Natural law and originalism; Gorsuch

[Peter1469]

Natural law and originalism; Gorsuch

Here is an interesting article that discusses natural law, originalism, and where Gorsuch falls. I am less interested about the attempt to say that there is a large gulf between natural law and originalism, and more interested in the discussion of the topics.

This is a good summary of what the author thinks originalism is:

Scalia was “a lion of the law” whose judicial philosophy was exactly right: A judge must apply the law as it is, and never as the judge prefers it to be.

Better put, an originalist looks to the plain text for meaning. If there is ambiguity, only then do you look at the text from the point of view of the Founders- this includes looking at the various factions among the Founders. I differ from the article in stating that an originalist will resort to natural law if the above still leaves ambiguity in a Constitutional issue. (Because the Founders relied on natural law).

The article mainly discusses natural law.

The natural law approach to jurisprudence is usually contrasted with “legal positivism.” Positivism is the view that which laws exist, and what those laws say, is a purely factual matter, one that can be investigated only by looking at conventional legal materials such as the congressional record and judicial precedents.

Natural law theorists argue that there is far more to the law than that. They hold that at least in some situations, one cannot know what the law is without first engaging in philosophical inquiry about morality and the nature of right and wrong conduct. These days, natural law theorists usually embrace one or both of two views on the connection between principles of morality on the one hand, and the law as judges must apply it on the other. Following the legal philosopher Liam Murphy, I’ll call these two natural law views the moral filterview and the moral reading view.

I think the author goes off track with his issue with the moral filter view, even though his explanation acknowledges that it comes up only in extreme cases.

[Chris]

Even as a proponent of natural moral law, I would favor judicial originalism over application of natural law. Why? It's not the judge's job to apply morality, that the job of the legislature. In a common law system I might allow for it.

Personally I'd prefer a textualist approach, look to the plain text for meaning. You might look to other texts to understand the meanings of words at the time the law was written, the second amendment uses a construct, nominative absolute, that demands this. But I would not look to other texts for the opinions expressed by them. What counts is not any one person's intention but the intention of the legislature who voted the law into existence.

[Peter1469]

@del, the discussion you asked for is on the serious side.

[Peter1469]

Even as a proponent of natural moral law, I would favor judicial originalism over application of natural law. Why? It's not the judge's job to apply morality, that the job of the legislature. In a common law system I might allow for it.

Personally I'd prefer a textualist approach, look to the plain text for meaning. You might look to other texts to understand the meanings of words at the time the law was written, the second amendment uses a construct, nominative absolute, that demands this. But I would not look to other texts for the opinions expressed by them. What counts is not any one person's intention but the intention of the legislature who voted the law into existence.

I look at it as a scale. The text. If more is needed, the intent, if more is needed, what others at the time thought, if more is needed natural law.

[Scrounger]

"On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." (Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322)

That is my starting point.

[Captain Obvious]

@del, the discussion you asked for is on the serious side.

Good luck with that