George F. Will
WASHINGTON
With an asperity born of exasperation,
Justice Antonin Scalia once wrote, “If you want aspirations, you can
read the Declaration of Independence,” but “there is no such
philosophizing in our Constitution,” which is “a practical and pragmatic
charter of government.”
Scalia was wrong, and much depends on Neil
Gorsuch not resembling Scalia in this regard. Gorsuch can endorse
Scalia's originalism without embracing Scalia's misunderstanding of
this: There is no philosophizing in the Constitution — until the
Founders' philosophy is infused into it by construing the document as a
charter of government for a nation that is, in Lincoln's formulation,
dedicated to a proposition that Scalia implicitly disparaged as
impractical and unpragmatic.
The proposition is that all persons are
created equal in their possession of natural rights, to “secure” which —
the Declaration's word — the government is instituted. In Lincoln's
formulation, the Constitution is the “frame of silver” for the “apple of
gold” that is the Declaration. Silver is valuable and frames are
important, but gold is more precious and frames derive their importance
from what they frame.
The drama of American democracy derives
from the tension between the natural rights of the individual and the
constructed right of the community to make such laws as the majority
desires. Natural rights are affirmed by the Declaration; majority rule,
circumscribed and modulated, is constructed by the Constitution and a
properly engaged judiciary is duty-bound to declare majority acts
invalid when they abridge natural rights.
The Ninth Amendment says: “The enumeration
in the Constitution, of certain rights, shall not be construed to deny
or disparage others retained by the people.” If you believe, as Robert
Bork did, that this amendment is a meaningless “inkblot,” you must
believe that the Framers were slapdash draftsmen about this, and only
this, provision. Scalia believed that “the whole theory of democracy ...
is that the majority rules. ... You protect minorities only because the
majority determines that there are certain minority positions that
deserve protection. ... The minority loses, except to the extent that
the majority, in its document of government, has agreed to accord the
minority rights.”
What is interesting begins with the
institutional and cultural measures necessary to increase the likelihood
that majorities will be reasonable and respectful of the natural rights
of those in the minority. It is the judiciary's job to construe the
“document of government” — the frame of silver — in the light cast by
the apple of gold.
With the Declaration, Americans ceased
claiming the rights of aggrieved Englishmen and began asserting rights
that are universal because they are natural, meaning necessary for the
flourishing of human nature. The Constitutional Convention met in the
room where the Declaration was debated and endorsed, and the
Constitution implements what the Declaration initiated. Gorsuch will
occupy much of the jurisprudential space Scalia so admirably did. But
having earned a doctorate in philosophy and jurisprudence at Oxford
studying under John Finnis, author of the book “Natural Law and Natural
Rights,” perhaps Gorsuch will effect a philosophic correction.
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