Tuesday, September 20, 2005


The Problem with John Roberts and Legal Positivism

The following e-mail crossed my desk yesterday through a Christian legal listserv of which I am a part. The content sparked a great deal of discussion, and, after having obtained the permission of the author, I thought it might be of interest to my readers here. Feel free to comment at your leisure.


From Day One of Roberts Hearings, September 13, 2005:

John Roberts: "It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world. Because without the rule of law, any rights are meaningless. President Ronald Reagan used to speak of the Soviet constitution, and he noted that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises, because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality."

This statement from Roberts demonstrates the problem inherent within his view of the law. Roberts says that he supports the "rule of law." This statement begs the question of "law" is. That question is not as easy to answer as it may seem. Roberts is operating on a positivistic view of law. The law is something that is the will of a governmental entity. An example of this can be seen in the following statement from Roberts at his hearing. "... If the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath." Here is the problem with this statement. He seems completely bound to the original meaning of the Constitution without exception, and I think this view of the Constitution ignores the role of a higher moral law in offering legitimacy to the positive laws of the state. What if the Constitution required that all Native Americans must be systematically exterminated? What if the Constitution required that people have a right to enslave any black person? What if stare decisis says that Roe v. Wade cannot be overturned? Is Roberts still going to just follow the text in those situations?

I am positive that this is not the view of law that dominated at the founding of the United States. Proof of this proposition lies at the essence of the Declaration of Independence. All of the signers of the Declaration agreed with the proposition that people are created by God with certain inalienable rights. This means that people have a fundamental human dignity that is rooted in a higher law that cannot be justly or legitimately violated regardless of what the will of a governmental entity may be. The legal hermeneutic of John Roberts ironically is inconsistent with the intent of the writers of the Declaration of Independence and the framers of the Constitution.

He also has a secular view of the law that says the state is the true sovereign. Here is the flaw in John Roberts' statement about the Soviet Union. He says that the problem of the Soviet Union was a failure to acknowledge the rule of law. I disagree. The greater problem problem for the Soviet Union was that it lacked a foundational recognition of human dignity or a higher moral law within its Marxist/Leninist worldview. In the Soviet view of the world, the commands of the state were the only law since the state was absolutely sovereign. Like the kings of the ancient world, it would be impossible to ever say that the sovereign has done something good or evil since that would require some independent standard that one can use to criticize the commands of the sovereign. It is possible for a state to exist where there is never a violation of the rule of law, and the law is applied perfectly in all situations, and that state could still be the most evil nation with the most genocidal mentality in the history of the world since there is no guarantee that the positivistic "rule of law" is going to protect human dignity, rather than, destroy it. Law lacks legitimacy unless it is first founded on the inviolable worth of every human being. John Roberts might argue that there is no guarantee that human dignity will be protected without the rule of law. There is truth to this. Following the commands of the state when they are consistent with the dictates of the higher moral law is critical to promotion of human dignity. However, we need to remember that there is nothing intrinsically good about the rule of positive law unless those laws are first conducive to human dignity.

UPDATE: Judging by the comments, it appears that one thing wasn't clear (although I don't understand how it couldn't be). I did not write this e-mail, guys, so referring to it as "my argument" isn't accurate. In fact, I have other, less eloquent arguments against Judge Roberts.

The problem with assuming an "higher moral authority" is prerequisite to human law: see Iran, or Afghanistan under the Taliban, or other numerous examples. Do you not see this?

I respect your article, but I find so many problems with it that I don't know where to start.

The inalienable rights each human being possesses are only possible because of consciousness and reason. Sure, they are endowed by a "Creator" -- whether that creator is a Jehovah-type figure, or a single proto-cell, neither of which has been successfully, incontrovertibly proven.

You unwittingly dilute the wonderful potency of our nation's triumphal beginning by attempting to subjugate its rational foundations to a supposed Other. I do sort of backhandedly agree with you on the Soviet problem, i.e., that the State should no more be substituted as the giver or guardian of humans' rights than should a mythical "moral Daddy" or whatnot. This is the masterwork of our species: that we continue, however imperfectly, to build our own operator's manual. Please don't denigrate us by ceding that awe-inspiring power to a flimsy unknown.
Read Lincoln at Gettysburg if you want to more fully substantiate your Declaration argument as the lens through which the Constitution should be interpreted.
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