Strengthening Constitutional Self-Government

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Scalia and natural law?

Michael McGough argues that Antonin Scalia may be morphing into Clarence Thomas, moving from a "hard positivist" position into one friendlier to natural law. This reverses the direction the influence is usually said to run. On the basis of his argument, I’m not sure that McGough has the natural law argument quite right. After all, natural law isn’t supposed to depend upon revelation, but rather upon the reason that God gave everyone. Or am I missing something?

Discussions - 2 Comments

Scalia is merely being forthright.All he is saying is that this decision needs to be made on the basis of reality. If the citizens of this nation vote to get rid of the commandments, they must go. But a vote is not what is happening.
It might help to determine if God has anything at all to do with religion. Many people say they know nothing about God - to the point that they don’t even believe he exists. If that is true, how can it be established that the commandments violate church and state? We must have a hearing. It must be determined that God is Catholic, Baptist, Hindu, Muslim or etc. If it cannot be determined that God belongs to any of the religions, there is no issue at all.


Natural law, as the basis of human rights, is offered as an explanation by many people who do not believe in the existence of God. But I can’t understand how (if an intelligent source of life doesn’t exist) there can be “natural rights”. My understanding is that an accident can’t produce intent or purpose, and life without an intelligent cause would be an accident. Some believe that the “accident” of life produced “conscience”, but that is too much fairy tale for me. In the case of life without an intelligent cause, conscience is either a complex survival mechanism working to manipulate and control other organisms for selfish survival (using “reason” as a willing accomplice), or there is no such thing. This logic is not lost on the Hitlers of the world. Natural rights, in life that started without an intelligent cause, are just another link in a chain of accidents. Accident can’t generate right or wrong so any ability to distinguish between anything that doesn’t exist is not a worthy basis upon which to establish natural rights. The “natural rights” remaining when an intelligent cause of life is exempted are the rights of force alone. Atoms and molecules arranged by accident may have something that appears to be “conscience”, but scientifically, conscience must then be explained as a useful illusion. Natural rights depend on an intelligent cause of life.

Anyway, Scalia is being honest. He must understand that natural rights in the context of an intelligent cause will legitimize them. Understood in the context of “accident” the foundations of law become “force”, not “rights”. And it is well known that the Ten Commandments came from the Bible. To defend the right to display certain facets of American culture by using backdoor logic would be to concede defeat before the fight, and would merely moves the battle to another time when there may be less tolerance or intelligence than there is now. To identify the commandments as law or history rather than religion would weaken the defense of America’s right to its own history. To position the argument any other way would make it possible for other artifacts of American history to be removed from public places; like the Constitution or the Declaration. And maybe Scalia isn’t slighting “tenets of his approach to judging” by exploring authority. He is looking to history and source rather than current international policy. That probably bothers a lot of people.

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