To me, John & Rob’s argument sounds like a "less filling, taste great" argument. Scalia might very well want to avoid both the black-history and the Declarational parts of Thomas’s opinion. That said, some of the commentary I’ve read on NLT and The Remedy raises a really important question that deserves discussion -- In what respects should the Declaration have authority in constitutional interpretation?
I haven’t thought this through enough, but let me suggest that the issues are more complicated than the NLT and Remedy commentary have suggested over the last day or two. At one extreme, Justice Scalia is right -- and the commentary wrong -- on this point: The Declaration does not have positive-law authority of its own, except for the proposition that the United States are independent of Great Britain. The bulk of the Declaration sets a standard Americans should apply to judge the governments they institute to secure the Declaration’s natural rights, but the Declaration doesn’t serve as a source of controlling legal authority.
Now, at the other extreme, Scalia is clearly wrong, and the criticisms I’ve read here and on the Remedy are clearly right, in a different respect. Scalia is frustratingly stubborn in refusing to consider whether the Declaration might go a long way in informing how lawyers ought to read the positive-law guarantees in the Constitution. For instance, Scalia reads the Free Speech Clause way too broadly, close close to guaranteeing that "no law" may restrict "speech." If one understands the Founders’ conception of natural rights and natural law, the clause reads very differently. Congress may pass no law "abridging" the "freedom" of speech. "Freedom" bounds "speech" by the moral rights and duties of the natural law. "Abridging," in the Founders’ understanding, quietly distinguishes between laws that "regulate" speech and laws that "abridge." Defamation, blasphemy, and time-and-manner laws all "regulate" because they keep speech within the natural-law "freedom of speech"; laws "abridge" the "freedom of speech" if they restrain speech for no similar purpose. Here and elsewhere, Scalia is too positivist to be a good originalist when original meaning relies heavily on the natural law.
But Adarand, Troxel, and yesterday’s affirmative-action cases raise a different problem: Should one interpret the Constitution to require what the Declaration prescribes even if the constitutional terms in question have a narrower ordinary legal meaning?
On affirmative action, its been shown pretty convincingly that the original meaning of the Equal Protection Clause was not a open-ended license for Congress and courts to fix any state action that ran afoul of the principle that "all men are created equal." The original meaning guaranteed equal PROTECTION. If Congress found that state law-enforcement officers enforced the criminal-battery laws for white victims but not black victims, Congress could intervene to fix the law enforcement patterns. If original meaning controls, Adarand and yesterday’s cases should have been thrown out because the EP Clause was not relevant.
Same goes for Troxel, a Due Process case. The original meaning of both Due Process Clauses was to ensure that no one lost life, liberty, or property except by "the law of the land," except pursuant to a valid statute or common-law precedent already on the books, and pursuant to preexisting procedures for punishment. On that gloss, Troxel is easy: The state can deprive a relative of visitation rights to a child as long as the legislature strips those rights clearly by general law. No need whatsoever to ask why the legislature did so as long as it does so by general legislation.
Now, it could well be that the original meaning of the Privileges and Immunities Clause reduces some of the tension Im highlighting between original and a "Declarational" readings of the Due Process and Equal Protection Clauses. But no one really knows yet what the Privileges and Immunities Clause originally meant. Until its meaning is recovered, any resort to the P&I Clause is a cop-out.
In the meantime, NLT and Claremont readers need to think long and hard about what kind of constitutional-interpretation principles best accord with Declaration natural-law principles. May sound strange, but I’m not convinced that Thomas’s reliance on the Declaration in Adarand, Troxel, or yesterday’s cases comport with the kind of legal interpretation Declaration-style government requires of its lawyers. I’m not sure though; I’m curious what others have to say.