I liked your post very much, and noticed your comment about Justice Scalia, I was wondering what you meant when you called him a legal positivist?

Does that mean that he believes that there is no necessary connection between law and morality?

or that the validity of a law is not based on moral but rather on procedural criteria?

Does it mean that Justice Scalia believes that law is a social fact? worth studying? that the concept of law means different things in different societies yet all such societies have the common observable phenomena of using law as a means to control behavior?

Does Justice Scalia (as a legal positivist) hold that law is the commands of a sovereign backed by sanctions?

Does Justice Scalia (as a legal positivist) believe that law within a legal system constitutes the union of primary and secondary rules?

Since the Fifth Amendment to the Constitution lays out the rights of Life, Liberty, and Property, does Justice Scalia consider those to be rights because they are within the constitution?

Because Justice Scalia is a Legal Positivist, does that mean that the only rights that exist (according to Justice Scalia) are those that are laid out in the constitution?

I don't particularly care for Justice Scalia. I have read some of his opinions and he can be somewhat "unprofessional" when he writes. I have not heard of him being described as a legal positivist before. But I do not believe that the title is necessarily innappropriate. Thank you for your time. I enjoyed your post and look forward to reading your future posts. If you get the opportunity to answer some of my questions, I would greatly appreciate it.

Basically, that Natural Law doesn't apply to law, and isn't ethically or morally required to make or rule on law. If it's in the Constitution, fine. If not, it doesn't apply.
You can extract many conclusions from that.
Thanks

I've been watching this guy's emergence into the light. He seems disinclined to go against party orthodoxy, but that's par for the course in these days of cannibalistic rightist ideology. The Republican stable of candidates is... weak, I think that's the word. Barring unforeseen domestic or global events the only people who can defeat the Democrats in 2012 are the Democrats. But then, they have a lot of experience at that.

These people don't care about the Constitution. They care about personal gain--period.

patrick's on target r.

nanate,
One problem with the GOP turning into a mindless radical movement is it allows the Democrats to be merely pathetic and still win. The problem with the Democrats being pathetic is it allows the GOP to win, as the difference is not enough.
Either way, pathetic prevails.

Pat,
They care about it as a slogan they chant that "proves" to the dull-witted True Believers they're being oppressed by vicious usurpers who don't follow the Constitution.
I'll bet most of Cain's crowd didn't know the difference either.

Yo, Johnathan, good to see ya.

Perhaps Tom Woods also believes that the two come from the same document.

Kanuk,
I've reviewed the history well enough to know in how many ways Woods is a poser. If he studied history, it either wasn't American, or wasn't Revolutionary or Constitutional history.
I'm not done with Woods.

I keep hearing (first commentor) that the constitution guarantees, "life, liberty, and property." No where in the Constitution or the Bill of Rights is property promised to anyone. I love how they get the part of "life, liberty, and p" and turn that p in pursuit into whatever they like. Am I ranting?

I played the video and got kicked out of OS when I went to read about Michele Bachman skipping Geography Class. Thank you for such enlightenment about the latest round of republican...maybe they should change their symbol from an elephant to a goat!

Pastvoices,

You are correct and I would absolutely agree with you that no where in the constitution is property promised to anyone. In the due process clause of the constitution, there is a mention of life, liberty, and property that appears to be assumed. "No person shall be . . . deprived of life, liberty, or property, without due process of law. You are correct of course and because I made the mistake of not clarifying what I meant I am incorrect. But I can assure you, that I am aware that the constitution does not give anyone the right to possess property (not explicitly of course).

If I am not mistaken, (and if I am Paul can correct me) the passage in the fifth and the fourteenth amendments appear to presuppose that someone already has a life, is in liberty, or owns property. So I was mistaken in calling these things a right since the constitution does not explicitly state that Life, Liberty, and Property, are considered a right-natural or otherwise.

Rather, the constitution merely states (or appears to state) that if one of these three conditions exists: a life, a liberty, or possessed property, the deprivation of any of them is (or so it seems) unauthorized unless "Due Process" is given (which we now divide into either substantive or procedural).

As I stated above, I was not clear, I misspoke, and therefore your objection is appropriate and well noted.

Locke's version of natural law was life, liberty, property. Property can be defined as any possession, not just real estate. You can claim your rights as property also. Jefferson chose "pursuit of happiness," which has roots in Aristotle and Aquinas, and more current to Jeff's time, Rousseau's civil religion.

Some say Jefferson objected to property because of slavery, and his "rough draft" of the Declaration included a complaint about slavery, ironically, considering. It didn't make the cut, though.

You can easily and firmly apply property right to being secure in your possessions. It's just not in the natural rights foundation.

Natural Rights exist as an a priori presumption--a universal truth with which all law should conform. The legal rights that are a consequence of law are subject to due process negation.

I figured this piece would be better if it wasn't strictly a send-up of Cain. He opens the door to what is, to most, an interesting observation.

I should add you can imply property rights from liberty and pursuit of happiness, but not as a direct grant.
You could, if you wanted, create your own a priori truths and build a philosophy from that, the thing is Jeff's version is ours.

Beer, Pizza and the pursuit of fish, for example, in the philosophy of Bubba-ism.

-I figured this piece would be better if it wasn't strictly a send-up of Cain. He opens the door to what is, to most, an interesting observation.-

I wanted to make two more comments to this post,

First:

It is unfortunate (or fortunate depending on how you look at it) that a candidate for president would believe that the Declaration of Independence is "in" the Constitution. I believe that you expressed this quite well when you stated that his comments prove that he is "not constitutionally conscious."

Perhaps it would have been better if he had stated "the Principles of the Natural Rights written in the Declaration of Independence should have been enshrined in the constitution," or, "it is my belief that the founders of this country made no distinction between the rights written in the declaration of Independence and the specific rights written in the Bill of Rights." However, he didn't. He should have known better. I do not care who you are, what you look like, what political party you align yourself with, if you make the mistake of revealing a constitutional unconsciousness as a candidate for president, you are going to be under severe scrutiny for such a mistake (whether it is conscious or not).

Second:

What drew me to you post originally was the fact hat you invoked the description of "Legal Positivist" for Scalia, and the plain fact that Scalia does not agree that the Declaration of Independence is Law (as you pointed out above).

I have read some of your other blog posts. You seem to have a wealth of knowledge of constitutional law and political philosophy (given your last few comments my suspicions are confirmed).

I wondering what your viewpoint on John Locke's influence on the founders of this country. I am quite sure that the Memorial and Remonstrance regarding Religious Freedom in Virginia (written by Madison I believe though I could be wrong) was influenced by Locke's Letter Concerning Toleration. Yet I know it is debatable how much he influenced the political philosophy of the founders of the U.S.

I appreciate any feedback if you have time. Your response to my first comment was short, to the point, and answered my question.

Skep,
I won't sell myself as an expert on the subject, but I have studied a lot and then some and understand what I have read and learned. There's a logic to it, same as law. But I only know what I know, and try to stay within what I know. The nice thing about a philosophy is to know it is to be able to see how it gets expressed, and how one can apply reason within it. That's the fun part.

Locke is influential, which is why his letter on toleration helps understand the Establishment Clause. Madison and Jeff's Virginia laws as well, which are linked. Not just avoiding a state religion, but freedom of conscious to believe or not, and therefore laws that govern all based on reason alone--not to say there's no reason within religion or influence on the minds of those who make law, but law doesn't have to align. One cannot be forced to believe, by definition of the word, is one Locke observation. To make law on religion forces belief.
The unifying idea being we can agree on law, but it's impossible to agree on religion. You should read Rousseau's Civil Religion chapter in The Social Contract, as well as the whole of it. Easy Google and great read, same as Locke. Civil Religion is Rousseau combining the concept of natural law with a similar unifying universal, agreed upon by the major 3, generic, foundational statement of religion.
Post-Reformation, there were many religions within a state. States were used to going to war under the banner of state and religion. With many religions within, the danger was civil war. Somebody had to figure out how to agree to get along, and it goes forward from there.
However, other philosophers were influential, looking back before Locke, as Locke did also. I can't cite them all. It's an accumulation of ideas over time, and examples of how governments worked, or didn't. Montesquieu is a good read on that -Spirit of the Laws.
Study can take a lifetime. I know more than I say here, but space and time, ya know...The real point of it all isn't knowing every detail, but knowing reason and applying it to liberty in your own time. No philosophy worthy of the title replaces reason with rules. That's for ideologues.

Paul,

Great response. Although I have read portions of the Civil Contract I will indeed take a look at the chapter regarding civil religion. It has been quite some time since I have read the portions I did and have forgotten most of the contents of it (except the general idea that he was discussing in the work). I have also had the opportunity to read read portions of Montesquieu''s SOL (Cambridge University Press has a great translation), but only portions. The translation I had available made the work more accessible and I hope to eventually finish it someday. Thanks for the feedback. I look forward to reading your future posts.



Thank you again.

God didn't approve of Cain's offering, and thus he had to slay his brother Inable (Huck). Sad to say, that still leaves the seven dwarfs -- Grumpy (Trump), Sleazy (Newt), Dopey (Palin), Creepy (Bachmann), Flippy (Mitt), Sappy (Pawlenty) and Bashful (Huntsman -- if he ever decides) .

Sorry for that excursion, but I permit myself that since I'm just now completing a long-winded post on Scaliaism. Look for Original Sin, opening soon in a nearby neighborhood.

Tom,
Note the 7 Dwarfs are all Snow White.

We can call Scalia the champ of the posivist chimps: See no Life -- Hear no Liberty -- Speak no Happiness.

Leaving Locke, Cain and Abel, Rousseau, and Scalia (!) aside, I'm convinced the Republicans, generally, are of two types: the first type are just charlatans who use the second type, dumb voters, for their own personal and political ends, they being wealth and power.

Our good friend, Jimmy Zuma, has called it accurately: we live in a political world of the smart vs. the stupid. If the stupid ever woke up and saw how they're being disabused of their basic beliefs by their leaders' actions, the debate in this country would be considerably different than it currently is.

The current Democratic Party leadership is not *materially* different. In fact, I would say that they are more subtle than their GOP counterparts and in some ways more effective in preserving the privileges of wealth and power in this country.

There is a critical difference in the two, notwithstanding the above, and that is that Republicans seem to believe that there is little or no need for government interfering with our lives, whereas modern (post-FDR) Democrats believe in the basic notion that the purpose of government is to do for people what they cannot do individually. Every law ever passed which provide for things like Social Security, oversight of rapacious business practices, discrimination, and preserving "the commons" was enacted with bitter objections of the conservative class, Republicans and conservative Democrats alike.

The basic question is whether or not we're better off helping each other out (which means sharing the wealth in some way) or whether individual liberty is absolute, come what may.

Sen. Roy Blunt (R-MO), for example, seems to be somewhat ambivalent on this of late, since, as he thinks taxation and governmental agencies are nothing more than wasteful intrusions into his constituents' lives...all the while yelping for more money from DC (and FEMA) to help the citizens of Joplin recover.

It is wonderfully paradoxical, no?

Wow... very impressive writing skills for a neo-Nazi, white hood wearing Tea Bagger mole.

Is the GOP paying you or are you on the payroll of the Tea Party Patriots?

Or is the Tea Paryt Express paying you to spy on Salon.com ?

You bigoted right wing, religious zealout! Go back to Glen Beck TV where you belong!