Too Short for a Blog Post, Too Long for a Tweet 154

Here are a few excerpts from a book I recently read, "Scalia Speaks: Reflections on Law, Faith, and Life Well Lived," by Antonin Scalia.

 

One’s work is not to be taken lightly. Not only because it is a necessary means of putting bread on the table, but because it is perhaps the single most influential factor (apart from your own free will) in determining what kind of people you will be. There is a profound spiritual connection between a human being and his or her work. What we do for a living is at once and the same time an expression of our identity, and a formation of it. It is less true that we are what we eat than that we are what we do to eat. 

Lawyers really have no more interest than anyone else—and no more expertise than anyone else—in what the substance of our laws should be. If you want to know whether deregulation is good or bad, ask an economist. If you want to know whether indeterminate prison sentences are good or bad, ask a criminologist or penologist. What lawyers are good at, what lawyers are for, is implementing these decisions in a manner, through a process, that is fair and reasonable. 

I fear that this characteristic of ours, which is perhaps our most distinctive and profound characteristic, will never be understood by the layman. It is the source of the most common criticism of lawyers: that we can argue both sides of a case. But of course we can—because except to the extent that a client’s interest may be involved, we as lawyers have no interest in a particular outcome, but only in assuring that the outcome be fairly and intelligently arrived at and clearly and precisely expressed!

Movement is not necessarily progress. More important than your obligation to follow your conscience—or at least prior to it—is your obligation to form your conscience correctly. 

The reason, of course, is that a bill of rights has value only if the other part of the constitution—the part that really “constitutes” the organs of government—establishes a structure that is likely to preserve, against the ineradicable human lust for power, the liberties that the bill of rights expresses. If the people value those liberties, the proper constitutional structure will likely result in their preservation even in the absence of a bill of rights; and where that structure does not exist, the mere recitation of the liberties will certainly not preserve them. So while it is entirely appropriate for us Americans to celebrate our wonderful Bill of Rights, we realize (or should realize) that it represents the fruit, and not the roots, of our constitutional tree. The rights it expresses are the reasons that the other provisions exist. But it is those other humdrum provisions—the structural, mechanistic portions of the Constitution that pit, in James Madison’s words, “ambition against ambition,” and make it impossible for any element of government to obtain unchecked power—that convert the Bill of Rights from a paper assurance to a living guarantee. A crowd is much more likely to form behind a banner that reads “Freedom of Speech or Death” than behind one that says “Bicameralism or Fight”; but the latter in fact goes much more to the root of the matter.

The consequences of this phenomenon in the United States have not been good, either for judging or for democracy. As for judging: to get confirmed to a federal court in the United States, one must be nominated by the president and confirmed by the Senate. This used to be, for the most part, a fairly routine process. But it has become a major battleground for the political parties and the interest groups, a major issue in every presidential campaign. When an individual is nominated for a federal judgeship, few Americans care whether the nominee will approach each case with an independence of mind, or a reasoned process of decision-making. Americans care instead about results. Will the nominee, for example, uphold the right to abortion on demand? This trend is an unfortunate one, but it is entirely understandable. Once the vocation of a judge is conceived of as the vocation of the common-law judge, why shouldn’t Americans care what that judge thinks about the moral issues of the day? The result is a nomination process that politicizes the judiciary. 

The judge as legislator has also not been good for democracy. When the vocation of a judge is reduced to simply selecting the best rule, remarkable power is placed in the hands of a few persons who are barely accountable for their decisions. In my country, most judges are given life tenure, and it is almost impossible to get a judge impeached. This was originally designed to give judges some insulation from the public indignation that often accompanies unpopular decisions. But when the vocation of a judge is more akin to that of a lawmaker, such insulation seems remarkably inapt. Moreover, there is no reason to suspect that the justices on my court, for example, are particularly good representatives of the views that a majority of Americans hold. We all live in Washington, D.C., for goodness’ sake—we are totally out of touch with America! And we are all lawyers. Since when would a majority of Americans think that a group of nine lawyers from elite law schools should be entrusted with deciding the “best rules” for all of our countrymen to live by?

Another criticism of originalism—perhaps the most common one—is that it petrifies the law. Thus, the approach set up in opposition to originalism is sometimes called the approach of the “living Constitution”—a constitution that evolves as the needs of society require. Seems very attractive. But if you think that the proponents of a living Constitution are trying to bring you flexibility and the power to change, you should think again. A constitution is designed to provide not flexibility but rigidity—and that is precisely what the proponents of a living Constitution use it for. The originalists’ Constitution permits expansive change when the people desire it. Do you want the death penalty? Elect those who will impose it. Do you abhor the death penalty? Elect those who will abolish it. And you can change your mind. If you find that the murder rate goes up after the abolition of the death penalty, elect those who will reinstitute it. If, however, the living constitutionalists have their way and declare the death penalty unconstitutional, the people’s power to choose is eliminated. No death penalty, period. 

That is what has happened, of course, with abortion. The Constitution says nothing about the subject. It neither forbids (as the pro-choice people claim) nor requires (as the pro-life people claim) restrictions upon it. For two centuries, laws in every state prohibited it, but now, under a living-Constitution theory, it cannot be prohibited. No use trying to persuade your fellow citizens one way or the other about the subject. It has been taken off the democratic stage. And that is, of course, precisely what those who argued for Roe v. Wade desired to achieve. So don’t love the living Constitution because it will bring you flexibility and choice; it will bring you rigidity, which is precisely what it is designed for.

The Europeans, and most other countries of the world, look at our system with something approaching disbelief. One House passes a bill, and the other House, which may be controlled by the other party, disapproves it. Or they both approve it, but the president exercises a veto. This is, they solemnly pronounce, a recipe for gridlock. It is indeed, and our Framers would say hooray. It is precisely that dispersal of power that they believed would be the primary bulwark of minorities against the tyranny of the majority. It does not take much to stop legislation that grievously injures a determined minority. It is easy to throw a monkey wrench into the works. By and large, only legislation with broad support will emerge from the complex system.

There is of course a great irony in this new practice of selecting justices on the basis of what kind of Constitution the People desire. The whole purpose of the Bill of Rights is to protect individuals against the wishes of the people; and in enforcing the restrictions contained in those provisions, the courts act in a decidedly anti-democratic capacity. They tell the people that they cannot do what they would like to do. Thus, to turn the interpretation of the Constitution over to majority opinion is to place the Bill of Rights in the hand of precisely the entity it was meant to protect against.