In Re Antonin Scalia

by George Anastaplo

[August 28, 1997]

If [the] Declaration [of Independence] is not the truth, let us get the statute book in which we find it and tear it out!

—Abraham Lincoln (1858)

 

I.

Justice Scalia visited, in April 1997, the campuses of Loyola University of Chicago.  His talks during his well-received visit drew upon his book, A Matter of Interpretation (1997).

Among the Justice’s public appearances was a convocation, on April 7, 1997, which heard papers by three Loyola faculty members and his response to those papers.  Although Justice Scalia can at times be somewhat unfortunate in the way he expresses himself, I am not concerned here with any personal failings that he like the rest of us may have, but rather with the intellectual failings of several generations of Anglo-American legal scholars who have helped shape his jurisprudence.

Among the things said by me on our April 7th panel, which the Justice was moved to notice, were observations about the pervasiveness of his jurisprudence, about his opinions with respect to the Declaration of Independence, and about the constitutional status of capital punishment.  I will consider briefly each of these topics in turn.

II.

Here is the way I come into Justice Scalia’s response, as recorded in a transcript published in a law-students newspaper at Loyola (“Scalia Answers Critics of Originalism,” Blackacre, April 22, 1997, p. 2):

Let me say a few words about Professor Anastaplo’s remarks.  Gee, I’m glad to know I’m in the mainstream, Professor Anastaplo, it really feels good.  Although, of course, I’m still not in the mainstream of academia.

He then alluded to differences between us about whether homosexuals should be considered “a politically powerful minority” and about whether affirmative action can ever be constitutionally permitted.

We have here, however briefly, the Justice’s recognition of what I had said in the opening and closing passages of the prepared remarks (“On Justice Scalia’s Constitutionalism”) to which he was responding.  Here is the opening passage  (my complete remarks, which were published in Blackacre, May 6, 1997, are appended to this paper):

It is fortunate, considering how accommodating Justice Scalia has been as a much-prized guest of this university, that the questions I am now obliged to pose about the arguments he has made, both in his recently-published book and in his talks here, have little to do with him personally.  What I question is a school of thought of which he happens, for the moment, to be a particularly influential spokesman.  The underlying problem here is with the legal education that has been available in this country since the Second World War, with the more prestigious and hence the more sophisticated the law school one is associated with, the worse the legal training one is likely to receive in critical respects.

The primary criticism I will be making on this occasion can be directed not only at Justice Scalia but also at his critics:  both he and most of them are votaries one way or another of contemporary social science . . .

And here is the closing passage of my prepared remarks of April 7, 1997 (Appendix, Paragraph 13):

The critiques I have collected here are anything but new.  This should again assure us that the reservations I have ventured to express about Justice Scalia’s constitutionalism are directed not against him personally but rather against the dominant scholarly opinion today, a positivistic opinion which our esteemed guest

shares in principle, however much he may dissent on secondary points which are not really as important as they may for the moment appear.

I will say more, further on, about how positivism bears upon the status both of our constitutional documents and of the common law, topics upon which positivists have had much to say for almost two centuries now.

III.

That Justice Scalia is, in effect, a positivist and a legal realist is not likely to be denied by him, whatever aversion he may sometimes happen to have to the use of either of these terms.  Mortimer Adler, in his book Haves Without Have-Nots ([1991], p. 190), suggests

that legal positivism places law on a plane apart from any moral norms.  It regards all such norms as being subjective in nature; thus they cannot be treated as having objective validity.  Positive law, however, in the sense that it is the law of the state, can be ascertained without regard to moral considerations.

Mr. Adler then makes further suggestions about what he considers “the most fundamental issue in the philosophy of law and justice.” (Ibid., p. 195) It is, he says (id.), “the issue between the positivists and the naturalists”– between

  1. a. those who hold that positive or man-made laws are prior to and determine what is deemed to be just and unjust in any community at any time and place and who, accordingly, also hold that what is deemed just and unjust changes with changes in the positive laws and government of a given community; and
  2. b. those who hold that there are principles of natural law, criteria of justice, and natural rights that enable us to determine whether laws and constitutions are just or unjust and, if unjust, in need of rectification and amendment.

He then directs us to Plato’s Republic (ibid., pp. 195-96):

There [we] find the sophist, Thrasymachus, arguing against Socrates, saying that “justice is nothing but the interest of the stronger” and Socrates trying to refute Thrasymachus by defining justice without any regard to the edicts or laws of those with the might to enforce them.

According to Thrasymachus, those with the power to ordain and enforce the laws of the land call those who obey their laws just subjects, and those who disobey them unjust.  The words “just” and “unjust” have no other meaning, certainly no meaning whereby a despotic tyrant or a tyrannical majority, ruling in self-interest, not for the good of the ruled, can be called unjust.

With the statement that justice is nothing but the interest of the stronger, we have the origin of the doctrine that might is right, for those with the might to govern are the only ones who can determine what is right and wrong.

Mr. Adler goes on to trace the opposition between Socrates  and Thrasymachus down to our day in this fashion (ibid., p. 196):

The position taken by Thrasymachus is taken later by the Roman jurisconsult Ulpian for whom “whatever pleases the prince has the force of the law,” and still later by Thomas Hobbes in his Leviathan where he declares that, in any community, what is just and unjust is wholly determined by the positive or man-made laws enacted by those with the power to ordain and enforce them.  In the nineteenth century, the positivist view is advanced by Jeremy Bentham in his Principles of Morals and Legislation, and by John Austin in his Province of Jurisprudence Determined, and in the twentieth century it is advanced by professors in American law schools who call themselves legal realists.

On the other side, the naturalist view initiated by Socrates in his dispute with Thrasymachus finds amplification in Aristotle’s distinction between natural and legal justice; in Cicero’s discussion of [the] natural; in Augustine’s statement that “an unjust law is a law in name only” (representing might without right, power without authority); in Aquinas’s philosophy of law wherein principles of justice are antecedent to, independent of, and applicable to positive or man-made laws; and in the doctrine of modern philosophers, such as John Locke and Immanuel Kant, for whom natural rights preexist positive, man-made laws and become the basis for assessing their justice and injustice.

Mr. Adler,  in his usual systematic fashion,  spells out “the consequences that follow from embracing the positivist or the naturalist side of the issue” (ibid., p. 197):

If the positivist view of the relation between law and justice is correct, it follows:

1. that might is right:

2. that there can be no such thing as the tyranny of the majority;

3. that there are no criteria for judging laws or constitutions as unjust and in need of rectification or amendment;

4. that justice is local and transient, not universal and immutable, but different in       different places and at different times;

5. that positive laws have force only, and no authority, eliciting obedience only through the fear of the punishment that accompanies getting caught in disobeying             them; and

6. that there is no distinction between mala prohibita and mala in se, namely, between

a.   acts that are wrong simply because they are legally prohibited (such as breaches of traffic ordinances) and

b.   acts that are wrong in themselves, whether or not they are prohibited by  positive law (such as murdering human beings or enslaving them).

Mr. Adler then spells out, in opposition to each of these points, “the naturalist view of the relation between law and politics,” beginning with the observation that “might is not right” and that “majorities can be tyrannical and unjust.”  (Ibid., pp. 197-98)

I  notice in passing that it is a curious feature of Justice Scalia’s “makeup” that  he evidently is not aware of how much legal positivism, with its tendency toward moral relativism and away from natural law/natural right doctrines, is discouraged by the Roman Catholicism to which he is known to be a devout adherent.  We can be reminded here of how much one’s religious allegiance is likely to be determined by circumstances.

Circumstances may also have inclined Antonin Scalia to conservatism (just as most liberals may be shaped by their circumstances)–by such circumstances or accidents as temperament, career opportunities, and  political associations, to say nothing of divine providence.  It should at once be added that intellectuals, including some judges, are not as respectful of nature and justice as practicing politicians have to be.

One can see, upon studying Justice Scalia’s arguments, why Harry Jaffa regards such people as unreliable allies as conservatives.  (Liberals, too, can be unreliable in similar ways.)  Indeed, Professor Jaffa can speak of “the mainstream” as a polluted stream.

IV.

I turn now to my differences with Justice Scalia with respect to the Declaration of Independence.

I noticed in my prepared remarks of April 7, 1997 that the legal realist cavalierly disavows the natural-right/natural-law tradition vital to the Anglo-American constitutional system.  I then observed (Appendix, Paragraphs 6-7):

If someone challenges the “wisdom” of our day about the common law–that common law upon which the Constitution rests–it need not be because he is being presumptuous.  Rather, it can merely reflect the reluctance of a true conservative to repudiate the sensible teachings and steady practice by centuries of thoughtful jurists in the Anglo-American legal tradition, a tradition grounded in turn on the natural-right/natural-law tradition that the modern legal realist cavalierly disavows, thereby helping Rome to burn.

This disavowal extends to ignoring the Declaration of Independence in constitutional interpretation, even though that document is identified in the first volume of the United States Statutes at Large as one of the four organic laws of the United States.  Symptomatic of this neglect is the failure of the United States Supreme Court in Brown v. Board of Education (1954) to refer to the Declaration of Independence, even though the ruling in that case redeemed the “created equal” language of the Declaration as it came to be applied in the Fourteenth Amendment.  It will hardly do to say, as Justice Scalia with many others says, that the Constitution is not really “aspirational” in its terms and tone.

Justice Scalia, very much the legal realist, does have quite a different view of this matter (Blackacre, April 22, 1997, p. 2):

I don’t think the Declaration of Independence is part of our law.  It was drafted before the federal government even existed.  The Declaration of Independence, unlike the Constitution, unlike the Bill of Rights, is an aspirational document!  That’s where you hear such wonderful stuff [about] life, liberty, and the pursuit of happiness . . .

The Declaration of Independence is aspirational.  That’s something you inspire people with, it’s not something you go to a law court with.

He then added something which startled several in his Loyola audience, as he went on to insist that he as a judge should have nothing to do with the Declaration of Independence (ibid., p. 2; emphasis added):

The Bill of Rights, on the other hand, has none of that philosophical poppycock in it.  It’s quite precise. “Trial by jury in all civil matters involving more than $20″–that’s not the French Declaration of the Universal Rights of Man.  It’s not aspirational, it’s law!  The Declaration of Independence was not law, so I do not apply it in my opinions.

Any comment I might make about this kind of dismissal of the Declaration of Independence has been anticipated by a comment made by Mortimer Adler (Haves Without Have-Nots, p. 198):

Only on the naturalist view does the great second paragraph of the Declaration of Independence proclaim self-evident truths.  On the positivist view, it is, as Jeremy Bentham claimed at the time, a piece of flamboyant rhetoric, aimed at winning converts to the cause of the rebellion, but without an ounce of truth in its pious proclamations about unalienable rights and how governments, which derive their just powers from the consent of the governed, are formed to make preexisting natural rights more secure.

Philosophical poppycock seems a shorthand way of summing up Bentham’s “flamboyant rhetoric .  .  . without an ounce of truth in its pious proclamations.”  Certainly, Justice Scalia does not seem to appreciate the constitutional system implicit in the Declaration of Independence.  In addition, he has a limited view of what law is–and what it rests upon.  The Declaration of Independence, we must remember, does not purport to create or lay down the law, but rather to reveal and reaffirm it–and it is this that provides the grounding for the Constitution of 1787 and for repeated efforts to improve the Constitution since its ratification.

V.

Or course, Justice Scalia, like most of us, is derivative:  he is not a primary source of the arguments he makes.  Perhaps the most important immediate influence  upon him are Oliver Wendell Holmes, Jr. and his disciples, with the Holmes influence (which can be traced back at least to Thomas Hobbes) transmitted through people such as Felix Frankfurter and Edward H. Levi, and to a lesser extent through Learned Hand and Louis Brandeis.

It has been said of Justice Holmes (G. Edward White, Encyclopedia of the American Constitution [1988] vol. 2, p. 923):

[In] an era that was anxious to perpetuate the illusion that judicial decision making was somehow different from other kinds of official decision making, since judges merely “found” or “declared” law, Holmes demonstrated that judging was inescapably an exercise in policymaking.  This insight was a breath of fresh air in a stale jurisprudential climate.  Against the ponderous intonations of other judges that they were “making no laws, deciding no policy, [and] never entering into the domain of public action,” Holmes offered the theory that they were doing all those things.  American jurisprudence was never the same again.

This recognizes the Holmes contribution to legal realism, an approach which is evident in the opening paragraph of his famous book (The Common Law [1881], emphasis added):

The object of this book is to present a general view of the Common Law.  To accomplish the task, other tools are needed besides logic.  It is something to show that the consistency of a system requires a particular result, but it is not all.  The life of the law has not been logic:  it has been experience.  The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.  The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.  In order to know what it is, we must know what it has been, and what it tends to become.  We must alternately consult history and existing theories of legislation.  But the most difficult labor will be to understand the combination of the two into new products at every stage.  The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.

The emphasis on experience and history in this Holmes book is, in effect, an emphasis on chance, unless there is something to which human beings and their communities look in determining what experiences to have and how to deal with them.  Vital here is the status of nature and a prudence-guided natural right (or natural law) in the Holmes scheme of things, a status which is much lowered if not virtually eliminated, when that scheme is compared with those left us by, say, Cicero and Thomas Aquinas.

It is instructive to try to work out what it means to say, as Holmes does, that logic is to be replaced by experience in accounting for what the law is and does.  Is the disparagement of logic in effect to turn away from reasoning about nature as the source of guidance about how we should act?  Much is made in Holmes’s  Common Law of expediency and policy, little if anything of justice and the common good.  Again, we are being asked to be realistic.  And again, Mortimer Adler can be useful, reminding us of what Justice Holmes, “the founding father of the school of legal realists,” defines law to be (Haves Without Have-Nots, p. 212):

What constitutes the law?  You will find some text writers telling you that . . . it is a system of reason, that it is a deduction from principles of ethics or admitted axioms, or what not, which may or may not coincide with the decisions [of courts].  But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or the deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact.  I am much of his mind.  The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. [O. W. Holmes, “The Path of the Law,” Collected Legal Papers [1920], pp. 167, 172-73]

This is the sort of approach, which sees law as very much dependent upon calculation, which Justice Scalia and others of his disposition have picked up.  One consequence is an often exaggerated reliance upon economic analysis for an understanding of the law and of what judges do.

VI.

Among the other consequence of this approach is the failure to appreciate how much the Tenth Amendment is merely declaratory.  Related to this is the failure to appreciate what the Ninth Amendment says, in effect, about the enduring authority (independent of the Constitution) of all, or almost all, of the rights found in the Constitution and the Bill of Rights.  (All this is aside from the problem of the extent and consequences of judicial review of acts of Congress.  The rights “saved” by the Ninth Amendment, it does seem to be indicated in that Amendment, are to be respected in much the same way as are the rights “enumerated” in the Constitution.)

Legal positivism tends to lead to an insensitive reading of the Constitution and, depending upon the temperament and political inclinations of an interpreter, to an unreliable assessment of the powers of the Government of the United States.  The Anti-Federalists were correct in noticing in 1787-1789 that the scope of the powers available to the proposed national government was virtually unlimited, something that the more astute nationalists also recognized from the beginning.  Recent cases such as National League of Cities v. Usery (1976), United States v. Lopez (1995), and Printz v. United States (1997) can be little more than temporary obstacles in the way of exercising the considerable national power required in contemporary circumstances.

More serious are such cases as Erie Railroad Company v. Tompkins (1938) which ratify and reinforce an abandonment of an understanding of the common law which is grounded in nature.  Erie, I have suggested, “exhibits a curious form of judicial suicide.”  (Appendix, Paragraph 5)  It remains to be appreciated how much Justice Holmes shot down with his notorious attack upon his “brooding omnipresence in the sky.”

VII.

The third matter in my remarks of  April 7, 1997 that Justice Scalia challenged was the issue of capital punishment.  Here is what I had said in my prepared remarks (Appendix, Paragraph 9):

The way that Justice Scalia reads and uses the Declaration of Independence, the Constitution, and the Fourteenth Amendment (which does include a much-neglected Privileges and Immunities Clause) is far too mechanical.  But, then, he can be rather mechanical in questioning such constitutional challenges as those made to capital punishment today.  Is it not possible that radical changes in sensibilities, practices, or penology since 1791 have made capital punishment seem “cruel and unusual,” however much the Framers of the Constitution took capital punishment for granted?  Also relevant here is whether death sentences are now distributed in such a way as to be either arbitrary or racially discriminatory, which would pose special problems under the Fifth and Fourteenth Amendments.  Terms such as “unreasonable” in the Fourth Amendment and “cruel and unusual” in the Eighth Amendment do have to be seen somewhat in the light of the circumstances and experiences of one’s day.  (All this is related to how the common law should be regarded and developed.)

And here is the Justice’s response, which left me (as does his Interpretation book on this point) somewhat confused as to both its meaning and its practical implications (Blackacre, April 22, 1997, p. 2):

Professor Anastaplo thinks “cruel and unusual “may not mean the same today as it did before.  Well, I suppose we may not think it cruel today when they may have before.  Why does it have to be a one-way street?  Do you think that maybe the framers had it in their minds to really oppose cruel and unusual punishments–not any particular ones.  We just don’t want punishments to be cruel and unusual, whatever that might mean?  If a future generation might think that thumbscrews are not cruel and unusual, and we think they are, then that’s okay.  The only thing we’re really against is cruel and unusual, in the abstract.  That’s surely not what they meant.  They meant to stop those things that they found abhorrent in the future, not just an invitation to the courts to make up the rules from age to age.

How is the language of 1787 to be read?  Constitutional terms such as Commerce and Army and Navy now have a much broader scope, in a sense, than they did two centuries ago.  They, and other terms, do depend somewhat upon circumstances.  This includes the vital terms in the Due Process Clauses:  the process that is due may depend upon legislation as well as upon changing customs.

Should we be surprised by the argument that the Framers expected that what was considered cruel might change with the times?  Certainly, this had changed in the Framers’ own lifetime.  Certainly, also, when unusual is spoken of, that does seem to suggest that bearings might properly to taken by what was usual–and might not that change from time to time?

The Framers might even have found relevant, in considering what is indeed cruel and unusual (and hence questionable) here, what is done around the world about capital punishment.  The more civilized countries of the West seem to have abandoned it, by and large (except, of course, for the United States), while the most extensive tyranny on earth today is steadily increasing the number of its executions (with some six thousand last year).  That there are serious problems with how we mete out capital punishment is suggested not only by the recent American Bar Association call for a moratorium on executions in this country but also by the reservations that have been expressed in Illinois by experienced lawyers (including respected former prosecutors).

VIII.

One concern I have here is that Justice Scalia and his cohorts may give what is now called  “originalism” a bad name, just as early in this century other so-called conservatives gave “natural law” a bad name.  My argument about how to read the Constitution may be found in three of my books:  The Constitutionalist:  Notes on the First Amendment (1971); The Constitution of 1787:  A Commentary (1989); The Amendments to the Constitution:  A Commentary (1995). See, also, my “Don Quixote and the Constitution” in the Wilson-Masugi collection, The Supreme Court and American Constitutionalism (1998).  See, on natural law/natural right, my article in volume 38 of the Loyola of New Orleans Law Review (1993), my article in the 1997 volume of The Great Ideas Today, and my book The American Moralist (1992) (which includes a discussion of capital punishment).  See, on “racism” and “political correctness,” my collection of documents in volume 42 of the South Dakota Law Review (1997).  At the foundation of all these reflections and arguments may be the doctrine of the Ideas examined in my book, The Thinker as Artist (1997). [See, also, the three Reflections volumes of “Constitutional Sonnets” published by the University Press of Kentucky (2006, 2007, 2008).]

At the heart of the problem here is the fact that the best things are not being read by these “conservative” polemicists.  Nor do they really study the Constitution.  The most that they might rely upon is the Federalist–but that is a tricky set of essays to work with, however instructive they can be for someone who studies them properly in their New York political context.

The grounding of Justice Scalia’s polemics sometimes seems to be a determined individualism.  This may be seen in the example resorted to by him in describing where he draws a line against government interference (though not a line to be drawn in his capacity as a judge)  (Blackacre, April 22, 1997, p. 5):

Do I believe that there are other rights besides those listed in the Bill or Rights?  You bet I do.  And I will take to the barricades if somebody tries to take away some of those rights.

For example, the right to have my children educated according to my wishes, to have the values I want imparted to them, and not those of Big Brother.  And if the government tries to take that away from me, I will take up arms against it if I have any arms left.

One may well begin a critique here by considering the use of such terms as values and Big Brother.  Underlying this grounding in a radical individualism is a questionable opinion about the role of the community in the shaping of the morals of its citizens, including those of one’s own children.  A good deal can be said, that is, for the legislation of morality.  It should suffice on this occasion to notice that the Scalia declaration of independence may be unduly self-centered as well as ultimately destructive of an ethical community. For example, his declaration fails to recognize such factors as the role of the community in establishing “values” and even in determining who one’s children are for various purposes. In this failing Justice Scalia can be likened to the more extreme “pro-choice” advocates.

IX.

Antonin Scalia is considered a Republican; a few can even speak of him as a serious political candidate for the Party.  But I am amazed by how little he has been influenced by the greatest Republican of them all, Abraham Lincoln.  Lincoln would stoutly resist the kind of talk we have heard disparaging the Declaration of Independence, and the talk we have heard about a separation, in effect, of law from morality.  Thus he observed, in his July 4, 1861 message to Congress, that “nothing should ever be implied as law which leads to unjust or absurd consequences.”

But then, Oliver Wendell Holmes, who served gallantly during the Civil War–and on the right side–was himself curiously unaffected by the best of Abraham Lincoln’s thought.  How this “tone deafness,” in Justice Holmes and his disciples down to our day, is to be understood remains a mystery that might well be investigated on another occasion.

 

Appendix

JUSTICE SCALIA’S CONSTITUTIONALISM

George Anastaplo

[April 7, 1997]

Only a great fool would call the new political science diabolic:  it has no attributes peculiar to fallen angels.  It is not even Machiavellian, for Machiavelli’s teaching was graceful, subtle, and colorful.  Nor is it Neronian.  Nevertheless one may say of it that it fiddles while Rome burns.  It is excused by two facts:  it does  not know that it fiddles, and it does not know that Rome burns.

–Leo Strauss (1961)

It is fortunate, considering how accommodating Justice Scalia has been as a much-prized guest of this university, that the questions I am now obliged to pose about the arguments he has made, both in his recently-published book and in his talks here, have little to do with him personally.  What I question is a school of thought of which he happens, for the moment, to be a particularly influential spokesman.  The underlying problem here is with the legal education that has been available in this country since the Second World War, with the more prestigious and hence the more sophisticated the law school one is associated with, the worst the legal training one is likely to receive in critical respects.

The primary criticism I will be making on this occasion can be directed not only at Justice Scalia but also at his critics:  both he and most of them are votaries one way or another of contemporary social science and hence “the new political science.”  I will, in developing my criticism, limit myself to brief observations about three interrelated matters discussed by Justice Scalia in his book, A Matter of Interpretation (1997):  the common law, constitutional interpretation, and public policy.  (See, also, Anastaplo, “Bork on Bork,” 84 Northwestern University Law Review 1142 [1990].)

My observations are informed by what I perceive to be at the core of the failings and hence the fiddling of most legal scholarship today.  Illustrative of these failings is how the 1892 case of Church of the Holy Trinity v. United States is dealt with by Justice Scalia in his book.  We can, if necessary, consider in our discussion period the Congressional statute interpreted in the Holy Trinity case–but nothing more needs to be said at this point about that legislation, except to notice that Justice Scalia argues that the statute was deliberately misconstrued a century ago by the Supreme Court in order to achieve a result that the Justices liked better than what would have followed from applying literally what Congress had ordained.

Justice Scalia sees this case as an early experiment in what he considers to have become a massive abuse:  more and more reliance by lawyers and judges upon “legislative history” in place of the plain words of the relevant legislation.  But when one consults the 1892 Holy Trinity opinion itself (for a unanimous Court), one finds something far more important for us today than the details of the particular case–and that is what was taken for granted by the Court (as well as by the attorneys for both parties), the principle that reasonableness and common sense (with a view to justice and the general welfare) should be used to avoid absurd results in judicial proceedings.  This principle was not the invention of that 1892 Court.  Rather, the Court invoked longstanding and highly-respected authority in support of its approach.

This approach is grounded in the common law, but a common law quite different from that described by Justice Scalia in his book.  He, in the manner of Twentieth Century legal realists, repudiates the old-fashioned notion that the judges did not make the common law but rather found it.  What ends up decisive in this “realistic” view of things is not the reason but rather the will of the judge.  One consequence of this social-science approach is what the Supreme Court did (long before Justice Scalia) in establishing the doctrine of Erie Railroad Company v. Tompkins, a 1938 case that exhibits a curious form of judicial suicide.  It is this approach which can contribute to an inability to appreciate the merits and power of what is said in the Holy Trinity case, and in the venerable authorities quoted there, about the role of reason in judicial determinations.  To make as much as Justice Scalia and others now do of will, in the actions of common-law judges, is in effect to approve of them as legislators.  (See, on the common law, Anastaplo, The Constitution of 1787 [1989], p. 332.)

If someone challenges the “wisdom” of our day about the common law–that common law upon which the Constitution rests–it need not be because he is being presumptuous.  Rather, it can merely reflect the reluctance of a true conservative to repudiate the sensible teachings and steady practice by centuries of thoughtful jurists in the Anglo-American legal tradition, a tradition grounded in turn on the natural-right/natural-law tradition that the modern legal realist cavalierly disavows, thereby helping Rome to burn.

This disavowal extends to ignoring the Declaration of Independence in constitutional interpretation, even though that document is identified in the first volume of the United States Statutes at Large as one of the four organic laws of the United States.  Symptomatic of this neglect is the failure of the United States Supreme Court in Brown v. Board of Education (1954) to refer to the Declaration of Independence, even though the ruling in that case redeemed the “created equal” language of the Declaration as it came to be applied in the Fourteenth Amendment.  It will hardly do to say, as Justice Scalia with many others says, that the Constitution is not really “aspirational” in its terms and tone.

Justice Scalia regards himself, of course, as a textualist and originalist–and it is salutary to have so distinguished a champion of reliance upon the document itself.  It would be even more salutary to have that reliance be sound and persuasive when it gets down to specifics.  Thus, Justice Scalia speaks of the Bill of Rights as having “certainly caused the federal powers conferred by the original body of the document to be more limited than they originally were.”  (p. 141).  There is little if any evidence, however, to support this assertion.  The one thing that the framers of the Bill of Rights were determined to do, which is obvious upon surveying the dozens upon dozens of proposed amendments to the Constitution which they systematically rejected, was to leave the powers of the national government unimpaired–and this they succeeded in doing.  (See, for example, Anastaplo, The Amendments to the Constitution [1995], pp. 298-314.)  Indeed, for the most part, the Bill of Rights affirmed rights already recognized and enjoyed by the American people.  (This is eloquently testified to by the Ninth Amendment.)  The rights recognized by the Bill of Rights probably should have been considered also applicable against the States from the beginning–and they would certainly come to be considered thus as one result of the Civil War.

The way that Justice Scalia reads and uses the Declaration of Independence, the Constitution, and the Fourteenth Amendment (which does include a much-neglected Privileges and Immunities Clause) is far too mechanical.  But, then, he can be rather mechanical in questioning such constitutional challenges as those made to capital punishment today.  Is it not possible that radical changes in sensibilities, practices, or penology since 1791 have made capital punishment seem “cruel and unusual,” however much the Framers of the Constitution took capital punishment for granted?  Also relevant here is whether death sentences are now distributed in such a way as to be either arbitrary or racially discriminatory, which would pose special problems under the Fifth and Fourteenth Amendments.  Terms such as “unreasonable” in the Fourth Amendment and “cruel and unusual” in the Eighth Amendment do have to be seen somewhat in the light of the circumstances and experiences of one’s day.  (All this is related to how the common law should be regarded and developed.)

Although I have long been sympathetic to the kind of concern Justice Scalia has expressed about judicial legislation, I must dissent from his lamentation about what has been done to cripple the powers of government (and hence, in effect, the powers of the community) by courts and their apologists.  But, just as no amendment to the Constitution has ever cut down any significant power intended by the Framers for the national government, so few if any judicial rulings have permanently deprived that government of any significant powers.

Whatever Justice Scalia may happen to believe, government today is more powerful in effect than it ever has been in this country, perhaps necessarily so.  The problem is not with the acknowledged powers of government but rather with the judgment of the people as to whether and how those powers should be used.  Thus, for example, just as there was always the power in the national government to abolish the destructive “interstate” traffic in slaves, so there is now the power (but hardly the political will) to abolish television, that glorified fiddling which subverts our institutions (including our influential sports) and enslaves our citizens.

Justice Scalia misconceives the problems here when he decries, as he does in his book, the current tyranny by a powerful few.  But, then, we can recall how he spoke last year, in his Romer v. Evans dissenting opinion, of still-highly-vulnerable homosexuals in this country as “a politically powerful minority.”  We are verging, with such talk, upon the absurdity that the Court in Holy Trinity suggested we should be sensitive to.  Also absurd, and in some ways irresponsible, are some of the things we are  hearing these days to the effect that affirmative-action measures can never be properly used in good-faith efforts to minister to chronic and even dangerous racial disparities.

The critiques I have collected here are anything but new.  This should again assure us that the reservations I have ventured to express about Justice Scalia’s constitutionalism are directed not against him personally but rather against the dominant scholarly opinion today, a positivistic opinion which our esteemed guest shares in principle, however much he may dissent on secondary points which are not really as important as they may for the moment appear.

 

George Anastaplo is Professor of Law, Loyola University of Chicago;

Lecturer in the Liberal Arts, The University of Chicago; and Professor

Emeritus of Political Science and of Philosophy, Dominican University.

 

The remarks, “On Justice Scalia’s Constitutionalism,” were prepared for a Conference with Justice Antonin Scalia, Loyola University of Chicago, Chicago, Illinois, April 7, 1997.

The remarks, “In re Antonin Scalia,” were prepared for a Roundtable on Antonin Scalia, Claremont Institute for the Study of Statesmanship, . American Political Science Association Convention, Washington, D.C., August 28, 1997.

 

 

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