When Rudy Giuliani says his appointees will be like Justices Antonin Scalia and Clarence Thomas, as if they're peas in a pod, I don't think he has any idea of what he's talking about. True, they often arrive at the same place, but it's by completely different paths, as we shall see.
Scalia is certainly not the ideologue he's made out to be. He believes in a natural law and believes he can discern it, but his position is that the Court (since Erie RR v. Tompkins [304 US 64, 78 (1938)]) is not free to use its own determination of natural law to override legislation. His judicial philosophy is that we have no choice but to achieve a provisional morality (or truth, I imagine) by consensus.
This rides on a kinda Rawlsian acknowledgement of what Aquinas, et al., admitted—-that there is a natural law, but interpretations will vary. Natural law, in all their views, of course must guide legislation. Unless one believes that questions of right and wrong are not germane to how a society orders itself.
These things get abstract to the point of nonsense in a hurry, because some believe the language of "rights" or tradition supersedes right and wrong. Justice Thomas disagrees, in that he would never subordinate his moral conscience to novel but reasonable legal theories or even to stare decisis. This is why John Locke wanted to drum the Catholics out of public life, as their allegience is to something higher than man's law. Scalia, however, would be quite acceptable to Locke, as he appears to have become a "reasonable" man, and stare comes with the performance of his duties.
Surely, using the Bible as “proof” to someone who rejects it is foolish if not tautological. It certainly stands to reason to use the language of the Other while trying to sway him to your position. Natural law was rehabilitated by Catholics in the past century as a lingua franca, and is achieving increasing acceptance by other philosophically-minded Christians as well.
But on the other hand, sometimes a “reasonable” theory of law is inadequate to the task, or the locutor is. That’s why Justice Thomas boldly holds to the asserting natural law, as simple as the statement “slavery is wrong.” Many reasonable men tried to make the reasonable case against slavery over the centuries, but with only a non-foundational view of human rights (i.e., absent the endowed by their Creator part), it was a tough go.
And so, because we are all citizen-rulers in this here democracy, sometimes, joining that Rawlsian consensus that x is wrong is all that remains, regardless of whether the minority thinks the way the judgment was reached is “reasonable.” This is Scalia’s pro-democracy, non-ideological view of law. However, since the Constitution, as a social contract, permitted slavery, Scalia's legal philosophy would be powerless to overturn something like Dred Scott.
Dang. Such are the limits are reason and of law.
To illustrate, we as a society have decided that cruelty to animals is wrong, and have codified that sentiment into law. The abstract “neutral” theories of law that have been bandied about of late cannot reasonably accomodate that sentiment. A bland, neutral reading of property rights yields that animals are property that we can dispose of as we see fit and nobody can say boo.
But that is not society, it is not the law, it is not “rights,” and it’s not reality. Cruelty to animals is wrong because it’s wrong. Sometimes we cannot transcend such tautologies; words and abstractions fail us, yet we ban it anyway. And if Peter Singer and PETA can convince a sufficient number of Americans that meat is murder, so shall it be.
It is often proposed that the Bible must be left at the door when we decide how we should legislate. But it must be noted here that Christians believe revelation is real. If the Constitution is truly neutral on religion, it must be agnostic, not atheistic. If one votes in this here democracy that x is wrong because God said so, that will have to do. Agnosticism must leave the room to answer, maybe He did.
On this, Scalia and Thomas would agree, but for very different reasons. They are not pod people. I find Rudy to be a thorough Lockean; he should adore Scalia, but Thomas should scare the bejesus out of him. Once you get into questions of right or wrong, the sky's the limit.