November 01, 2016

The Back Page: The Original Science of the Constitution

Jonathan P. Scoll

Justice Antonin Scalia was uninterested in—indeed, wary of—atmospheric science during the U.S. Supreme Court oral argument in Massachusetts vs. EPA, 549 U.S. 497 (2007). When he mistakenly referred to the stratosphere instead of the troposphere, he curtly waved off a lawyer’s correction: “Troposphere, whatever,” he replied. “I’ve told you before, I’m not a scientist.” As laughter followed, he added, “That’s why I don’t want to have to deal with global warming, to tell you the truth.”

“I’m not a scientist!” later became a Republican climate-denial mantra, to the point of providing fodder for late-night television comedy.

The Scalia exchange is cited in a recent article, The Laws of Science, Constitutional Law, and the Rule of Law, 22 Widener L. Rev. 135 (2015), available at http://ssrn.com/abstract=2799911, by Professor David Hodas of the Widener University Delaware Law School. Professor Hodas advances the thesis that the due process clauses of the federal Constitution prohibit, as arbitrary and irrational, constitutional doctrines, court decisions, and statutes inconsistent with the current state of the physical sciences, e.g., physics, chemistry, biology, and geology.

Professor Hodas documents the founding fathers’ deep interest in the scientific advances of the age. Immersed in their own intellectual lives in the new Newtonian physics and the discoveries of electricity and chemistry, they looked to Enlightenment science for the architecture of the Constitution and embraced the open-ended quest for scientific understanding as a dynamic principle of our federal system.

The founders, he says, sharply distinguished “natural law,” as the expression of a universal human morality derived from religious belief, from the “laws of nature,” which for them meant the principles of the natural (not the human) world. When he drafted the Declaration of Independence, Thomas Jefferson—a deist, lawyer, and careful wordsmith—chose only the phrase “laws of nature,” intending what we now term “science.” Based on their own experiences, both he and Benjamin Franklin, says Professor Hodas, “were acutely sensitive to how dangerous the refusal of politicians and religious leaders to accept scientific fact and the politically motivated espousal of false science could be.”

This had been brought home to Franklin as a teenager in Boston, when religious leaders violently opposed, as contrary to God’s will, an effort to combat a citywide smallpox epidemic through inoculations, even threatening death against doctors who performed them. The consequence was tragedy. Inoculation, young Franklin observed, would have reduced the death toll seven-fold. For the rest of his life, he would espouse energetic public policies based on the best scientific research of the day.

Following Professor Hodas, a “scientific originalism” (my word for it), founded on our constitutional history, may furnish a positive support for climate action. Unlike the fact-challenged conservatives who borrow their name today and defend the dangerous myth that the reality of climate change is still “debatable,” the original Federalists believed that public law and policy should be infused by honest, vigorous, and forward-looking science.

Jonathan P. Scoll

Jonathan Scoll is a member of the editorial board of Natural Resources & Environment. He may be reached at jonscoll@gmail.com.