have some legal rule that tells you no, the tax code only changes when congress changes it.

(01:01:51):
You’ve got to have some idea of how this positive institution works. Those will have various rules of change. If we haven’t gotten over the change threshold, whatever it is, whether it’s light or heavy, then it hasn’t changed. A lot of originalism, as I see it, is not they had the right idea back in the 1780s. We should really do that.

(01:02:14):
It’s more, look, we have some constitutional law. There are some constitutional rules for change. The threshold for change is pretty high and hasn’t been met very often. So whatever the rules were have stuck around until we change them and that could be a good system or it could be a bad system. But to my mind, that’s the most accurate read of the system that’s currently in place.

Kevin C. Walsh (01:02:41):
Well, for good and sufficient reasons we have gone over our time. But all good things, including good legal reasoning about positive law and this panel must come to an end. Please join me in thanking our guests.

Stephen E. Sachs (01:02:54):
Thank you.

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