The scene: Constitution Hall, Philadelphia, Monday, September 17, 1787, the final day of the Constitutional Convention. Benjamin Franklin, upon leaving the hall, is approached by a certain Eliza Powel, a resident of Philadelphia, who asks what type of political system has been agreed upon.
He answers “a republic, madam, if you can keep it.”
Franklin was aware of the fragility of the consensus just achieved by the framers. He foresaw the inevitable strains attendant to the implementation of the new constitution; and so he expressed in his usual straightforward language the central American anxiety for 1787, for its immediate aftermath, and for all time: the preservation of a unique and delicate structure of governance.
The framers were learned men, as a whole, and well acquainted with the history of Greek and Roman political thought and history. As such, they exhibited the reluctance of the educated classes of their time to expose the levers of power to the demos, the masses. Consequently, the mixed republican structure in the new constitution contained many constraints on the possibility of rule by a simple majority. In his remark Franklin defined the permanent tension in the new republic: how to allow for popular sovereignty, or rule by the majority, while at the same time securing an effective government with protection for minority rights. Keeping the republic meant, above all, preserving the separation of the three principal branches, legislative, executive and judicial, which was essential to prevent the eternal human lust for power from throwing the designed balance of the three out of kilter.
The reader of Scalia Speaks: Reflections on Law, Faith, and a Life Well Lived (Penguin Random House, 2017) will get, among many other valuable insights, a clear and contemporary update on the permanent struggle that Franklin foresaw. The forty-one speeches that constitute the book were chosen by one of Antonin Scalia’s nine children, Christopher J. Scalia, a former professor of English, and Edward Whelan, a former law clerk of the justice. The selection of the speeches was done with an eye to revealing the whole man: devoted Catholic, professor (University of Chicago School of Law), the first Italian-American to sit on the Supreme Court, amateur thespian, lover of opera, veteran of all street games played in Queens, New York by boys of the ’40s and ’50’s, avid turkey hunter, and lover of his country.
In the section of the book titled “On Law”, thirteen speeches are reprinted. In several of them Scalia lays out what to him is the main source of contemporary threats to “keeping the republic”: the abandonment, beginning with the Earl Warren-led Supreme Court (1953-69) of the traditional manner of adjudication used by the Court. That traditional method is termed “originalism” or “textualism,” which looks to the actual wording, or text, of the constitution or of laws duly passed by the Congress as the first, and overriding guide in court decisions. Scalia says the Court itself has, since Warren, adopted the notion of a “living constitution” or “purposivism”as its principle metaphor and counsel. In the pursuit of this idea, the constitution must constantly be adapted to modern times, in accord with “the evolving standards of decency that mark the progress of a maturing society”.1
This new approach, according to Scalia, has disrupted the balance between the law-making, legislative branch and the judiciary. In place of calming political passions by stressing the importance of the original text, due process, and careful avoidance of a direct role in contentious political combat, the courts high and low have entered the law-making arena itself and are now political players in their own right. This is a fatal development, says Scalia because there really is no workable alternative to the traditional approach of “originalism”. Once it has been put aside, there is no anchor point, no lode star, no agreed boundaries to the judicial exercise of power. There is also a diminution of respect for judges as standing outside the hurly-burly of the often-denigrated “sausage-making” of law making.
This is illustrated by the intense, highly politicized confirmation hearings for Supreme Court nominees conducted by the Senate Judiciary Committee. Scalia offers, as examples, some now typical models of exchange in these hearings:
Q: Judge Jones, do you think there is a right to bear arms (or a right to homosexual conduct, or a right to burn the flag—or whatever—fill in your favorite or least favorite right)? Do you think there is such a right in the Constitution?
A: No, Senator, I do not.
Q: You don’t? Well, I think it’s there. (Or, if the answer has been that the right does exist, “Well, I don’t think it’s there, and neither do my constituents.”) And we certainly don’t want somebody with your views, with your lack of sensitivity (or, if the opposite, “your radical philosophy”) sitting on the Supreme Court. (p. 166)
So, instead of being chosen for his or her probity, respect for the law, and skill in legal process, a candidate judge is now chosen with regard to the likelihood, or unlikelihood that he or she will rule as the agent of one or another political faction. And the scene can get brutal. Candidates can be badgered, smeared and subjected to what amounts to a political test of office.
Once in office, activist judges are now susceptible to the same temptations and pressures that all political agents must undergo. One’s place in judicial history now depends on whether and to what degree one has promoted, sustained, blocked or frustrated some aspect of the popular “will.” The temptation implies the need to mine the text of the law or constitution for a way to facilitate the political demand du jour. The result: as in Roe v. Wade, nine unelected law-makers abet the passionate majority by allowing a short-circuiting of the designed processes for deciding highly contentious issues (go convince your fellow citizens of the rightness of your idea, and get a law passed; or, amend the constitution, as was done in the 19th Amendment). Today’s fervid political factions instead hunt for an ideologically sympathetic high court that will give them what they want now, without having to fight it out in the political arena. Further, by avoiding the design of a federated system, a new federal court mandate sweeps away all chance for minority voices to be heard at the state level, where the passion of the current majority might be cooled. Once in place, such a practice erodes public confidence in the process and fails to settle the issue at hand. The ongoing furor over abortion demonstrates this lack of closure.
Scalia points out that underneath the “living constitution” idea lies a fallacy: that societies always evolve toward more freedom, and therefore constitutions must evolve with them or be a drag on human progress. The flaw in such an assumption is made manifest by a glance at the history of the Nazi movement in 1930s Germany, wherein a cultured nation of high scientific achievement and political sophistication was swept away in a maelstrom of aggressive war and unspeakable brutality. The Nuremberg Trials were especially harsh on the judges of the Third Reich, whose infamous anti-Semitic laws made a murderous mockery of judicial independence.
There is another common misconception about the debate between originalists and adherents to the idea of a living constitution. The latter assume that if those of Scalia’s bent were to predominate in the high courts of the nation, the inevitable outcome will be in a conservative, atavistic, direction. But originalism, in the words of one reviewer of books about Scalia, is not predictive of a particular ideological thrust:
Surely, the salient characteristic of originalism, though, is that it doesn’t always yield the conservative result. It may often do so, but it leaves authority with the text, and the text may favor the liberal view.
The reviewer also cites David M. Dorsen, a liberal, non-originalist, atheist legal scholar, a friend and admirer of Scalia, who researched his decisions and then wrote a book that reveals the varied outcomes of Scalia’s opinions.
Reading through the speeches reveals that while Justice Scalia took his role as jurist very seriously, the man Antonin Scalia was someone light of heart, to whom many were drawn. For example, the foreword to the book was written by Justice Ruth Bader Ginsburg, whose juridical views rarely paralleled his:
“My friendship with Judge, later Justice, Scalia was sometimes regarded as puzzling, because we followed distinctly different approaches to the interpretations of legal texts. But on our years together on the D.C. Circuit, there was nothing strange about our fondness for each other.” (p. x)
A bit later, she wrote:
“Most of all, I prized the rare talent Justice Scalia possessed for making even the most sober judge smile. When we sat side by side on the D.C. Circuit, I occasionally pinched myself hard to avoid uncontrollable laughter in response to one of his quips.” (p. xi)
In a speech on the vocation of being a judge, which was delivered at a law school in Peru, Scalia told an anecdote regarding the all too frequent path to a judgeship: being politically connected. The story was
“…about the lawyer who visited the governor’s mansion in the wee hours of the night. ‘I need to talk to the governor,’ pleaded the lawyer. “The governor’s aide finally relented and roused the governor, who came down in his bathrobe”.
‘What is so important that it can’t wait until the morning?’ “the governor grumbled.”
‘It is Judge Jones’, “the breathless lawyer exclaimed”. ‘He has just died and I want to take his place.’ “To this the governor replied”: ‘Well, it’s okay with me if it’s okay with the undertaker.’”(p. 170)
In another speech, delivered at his son Paul’s high school graduation, Scalia remarks that most such addresses are loaded with platitudes. His talk then consisted of the dismissal of several of the most hoary adages, such as “follow your star”, “this is not an end, but a beginning,”, “you are captain of your own ship”, etc. But before he began questioning these shopworn phrases, he mentioned that he had heard that on a similar occasion, the graduating seniors had drawn up a list of the usual boring pieces of advice and passed out a copy to each graduate. The plan, Scalia said, was to check off each old chestnut as it was used, and when a row was completed, up or across, “the whole class would stand up in unison and yell ‘Bingo’!” At the closing of his address, Scalia then said:
“I have high hopes for the Class of ’88, because I know a lot of them, I know some of their teachers, and I know the quality of education in knowledge as well as in goodness that Langley has provided. Good luck, and—let’s see, I had one last platitude around here somewhere; oh, yes— the future is in your hands. BINGO.” (p. 103)
There are many instances throughout the book that give the reader a sense of Scalia’s devotion to his Catholic faith, but one passage will come as a surprise to some. He relates that he is often approached by believers animated by their opposition to Roe v. Wade and the abortion practices it legitimated. These people often praise him for his opposition to Roe, but he gently points out that the praise is perhaps misapplied. His personal opposition to Roe is not the cause of his dissent to the majority’s ruling. Rather, he objects because he believes that no such right to abortion can be arrived at by an originalist examination of the constitution; and furthermore, if such a right was, in his opinion, present in the text of the constitution, he would have affirmed it despite his personal opposition based on Catholic moral grounds.
The last section of the book features reflections on Scalia’s most admired persons. George Washington, his favorite founding father, is praised for his leadership, sacrifice of self for country, and his affection for his native Virginia. Lincoln is revered for his love of the law, the moral obligations of power, and his keen political skills. William Howard Taft, the only person to serve as both President of the United States and Chief Justice of the Supreme Court, is honored as an outstanding jurist, a man of generous, no-hard-feelings demeanor, and, incidentally, somewhat of an originalist.
Scalia is appealing for many reasons, not least for his deep understanding of, and admiration for, the beneficent design of the American political experiment. These are characteristics all the more startling and needed because they are expressed so seldom of late. In the end the best reason for recommending this book is not just because we need to know what the “living constitution” idea has wrought and portends for the future. It is because the generous spirit found in these speeches is especially useful just now due to the deepening fissures in our national consensus, both political and cultural. Middle, majority positions are hollowing out; passionate minorities have at each other in ever more zero-sum fashion. But, God willing, the divisiveness, the atomization of society, and the bleak practices of “bowling alone” will run their course. Meanwhile, there is inspiration in the well-lived life of a happy-hearted champion of his faith, his nation, its people, and the republic worth our keeping.
Scalia Speaks: Reflections on Law, Faith, and Life Well Lived
by Antonin Scalia
Edited by Christopher J. Scalia and Edward Whelan
Foreword by Ruth Bader Ginsburg
Penguin Random House, 2017
Hardcover, 432 pages
1 From Chief Justice Warren in Trop v. Dulles, 356 U.S. 86, 101 (1958).
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