Originalism and “Might Makes Right”

“Slavery wasn’t illegal; it was wrong. So wrong that the law should be resisted.” This sentence can be understood and believed by many. Many people see law both as part of the society it is part of. However, sometimes this “positive” law needs to be challenged because there are many ways societies could go wrong. Others see things differently. Some people see law as part of political morality. It is not always perfect, but they still consider it a branch. simpliciterThere are limitations on how severe it can get. Slavery can’t be legal or can’t possibly have been illegal.

One might believe so if one reads an editorial Ius & IustitiumThe editorial claimed that the “End of Originalism” was near. According to the editorial, originalism won’t be able to survive in a post-modern world.RoeThe world is governed by “a patchwork quilt state laws”, where unborn children’s lives are ruled over according to arbitrary state lines. Without a new decision that guarantees equal protection to unborn persons, the editorial says originalism is equally arbitrarily. Because “the text alone constitutes law” (or preserves the prior law), “[o]Riginalism cannot be reconciled with morality that goes beyond “might make right.”

Anachronism is the first issue of this editorial. In a post-modern world, originalism may fare better.RoeWe should all be aware that the majority of world’s history has been in Africa. PreRoeThe world was in a time when there were different laws regarding abortion and slavery. Also, it was unclear which churches could be established or closed. The Fourteenth Amendment is the most important, regardless of what one thinks. OriginalU.S. Constitution, which was the only one with no amendments, did not mention guaranteeing equal protection to any person; protection such as existed came from state legislations, or maybe (to be determined). Barron(Contrarians) can take advantage of the immunities and privileges enjoyed by citizens as described in Article IV. There is no contradiction in the reading. This Constitution, as of the day it was enacted, in an originalist way. And just as evils like slavery were expunged from that Constitution only by amendment, those who seek to end abortion might need to pursue that end through new enactments—say, legislation in the several states, or federal legislation in the limited areas of congressional power, or a nationwide constitutional amendment. What constitutional amendments does the author of this editorial support?

Second, the editorial has a rigid view on positivism as well as originalism. In my humble opinion, the best originalisms believe that today’s law of the Founders is law as it was when amended. Originalism and natural law could be compatible if their law is limited by natural law. If our law is also, originalism and natural laws can be perfectly compatible. Our law may still be theirs as long as it has been lawfully modified. Both the original and lawful alterations will be affected by natural-law limitations. Even though the most virtuous versions of positivism deny that “text alone is law”, some positivists are open to the idea. However, they do consider common law law even though it was never “enacted” by the sovereign. If the common law rules or equity principles were part our law at the Founding they still remain part the law today, except when overridden or rewritten by other state or federal laws within their jurisdiction.

However, the biggest problem with the editorial is the way it interprets the moral arguments for positivism. Positiveism doesn’t mean that all might be right. The argument is that we can best understand not only our actual moral obligations, but also those “semblances of morality” on which human societies insist, by keeping the distinctions between them straight in our minds—by respecting the difference between mores and morals, between the artificial “must” of a legal rule and the real “must” of an ethical one. Our legal system is attempting to convince us that one must pay taxes by April 15. We also have a moral obligation to obey the law.

So positive law does impose certain moral obligations on us—obligations, not always of obedience, but of diligence and honesty. Judges, officers, bureaucrats and other officials routinely inform those they place in jail, or deny relief to, that they have been following the law. They claim that the law—not the natural law, but the law around here, the law of the United States or of the Commonwealth of Massachusetts—justifies or even requires their actions. These people have an obligation of proof to prove their claims. If, ContraJustice Kennedy’s citationless argument Obergefell v. Hodges, “[t]He generations who wrote and ratified both the Bill of Rights (and the Fourteenth Amendment)” It didn’tYou can actually “entrust”.[]Justice Kennedy shouldn’t have stated that they had a charter which protects the rights of all people to liberty, as it is understood by future generations.” He should have made a genuine effort to examine the issue. While honest mistakes can be a problem, ignorance and culpable guilt are two different things. Morality is positive law. Not telling lies—the morality of “don’t piss on my leg and tell me it’s rainin’.”

American law might not contain a ban on abortion like Irish or German law. You can only find out by looking at Americans or Irish or Germans and seeing what they are up to. Americans may want one if the American law doesn’t include it. The problem is that their moral argument to penalize abortion in prochoice states could be at odds with the principle. nulla poena sine legeLegal prohibitions are the basis of legal penalties. The best way to deal with moral problems is not to conceal it. We should all tell each other and ourselves the truth, both for morality and prudence.