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CAN YOU BE A THOMIST AND A TEXTUALIST? A NATURAL LAW DEFENSE OF JUSTICE SCALIA'S JURISPRUDENCE.

  I.  INTRODUCTION
 II.  THE SUMMA THEOLOGIAE AND THE NATURAL LAW STRUCTURE
      OF RENDERING JUDGMENT
      A.   What is Law?
      B.   Natural Law and Human Law
      C.   Applying Natural Law: Rendering Judgment as Legislator
           and Judge
      D.   Natural Law's Preference for Rules over Standards
III.  JUSTICE SCALIA AND TEXTUALISM'S "MORAL INADEQUACIES"
      A.   When the Legislature Prescribes Injustice: The Case of
           Calder v. Bull
      B.   The Problem of the Casus Male Inclusus: Holy Trinity
           Church v. United States
      C.   When Evil Demands Just Punishment: The Nuremberg
           Problem
      D.   When the Legislature Commands Participation in
           Immorality: The Problem of Capital Punishment
 IV.  CONCLUSION


I. INTRODUCTION

It is almost indisputable that no jurist has had a more significant effect on the jurisprudence of the Supreme Court over the past thirty years than the late Justice Antonin Scalia. (1) His interpretive method, known as textualism, has become the paradigmatic framework for statutory interpretation taught in law schools, argued in briefs, and used in Supreme Court opinions. (2) Even those who disagree with Justice Scalia on constitutional interpretation acknowledge that the Sicilian jurist's approach to statutory construction has won the day. Justice Elena Kagan's declaration that "we're all textualists now" made while giving the Scalia Lecture at the Harvard Law School should have removed any lingering doubt about Justice Scalia's victory in the battle over judicial methodology in the interpretation of statutes. (3)

Since Scalia-informed textualism is now the dominant theory of statutory interpretation in American legal practice, it is worth assessing the theory in the context of a much larger debate--a debate that has divided the United States Supreme Court from its inception--about the nature of positive law, its conformity with the immutable principles of "natural" law (if such a thing even exists), and how a judge should render judgment when presented with a case where the naturally "just" outcome conflicts with what the positive law prescribes.

Natural law refers to the doctrine that there exist binding normative rules for assessing human conduct as good or bad, right or wrong: rules that are prior to human choice and may not be repealed, however much they may be violated, defied, or ignored. (4) As Lord Coke put it, "The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction." (5)

Natural law has played a crucial role in Catholic legal thought from even before St. Thomas Aquinas, who was its main expositor, until today. (6) Justice Scalia, a professed Catholic who, although acknowledging his private belief in natural law, frequently expressed disdain for the use of natural law in the interpretation of legal texts. (7) For Justice Scalia, it was the positive law that judges must enforce according to its plain meaning, not some undefined, abstract, and disputable principles that judges divine and then apply to real-world facts. Judges must enforce the law as written even when doing so leads to results that the judge believes are unjust.

At first glance, this theory appears more akin to legal positivism than a natural law approach to judging that one might expect of a devout Catholic judge. Very broadly speaking, legal positivism insists upon the conceptual separation of law and morality. (8) As a practical matter, positivism cashes out by insisting that law "is, or should systematically be studied as if it were, a set of standards originated exclusively by conventions, commands, or other such social facts." (9) While natural law theory posits that law must conform to a priori moral principles that exist outside of human convention, positivism insists, at minimum, that law is something distinct from morality, and thus it makes no sense to speak of law's moral quality.

One can see the problem with Justice Scalia's textualist insistence on exclusively applying positive law: What good is a belief in "natural law" if judges cannot use it to avoid manifestly unjust outcomes that would obtain if the text is enforced as it stands? Surely, the ability to reach morally correct results is a primary desideratum of any theory of interpretation, no matter whether morality is defined by economic efficiency, utility, natural law, categorical imperatives, or any other ethical vision one can advance. Denigrating interpretation to a system of strict rules bereft of some notion of a higher good may be legally sound, but it is axiologically bankrupt. (10) It is for this reason that Justice Scalia's textualism is open to criticism on the ultimate ground that it has no framework for reaching morally correct results and avoiding injustices. (11)

There are four general categories of problems that textualism creates by elevating the positive over the natural law. First, by according complete deference to the positive law, textualism does violence to the eternal principles of natural justice when the legislature creates laws that are contrary to them and the judiciary enforces them anyway. (I will refer to this as the Colder problem.) Second, textualism fails to satisfy natural justice by enforcing a general statute even when its application to a particular case would seem to contradict its purpose. (I will refer to this as the Holy Trinity problem.) Third, textualism has no method by which to hold accountable individuals who commit acts that are morally evil but are in accord with the positive law, like the Nazis who were tried at Nuremberg. (12) (I will refer to this as the Nuremberg problem.) Fourth, textualism leaves a judge with no recourse when the legislature tasks the court with carrying out a function that the judge considers immoral. (13) (This is the problem of capital punishment.)

To date, no systematic attempt has been made to reconcile the natural law jurisprudence of Aquinas and Justice Scalia's textualism. This Essay is the beginning of an effort to do just that, making a unique contribution to the literature on textualism by responding to the "natural law" criticism of Justice Scalia's legal philosophy. I attempt to do so by giving an interpretation of his jurisprudence that provides a solution to these moral problems and harmonizes textualism with the thought of Aquinas and the broader natural law tradition. It is not my aim to show that the Angelic Doctor and the late Justice are in agreement on every point, but rather to show that textualism lines up with the Thomist tradition by respecting natural law's allocation of authority between the legislative and judicial powers. Along the way, I will suggest important conceptual and procedural clarifications textualists should make when Justice Scalia's stated views about what textualism entails seem lacking from the natural lawyer's perspective. Thus, this project is ultimately one that attempts to harmonize systems of thought rather than reconcile statements given by two different legal thinkers, in widely disparate historical contexts, with respect to differently-framed issues, a task which would prove quite messy.

I will ultimately argue that Aquinas provides a framework of structural natural law that delineates between legislative and judicial authority and keeps each within its proper institutional bounds. Since judicial authority is delegated, not inherent, such authority is circumscribed by the legislature. The judiciary is thus bound under the natural law to respect the legislature's moral judgment as codified in the positive law. I will first consult Aquinas and his interpreters to ascertain exactly what he teaches about the role of a judge in interpreting legal texts and rendering judgment according to them, arguing that the natural law not only sets limits on judicial authority that judges are bound to respect, but also provides a mode of analysis that prefers rules over standards in judging. Finally, I will discuss in detail the four previously mentioned categories of moral dilemmas created by textualism and attempt to outline how Justice Scalia would answer them, assessing whether his answer and Aquinas's are in accord.

II. THE SUMMA THEOLOGIAE AND THE NATURAL LAW STRUCTURE OF RENDERING JUDGMENT

In this section, I will discuss St. Thomas Aquinas's views on natural law and the proper role of a judge, arguing that Aquinas places structural limits on what judges may and may not do in rendering judgment under the law. First, I will give an overview of Aquinas's metaphysics of law, explaining what a law is and how natural law forms the basis of positive law. I will then discuss the structure the natural law provides for the exercise of political authority. As we will see, the judge's authority is derived, not inherent, and thus he is bound to respect the limits of his authority as prescribed by the legislator. Finally, I will argue that natural law's preference for rules over standards provides an important point of harmonization between Justice Scalia's textualism and Thomas's natural law jurisprudence.

A. What Is Law?

The Angelic Doctor has much to say about the role natural law plays in judging according to the positive law. However, to learn what the natural law tradition teaches about the role of a judge, it is necessary to first ask a far more fundamental question: What, according to Aquinas, is law? His formulation of what law looks like and how it governs is an important starting point in ascertaining what the role of the judge is vis-a-vis that law.

Law has four necessary elements, according to Aquinas. Law is: 1) an ordinance of reason; 2) that is binding on humans; 3) for the common good; 4) by someone who has care of the political community. (14) For an ordinance of reason to be binding as required in the second element, it must be promulgated, or made known. (15) Thus, the important written character of the law comes into play here. (16)

Law has a logical progression from its purest form--the eternal law that is "the blueprint by which God made the world" (17)--to natural law. Eternal law, which originates in the divine mind, (18) becomes "natural" in the sense that all humans receive it and are bound by it. (19) Eternal law therefore differs from natural law only in how it is received, not in its level of hierarchy in the ontology of law. (20) Having received the eternal law naturally, the human mind can create law. (21) Positive laws, insofar as they partake in right reason, are therefore ultimately derived from the eternal law. (22) Positive law does not exist independently from natural law, "but is rather a specification or particularized instantiation of the natural law." (23) So, for Aquinas, the structure of law is thus: Eternal law is in the divine mind, and the human mind participates in it, where it is called natural law. (24) Having a share in the natural law, the human mind can judge and command according to it. (25)

B. Natural Law and Human Law

Not all human laws proceed directly from natural law. For Aquinas, human laws may either be derived from natural law like conclusions deduced from a basic moral precept such as an injunction against murder or theft, (26) or "derived from natural law like implementations (determinationes) of general directives." (27) As an example of the former, take the statute declaring murder unlawful. This is derived as a conclusion from the general natural law principle that "one should do harm to no man." (28) But the natural law leaves room for determination that is, prudently choosing among a set of morally acceptable options. (29) Returning to the rules of the road example, there is nothing in the natural law that says the legislator must choose "left" rather than "right" or "70" rather than "65." (30) Precisely what rules should be laid down for the road is not settled by natural law, but is made as a reasonable choice "guided by the circumstances of a particular society." (31) Aquinas's doctrine of determinatio demonstrates the moral quality of the positive law. (32)

Perhaps the most important question the natural law leaves open is that of its own enforcement. The natural law does not settle whether the legislature, the judiciary, or any other polity has the authority to ensure the positive law conforms to it. (33) Accordingly, it is a matter to be resolved by determination. (34) The political community must decide, considering its own particular circumstances and experience, whether the legislature, the judge, another polity, or some combination should enforce natural law. (35)

Justice Scalia believed that the American Constitution gave the people, through their duly elected representatives, the authority to ensure that the positive law conforms to what the natural law requires. (36) But it is possible that the Constitution, properly interpreted, does give judges the power to enforce natural law per se. Ronald Dworkin held that it does exactly that, (37) and Justice Clarence Thomas has similarly argued that natural law--more specifically, natural rights--forms the background of the Constitution's framework and thus should play an important role in its interpretation. (38) Even Justice Scalia, answering the question of whether the Second Amendment protects an individual right to bear arms, spoke of the "natural right of resistance and self-preservation," (39) a right that was widely understood to be a "preexisting right." (40) It is almost as if Justice Scalia was engaging in natural law reasoning in the majority opinion in Heller. But the difference between Justice Scalia's engagement with natural law and Dworkin's is that Justice Scalia's appeal to natural law is guided through the channels of the common law as it was understood at the time of the Second Amendment's ratification, (41) whereas Dworkin argues that specific understandings of the Framers must be rejected in favor of the "more general moral vision they were trying to serve." (42) Nowhere does Justice Scalia make such a freewheeling appeal to natural law. Instead, we must accept the concrete understanding of natural law given to us by the Framers in the positive law of the Constitution and its common law backdrop.

Even if we assume Dworkin was correct, and courts have authority to enforce broader visions of political morality, such authority is given to the judiciary by the positive law of the Constitution, not by the natural law itself. (43) Accordingly, the issue of whether the Constitution grants such power is one that is itself textual and historical, not philosophical. (44) The salient point is this: No matter how judicial power is allocated, the judge is obligated as a matter of natural law to respect the limits of his own authority as it has been given to him by way of an authoritative determination. (45) That is, when the political community determines the limits of a judge's authority, he must obey those limits as a matter of binding moral obligation. The natural law has merely been specified and posited by one in authority, binding all those subject to his jurisdiction. (46) This is crucial in understanding how Justice Scalia's textualism is consistent with natural law theory. Assuming Justice Scalia is correct about how the Constitution should be interpreted as a matter of plain text and historical background, (47) and then assuming the Framers' choice regarding interpretive method is a reasonable one among other morally acceptable alternatives, judges are bound to respect the Framers' determinatio by enforcing the Constitution as written without respect to considerations of natural law.

C. Applying Natural Law: Rendering Judgment as Legislator and Judge

Having received natural law, much more is necessary for human action; the law must be applied to the circumstances and posited by a legislator for the common good. (48) Having received the natural law, the legislator makes positive law. (49) In making positive law, the legislator makes determinate what is left indeterminate by the natural law. (50) The authority to do so, according to Aquinas, has both a natural ground and a natural end: the authority to make law is implicitly vested in the political community. (51)

What authority, then, does the judge have? The authority of the judge is constrained by the distinctive role he plays in the system of law. (52) The judge enjoys only delegated authority, and his proximate rule for judging is the law that abides in the mind of the lawgiver. (53) Until the lawgiver speaks, there is quite literally nothing for the judge to do. (54) He must obey the limits of his own power as determined by the lawgiver. (55) But it is entirely possible for the lawgiver to confer different forms of authority on judges. A lawgiver may give the judiciary plenary authority to make the natural law effective, or it may give it authority only to interpret and apply the positive law. Judge Robert Bork, an outspoken critic of natural law jurisprudence, and Justice Scalia disagreed with Ronald Dworkin and Justice Thomas on what the scope of authority the Constitution gives the American judiciary. (56) Either way, judges are bound to respect this determination, not only under the positive law but the natural law as well. Thus, if Judge Bork and Justice Scalia are correct, enforcing the law as it stands is not merely a requirement of the judicial oath, but a binding moral obligation.

Having laid out the source of the judge's authority and the guidelines for how he must exercise judgment, Aquinas considers how a judge is to apply the law in three morally difficult cases. First, Aquinas considers the case of a man who has been sentenced to death on the basis of false testimony. (57) He says that the judge must examine the witnesses carefully so as to find a ground on which to acquit the innocent man, but if he cannot do this, he should remit the case to a higher tribunal. (58) If this is not possible, the judge must pronounce the sentence in accordance with the evidence, because it is not the judge who "puts the innocent man to death, but they who stated him to be guilty" (in the American system, the jury). (59) To introduce private evidence or fashion a sentence contrary to what the law demands would be to act unjustly; provided that appeals to a higher court have been exhausted, the judge must pronounce the sentence according to the law. (60) "In matters touching his own person, a man must form his conscience from his own knowledge, but in matters concerning the public authority, he must form his conscience in accordance with the knowledge attainable in the public judicial procedure." (61) Again, the judge is bound--when acting in his capacity as a judge--to exercise the authority that the positive law gives him and nothing more.

Second, Aquinas considers a case that is especially important to Justice Scalia: the case where the letter of the law prescribes a result that would be contrary to right reason. Aquinas uses the example of an ordinance prescribing that to protect citizens during a siege, the city gates be kept shut. (62) May they be opened to save the lives of citizens pursued by the enemy? (63)

To serve the common good in the vast majority of cases, the legislator must create statutes with general coverage. (64) These statutes are directed to the common good; direction to the common good is part of their very essence. (65) But unusual facts or events may render the scope of the statute problematic or doubtful, (66) and interpreting the statute literally may thwart the common good, thus depriving law of its reality and authority. (67)

If the judge may not interpret the statute literally, may he put aside the positive law and judge according to what he believes the natural law requires in this case? (68) The answer to that question is no. (69) Rather, the judge is to give effect to the law that is in the mind of the legislator; that is, he is to uphold the legislative intent behind the law. (70) In doing so, he does not "judge the law" (71) (i.e. he does not stand in judgment of the law's intended purpose). Instead, the judge recognizes that following the law's textual instruction in this particular case would be acting contrary to its intended purpose. (72) This is not preferring the natural law to the positive law, but upholding the intent of the legislator contained in a materially defective (but not morally defective) written law. (73) Upholding the intent of the law may not be used as a pretext for substituting one's own reasoning for that of the legislator. (74)

In this example, a judge must decide whether to keep the gates shut according to the letter or open them. To uphold the intent of the law, the judge must allow the gates to be opened to avoid the slaughter of innocent people. (75) Aquinas allows for the judge to depart from the written law, but only in emergencies, (76) and only to uphold the intention of the legislator contained in a materially defective statute, not to correct it based on the judge's view of natural law. And in non-emergency situations, if the meaning of the law is doubtful, he must judge according to the letter or "consult those in power." (77)

Finally, Aquinas considers a law that requires acts contrary to natural law. He flatly states that in regard to such laws, "judgment should not be delivered according to them." (78) Aquinas does not say, however, that the judge is entitled to make a new rule and measure, for that would imply legislative authority. (79) A court might enjoy a power of judicial review provided it has access to a higher law, such as the Constitution, but there is no evidence to think that Aquinas's framework allows judges to make a freewheeling appeal to natural law as the sole basis on which to invalidate a statute, (80) absent some explicit authority from the lawgiver to do so. (81) This would be for the judge to exercise lawmaking authority he does not have.

D. Natural Law's Preference for Rules over Standards

Not only does natural law have much to say about the structure of authority to judge, but it also informs the mode in which to render judgment. Aquinas holds that a model of lawmaking where broad rules are framed for the common good is preferable to a system where judges make case-by-case determinations based on the facts before them. Aquinas gives three reasons why statutes are preferable to judges in individual cases:
First, because it is easier to find a few wise men competent to frame
right laws, than to find the many who would be necessary to judge
aright of each single case. Secondly, because those who make laws
consider long beforehand what laws to make; whereas judgment on each
single case has to be pronounced as soon as it arises: and it is easier
for man to see what is right, by taking many instances into
consideration, than by considering one solitary fact. Thirdly, because
lawgivers judge in the abstract and of future events; whereas those who
sit in judgment of things present, towards which they are affected by
love, hatred, or some kind of cupidity; wherefore their judgment is
perverted. (82)


In sum, judge-made rules are not suitable for achieving legal and distributive justice because judgment in individual cases does not yield rules that have adequate generality and prospectivity. (83) On the one hand, if judges become more concerned with how the policy implications of a decision affect the community as a whole, they might neglect to do justice to the parties before them. (84) On the other, the judge also fails as a legislator when he creates law in this fashion because the resolution of a dispute between two litigants is likely not susceptible of the level of generality necessary to move the political community towards the common good. (85) Finally, Aquinas gives credence to the old adage that "hard facts make bad law": judgment in a single case may be clouded by the unclear or ugly facts of that particular case.

The desirability of setting broad legal rules as opposed to making fact-based decisions under the common-law framework is a point on which Aquinas and Justice Scalia may find common ground. Although Aquinas specifically expressed preference for legislatively created statutes over judge-made rules, the principle that broad rules are preferable to fact-bound determinations is a point of commonality between the jurisprudence of Justice Scalia and that of Aquinas. Justice Scalia argued that courts laying down broad rules is preferable to courts making narrow, fact-bound decisions that confer discretion on future judges. (86) Setting general rules of law not only provides predictability and uniformity in the law, but constrains future judges by committing them to a governing principle that controls different fact situations. (87) Making decisions on a case-by-case basis leads to uncertainty and arbitrary decision-making. (88) Justice Scalia and Aquinas both view generality and prospectivity--which foster predictability, uniformity, and limit arbitrary decision-making--as important traits of a just legal order. Hence, it is desirable to have legal rules limiting the discretion of judges, whether those rules are created by legislators or judges themselves.

III. JUSTICE SCALIA AND TEXTUALISM'S "MORAL INADEQUACIES"

In this section, I will discuss more fully the previously mentioned cases that pose a serious test for the moral adequacy of textualism. After describing the question presented in each case, I will attempt to outline how Justice Scalia would answer and then assess whether Justice Scalia's answer lines up with what the natural law tradition teaches about how a judge should render judgment in each instance.

A. When the Legislature Prescribes Injustice: The Case of Calder v. Bull

The United States Supreme Court was forced to confront the issue of whether natural justice should prevail over the written word very early in its history in the 1798 case of Calder v. Bull. (89) A state probate court had refused to record a will, and the state supreme court affirmed, effectively giving the deceased's property to Calder. (90) However, an act of the Connecticut legislature enacted after the probate court's decree gave Bull the right to a new hearing, effectively divesting Calder of his rights after the probate court had granted him the property. (91) The sole question presented to the Court was whether the Connecticut act effectively divesting Calder of his property was an ex post facto law in violation of the federal Constitution. (92)

The Court held that the Connecticut act was not an ex post facto law. (93) However, an important exchange of dicta between Justice Chase and Justice Iredell about judicial competency to declare an unjust law invalid illustrates the moral problem textualism must answer.

Justice Chase argued that acts of a legislature contrary to the "general principles of law and reason," (94) although not expressly forbidden by the state or federal Constitution, are per se invalid, and thus the judiciary may refuse to enforce them. (95) There are higher background purposes under which people enter political society and form constitutions--such as the purposes of the Constitution as listed in the Preamble--that help form the limits of legislative authority. (96) He wrote:
There are certain vital principles in our free Republican governments,
which will determine and over-rule an apparent and flagrant abuse of
legislative power; as to authorize manifest injustice by positive law;
or to take away that security for personal liberty, or private
property, for the protection whereof the government was established. An
ACT of the Legislature (for I cannot call it a law) contrary to the
great first principles of the social compact, cannot be considered a
rightful exercise of legislative authority. The obligation of a law in
governments established on express compact, and on republican
principles, must be determined by the nature of the power, on which it
is founded. (97)


For instance, a law that punishes a citizen for an innocent action, makes a person a judge in his own cause, or takes property from A and gives it to B would be contrary to the purposes of the social compact, and thus courts cannot presume that the people have given the legislature such powers. (98)

Justice Iredell disagreed with the premise that the judiciary in a tripartite system of government can void an act of the legislature that is authorized by the Constitution but is nonetheless contrary to natural justice. Under the American constitutional framework, the judiciary lacks the power to void such a law: "It is true, that some speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot think that under such a government, any Court of Justice would possess a power to declare it so." (99) Allowing courts to declare acts of the legislature void as contrary to natural law presents both an epistemic and a structural problem:
The ideas of natural justice are regulated by no fixed standard: the
ablest and the purest men have differed upon the subject; and all that
the Court could properly say, in such an event, would be, that the
Legislature (possessed of an equal right of opinion) had passed an act
which, in the opinion of the judges, was inconsistent with the abstract
principles of natural justice. (100)


In other words, judges lack: 1) epistemic competency to declare legislative acts void under the natural law because the natural law is abstract and reasonable minds can differ on its content; and 2) structural competency to declare legislative acts void because in a system of coequal branches the judicial branch has no more authority to make pronouncements on the natural law than the legislative branch. (101)

Would Justice Scalia agree with Justice Chase or Justice Iredell? He would almost certainly agree with Justice Iredell that the judiciary does not have the power to declare legislative acts void based solely on natural law. The legislature must have exceeded its authority as defined by the written Constitution, not abstract principles of natural justice or the general purposes of the social compact, for the judiciary to render one of its acts invalid. Justice Scalia once wrote that he would uphold a state law permitting abortion on demand because he believed that the Constitution gives the federal judiciary no authority over such matters. (102) He also stated that he would uphold a state law permitting flogging because flogging was a common form of punishment at the time the Eighth Amendment was adopted. (103) Such law would be "stupid, but it is not unconstitutional." (104) Justice Scalia would find these laws immoral or irrational, but would uphold them because they are not prohibited by the positive law of the Constitution. And when exercising judicial review, that is the only question the judge is being asked.

Like Justice Iredell, Justice Scalia has doubts as to both the epistemic and structural competency of the judiciary to do "justice" in legal interpretation according to the natural law: "I believe in natural law, but I believe that in democratic political institutions it's up to the people to decide what they think natural law demands... . Because we all disagree on natural law, why say whatever a bunch of judges think is the answer?" (105) For Justice Scalia, the separation of powers in the American system prevents judges from making natural law judgments that supersede the positive law made by the legislative branch. (106) Our system asks judges not to do what they think is right, but to use interpretive tools (like the canons of construction) to say what the text means and determine whether it is consistent with the Constitution, regardless of the substantive rightness or wrongness of the result:
The problem is that although properly informed human minds may agree on
what a text means, human hearts often disagree on what is right. That
is why we vote (directly or through our representatives) on what the
law ought to be, but leave it to experts of interpretation called
judges to decide what an enacted law means. (107)


For Justice Scalia, therefore, the judiciary invades on the province of the legislative branch--and by implication the people who elected it--when it invalidates a law on the ground that it conflicts with natural law. The judge's only role is to determine whether that law is a proper exercise of legislative power under the written constitution. Judge Robert Bork also challenged both the institutional and epistemic competency of the judiciary to enforce natural law: "I am far from denying that there is a natural law, but I do deny both that we have given judges authority to enforce it and that judges have any greater access to that law than do the rest of us." (108) Justice Scalia's answer to the Calder problem is thus to enforce the law as written unless it is inconsistent with positive, constitutional law.

Justice Scalia's answer is not ahistorical in the broader context of the American tradition of judging. Even the great Supreme Court Justice Joseph Story, an adamant proponent of natural law, believed that judges have the authority to enforce the natural law only if it has not been "relaxed or waived by the consent of nations" as seen in their "general practice[s] and customs." (109) Justice Story was even willing to hold the Fugitive Slave Act constitutional in Prigg v. Pennsylvania despite his strong belief that slavery contravened natural law. (110)

Aquinas's answer to this question is not quite as clear. As Hittinger notes, a constitutional court may always invalidate an unjust law, assuming that an uncorrupted constitution provides a ground on which it may do so. (111) But what if the constitutional framework gives states the authority to write laws contrary to the natural law, as Justice Scalia clearly believed the American Constitution does? Aquinas did not specifically address this question, and the unique allocation of power in the American system makes it difficult to reconstruct what his answer might be. Aquinas envisages a simple scenario where a legislator writes an unjust law that the judge is asked to enforce, e.g., a law that induces the people to idolatry. (112)

But when cases such as Calder arise and the Court is asked whether a purportedly unjust state law violates the federal Constitution, a different question is being asked. The judge exercising his judicial review power is not rendering judgment according to the substance of the law itself, but merely answering the question whether it was issued under proper authority. (113) If the state exceeded its constitutional authority, then the law may be invalidated. Otherwise, the law must stand.

We can see how this is different from Aquinas's idolatry illustration in that judgment is not being rendered "according to" the law at issue. (114) There, the judge is being asked to directly apply the law to the facts. But Justice Scalia, in his flogging and abortion examples, is thinking of a case where he is being asked in the abstract whether the law is constitutional, not whether a person violated the law and may be punished. (115) The case becomes harder when there is both a constitutional question and factual application in the same case, as is the situation when a judge is asked to review a death sentence. (116)

This much is clear: Aquinas does not provide support for the notion that judges can use freeform notions of natural law to invalidate statutes. (117) In this sense he, like Justice Scalia, would disagree with Justice Chase that notions of foundational principles of republican governments uncodified in the Constitution may be used to invalidate state statutes. Further, Aquinas requires judges to respect an authoritative determinatio issued by a competent political body. (118) Thus, if Justice Scalia is correct and the Framers of the Constitution did not envisage judges using natural law principles to invalidate statutes, judges are bound to respect that judgment and invalidate the unjust statutes only if they are inconsistent with the written Constitution.

B. The Problem of the Casus Male Inclusus: Holy Trinity Church v. United States

Judges are frequently confronted with a casus male inclusus, or a situation that is "unquestionably covered by the explicit words of the statute, but thought to be ill-advisedly covered." (119) Here, the facts presented undoubtedly fall within the ambit of the text, but applying the text to those facts seems both unjust and unintended. The converse of this problem also occurs, though with less frequency: the text of a statute may exclude a certain set of facts where logic or sound policy would dictate inclusion. (120) This is called the casus omissus. (121)

Given Justice Scalia's more explicit treatment of the Holy Trinity case, I will focus on the casus male inclusus. His basic answer would be the same for either form of the Holy Trinity problem.

These cases put textualism to the test because they present scenarios where the legislature had a particular evil in mind when it created a remedy but the broad language it used to do so captures an unforeseen, unrelated set of facts. (122) Applying the statute to cover such facts may seem unfair or unjust, so judges may go beyond the plain text, look to the purpose of the law, and use that purpose to determine the statute does not operate on those facts. This is exactly what the Supreme Court did in Holy Trinity Church v. United States., (123)

In Holy Trinity, the Court considered a provision of a federal statute that forbade any entity from contracting with an alien "to perform labor or service of any kind in the United States. ...," (124) Holy Trinity Church in New York contracted with an English minister to serve as rector, and the United States brought an action to recover a fine against the church for violating the statute. (125) The Court immediately conceded that the act of the church fell within the letter of the provision. (126) However, it also assumed Congress could not have intended the statute to prevent a church from hiring a minister. (127) After all, America is a "Christian nation" where customs, laws, and institutions are shaped by Christianity. (128) How could it be that the preeminent legislative body of such a nation intended to make it a misdemeanor for a church to hire a minister residing in another nation? (129)

Since Congress clearly could not have meant to pass a law so out of step with the "whole history and life of the country," the act of hiring the minister, although within the letter, was not within the intention of the legislature, and therefore could not be within the statute. (130) The Court makes it a moral imperative for the judiciary to exclude a set of facts from the scope of the text in these circumstances, describing it as the "duty of the courts" to elevate the purpose of the law over the letter when the use of broad language has unintentional consequences. (131)

The Court's analysis is a form of what Judge Richard Posner calls "imaginative reconstruction," a theory of interpretation that seeks to re-create what the legislature would do if it were confronted with the situation. (132) Justice Scalia acknowledges that although this view has some historical precedent in Anglo-American law, "today it is anomalous and philosophically indefensible as violating the separation of powers, and it produces considerable judicial mischief." (133) He again turns to the epistemic and structural limitations on the judiciary to support this stance: "[J]udicial predictions of how the legislature would have decided issues it did not in fact decide are bound to be little more than wild guesses." (134) The notion that the judiciary may amend a law to cover an omitted case or exclude a casus male inclusus "flatly contradicts democratic self-governance." (135) The perceived dissonance between what the statute provides and what the statute "should" provide is "nothing else than the difference between the positive law and some other order considered to be better, truer, and juster" (136) (i.e., what the judge thinks is right according to natural law).

What harmonizes this dissonance is ultimately nothing more than what the judge believes desirable: a naked "assertion of an inherent judicial power to write the law." (137) In Holy Trinity, the general words used--"labor or service of any kind"--created general coverage to which the judiciary cannot create an exception lest it lay claim to a legislative prerogative. (138) Textualism, therefore, demands that the law the legislature wrote--not the law the court thinks the legislature would have written had it foreseen the situation--be enforced according to its plain meaning, regardless of whether some other outcome seems more morally desirable.

At first glance, it seems as if Aquinas would agree with the Holy Trinity decision because he does affirm that the spirit of the law may be used to correct a materially defective law in order to give effect to the intent of the legislator. (139) Justice Scalia even explicitly stated that he disagreed with Aquinas on this issue. (140) However, he may not have realized just how limited Aquinas's point was. Take the city gates example above, where Aquinas states that the judge may ignore the text prescribing that the gates always be kept shut during a siege and order the gates opened so people may escape. (141) In that case, the judge is to give effect to what was in the mind of the legislator despite what the materially defective statute requires. (142) To fail to do so would actually be to disobey the law, since it would be to ignore the intention of the lawgiver. (143) Thus, the judge may "correct" the material deficiency in the statute to achieve the result the legislator intended all along. (144)

However, textualism itself has a mechanism to correct a textual error, which if allowed to stand, would create unreasonable results: the absurdity doctrine. This textualist canon provides, as stated by Justice Scalia, that a statute may be judicially corrected when the correction is simple and failure to make the correction would result in a disposition that "no reasonable person could approve." (145) The court may not rewrite the statute for the legislature, but it may correct an error that would cause objectively unreasonable results should the text be enforced as written. (146)

Justice Scalia's version of the absurdity doctrine is much narrower than traditionally conceived in Anglo-American law. In his Commentaries, Blackstone stated the rule this way: "[W]here words bear... a very absurd signification, if literally understood, we must a little deviate from the received sense of them." (147) An example Blackstone gives is an act of parliament that "gives a man power to try all causes that arise within his manor of Dale; yet if a cause should arise in which he himself is a party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel." (148) Such an act would be unreasonable because to give a person the authority to be a judge in his own case would be to violate the rule of law. Here, the rule of law acts as an unwritten background principle by which positive laws may be deemed reasonable or unreasonable. But application of the absurdity doctrine is only appropriate in an extreme case where the result would be unanimously rejected by reasonable minds. Chief Justice Marshall framed the absurdity doctrine more modestly, noting the inherent danger in departing from the plain words of a text:
[Although the spirit of an instrument, especially of a constitution, is
to be respected not less than its letter, yet the spirit is to be
collected chiefly from its words. It would be dangero[u]s in the
extreme, to infer from extrinsic circumstances, that a case for which
the words of an instrument expressly provide, shall be exempted from
its operation. Where words conflict with each other, where the
different clauses of an instrument bear upon each other, and would be
inconsistent, unless the natural and common import of words be varied,
construction becomes necessary, and a departure from the obvious
meaning of words, is justifiable. But if, in any case, the plain
meaning of a provision, not contradicted by any other provision in the
same instrument, is to be disregarded, because we believe the framers
of that instrument could not intend what they say, it must be one in
which the absurdity and injustice of applying the provision to the
case, would be so monstrous, that all mankind would, without
hesitation, unite in rejecting the application. (149)


Justice Scalia would certainly approve of Chief Justice Marshall's insistence that the spirit of the law is to be collected "chiefly from its words." (150) But Chief Justice Marshall allows for a broader correction of a text to avoid an absurd result than does Justice Scalia, imposing no requirement that the correction be one that is textually simple.

For Justice Scalia, the absurdity doctrine may be employed only when the absurdity is reparable "by changing or supplying a particular word or phrase whose inclusion or omission was obviously a technical or ministerial error... . The doctrine does not include substantive errors arising from a drafter's failure to appreciate the effect of certain provisions." (151) The example he gives is a statute that states that the winning party pays attorney's fees. Because forcing the winning party to pay attorney's fees is utterly contrary to what a reasonable person would intend or expect, the court may correct the statute to make the losing party pay attorney's fees, which is what the legislature intended all along. (152) The provision may be fixed simply by replacing the word "winning" with the word "losing," and thus application of the absurdity doctrine would be appropriate. (153) For Justice Scalia, narrow application of the absurdity doctrine is necessary to respect the legislative compromise reflected in the statutory text. (154) John Manning has similarly argued that the traditional, broad conception of the absurdity doctrine should be abandoned because of structural constitutional considerations, namely, the separation of powers and the balance between legislative and judicial power struck by rationality review. (155) Again, this is a question of constitutional text and history, not a matter of natural law, and so it can be bracketed for later scholarly efforts. (156) The important point is that if Justice Scalia is correct about the determinatio on the limits of judicial power set by the Framers, the judge is obligated as a matter of natural law to obey it.

Justice Scalia's narrow conception of the absurdity doctrine likely does not do enough work to reach the same result that Aquinas wants. However, the conceptual agreement is worth noting. Here, Justice Scalia, much like Aquinas, calls on the aid of reason to help us understand what the legislator was trying to do. Because no reasonable person could approve the result of innocent people being killed because the statute was enforced as written, that could not have been the intent of the legislator. The divergence appears in the procedural mechanism by which the correction must be made. The important limiting principle for Justice Scalia is that the judicial correction must be simple and achievable by supplying a single word or phrase. In the city gates example, altering the text to create an equitable exception that the gates must be kept shut, "except when it is necessary for the citizens to flee," is a much more aggressive rewriting than substituting, for example, the word "winning" for the word "losing."

This procedural disagreement does not render textualism and natural law theory incompatible. The traditional doctrine as stated by Blackstone and Chief Justice Marshall could do the extra work Justice Scalia's absurdity doctrine does not. Interpreting the statute literally and allowing innocents to be killed would be a "monstrous" result that "all mankind" would reject. (157) And it would, like Blackstone's rule of law example, violate a fundamental principle of law: that the law is primarily concerned with protecting persons. (158) The salient point, though, is that for both Aquinas and Justice Scalia, the judge may--in certain circumstances--depart from the written text to avoid an unreasonable result and give effect to the intent of the legislator.

There is still one issue to be resolved: What role should "intent" play in statutory interpretation? With the absurdity doctrine, we see a rare instance in which Justice Scalia allows a judge to use extratextual considerations to peer into the mind of the legislature and determine its intent. Because the absurdity doctrine requires that the result be one that no reasonable person could intend, it can be refuted by proving that at least one legislator did intend the result demanded by the plain text. Accordingly, the absurdity doctrine is one of the two narrow exceptions to Justice Scalia's ban on the use of legislative history. (159) To establish that it is indeed "thinkable" that a word or phrase should mean precisely what it says, a floor statement, committee report, or other form of legislative history may be used to show that "a single presumably rational legislator or a single presumably rational committee[] viewed the allegedly absurd result with equanimity." (160)

At first blush, the issue of intent is one on which Justice Scalia and Aquinas disagree. Aquinas states that the judge must give effect to the intent of the legislator. But Justice Scalia calls the idea that the goal of interpretation is to discover intent a "false notion." (161) The difference in how Justice Scalia and Aquinas treat "intent" is more a question of semantics than substance, however. For Justice Scalia, "[ascertaining the 'intention of the legislature' ... boils down to finding the meaning of the words used." (162) The textualist does regularly take intent into account, but only in its "concrete manifestations as deduced from close reading of the text" (163) rather than extrinsic sources like legislative history.

A brief qualifier is in order here. Some consider Justice Scalia's approach to intent to be ahistorical and contrary to the traditional English doctrine of the equity of the statute, under which courts were to interpret according to the reason and spirit of the law, not merely its text. (164) But his insistence that the text should be enforced without appeal to freewheeling notions of legislative intent was grounded in the separation of powers, a unique development of the American Constitution. (165) This view is not without support, as John Manning has also argued that the equity of the statute doctrine did not survive the adoption of the new governmental structure embodied in the Constitution. (166) Like the issue of what interpretive authority the Constitution gives judges, (167) this question can be bracketed because, as noted earlier, the natural law does not speak to the judge's interpretive authority. (168) Accordingly, the judge must follow the determinatio made by the Framers providing that "[a] 11 legislative Powers... shall be vested in a Congress of the United States." (169)

This discussion of legislative intent suggests that much of what separates textualists from intentionalists is "less about the desirability of the search for legislative intent than about the mechanics of that search." (170) For Justice Scalia, a rules-based approach to interpretation that excludes legislative history or other extrinsic sources of meaning and employs the canons of interpretation is the best way to discover intent, (171) while intentionalists allow a more open-ended, standards-based inquiry as to what an enacting legislature meant when it adopted a text. (172) Though Aquinas does not speak on particular questions of judicial methodology in interpretation, such as canons of construction and use of legislative history, he does affirm that "it is necessary to judge according to the written law, else judgment would fall short either of the natural or of the positive right." (173)

Aquinas and Justice Scalia both allow departure from the written law only in the limited circumstance of a materially defective law that, if enforced as written, would bring about unreasonable results. Though Justice Scalia's application of this rule is much narrower than that of Aquinas, the point here is that they agree that a judge in principle can depart from the text to avoid injustices and give effect to what the legislator really had in mind when he wrote it.

C. When Evil Demands Just Punishment: The Nuremberg Problem

Justice Scalia was once questioned how he would defend an administration of justice such as the Nuremberg trials, which convicted Nazis under transcendent principles of right and wrong rather than the positive law. (174) Since these men had been merely "enforce[ing] the promulgated, positive law of Nazi Germany," (175) the trials have been "widely criticized as ex post facto justice." (176) Justice Scalia himself derisively referred to the basis for the convictions as "supernatural" law. (177) Whether the judgment exacted at Nuremberg was justice in a true sense creates a serious moral dilemma for textualism: How would a legal philosophy predicated on almost complete deference to the positive law punish evil in the absence of positive law?

Justice Scalia's answer was that in war, the victors are "entitled to exact justice." (178) Since the Allies defeated Germany in World War II, they were entitled to punish Nazi leaders. At first glance, it looks like brute "[m]ight makes right" is Scalia's justification for the Nuremberg convictions. (179) However, assume for a moment that the Allies proceeded under just-war principles in bringing Nazi Germany to its knees and thus the extrajudicial acts of punishment at Nuremberg were necessary to bring evildoers in the Nazi regime to justice. (180)

We can still imagine a scenario where a person commits a hitherto unknown act of evil that is not yet proscribed by the positive law. Does Justice Scalia's textualism have a method by which we can bring the person to justice?

It is hard to believe that Justice Scalia would have courts punish a person for an act that is not proscribed by positive law. For one thing, current law very much disfavors common law crimes because they do not give notice to potential offenders and thus create due process concerns. (181) For another, Justice Scalia himself favored the rule of lenity, (182) which states "[ajmbiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant's favor." (183) This is based on the notion that the power to punish is a legislative one, not a judicial one. (184) If a court is powerless to punish in the presence of ambiguity in an existing criminal statute, how much less is its ability to create a new crime in the complete absence of such statute? Justice Scalia would therefore likely bite the bullet and refuse to punish an evildoer in the absence of positive law.

Aquinas does not address the question of whether a judge may punish in the absence of positive law, but several positions he takes on judging are instructive: First, Aquinas holds that apart from the positive law, there is quite literally nothing for the judge to do because there is nothing upon which to base his judgment. (185) The judge, unlike the legislator, does not have inherent authority to make law. (186) In responding to the objection that the judge should judge according to divine justice, he states that unlike God, judges "do not judge in virtue of their own power." (187) Second, no judge may punish a person who is not subject to his jurisdiction. (188) Finally, no judge may punish a person who does not have an accuser, even if his sins are manifest; the correct judicial procedure must be observed. (189) These three principles converge on a single proposition: Judicial power is inherently limited and does not entail general authority to exact justice outside of ordinary judicial procedure, for to do so would be to assume a power only God has. Aquinas would therefore almost certainly agree that a judge may not punish a wrongdoer absent positive law. This result may seem morally counterintuitive, but law is as much about form as it is about substance, and the means by which justice is achieved are just as important as the end result. As the foregoing discussion demonstrates, for both Aquinas and Justice Scalia, justice is unachievable without proper procedure.

D. When the Legislature Commands Participation in Immorality: The Problem of Capital Punishment (190)

Up to this point, Justice Scalia has been able to rely on judicial non-encroachment on the legislative function to justify the morally problematic results in the three preceding cases. However, this seemingly easy out for Justice Scalia is not available when the judiciary must participate in what the judge considers to be an immoral act. The judge is forced with either violating his conscience, taking positive corrective action, recusal, or resignation.

The example with which Justice Scalia was confronted was the case of a judge who, when faced with either entering a judgment of death or upholding a death sentence, finds that he cannot perform this function without violating his conscience. (191) As Justice Scalia himself acknowledged, when he sits on a Court that reviews and affirms capital convictions, he is part of the "machinery of death." (192) How then can a Catholic judge give "material cooperation" (193) to an act that the Church considers immoral? (194)

Justice Scalia's solution to this problem is drastic: "[T]he choice for the judge who believes the death penalty to be immoral is resignation." (195) Justice Scalia had no qualms with voting to uphold death sentences, because he did not believe the death penalty was immoral (despite what the Church says about the matter). (196) But Catholic judges who do agree with the Church's teaching and find themselves unable in good conscience to uphold death sentences may not "simply ignor[e] duly enacted, constitutional laws." (197) These judges have taken an oath to faithfully apply the laws, and are given "no power to supplant them with rules of [their] own." (198) They may resign and lead a political campaign to abolish the death penalty, but they may not rewrite the law. (199)

This is not a problem for judges who believe in a "living Constitution," or believe that the document "means what it ought to mean." (200) Such judges may simply say that changing social mores justify a change in our understanding of the Eighth Amendment and proceed to "update" the text accordingly. This idea is fundamentally at odds with our democratic system of government. According to Justice Scalia:
When government-adopted texts are given a new meaning, the law is
changed; and changing written law, like adopting written law in the
first place, is the function of the first two branches of
government--elected legislators and (in the case of authorized
prescriptions by the executive branch) elected executive officials and
their delegates. Allowing laws to be rewritten by judges is a radical
departure from our democratic system. (201)


Judges have no authority to rewrite the law when it commands them to participate in an immoral act. Their choice is recusal or resignation. (202)

Aquinas also holds that the judge may not participate in an immoral act by enforcing an unjust law. (203) In American practice, since judges take an oath to uphold the Constitution and laws of the United States, the mechanism for refusal to render judgment is likely recusal or resignation. It is not clear what other recourse judges who cannot in good conscience enforce a law would have available to them. Aquinas and Justice Scalia would seem to agree that to participate in an immoral act is impermissible for a judge who cannot in good conscience render judgment according to the law before him.

IV. CONCLUSION

Despite some inconsistencies on the surface, the legal philosophies of Thomas Aquinas and Justice Scalia are surprisingly harmonious when applied to various moral dilemmas encountered by judges. For both Aquinas and Justice Scalia, the legislator-judge distinction is fundamental, and out of that distinction flows the structural limits on the power of the judge. However, an important point of clarification should be made to Justice Scalia's insistence on always following positive law: Textualists should be clear that what they are doing is following the structural aspect of the natural law, which limits the power of judges as bound to respect the authority given to them by the determinationes embodied in the Constitution. This moral duty to respect the limits of one's delegated authority is one that is imposed by natural law itself.

Justice Scalia's oft-stated disdain for the idea of natural law in jurisprudence has drawn the ire of those who either think he is neglecting the moral implications of his philosophy or at the least being disingenuous about whether he is using natural law. Going forward, textualists should be open and honest about their use of the natural law as an antecedent structural consideration in the exercise of judging. Such a project would promote better understanding among those who believe in natural law as fundamental to jurisprudence and provide a principled basis for a limited judiciary.

Textualists should also make clear that their goals in statutory interpretation are not so different from those who believe that the quest in interpretation is to discover intent; they merely differ on how the goal of discovering intent is best served. For the textualist, a rules-based approach that applies the traditional canons of interpretation and eschews use of legislative history is the best way to discover intent. For the intentionalist, a standards-based approach that begins with the text but uses legislative history and other extrinsic sources of meaning provides the key to understanding what the legislature intended to do.

Narrowing the debate to one about rules versus standards in statutory interpretation would sharpen the issues and bring some much-needed clarity to the debate over judicial methodology in interpretation. It would also lift some of the fog surrounding the question of whether judges who follow the text versus judges who try to ascertain intent from extrinsic sources are adhering to natural law or abandoning it, asking instead whether the natural law prefers rules to standards in interpretation, and then asking what those rules or standards might be.

Hunter Pearce (*)

(*) J.D., of the sources cited herein. I am also indebted to Bill Brewbaker and Adam MacLeod for their helpful comments and suggestions, as well as the faculty of the Witherspoon Institute's 2017 Moral Foundations of Law Seminar, including John Finnis and RoberThe University of Alabama School of Law (2018). Special thanks to Judge William Pryor, whose course on textualism precipitated the idea for this Essay and provided manyt George, for their general insights on natural law.

(1) This impact is perhaps most visible in the diminishing frequency with which the Court cites legislative history, a practice anathema to textualism, since Justice Scalia took the bench in 1986. Although Justices Scalia and Thomas were responsible for nearly half of the decline in the Court's reliance upon legislative history from 1986-2005, the data suggests their distrust of legislative history has influenced their colleagues as well. James J. Brudney & Corey Ditslear, The Decline and Fall of Legislative History? Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras, 89 JUDICATURE 220, 222-23 (2006). Taking together the three justices who authored at least ten majority opinions during both the Burger and Rehnquist years, reliance on legislative history declined from 56 percent to 33 percent of majority opinions. Id.

(2) See Victoria Nourse, Misunderstanding Congress: Statutory Interpretation, the Supermajoritarian Difficulty, and the Separation of Powers, 99 GEO. L.J. 1119, 1137 (2011) ("Because of its sophisticated academic proponents, academic textualism is increasingly taught as the gold standard to law students."); see also John F. Manning, The New Purposivism, 2011 SUP. Cr. REV. 113, 114 (2011) ("[T]he Court in the last two decades has mostly treated as uncontroversial its duty to adhere strictly to the terms of a clear statutory text, even when doing so produces results that fit poorly with the apparent purposes that inspired the enactment.").

(3) Harvard Law School, The Scalia Lecture: A Dialogue with Justice Kagan on the Reading of Statutes at 8:28, HARVARD LAW TODAY (Nov. 17, 2015), http://today.law.harvard.edu/in-scalia-lecture-kagan-discusses-statutory-interpretation/.

(4) See John Finnis, Natural Law: The Classical Tradition, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 1 -2 (2002).

(5) Calvin's Case, (1608) 77 Eng. Rep. 377, 392 (K.B.).

(6) See CATECHISM OF THE CATHOLIC CHURCH paras. 1954-1960 (John Paul II rev., Libreria Editrice Vaticana 2d ed. 1997).

(7) See, e.g., The American Academy in Berlin, Justice Antonin Scalia on Globalization and the Law at 57:34, FOR A. TV (Sept. 23, 2009), http://library.fora.tv/2009/09/22/Justice_Antonin_Scalia_on_Globalization_and_the_Law [hereinafter Scalia on Globalization].

(8) See generally H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593 (1958).

(9) Finnis, supra note 4, at 9. Chief Justice Oliver Wendell Holmes insisted that the study of law was merely the business of predicting what courts would do in a legal dispute given a certain set of facts. See Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 457 (1897) ("The object of our [study of law], then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.").

(10) Cf. Russell Hittingcr, Thomas Aquinas on Natural Law and the Competence to Judge, in ST. THOMAS AQUINAS AND THE NATURAL LAW TRADITION: CONTEMPORARY PERSPECTIVES 267 (John Goyette et al., eds., 2004).

(11) See Anthony Giambrone, Scalia v. Aquinas: Two Views on the Role of the Judge, AMERICA, Mar. 21, 2016, at 16.

(12) Id. at 17.

(13) See Andrew Kloster, Why Justice Scalia Disagrees with Thomas Aquinas, THE DAILY SIGNAL (Jan. 8, 2016), http://dailysignal.com/2016/01/08/why-justice-scalia-disagrees-with-thomas-aquinas/; see also Antonin Scalia, God's Justice and Ours, FIRST THINGS (May 2002), https://www.firstthings.com/article/2002/05/gods-justice-and-ours.

(14) See William S. Brcwbaker III, Thomas Aquinas and the Metaphysics of Law, 58 ALA. L. REV. 575, 584-87 (2007).

(15) Id. at 586.

(16) Id.

(17) Id. at 593.

(18) See THOMAS AQUINAS, SUMMA THEOLOGICA I-II, q. 93, art. I (Fathers of the English Dominican Province, trans., Benziger Bros. 1947) (hereinafter: SUMMA THEOLOGICA).

(19) See SUMMA THEOLOGICA, supra note 18, at I-II, q. 94, art. VI; see also Romans 1:19-20 (English Standard) ("For what can be known about God is plain to them, because God has shown it to them. For his invisible attributes, namely, his eternal power and divine nature, have been clearly perceived, ever since the creation of the world, in the things that have been made.").

(20) See Hittinger, supra note 10, at 266.

(21) See id.

(22) SUMMA THEOLOGICA, supra note 18, at I-II, q. 93, art. III.

(23) Michael Baur, Beyond Standard Legal Positivism and "Aggressive" Natural Law: Some Thoughts on Judge O'Scannlain's "Third Way, " 79 FORDHAM L. REV. 1529, 1538 (2011).

(24) Hittinger, supra note 10, at 265-66.

(25) See id. at 266.

(26) Daniel A. Degnan, Two Models of Positive Law in Aquinas: A Study of the Relationship of Positive Law and Natural Law, 46 THOMIST 1, 2 (1982).

(27) JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 284 (2nd ed.1980) (quoting SUMMA THEOLOGICA, supra note 18, I-II, q. 95, art. II.)

(28) SUMMA THEOLOGICA, supra note 18, I-II, q. 95, art. II.

(29) Robert P. George, Natural Law, the Constitution, and the Theory and Practice of Judicial Review, 69 FORDHAM L. REV. 2269, 2279 (2001).

(30) FINNIS, supra note 27, at 285.

(31) Id. at 286.

(32) Degnan, supra note 26, at 4.

(33) George, supra note 29, at 2279.

(34) Id.

(35) See Russell Hittinger, Natural Law in the Positive Laws: A Legislative or Adjudicative Issue?, 55 REV. POL. 5, 34 (1993).

(36) See supra notes 11-13 and accompanying text.

(37) See RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 1-38 (1996).

(38) See Clarence Thomas, The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment, 12 HARV. J.L. & PUB. POL'Y 63, 66-68 (1989) [hereinafter Background]; see also Clarence Thomas, Toward a "Plain Reading" of the Constitution--The Declaration of Independence in Constitutional Interpretation, 30 HOWARD L.J. 983 (1987) [hereinafter "Plain Reading"].

(39) District of Columbia v. Heller, 554 U.S. 570, 592, 594 (2008) (quoting 1 WILLIAM BLACKSTONE, COMMENTARIES * 139).

(40) Id. at 592.

(41) Id. at 592-95.

(42) DWORKIN, supra note 37, at 271.

(43) George, supra note 29, at 2280.

(44) Id.

(45) See ROBERT P. GEORGE, Natural Law and Positive Law, in THE AUTONOMY OF LAW: ESSAYS ON LEGAL POSITIVISM 331 (Robert P. George ed., 1996).

(46) See George, supra note 29, at 2280.

(47) This question can be bracketed and left to the voluminous literature arguing what sources the Framers intended judges to employ in interpreting the Constitution. Justice Scalia's view is not without at least some justification, as John Hart Ely observes that the position that the Constitution is based on natural law "was not even the majority view among those 'framers' we would be likely to think of first." JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 39 (1980). Ely elsewhere adds that "natural law and natural rights philosophies were not that broadly accepted--in fact they were quite controversial." John Hail Ely, Foreword: On Discovering Fundamental Values, 92 HARV. L, REV. 5, 25 (1978). Regardless, my central premise is simply that for both Aquinas and Justice Scalia, judges do not have inherent authority to employ freeform notions of natural law in adjudication.

(48) See Brewbaker, supra note 14, at 586.

(49) See Hittinger, supra note 10, at 271-72.

(50) See id. at 271-72.

(51) Id. at 272.

(52) JEAN PORTER, MINISTERS OF THE LAW: A NATURAL LAW THEORY OF LEGAL AUTHORITY 271 (2010). Although this structural argument is similar to Porter's, the goal of her argument is to demonstrate why the judge must uphold the intention of the lawgiver, whereas I seek to justify Justice Scalia's stance against judges employing freeform notions of natural law in adjudication without legislative authorization.

(53) Hittinger, supra note 10, at 276.

(54) See id.

(55) Id.

(56) See Kloster, supra note 13; ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 66 (1990). Compare DWORKIN, supra note 37, at 2; Background, supra note 38, at 63-70.

(57) Hittingcr, supra note 10, at 277.

(58) SUMMA THEOLOGICA, supra note 18, at II- II, q. 64, art. VI.

(59) Id.

(60) Hittinger, supra note 10, at 278; See SUMMA THEOLOGICA, supra note 18, at II-II, q. 67, art. II ("[The judge's] judgment should be based on information acquired by him, not from his knowledge as a private individual, but from what he knows as a public person.").

(61) SUMMA THEOLOGICA, supra note 18, at II-II, q. 67, art. II.

(62) SUMMA THEOLOGICA, supra note 18, at I-II, q. 96, art. VI.

(63) Id.

(64) Id.

(65) Id.; J. BUDZISZEWSKI, COMMENTARY ON THOMAS AQUINAS'S TREATISE ON LAW 412 (2014).

(66) SUMMA THEOLOGICA, supra note 18, at I-II, q. 96, art. VI; Hittinger, supra note 10, at 279.

(67) BUDZISZEWSKI, supra note 65, at 412.

(68) Hittinger, supra note 10, at 282.

(69) Id.

(70) Id. at 280.

(71) SUMMA THEOLOGICA, supra note 18, at I-II, q. 96, art. VI.

(72) BUDZISZEWSKI, supra note 65, at 415.

(73) Hittinger, supra note 10, at 280.

(74) BUDZISZEWSKI, supra note 65, at 414.

(75) SUMMA THEOLOGICA, supra note 18, at I-II, q. 96, art. VI.

(76) Id.; BUDZISZEWSKI, supra note 65, at 414.

(77) SUMMA THEOLOGICA, supra note 18, at I-II, q. 96, art. VI. It is not at all clear what it would mean to "consult those in power" in the American form of government, where the lawmaker is not a ruler but a multimember body and virtually no one would agree that members of Congress should be dragged into court one by one and asked to testify as to the intent of a particular law. This statement could arguably constitute support for recourse to legislative history, but this does not seem to be the kind of "consulting" Aquinas has in mind. Hence, following the letter of the law seems to be the better of the two options here.

(78) SUMMA THEOLOGICA, supra note 18, at II-II q. 60, art. V.

(79) Hittinger, supra note 10, at 280.

(80) Mat 282.

(81) George, supra note 29, at 2279; Hittinger, supra note 10, at 34.

(82) SUMMA THEOLOGICA, supra note 18, at pt. I-II, q. 95, art. I.

(83) Hittinger, supra note 10, at 275.

(84) See id.

(85) Id. at 276.

(86) See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Cm. L. REV. 1175, 1177 (1989).

(87) See id. at 1179.

(88) Id. at 1179-80.

(89) 3 U.S. (3 Dall.) 386, 386 (1798).

(90) See id. at 386-87 (opinion of Chase, J.).

(91) Id. at 387.

(92) Id. at 396.

(93) Id. at 394.

(94) Id. at 388.

(95) See Calder, 3 U.S. (3 Dall.) at 388-89.

(96) See id. at 388.

(97) Id.

(98) Id.

(99) Id at 398 (opinion of Iredell, J.).

(100) Id. at 399.

(101) As we saw in Aquinas, the positive law is a legislative judgment as to the content of the natural law. See supra notes 49-50 and accompanying text.

(102) Antonin Scalia, God's Justice and Ours, FIRST THINGS (May 2002), https://www.firstthings.com/article/2002/05/gods-justice-and-ours.

(103) See Jennifer Senior, In Conversation: Antonin Scalia, N.Y. MAG. (Oct. 6, 2013), http://nymag.com/news/features/antonin-scalia-2013-10/.

(104) Id.

(105) Scalia on Globalization, supra note 7, at 57:34.

(106) Cf. Obergefell v. Hodges, 135 S.Ct. 2584, 2629 (2015) (Scalia, J., dissenting) ("This is a naked judicial claim to legislative... power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices' 'reasoned judgment.'").

(107) ANTON IN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 348 (2012).

(108) ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 66 (1990).

(109) United States v. The La Jeune Eugenie, 26 F. Cas. 832, 846 (CCD. Mass. 1822); Hon. Diarmuid F. O'Scannlain, Joseph Story, the Natural Law, and Modern Jurisprudence, The Joseph Story Distinguished Lecture at the Heritage Foundation (Oct. 23, 2013), in THE HERITAGE FOUND. REP. No. 1239, Feb. 3, 2014, at 3, http://report.heritage.org/hll239.

(110) See O'Scannlain, supra note 109, at 3; see also Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842) (Story, J.). For a natural law defense of Justice Story's majority opinion in Prigg, see Christopher L.M. Eisgruber, Justice Story, Slavery, and the Natural Law Foundations of American Constitutionalism, 55 U. CHI. L. REV. 273 (1988).

(111) Hittinger, supra note 10, at 282.

(112) SUMMA THEOLOGICA, supra note 18, at pt. I-II, q. 96, art. 4.

(113) See Calder, 3 U.S. (3 Dall.) at 399 (Iredell, J., concurring).

(114) See SUMMA THEOLOGICA, supra note 18, pt. I-II, q. 96, art. 4.

(115) See Senior, supra note 103.

(116) See discussion infra Section II.D.

(117) See discussion infra Section II.C.

(118) See SUMMA THEOLOGICA, supra note 18, pt. I-II, q. 95, art. 2.

(119) SCALIA & GARNER, supra note 107, at 11.

(120) See, e.g., King v. Burwell, 135 S. Ct. 2480, 2492-94 (2015) (holding that tax credits under the Affordable Care Act were also available to individuals who purchased insurance under exchanges created by the federal government notwithstanding the language that indicated availability of tax credits only to individuals who purchased insurance in an exchange "established by the State").

(121) See SCALIA & GARNER, supra note 107, at 93.

(122) The circumstances not thought of by the drafter of a text is sometimes called the casus incogitatus. See Casus Incogitatus, BLACK'S LAW DICTIONARY (10th ed. 2014).

(123) 143 U.S. 457 (1892). This is also what the Court did in Yates v. United States, 135 S.Ct. 1074 (2015). In Yates, the petitioner was convicted under the Sarbanes-Oxley Act for destroying or concealing a "tangible object" with intent to impede a federal investigation for throwing undersized fish overboard. Yates, 135 S.Ct. at 1078. The Court reversed the conviction, holding that the fish were not encompassed by the term "tangible object." Id. at 1081. Even though the plain meaning of "tangible object" would clearly include fish, the Court found the term ambiguous because Sarbanes-Oxley is a corporate-fraud statute whose purpose was not to reach the kind of situation at issue here. See id. at 1081-83. In other words, as in Holy Trinity, the "spirit" (purpose) of the law was elevated over the letter. As a result, the Court did not apply the term "tangible object" to include fish. Id. at 1088-89.

(124) Holy Trinity, 143 U.S. at 458.

(125) Id. at 457-58.

(126) Id. at 458-59.

(127) Id. at 459.

(128) Id. at 471.

(129) Id.

(130) Holy Trinity, 143 U.S. at 472.

(131) Id. at 472.

(132) Richard A. Posner, Statutory Interpretation--In the Classroom and in the Courtroom, 50 U. CHI, L. REV. 800, 817 (1983); see also SCALIA & GARNER, supra note 107, at 349.

(133) SCALIA & GARNER, supra note 107, at 350.

(134) Id. (quoting Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533,548(1983)).

(135) SCALIA & GARNER, supra note 107, at 96.

(136) Id. at 95 (quoting HUNTINGTON CAIRNS, LEGAL PHILOSOPHY FROM PLATO TO HEGEL 240(1949)).

(137) SCALIA & GARNER, supra note 107, at 95.

(138) Cf. id. at 101 ("[T]he presumed point of using general words is to produce general coverage--not to leave room for courts to recognize ad hoc exceptions.").

(139) See supra Section II.C.

(140) Kloster, supra note 13.

(141) See supra notes 62-76 and accompanying text.

(142) Id.

(143) Hittinger, supra note 10, at 279-80.

(144) Id. at 280.

(145) SCALIA & GARNER, supra note 107, at 234.

(146) Id.

(147) Id. (quoting 2 WILLIAM BLACKSTONE, COMMENTARIES *60).

(148) 1 WILLIAM BLACKSTONE, COMMENTARIES *91.

(149) Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202-03 (1819).

(150) Id. at 202.

(151) SCALIA & GARNER, supra note 107, at 238.

(152) Id. at 235.

(153) Id.

(154) Hon. Antonin Scalia & John F. Manning, A Dialogue on Statutory and Constitutional Interpretation, 80 GEO. WASH. L. REV. 1610. 1614-15 (2012).

(155) See John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2431-54 (2003).

(156) See supra notes 43-47 and accompanying text.

(157) Sturges, 17 U.S. (4 Wheat.) at 203.

(158) See generally John Finnis, The Priority of Persons Revisited, 58 AM. J. JURIS. 45 (2013).

(159) See SCALIA & GARNER, supra note 107, at 388.

(160) Id.

(161) Id. at 391.

(162) Id. at 395 (quoting R.W.M. DIAS, JURISPRUDENCE 219 (4th ed. 1976)).

(163) SCALIA & GARNER, supra note 107, at 20.

(164) See, e.g., William N. Eskridge, Jr., Textualism, The Unknown Ideal?, 96 MICH. L. REV. 1509, 1519 (1998).

(165) See SCALIA & GARNER, supra note 107, at 23-24.

(166) See John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1 (2001).

(167) See supra Section II.B.

(168) See id.

(169) U.S. CONST, art. 1, [section] 1.

(170) Caleb Nelson, What Is Textualism?, 91 VA. L. REV. 347, 349 (2005) (emphasis added).

(171) See id. at 377, 383-86.

(172) See id. at 349.

(173) SUMMA THEOLOGICA, supra note 18, at pt. II-II, q. 60, art. 5.

(174) See Giambrone, supra note 11, at 17.

(175) Id.

(176) Kloster, supra note 13.

(177) Id.

(178) Id.

(179) See Giambrone, supra note 11, at 17 (referring to this formula for justice as a "barbaric doctrine").

(180) A discussion of just war theory is beyond the scope of this Essay. Augustine is known to have been the first great Christian proponent of just war theory, and Aquinas expounded on Augustinian principles in describing his conditions for a just war. See SUMMA THEOLOGICA, supra note 18, at pt. II-II, q. 40, art. 1. Thus, insofar as any post-combat tribunals can be seen as a necessary part of the vindication of justice in a just war, Justice Scalia's answer that the victors of such a war can punish the wrongdoings of the losers is likely in harmony with Thomistic guidance.

(181) See KADISH ET AL., CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 153 (9th ed. 2012) ("[Njearly all American jurisdictions... have abolished the common-law doctrine that courts can create new crimes.").

(182) See Zachary Price, The Court after Scalia: The Rule of Lenity, SCOTUSBLOG (Sept. 2, 2016, 2:14 PM), http://www.scotusblog.com/2016/09/the-court-after-scalia-scalia-and-thc-rule-of-lenity/("One of Justice Antonin Scalia's many contributions to Supreme Court jurisprudence was to revitalize the rule of lenity.").

(183) SCALIA & GARNER, supra note 107, at 296.

(184) Id. (quoting United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) ("It is the legislature, not the Court, which is to define a crime, and ordain its punishment.").

(185) See Hittinger, supra notelO, at 273.

(186) See id.

(187) SUMMA THEOLOGICA, supra note 18, at pt. II-II, q. 67, art. 2, ad. 2.

(188) Id. at pt. II-II, q. 67, art. 1 ("[N]o man can judge others than his subjects and this in virtue either of delegated or ordinary authority.").

(189) See id. at pt. II II, q. 67, art. 3.

(190) The author does not take a substantive position on capital punishment in this Essay. I am merely assuming that a Catholic judge who objects to instituting a death sentence based on Church teaching may think that textualism is an undesirable theory because it leaves no room for the judge's conscience in these matters. Justice Scalia's answer to this objection is the primary concern of this section.

(191) See Kloster, supra note 13.

(192) Scalia, supra note 13 (quoting Callins v. Collins, 510 U.S. 1141, 1145 (Blackmun, J., dissenting)).

(193) Scalia, supra note 13.

(194) See CATECHISM OF THE CATHOLIC CHURCH, supra note 6, at para. 2267.

(195) Scalia, supra note 13.

(196) Id. ("I could not take part in that process if 1 believed what was being done to be immoral.").

(197) Id.; see also Kloster, supra note 13 ("In no circumstance is a judge to depart from the text in order to perfect the law, according to Justice Scalia."). There is an important distinction between a judge using the natural law to make the legislator's law "better" and simply correcting a materially defective law using the absurdity canon. In the first instance, the judge is using the natural law to overturn the substance of the positive law and in doing so going outside his authority as a judge. In the second instance, he is not passing judgment on the substance of the law but making a material correction to it that effectuates what the legislator intended to do all along. In that sense, his action is a procedural correction rather than a substantive one.

(198) Scalia, supra note 13; see also William H. Pryor, Jr., The Religious Faith and Judicial Duty of an American Catholic Judge, 24 YALE L. & POL'Y REV. 347, 352 (2006) ("As a judge in a government of laws, not men, I have a special moral duty to obey and enforce the law in accordance with my oath.").

(199) See Scalia, supra note 13.

(200) Id.

(201) SCALIA & GARNER, supra note 107, at 82-83.

(202) See Kloster, supra note 13 ("Ultimately, Scalia has only one answer to what a judge should do when confronted with a law that he believes is contrary to right reason and morality: one might recuse; or if the entire legal system is thoroughly rotten, one might resign.").

(203) See Brewbaker, supra note 14, at 594-95.
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