The Jurisprudential Critique of Moral Progress

My post for yesterday suggested that we as a society, and the international law of war, have made substantial moral progress since WWII and even since the Vietnam War. Moving more closely to my area of expertise, I want to explore a linkage between disbelief in moral progress and jurisprudence.

No prominent thinker in American law has been more critical of the notion of moral progress than has Justice Scalia. He has repeatedly ridiculed the notion of "evolving standards of decency" used in the Supreme Court's 8th Amendment jurisprudence and not just because he sees this concept as a way for liberals to import the (squeamish) values of Western Europeans into the interpretation of OUR Constitution, but also because he appears to question the fact of progress. Justice Scalia regards it as a mistake to assume that societies evolve from worse to better. Societies sometimes don't improve; they rot.

There are at least two versions of this point that are consistent with Scalia's overall jurirsprudence. The textualist/originalist version goes like this: Moral progress may well be possible and perhaps over the long run it occurs. But insofar as the law responds to moral progress, it should do so through legislation, not judicial interpretation of open-ended constitutional text. The point of a written Constitution, in this view, is to prevent backsliding. It is an insurance policy against rot, rather than a judicial license to act as the agent of progress. Thus, a good textualist/originalist need not have a view about the possibility or likelihood of moral progress; he only needs a view about the proper institutional setting in which it should be recorded.

One can easily find Scalia (and his fellow travelers) making the textualist/originalist argument against judicial decisions based on moral progress but one can also find him (and some of them) making a stronger point about moral progress. (I leave the finding of the relevant quotations as an exercise for the reader.) The stronger point denies even the possibility of moral progress. Interestingly, there are in turn two versions of the stronger point, and they are dramatically contrary views. One is moral skepticism, a view that questions whether there is any objective reality to statements about morality. On this view, the proposition that slavery is wrong is a proposition not about slavery itself but about (if anything) the tastes, preferences and moral sentiments of persons living in a society that condemns slavery as wrong. Richard Posner advances something like this view in his Holmes lectures and the book based on them, although, as the respondents to the lectures noted, Posner uses the philosophical categories in an unorthodox and somewhat sloppy way.

Whether or not Posner is a moral relativist or a moral skeptic, you can bet your bottom dollar that Scalia is neither. Although he nowhere states the point, Scalia's opposition to the idea of moral progress may well stem from his religious faith. For if you believe that the source of morality is God's Holy Word, then you would be highly unlikely to regard value innovations like equal treatment for those who engage in same-sex intimacy as moral progress. Change in values, insofar as that change moves away from traditional religious values, is, by definition, not progress but rot. (Those who doubt that Scalia believes that religious values define his moral values should review the oral argument in the Ten Commandments cases, in which he asserted that "our laws come from God.")