Monday, October 8, 2012

Scalia's law.

In the chapter on truth in my recently published e-book, Transcenders, I wrote,
In February of 2005 Justice Antonin Scalia admonished a lawyer from the bench for saying the Ten Commandments (whose placement on public ground was in question) “were a foundation of American Law”, by stating rather that “[our] Law…comes from God.”  He was imposing a pretty substantial claim for the Constitution.
This was of course said in the context of the 50 Million plus of us who have left religion behind.  But I was reminded of it when reading about Scalia’s new book, Reading Law: The Interpretation of Legal Texts, and in watching several of his related TV appearances.

In one such interview, the Justice told Margaret Warner of The News Hour, “I have been very much devoted to textualism and to that branch of textualism that's called originalism. That is, you not only use the text, but you give the text the meaning it had when it was adopted by the Congress, or by the people, if it's a constitutional provision.” 

Antonin Scalia, in large measure because of his outsized personality on and off the bench, has become the emblematic judicial conservative, perhaps more so than any other in modern times.  Nonetheless, the fact that he is such a hero to political right — he would not deny being one of them — may be only secondary to what makes him tick philosophically, a bi-product not the root cause.  I’d suggest that his 2005 pronouncement about the foundation of American law is especially revealing.  In fact, it opens an essential window into the underlying foundation of textualism — more a religious than political orientation.

Scalia, like five other members of the Court is a Roman Catholic.  Lest I be misunderstood, his or any other member’s faith (three current justices are Jewish) has absolutely to bearing on his qualifications to serve and to do so honorably.  How we perceive Scalia or any other justice for that matter may be colored by our own political or philosophical point of view, but that judgment (certainly in my case) has nothing to do with questioning his integrity.

Even so, we are all influenced by our roots and more importantly by our core beliefs.  That doesn’t necessarily mean we will decide everything in the same way, but our worldview can’t help but impact on our actions.  The degree of that influence and orientation may differ from one person to another.  Some in public life consciously seek to set aside their personal belief system in matters of general concern, actions that will affect those of different beliefs.  Loyal Roman Catholics like Joe Biden and Andrew Cuomo are pro-choice even though their church opposes contraception and abortion.  In contrast, Scalia, who once portrayed himself to 60 Minutes “an old-fashioned Catholic”, is vehemently opposed Roe and continues to say that he hopes it will be overturned, obviously with some assist from him.

Scalia is largely a product of Jesuit education and the father of nine including a priest.  The Justice, as reported in a Huffington Post article by Joan Biskubic (who has written a book on him) is “passionate about his religion”.   She notes, “Scalia has spoken publicly about the importance of fidelity to the Church's traditional values, such as saying the Rosary and observance of all holy days”.  At the same time, and despite readily admitting how personally important his faith is, Scalia asserts, "I have religious views on the subject.  But they have nothing whatsoever to do with my job."  That may be hard to substantiate especially with regard to abortion, but let’s for the moment take his statement at face value.  My purpose here is not challenge Scalia’s integrity but to understand where he’s coming from.

Looking at our contemporary politics there seems an unmistakable correlation between religious fundamentalism — Christian, Jewish or Muslim — and political, often extreme, conservatism.  In the last years, it has been those on the far religious right who have taken the lead in parallel political views, especially those with “social” implications but not exclusively so.  Scalia is said to attend worship in a highly traditional (fundamentalist) Opus Dei church in Virginia.  To my knowledge he has never declared himself an Opus Dei member, but this choice of worship venue says something.  Again, this is not to suggest an inherent conflict, but only that it provides what I think is a valuable insight.

Religious fundamentalists generally believe in divine revelation.  The Bible isn’t a work inspired by the divine but is literally the word of God.  That view impacts significantly on how the text is taken, always with the intent of adhering to its original meaning, which brings me back to the 10 Commandments case and Scalia’s contention that, “[our] Law…comes from God”: revelation.  In contrast, he explicitly rejects the notion of (in this case) the Commandments being, “a foundation of American Law”: inspiration.   It may well be the Scalia honestly believes that his religious views don’t impact on his decision making, but both textualism and originalism have a distinctly theological ring to them.  How he sees things, and the judicial philosophy that he espouses, seem to come naturally out of that particular religious core.

Scalia hotly claims that his reading of the law, his reliance on text and its “original” meaning is the right, and assumably only valid approach.  He dismisses others including colleagues who don’t share it.  Nevertheless, he is an outlier in taking that view, which he as much as admits in telling Margret Warner that, “it (textualism) has not been taught in law schools”.   Whether Scalia is ahead of his time or behind it is something I leave to you, but it would seem that some law school should be teaching textualism and originalism if either were considered a norm, or perhaps even a compelling alternative.  I’m not a lawyer, but it appears that the Scalia take on law is unique to him and, as is being suggested here, is built on a religiously oriented rather than purely legal foundation.

Revelation and inspiration are critical markers in religious thinking.  They are no less so when applied (of course in a relative sense) to the Constitution.  Scalia believes that it is not only the literal text that counts, but also what its authors meant when they wrote it.  My problem with originalism is that old texts like the Bible or even the Constitution not only come out of different times but when people had some very different ideas, some of them factually discredited.  The authors of the Bible saw the earth and humankind at the center of things.  They had no notion of a big bang; of galaxies or that our planet was anything but at that center. 

To be sure the Framers were visionaries, but they lived before Einstein, not to mention our age of technology none of which we have any indication they remotely anticipated.  Few of us would deny that what Jefferson, Madison and others set forth in the Declaration and then in the Constitution doesn’t constitute ground breaking thinking, intrinsic values that have a timeless quality.  In that sense, their generalized intent should be taken very seriously. I don’t question that some of those involved at the start had deep ties to religion, ones that might mirror the views and orientation of Justice Scalia.  Let’s remember that New England especially was a bastion of fundamentalism countered only by people like Roger Williams.  And Williams is critical because both the Framers opting for the Establishment Clause and then a separation of church and state would suggest that his earlier views ultimately won the day.

Why is all of this important and why am I writing about Scalia and the Court four weeks before the election?  The answer can be found in my July 8th post, Two Words.  In that writing it was suggested that nothing is more important in the coming vote than the Supreme Court.  The president elected in November is likely to have one or more appointments and any retirements may come from its liberal ranks, most notably Ruth Bader Ginsburg.  The modern right leaning Court is largely the product of Republican appointments and ideology.  Republicans have been responsible for every Chief since Eisenhower named Warren.  The conservative balance is of their making and a single additional appointment could profoundly tip it further, casting in stone the future of our nation for many years to come.

Antonin Scalia is no doubt a decent man with profound and heartfelt religious beliefs.  He says those beliefs don’t influence his judgments and perhaps that’s so.  Whatever the motivation, his view of textualism, of originalism and what I see as a kind of synthetic adherence to the Founders’ intent, is troubling.  The Constitution is both meaningful and inspiring, but talking every word literally in the twenty-first century doesn’t compute.  Moreover, I am always leery of attributions of intent that we claim for the dead.  How do we know what they really had in mind?  It’s no accident that my reference to Scalia was in a chapter exploring truth.  Those on the religious right generally claim to be in possession of “the truth”.  I reject the notion that there is such a thing or that we have any way of proving that “my truth is more true than your truth”.  Scalia is sure of his truth.  I just don’t buy it.

I call them Transcenders.  To brand them nonbelievers is to assume religion and its particular belief system the human default.  Worse it suggests that those who have left religion behind lack beliefs.  Nothing could be further from the truth.  For more read my book.

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