My latest effort, a pamphlet on the American legal system (because I don’t lack for ego), A Conservative’s View of the American Concept of Law, has been released, and it can be found on amazon.com: https://amzn.to/2L4iVXx . Links also can be found on my Books page.
Our legal system is explicitly founded on natural law through our Creator’s endowment—the origin and source of our fundamental principles.
Though government should not legislate morality beyond a very narrow arena (vis., a measure of specificity regarding types of homicide and theft; strictly limited controls on bearing false witness, etc.), with natural law as the foundation of our legal system, morality inescapably informs it. This is so because morality flows from the Creator-endowed and individually-imbued nature of our inalienable rights to life, liberty, and the pursuit of happiness. Our social compact was founded explicitly to protect these. From that, our statutes are at their best when limited to attempts to implement and protect those foundational principles and nothing more. Any further legislation should be limited to improvements on those strictly circumscribed efforts. In particular, legislation should not be used to generate new morals.
The nature of our American judiciary and the proper role of judges in our jurisprudence has been argued throughout our history, but the argument has been especially virulent over the last dozen or so years. The current dispute (I don’t call it a debate) centers on whether our Constitution means what it says and neither more nor less, or whether it’s a living document that should grow and adjust to meet a judge’s understanding of changing times and mores.
In this pamphlet, I lay out three key propositions. The first is that only Congress may make law. The second is that judges may strike a law before them as unconstitutional, but if they do not, they must apply the law as written. The third is that the Constitution must be applied as it is written. Alterations or updates to it are political decisions, and thus only We the People may make them.
Understand: I’m not writing about the origins of the idea of law or of systems of law. A plethora of legal philosophers (HLA Hart, Jeremy Bentham, John Austin, and Gustav Radbruch to mention a few Western ones) treat these subjects should the reader wish to explore them. I begin later, with the principles underlying our American legal system.
Keep in mind, too, that government, per se, does not make law; the men who populate the government do.
Finally, Justice Antonin Scalia made this claim in his A Matter of Interpretation,
Surely this is a sad commentary: we American judges have no intelligible theory of what we do most.
Even sadder, however, is the fact that the American bar and American legal education, by and large, are unconcerned with the fact that we have no intelligible theory.
I agree, and in my hubris, I offer the beginnings of such a theory here.
