Law & Mediation

At first it might appear that the Integral framework would not work with something as tradition-bound and slow-moving as the law.  Yet since I discovered the framework in the mid-1980s, I have utilized it in every facet of my practice, and I am seeing how the entire Western legal community is embracing some of the perspectives that Integral thinkers would appreciate.

This section will be devoted to discovering those aspects, from litigation to mediation to transformative justice.

Of all the domains of human knowledge, law is a conservative one that has been designed to transcend and include slowly.  Western jurisprudence begins with Hammurabi's code and the legal system handed down from the Torah, then through the Roman period on through the Middle Ages, the Renaissance, and the period of scientific discovery.  Ostensibly when someone is picked as a jurist, the appointing and confirming bodies would like to know which end of the evolutionary spectrum, from statis quo to progressive, the candidate fits into.  

Recently the United States has seen a full-court press to push back before the new Deal era of progressive jurisprudence, and under both Presidents Bush we have seen a pushback of unprecedented proportions.  "Conservtive" Justice Scalia is said to be the most strident and brilliant of them and he has clothed his reaction to the New Deal and Warren courts in what he and others label "original intent".  The introduction to my paper analyzing this position is offered below, and the full paper will be on-line by the end of the year.

WHO IS AN IDIOT, AND OTHER CONSTITUTIONAL ISSUES

Speaking at a gathering of American conservatives February 2006, the US Supreme Court Associate Justice Antonin Scalia said that people who believe in a “living Constitution”, that is, a belief that the United States Constitution should be interpreted differently to reflect societal trends, are “idiots”. (www.lifesite.net/ldn/2006 <http://www.lifesite.net/ldn/2006> )  This is but one of many such acerbic comments for which the Justice is famous, and other than causing either consternation or approval, it might be dismissed as having any larger significance.

On the contrary, this articulation of American Constitutional interpretation represents a critical. contemporary issue for existing and emerging democracies.  Britain is still experimenting with a constitutional court that fits into its society and expectations.  Nations of the former Soviet Union routinely ask for assistance from American constitutional experts, and the attempt to create a constitutionally-derived government in Iraq is but the latest attempt to transplant American constitutionalism.(lrb.veriovps.co.uk)

The currents of constitutionalism coursing through America should thus be of concern to and understood by the global community.  The latest changes on the Court, the first new Justices since 1994, and the possibility of a new majority as a result, should also be of interest, since it brings to the fore the very concept of a written Consti tution, democratic government, majoritarianism and counter-majoritarianism.  Under these heady terms are the core questions, what is the law versus what is a written constitution?  This begs further investigation into how the law and a constitution should be interpreted, by whom, according to what standard, and, to deal with Justice Scalia’s concern, how can the interpretations of the law and the constitution evolve?

Americans utilize a variety of means by which to interpret their Constitution, including, over the years, schools of thought known as:  Originalism, Original Intent, Modernism/Instrumentalism, Historical Literalists, Contemporary Literalists, and Democratic/Normative/Representational reinforcement. [which schools should we use?] www.usconstitution.net/consstop_intr.html
 
It is not the purpose of this paper to utilize one of these interpretive methodologies to analyze the others; rather, this paper will utilize an AQAL methodology to consider the deeper meanings of law and constitutional interpretation, down to the root issue of who, exactly are “WE THE PEOPLE”.

 
Upon surveying the myriad ways by which the Constitution can be studied and interpreted, the reader most likely will jump to the last page, wondering, “Which one of those is seen in the AQAL approach as the most acceptable or correct?”  We ask patience from the reader, and hint that our final page will not answer that question; ra ther, it will explore the structure of what the many interpreters of the Constitution and law have dubbed “reality” that permits this wonderful profusion of views.  Known as Integral Methodological Pluralism (IMP), we shall be honoring and including many important means by which the American legal system functions.  And since we are limiting our inquiry to American constitutional law, we may focus on the four most basic dimensions of being-in-the-world that have become embedded in the natural languages from which US law evolved, known as the four quadrants

Our methodology, IMP, involves, among other things, “at least 8 fundamental and apparently irreducible methodologies, injunctions, or paradigms for gaining reproducible knowledge (or verifiably repeatable experiences).  The fundamental claim of AQAL Integral Theory is that any approach that leaves out any of these 8 paradigms is a less-than-adequate approach according to available and reliable human knowledge at this time.” (Wilber, 2005)  We will explore the 8 major methodologies by which we can assess and analyze the 8 fundamental perspectives.  Most of20these methodologies will not be familiar avenues for American constitutional law scholars, and some explanation must be advanced for their inclusion in this study.

Even thought this might be a novel way to approach constitutional interpretation, the 8 perspectives and the methodologies that they employ can be applied to the most common schools of interpretation by fitting them into our existing schema.

Thus, the exercises necessary to understand the fundamental imbeddedness of the 8 perspectives in our awareness leads us to the conclusion that what we are looking at is “perspectives on perspectives on perspectives.” (Wilber, 2005)  And that leaves us staring into a “funhouse” mirror, where “things”, structures, processes, texts and constitutions are not “reality” as either pre-modern or modern legal theorists might hold.  All of these theories, even cross-culturally, are first perspectives, and we cannot even discuss them without first assuming one of the 8 perspectives.  For this simple reason, all jurists in addition to Scalia had to first adopt one of the 8 perspectives.
 
One core exposition of differing constitutional interpretations is what has become known as the “Meese-Brennan debates”, although in actuality, the two men spoke at different venues in different years.  Meese, at the time Attorney-General, began his essay by stating quite rightly that “A large part of American history has been the history of constitutional debate” and that an entry to such interpretation has to take into account that it is a written document, as opposed to common law systems.  This is significant, he offers, in that the presumption of a written document is that “it conveys meaning”, as opposed to what might otherwise be indefinite and tacit.
 
Meese bolsters his perspective on the higher order significance of a written constitution by the fact that those who framed the document “chose their words carefully”, provided us with an instructive text and structure about the powers of this government, and “debated at great length the most minute points”.  The ratifying conventions, he continues, also studied the text with great care.
 
Meese notes that in some areas the document is ‘exactingly specific”, yet it also contains particular principles that “reflect the deepest purpose of the Constitution”.  He quotes Justice Story in stating that, like contract law, it is incumbent upon later generations to construe this document “according to the sense of the terms, and the intentions of the parties”.

His original intent methodology leaves us with a three-part scheme:

1)  obey any specific language
2)  where there is a demonstrable consensus among the framers and ratifiers as to a stated or implied principle, it should be followed
3)  where ambiguity exists it is to be interpreted so as not to contradict the text.
 
Meese is saddened by the more recent attempt to do “violence” to the Constitution by focusing not on its words, but on its “so-called ‘spirit’’. ‘vision’, or ‘concepts of human dignity’”.
 
 Scalia spoke in a similar tone when he stated the following:
 
“Central to that analysis [of M arbury v. Madison], it seems to me, is the perception that the Constitution, though it has an effect superior to other laws, is in its nature the sort of "law" that is the business of the courts -- an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law.” (Scalia—“On Originalism”
http://www.joink.com/homes/users/ninoville/lesserevil.asp)


But his decision to adopt that perspective and to then translate that into the theory of originalism did not spring whole-bodied from “On High”, with all of the ontological baggage that such a presumption incurs.  The post-moderninsts whom he derides put forth an important understanding that “all perspectives are embedded in bodies and in cultures”, even the ones presuming that such wisdom came from a “higher source”.  
 
As an important contributor to the small but influential school of originalism, Scalia’s attraction to this particular theory and his derision of all others should be teased apart and placed through the IMP lens.  Critics mistake his position when they accuse him of attempting to foment a theocracy on the US legal system; but he has not been transparent with himself or others when he attempts to harbor one perspective while denying that that particular perspective leads him to a lock-step by which he makes constitutional interpretations and thus decisions.  We will not delve into dubious areas of attributing specific life events to molding his judicial philosophy, but neither will we ignore his own words on what has informed his perspectives as a jurist.
 
Antonin Scalia has demonstrated great outrage at the modernists and post-modernists who focused on the Right-Hand quadrants while denying the Upper-Left quadran t, with its beliefs and spiritual experiences. In the course of reviewing Steven D. Smith’s book, Law’s Quandry, Scalia lamented, “As one reaches the end of the book,…he (she?) is sorely tempted to leap up and cry out, “Say it, man! Say it!  Say the G-word! G-G-G-G-God!” Surely even academics can accept, as a hypothetical author, a hypothetical God!  Textualists, being content with a “modest” judicial role, do not have to call in the Almighty to eliminate their philosophical confusion.  But Smith may be right that a more ambitious judicial approach demands what might be called a dues ex hypothesi”. (Books in Review, June/July 2005
 
In one speech he stated, “It seems to me that the reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should be not resignation to it but resolution to combat it as effectively as possible, and a principal way of combating it, in my view, is constant public reminder that – in the words of one of the Supreme Court’s religion cases in the days when we understood the religion clauses better than I think we now do – “we are a religious people whose institutions presuppose a supreme being.””

There is no way of knowing with certainty what stage or altitude Scalia’s religious, cognitive, moral or spiritual lines have reached, which would, indeed, have a significant effect on how we are to discern and interpret Scalia’s Originalism.  Take Kohlberg’s approach to moral development when he asked about the morality of stealing: “A poor man is married to a woman who has a terminal illness that an expensive medicine can cure.  Does he have the right to steal the medicine?”  The three types of answers he received were dependent upon the moral altitude of the respondent, which Integral Theory refers to as egocentric, ethnocentric, and worldcentric.  Scalia offers us insight into his altitude in many of his comments.

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