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Scalia on constitutional and natural law: ‘never the twain shall meet’

Scalia on constitutional and natural law: ‘never the twain shall meet’

by G. Tracy Mehan III | January 26, 2018

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Scalia Speaks. Reflections on Law, Faith, and Life Well Lived  
Foreword: Ruth Bader Ginsburg. Edited by:
Christopher J. Scalia and Edward Whelan. Publisher: Crown Forum. Price: US$30. Length: 420 pages.

George A. Kennedy, one translator of Aristotle’s On Rhetoric, summarizes The Philospher’s (Aquinas’s term) three primary means of persuasion as follows:

“…logical argument is called logos; the projection of the speaker’s character is called ethos; awakening the emotions of the audience is called pathos.”

Readers of the late Supreme Court Justice Antonin Scalia’s legal opinions certainly discern the great jurist’s deployment of logos and ethos, often to crushing effect, with his incisive reasoning, point and counterpoint, biting humor, and sometimes dismissive polemics sure to bring a smile to both opponents and adherents of his jurisprudence of “textualism” or “My shtick” in his words.

Textualism focuses on the original meaning, not intent, publicly understood at the time of constitutional or statutory enactment. Thus, Scalia did not tolerate notions of a “living” constitution or “evolving standards of decency that mark the progress of a maturing society” or other rationalizations for a roving judicial commission to impose judges’ present political preferences on a pluralistic, complex and democratic society.

Hence Justice Scalia’s steadfast opposition to making recourse to self-serving “legislative history,” subjective intent of this or that legislator, or the authority of foreign law, all of which were antithetical to his philosophy of “originalism” grounded in the Founder’s original meaning.

Justice Scalia’s strong polemics, intended to draw clear lines and distinctions, especially in dissent, were meant to educate and persuade future if not present members of the judiciary, congress and the public. But his “rhetoric” in the Aristotelian sense, often lacked the sort of pathos or empathy, including a winning self-deprecation, on display in Scalia Speaks. Reflections on Law, Faith, and Life Well Lived, edited by his son Christopher and his former law clerk, Ed Whelan, now president of the Washington-based Ethics and Public Policy Center.

This is a wonderful collection of Justice Scalia’s numerous lectures, commencement addresses, eulogies and various and sundry speeches. In one volume the reader gets, inter alia, an Italian’s view of the Irish, his take on “The Christian as Cretin,” the benefits of an education at a military high school, the joys of turkey hunting and a sustained explication of the role of virtue in a democratic republic and the true character of leadership as exemplified by his hero, George Washington.

Scalia Speaks offers those of us who did not know the great man personally a fuller picture of this brilliant polymath, husband, father and faithful Catholic with an irrepressible sense of humor, irony, and, again, self-deprecating wit. He clearly worshiped his “Hibernically frank wife, Maureen” and thought deeply on how to educate his children for eternity not just success. He loved being Italian and American.

Scalia’s scintillating opinions and aggressive questioning from the bench during oral arguments got the job done, but there were a lot of bodies lying around, usually those of his judicial colleagues and lawyers arguing before the court. The “liberal” Justice Ruth Bader Ginsburg-colleague, friend and fellow opera lover- writes in her introduction, “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 DC Circuit [a lower court on which both of them served], I occasionally pinched myself hard to avoid uncontrollable laughter in response to one of his quips,” reports Justice Ginsburg. “On the Supreme Court, where we were separated by a few seats, notes he sent my way elicited a similar reaction.”

What a cut-up! It is yet unrecorded how many other judges or learned counsel enjoyed the experience as much as Justice Ginsburg. The humor and pathos in Scalia Speaks provides the explanation how such a fierce advocate and polemicist was as successful at family and friendship as he was at judging.

For this reviewer Justice Scalia’s 1997 address to the annual Day of Remembrance commemoration for victims of the Holocaust in the Rotunda of the US Capitol was quite moving, having had the opportunity to view it on television at the time. He describes his assignment as not an easy one for a non-Jew to undertake.

“I am an outsider speaking to an ancient people about a tragedy of unimaginable proportions that is intensely personal to them … More difficult still, I am not only not a Jew, but I am a Christian and I know that the anti-Semitism of many of my uncomprehending co-religionists, over many centuries, helped to set the stage for the mad tragedy that the National Socialists produced.

“I say uncomprehending co-religionists, not only because my religion teaches that it is wrong to hate anyone, but because it is particularly absurd for a Christian to hate the people of Israel. That is to hate one’s spiritual parents, and to sever one’s roots.”

The late Justice goes on to press the point that the atrocities of the Holocaust occurred in what was, at the time, “the most educated, most progressive, most cultured countries in the world.” He then quotes John Henry Newman that knowledge and virtue are different things, and good sense is not conscience, refinement not humility. Nor does being a gentleman, not a bad thing in itself, sufficient. But, according to Newman, “…they are no guarantee for sanctity or even for conscientiousness; they may attach to the man of the world, to the profligate, to the heartless.”

Scalia then urges the audience, to keep the memory of the Holocaust tragedy

“painfully alive, to prevent its happening again. The latter can be achieved only by acknowledging, and passing on to our children, the existence of absolute, uncompromisable standards of human conduct.

“Mankind has traditionally derived such standards from religion; and the West has derived them from and through the Jews. Those absolute and uncompromisable standards of human conduct will not endure without an effort to make them endure, and it is to that enterprise that we rededicate ourselves today. They are in the Decalogue, and they are in the question put and answered by Micah: ‘What doth the Lord require of thee, but to do justly, to love mercy, and to walk humbly with thy God.”

Logos, ethos, pathos. Pitch perfect.

Still, the core of Scalia Speaks is his judicial philosophy and the role of the judge in deciding constitutional and statutory cases at the highest appellate levels. The section “On Law,” made up of 13 separate speeches, numbering almost 150 pages of the book’s 400 pages. Yet the lay reader should not be deterred from engaging the material. Justice Scalia’s intelligence, command of his subject and his sound rhetorical ear makes a complex matter intelligible and accessible to the literate reader.

Whether decrying the “judge as legislator” with her “lusted-after result,” “abstract moralizing,” the “living constitution,” “judge-moralists,” and the “judicial aristocracy,” Scalia is always on message with his devotion to original meaning, a term he prefers to original intent. The latter he views as limited by the subjectivity of individual legislators or staff as opposed to the objectivity of the meaning, commonly understood at the time, of the constitutional text or statute actually passed by both houses of Congress and signed by the President. He is not a literalist and recognizes the importance of context, but it needs to be tethered to the text itself. At the heart of Scalia’s argument is devotion to democratic principle rather than rule by an unelected elite or “experts.”

For readers interested in exploring Justice Scalia’s legal arguments in greater depth, Princeton University Press has released an updated edition of his concise, classic book, A Matter of Interpretation. Federal Courts and the Law with a foreword by Steven Calabresi and commentaries by experts across the philosophic spectrum including Gordon Wood, Laurence Tribe, Mary Ann Glendon and Ronald Dworkin.

Many conservative or even Catholic readers may be surprised to learn of Scalia’s hostility to the common law (and, presumably, Blackstone) and natural law or natural rights theory carried over into constitutional law. In this he differs from Justice Clarence Thomas who very much views the Declaration of Independence, with its emphasis on unalienable rights endowed by a Creator, as part of the DNA of the American legal system.

This is a debate which parallels the great feud between two political philosophers and disciples of Leo Strauss, Harry Jaffa and Walter Berns, recently chronicled in a fine book, Patriotism Is Not Enough by Steven Hayward. Jaffa, who wrote the definitive account of the Lincoln-Douglas debates, aligns with Justice Thomas. Berns aligns with Justice Scalia. Here is Jaffa as quoted by Hayward:

“How one understands the Constitution will depend utterly upon principles, not stated in the Constitution, that one brings to bear upon its interpretation. And it will be those of principles, not the Constitution itself, that determine the nature of the Union.”

And here is Berns:

“The rule has not yet been formulated that will decide for the judge when he must trust and when must distrust the majority. For, as a matter of fact, some judges are to be trusted and others not.”

So the age-old issue of “the tyranny of the majority” raises its head again. To what extent courts should defer to the will of the majority or not? Jaffa was very much an anti-majoritarian and natural law or natural rights proponent. Scalia, however, grounds so much of his jurisprudence in deference to the will of the majority, expressed in the texts, albeit one embedded in a republican system with checks and balances, separation of powers and a Bill of Rights.

He also makes the case that textualism is a barrier to majoritarian fever given its inherent resistance to contemporary politics and “evolving standards.”

The political philosopher, John Courtney Murray, S.J., writing in his 1960 book, We Hold These Truths: Catholic Reflections on the American Proposition argued that “What ought not to be questioned, however, is that the American Proposition rests on the forthright assertion of a realist epistemology. The sense of the famous phrase is simply this: There are truths, and we hold them, and we here lay them down as the basis and inspiration of the American project, this constitutional commonwealth.” In other words, the Founders thought that “the life of man in society under government is founded on truths, on a certain body of objective truth, universal in its import, accessible to the reason of man, definable, defensible.” Further, Murray stated, “Law is not simply the protection of rights but their source, because it is the foundation of duties.”

Scalia, as a Catholic, personally subscribes to natural law philosophy, but does not recognize it as a legitimate form of constitutional jurisprudence. In the section of the book on “Natural Law,” he opines to an assembly of Dominicans, members of the same religious order as St. Thomas Aquinas, the leading exponent of natural law after Aristotle and Cicero.

While joining them in prayer before and after dinner, he explains the errors of the Angelic Doctor’s view of the judge. Aquinas had a more expansive, 13th century outlook on the role of courts in applying natural law than did Justice Scalia. Scalia basically draws parallels to Aquinas and the late Chief Justice Earl Warren and Justice William O. Brennan, both proponents of an evolving, “living,” and interventionist theory of constitutional interpretation. Recall that Scalia was the first Supreme Court Justice known to have used the word chutzpah in a legal opinion, a trait he displayed before the Order of Preachers that night.

In another talk on “Congressional Power,” he tells the Tea Party Caucus of the House of Representatives, “You should be warned that I will probably be telling you some stuff you do not want to hear. That is part of my charm. I find it not very helpful to tell people things they want to hear, and thus probably already believe.” The Dominican Friars, like the Tea Party Caucus, no doubt appreciated the Justice’s honesty.

Returning to natural law, Scalia professes belief in natural law but believes that should not impact his judging. Says Scalia:

“Now in my view natural law does make its demands upon judges --but not the demand that they render judgments that contradict positive law. Where positive law places judges in the position of being the instrument of evil, the judge must recuse from the case or (if there are many such cases) resign from the bench. Thus, if I were a judge in Nazi Germany, charged with sending Jews and Poles to their death, I would be obliged to resign my office (and perhaps lead a revolution).”

Scalia then distinguishes the case of a Catholic judges who, with respect to legal abortion in America, “merely hold, in accordance with the Supreme Court’s determination of what natural law [sic] requires, that the government cannot prevent that killing.”

For Scalia, Walter Berns, and other originalists, trying to graft natural law or “substantive due process” (as the libertarians suggest) on to the Constitution or positive law, opens up a Pandora’s Box of free-range judging, probably with a greater liberal tilt than proponents of both would like.

“The rule of law will always be second best to the rule of love, but we have to leave the latter to the next world…meantime, we live in an imperfect world that is best governed by the text of laws,” maintains Justice Scalia.

Hadley Arkes, Ney Professor in American Institutions at Amherst College and a leading philosopher of natural law or natural rights jurisprudence, was also a friend and co-parishioner of Justice Scalia.

He does, however, take great exception to the Justice’s view of the matter. Writing in the May 2017 issue of the ecumenical magazine, First Things he criticizes the late Justice Oliver Holmes, Jr., “the Great Dissenter” and someone Scalia quotes often, for his view that “every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.”

Arkes is criticizing the dissenting Justices in Roe v. Wade, the 1973 Supreme Court decision legalizing abortion for 9 months of gestation, overruling laws on most state statute books. He notes that these dissents, while coming down on the right side, the losing one, ignored completely all the science of embryology and evidence for the humanity of the unborn cited in the state of Texas’s very thorough briefs. Instead, they retreated to concepts relating to judicial restraint in the face of competing value judgments and balancing tests. In the context of developing his argument, he raises his disagreement with Scalia.

“Even my dear late friend Antonin Scalia would persistently appeal to principles outside the text precisely for the sake of showing just how the text could be understood in the most plausible way. And so, in one of his last cases, he declared that ‘The first axiom of the First Amendment is this: As a general rule, the state has no power to ban speech on the basis of its content.’ Quite apart from the claim that this proposition stands as an axiom or necessary truth --a claim quite contested-- that ‘axiom’ he mentioned is nowhere contained in the text of the First Amendment.

How then did he claim to know it? To take a line from Alexander Hamilton, Scalia very likely regarded his explanation as something sensible in itself, a point ‘which, antecedent to all reflection or combination, commands the assent of the mind.’ It would stand as one of those ‘primary truths or first principles upon which all subsequent reasonings must depend.’

Which is to say, it was part of those axioms of reason that formed the ground of –whisper it -- the natural law.

Unfortunately, we do not have the vibrant, larger-than-life Antonin Scalia with us to continue the debate with his friend Hadley Arkes. No doubt it will resume in a better place. But we do have a wonderful collection thoughtfully, expertly, lovingly assembled by his son and former law clerk to assist with our reflections on truly pressing questions in the life of the Republic.

G. Tracy Mehan III is Adjunct Professor, Antonin Scalia Law School, George Mason University, Arlington, Virginia.

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