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

• Author: Pearce, Hunter
• Position: Supreme Court Justice Antonin Scalia

1. 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rules for assessing human conduct as good or bad, right or wrong: rules that are prior to human choice and may not be repealed, however much they may be violated, defied, or ignored.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.

2. 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.

   1. 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...