originalism and moral skepticism

[Volokh, Eugene]

    Hmm, if I were to pick someone who is "a moral skeptic" in the sense
that he denies "that anything is morally inferior," Justice Scalia would
not be on top of my list.  My guess is that he thinks there has been a
considerable amount of moral progress in some areas since ratification
of the Constitution or the Fourteenth Amendment, and a certain amount of
moral regress in other areas; but that surely doesn't make one a moral
skeptic, or someone who denies that anything is morally inferior.
 
    Justice Scalia may at times argue that it's not the judge's job, at
least when interpreting the Constitution, to decide what's morally
inferior and what's not; rather, it's the judge's job to follow the
meaning of the language to the drafters (or, as Scalia often suggests,
the subsequent traditions of the American people) because that's what's
involved in following the law, whether the meaning is morally appealing
or not.  Yet that's a different matter than "denying that anything is
morally inferior," it seems to me.
 
    Eugene


________________________________

	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of MARK STEIN
	Sent: Tuesday, August 22, 2006 12:40 PM
	To: lawcourts-l at usc.edu; conlawprof at lists.ucla.edu
	Subject: originalism and moral skepticism
	
	

	It's easier to be an originalist if you are a moral skeptic.  A
big problem with originalism is that the founders, and even the
post-Civil War re-founders, held what most of us consider to be immoral
views.  One way to finesse this problem is to deny that our
constitutional ancestors were morally inferior, by way of denying that
anything is morally inferior.  Exhibit A:  Justice Scalia.  In several
opinions, he expresses skepticism that there has been moral progress
since ratification of the Constitution or the 14th Amendment.  To some
extent, Scalia and other originalists may be moral reactionaries (they
may endorse the objectionable views of the founders), but I see him more
as a moral skeptic.
	
	Another way to be an originalist is to assume that everything
that was bad about the Founders has been excised through subsequent
constitutional amendments, and that all the rest is good.  But as this
version of originalism admits that originalism can be besmirched by the
moral deficiencies of originators, it may be on shaky ground.
	
	Mark