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2, WINTER 2010-SPRING 2011
A Journal of Political Thought and Statesmanship
10th ANNIVERSARY DOUBLE ISSUE!
KNOX BERAN CANTOR CODEVILLA FRADKIN HAYWARD
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JAMES Q. WILLIAM
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Woodrow Wilson’s Darwinian science of politics. Nothing less than a new theory of judging was being put forth by Bork’s detractors. 428 pages. and meaning in turn depends on what words meant when they were promulgated. Written law comes to supplant claims about God. It is to this popular will that contemporary jurists must look if they are honestly to interpret the Constitution. Hobbes cleared the field for government by the people. Corwin’s melding of the two at Princeton each contributed to the idea that judges are key actors in the ceaseless. and whose meaning is therefore not shrouded in the byzantine meanderings of the medieval schoolmen. Indeed. and Edward S. there were few if any open arguments against originalism. which was taken to be the sine qua non of legal interpretation. the founders’ originalism. McDowell begins by reminding the reader of the remarkable thing that happened nearly a quarter of a century ago when the U. or of commonlaw jurists such as Sir Edward Coke. Watson A Plea for Positivism The Language of Law and the Foundations of American Constitutionalism.85 A merica has found its thomas hobbes for the 21st century. in McDowell’s account. McDowell.mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm Book Review by Bradley C. McDowell’s central claim is undoubtedly correct: “Recourse to original intention— John Marshall’s ‘most sacred rule of interpretation’—is the true mainstream flowing from the well-established legal and constitutional traditions of the nation. nature. Cambridge University Press. McDowell ably identifies the spurious scientism from which modern American legal education was born.S. He allows us to conceive of fundamental or “higher” law that is not divine. intelligible will of the sovereign—ultimately. Christopher Columbus Langdell’s case method at Harvard Law School. McDowell claims that John Locke merely tamed Hobbes (without fundamentally modifying his teaching) by “drawing a necessary line between the sovereign and the govern- Claremont Review of Books w Winter 2010-Spring 2011 Page 93 . In The Language of Law and the Foundations of American Constitutionalism. and rested it on the low but solid foundations of positivism.S. by Gary L. the sovereign people. It was Hobbes who supplanted the great tradition of legal interpretation in the West. determining the “mind of the Convention” was critical to constitutional interpretation. and legal interpretation is properly subordinated to law creation and promulgation—and to the entirely reasonable view that words used in legal documents are intended to convey certain fixed ideas from the mind of the writer to that of the reader. no longer bound by the chains of monkish ignorance and superstition. $29. B y contrast. To engage in reasoning about what the law requires is first and foremost to determine meaning. recurring time and again to Hobbes in this magisterial survey of constitutional originalism.” For Marshall. not on what judges—whose constitutional authority derives from the very instrument they purport to construe—might wish them to mean. In claiming that law is the command of the sovereign rather than the dictate of wisdom or right reason. writes McDowell. particularly that of Hobbes. Bork was rejected not on account of his qualifications. and custom. A professor at the University of Richmond’s Jepson School of Leadership Studies. but because of his judicial philosophy—a version of the philosophy of originalism that had been at the core of the Anglo-American legal tradition for centuries. and the fanciful and expansive conceptions of judicial power that grew from it. Senate refused to confirm Robert Bork’s nomination to the Supreme Court. It was Hobbes who brought law down from the clouds and showed it to be the plain. or integrity. and in so doing to preserve political liberty in the face of its archenemy: arbitrariness. Gary McDowell offers one of the most significant scholarly arguments ever written for legal positivism as a guarantor of political liberty. evolu- tionary unfolding of law away from the founders’ purportedly primitive intentions. ability. prior to the 1980s. and to constraining judges to their proper role. Justice is the interest of the properly constituted majority. was born of early modern political thought.
But try telling that to anyone on the receiving end of a civil servant’s officiousness and you will get many common-sense reasons why the strict application of positive law is. As humans we are. and liberty that McDowell paints is essentially a stark modernist portrait of lovers entwined. But that it should come from below is a conclusion of a higher law from above.mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm ment. For Curtis—as for Abraham Lincoln. we no longer have a Constitution. As creatures of our species and rank. and the American Founders knew. McKenna Chair in American and Western Political Thought at Saint Vincent College. But the book is not an easy read. where he is also co-director of the Center for Political and Economic Thought. We are the products of that higher law insofar as it creates us as beings with natures politically equal. But Curtis was reading the same Constitution as Chief Justice Taney. and that they are key to a true originalism. like Hobbes. not the essences. and it alternates rapidly between political theory and jurisprudence. who echoes…Thomas Hobbes. the claim is not provisional at all. they are not wrong because they have been proscribed by the positive law of the sovereign people. traditionalism. which McDowell is at pains to deny. or common-law. like many conservatives. Because of the founders’ antecedent understanding of justice. who echoes John Marshall. and the common law—among other things—seem fitting and proper matters of judicial inquiry. without subordination or subjection. One need not embrace what McDowell abhors— “moralistic judging rooted in a so-called ‘living’ constitution”—in order to claim that constitu- ust constitutional originalism really exclude any “higher law” not committed to the parchment of the document? The book’s epigraph is a quotation from Justice Benjamin Curtis’s stinging dissent in Dred Scott (1857): “when a strict interpretation of the Constitution…is abandoned. It ever has been and ever will be pursued until it be obtained. “The power of man to live according to his own will” is McDowell’s understanding of Lockean freedom. It is the end of civil society. he is quick to suggest that the shift away from text and intention toward a living constitution is “not a matter of ideology. And we have access to the facts of nature because we are also created with minds that are uniquely suited to reason about such matters. wherein certainty trumps the claims of both universal justice and tradition. Dying Faith: Progressivism and the New Science of Jurisprudence (ISI Books).” One can therefore say that metaphysics and custom always inform and moderate the founders’ constitutional understandings.” M T he author traces these developments in the idea of law with impressive attention to detail. politician and scholar. And demand for such proper reasoning is as likely to be stimulated by a love of truth as mercy. simply. than liberals. Major figures and lesser lights each take their turn. Watson holds the Philip M. is neither the foundation nor the true end and purpose of government. if we are to know the difference between judicial interpretation and judicial activism. For McDowell. and one that he endorses. For example. Locke. in fact. conservatives never suggested that such meanings might be ignored when hard cases demanded an accommodation with evolutionary social and political forces. one amongst another. decent regimes exist on a spectrum between the poles of equality and merit. or natures and purposes of things. as a matter of law. It is unlikely that a proper constitutionalist jurisprudence can ever embrace Thomas Hobbes as fully as he suggests. and far less dangerous to the founders’ Constitution. and the theoretical opinions of individuals are allowed to control its meaning. “Justice is the end of government. Indeed they would be wrong as a matter of higher law W hether political liberty or a bleak nihilism grows out of Ockham’s nominalism is no small matter. problematic. But to ordinary men. who echoes John Locke. McDowell’s reading of Hobbesian and Lockean individualism leads him to argue for the unremitting legal positivism of the majority. according to the epistemologists. Bradley C. after all. But conservatives—though never perfect or perfectly consistent in matters of constitutional interpretation—never conceived jurisprudence as an adjunct of the powerful philosophy of history that has undergirded progressive constitutionalism since its birth in the late 19th century. and even in terms of a certain kind of Humean. For who is to be sovereign. As Aristotle taught. John Marshall’s “most sacred rule” must itself be rightly interpreted. But it is not politically prudent to deny moral realism in the name of prudence.” thereby ensuring that the people “never cede their sovereignty in the process of entering into the social contract. and to express these meanings in law. It was a Constitution with language that explicitly affirmed certain legal expectations of slaveholders and certain political rights of slave states. we are under a government of individual men. is a matter that of necessity goes beyond the positive law. Following William Blackstone. denied that there are innate principles of right and wrong. It does not proceed strictly chronologically. Why. He is the author of Living Constitution. Human beings are thus left free to create their own meanings. S. philosopher and judge. Claremont Review of Books w Winter 2010-Spring 2011 Page 94 . social contract and originalism. that not everything is permitted—not even those things that are not positively forbidden.” In McDowell’s telling. The picture of originalism. A republican constitution’s very nature and reason embodies higher law and the idea that some things are wrong simply. from whose judgment he dissented. but the institutions and modes of operation of government are also understood in Aristotelian terms. McDowell’s default position is that law without equity is better than equity without law. who quoted his judgment approvingly and who gets nary an honorable mention in McDowell’s long book—something underlay the Constitution that was not the express positive command of the sovereign. to put it mildly. albeit with baroque detail around the edges. in spite of a positive law that authorizes them. As The Federalist famously claimed. That dogs are not men is something rational beings know. Although they might have differed over original meanings. and both drew out the necessary conclusion from William of Ockham’s nominalism: We can know only the particulars. The basis of governmental legitimacy might be found in Locke. This is an argument unlikely to find favor with broad swaths of conservative thought. The idea that the people never cede their sovereignty over anything— except the idea of ceding their sovereignty—is perhaps not as friendly to political liberty as McDowell argues. Curtis here echoes Joseph Story. Holy Scripture. conservatives have been far less consistent. or until liberty be lost in the pursuit. we can know. must majorities be constituted in very particular ways according to the founders? Why must habits of veneration—rather than acts of will—be so cultivated in their constitutionalism? It is because popular sovereignty. positivism. to do good and avoid evil—and our natures can tell us something about the meaning of that injunction. however nominal and provisional the claim might be. the “higher law” under which we live comes from below: from the people’s reflection and choice.” According to McDowell. and why. if the judge is to determine the “mind of the Convention. tionalism requires moral reasoning.” and that there’s not much difference between the liberal judicial activism of today and the conservative activism of a century or more ago. And yet McDowell sometimes glosses over important matters. It is hard to disagree with McDowell’s claim that it is politically prudent to distrust the moral impulses of judges. Aristotle. In this sense. That justice must be tempered by mercy— a mercy arising from proper reasoning about the nature of the whole—seems as essential an element of the workings of a constitutional republic as it does of Christian faith.
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