Scalia an honorable jurist, but not a perfect one

By Nick Humez

It is not clear why Caleb Verbois, an assistant professor at Pennsylvania’s archconservative Grove City College, has chosen to share his thoughts on the U.S. Supreme Court’s late Associate Justice Scalia [“Antonin Scalia and the Constitution,” Feb. 18] with so distant a readership as ours, but his having done so provides us with a welcome opportunity to give his eulogy the critical examination it merits.

From a standpoint of logic, I am troubled by this teacher’s repeated stumbling into the fallacy of the excluded middle. To give just one example, he would have us divide potential Supreme Court nominees into an exclusive binary of those who regard as sacrosanct the meaning of the words of the Constitution as the framers understood them, versus those who are mere reeds in the wind of factional political opinion, in which category he places the senators whose duty and right it is to advise and give or withhold consent to the president’s court nominees.

This is John Hus’s “holy simplicity” with a vengeance. There are indeed senators who may rightly be accused of being ideological puppets of their constituencies (or their major campaign contributors) and thus casting their votes according to whatever populist whim may return them to office next time around; but to suggest that all senators are venal in this way does many of them individually, and that house of the national legislature as a whole, a serious disservice.

Moreover, it cannot in truth be said that Justice Scalia’s opinions were free from their own political pliability. This is egregiously manifest in his infamous Citizens United opinion, which set aside nearly a century of precedent to bestow rights of political personhood upon corporate entities unimaginable to the founders, and flat contrary to common sense.

But I think we must go beyond Dr. Verbois’s flawed logic to examine whether the “originalist” approach Justice Scalia claimed to espouse is even tenable in a world that has changed significantly in the two and a quarter centuries since the Constitution and Bill of Rights were ratified.

For it is not just the multinational corporation as we now know it that is a product of modern times; we live in a world in which the technology of both hardware and software has exploded in ways the founders could not have possibly imagined. Ironically, many of these developments are directly the result of the practice of that very same liberal rational empiricism that was at the core of the Enlightenment and colored the thinking of the framers in the first place.

Some of the founders, to be sure, were more liberal than others, but all of them shared a deep-seated belief in the primacy of reason, even while making allowances for differences of opinion and taking pains to prevent any single faction from dominating the rest. (For a thorough discussion, see Morton White’s “Philosophy, The Federalist, and the Constitution” [Oxford U. Press: 1987].) We see nothing of this pluralism in Justice Scalia, but only certitude in the political correctness of his increasingly eccentric views.

But even in those areas where we might wish to give Justice Scalia the benefit of the doubt and concur in his belief that he really was channeling the framers, how valid are the meanings we suppose them to have understood in the original words they wrote? We do, to be sure (some of us, at least) share their vision of a liberal polity, as did many reformers in other countries in their subsequent transitions from autocracy to the modern democracies that now predominate in the civilized world.

We do not, however, believe that fires go out because of phlogiston in the air, that the Earth was created just 6,000 years ago, that diseases come from unhealthy miasmas, that enslaving people of color is a tolerable evil (much less a desirable good), that a slave should thus be calculated for purposes of population as three-fifths of a human being, or that the justification for a right to bear arms lies solely in the necessity of a well-regulated militia (and as some of might say, more the pity) — the last two, incidentally, written right into the Constitution by those same framers.

In short, we live in a world in which not merely the physical landscape has changed, but our mental one as well. This does not mean that Supreme Court justices shouldn’t curb any urges to indulge in creative rewriting of what the Constitution actually says, but it does allow for what Justice Brennan referred to as “evolving standards of decency.” Dr. Verbois would have us believe that if a punishment was not cruel and unusual in 1791, it needn’t be considered so today. But the fact is that we don’t flog people at the town whipping post anymore, nor do we put them to death by slow strangulation up the long ladder and down the short rope. And most of us are fine with that.

So by all means, let us celebrate the life of Justice Scalia, who was a very competent judge except when his ideological prejudices blinded him to the difference between right and wrong as his century understood them. Let us devoutly hope that a greater Judge than he will deal mercifully with him at the last. But let us not fall into the error of making an idol of a man who was all too fallible beneath the majesty of his black robe.

And let us pray that reason prevails in the confirmation of his successor with a consensus among Democratic and moderate Republican senators that allows both in conscience to fulfill their constitutional mandate not to leave the nation’s highest court one short of its full complement for no better reason than a perverse partisan obstructionism; the American people, from whom all legitimate political power in this country ultimately emanates, deserve a better shake than that.

Nick Humez is a resident of Trenton and Painesville, Ohio.





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