Revisiting Scalia
Revisiting Scalia
Toward a synthesis of ideologies of the Left and Right
I concluded my last commentary with the observation that a creative ideological reformulation of leftist ideology is necessary in the USA, given the limited capacity of the Left to marshal support among the people. In various commentaries in this column, I have been endeavoring to suggest lines of thinking toward such a reformulation.
In commentaries on race in the USA, I have been suggesting that a new leftist ideology ought to distance itself from Critical Race Theory and from the accusation that white society at the present time is characterized by systemic racism. I have maintained that this formulation is empirically inaccurate and is politically divisive, and for this reason, it has been supported and disseminated by the corporate elite and the political establishment.
I also have maintained in various commentaries on Cuba, China, and DPRK, that the Left in the United States ought to study and appropriate the insights of the socialist revolutions of China and the Third World. These revolutions demonstrate the necessity of developing alternative structures of people’s power, in order to ensure that the delegates of the people can maintain control of the state. And they demonstrate that when state power is in the hands of the delegates of the people, those states can direct the economy in accordance with the needs of the people and the nation, but in a way that deliberately plans for a constructive role of private enterprises.
In today’s post I address the idea of constitutionalism, which has been proposed by American conservatives for the last decades. I maintain that constitutionalism is not, as the U.S. Left often claims, a disguised form of racism. I believe that all political parties and their ideologies must embrace constitutionalism, because it is the necessary means for ensuring that policies are developed in a democratic way, thus enabling them to possess legitimacy in the eyes of the people, even among citizens who do not personally agree with the policies. In the context of U.S. political processes, constitutionalism is necessary for governmental legitimacy.
Antonin Scalia (1936-2016)
Antonin Scalia was born in Trenton, New Jersey, the only child of Eugene and Catherine Scalia. His father had emigrated from Sicily as a young man, and was a Romance Language professor at Brooklyn College. His mother was a schoolteacher and the daughter of Italian immigrants. He grew up in Queens, and he was valedictorian at Xavier High School and also at Georgetown University. He earned high honors at Harvard Law School. He worked at a private law firm in Cleveland from 1961 to 1967. He left private practice to teach law at the University of Virginia from 1967 to 1971. He served in a number of federal government positions from 1971 to 1977. He joined the faculty of law of the University of Chicago in 1977. In 1982, he was appointed by Ronald Reagan to the Washington, D.C., federal Court of Appeals. In 1986, he was nominated by Reagan to the U.S. Supreme Court; his nomination was approved by the Senate by a vote of 98-0.
Scalia was a devout Catholic his entire life. He met his wife, Maureen McCarthy, when he was a law student at Harvard and she was a student at Radcliffe. They were married for fifty-five years and had nine children and dozens of grandchildren. He consistently held to conservative views with respect to economic liberty, religion, marriage, and sexuality. In 1979, when he was a law professor, he published an article in which he criticized affirmative action as racist, because it “is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need.” These are not concepts, he wrote, that guide or ought to guide our society.
During his thirty years on the Supreme Court, Scalia wrote 870 opinions, including 281 majority opinions, 315 concurrences, and 274 dissents, which established him as one the Court’s outstanding justices. His opinions were written clearly, following logically from certain principles, with many examples and spiced with a sense of humor. In some of his opinions, especially when dissenting, he scathingly attacked the inconsistencies and other defects of the opinions of other justices; he was in general critical of the tendency since the Warren Court to legislate rather than interpret constitutional clauses and legal statutes. He considered this to be fundamentally undemocratic, because the Congress, empowered by the Constitution to legislate, is elected by the people, whereas the nine members of the Supreme Court are not. He pointed out that all of the justices were lawyers who had graduated from the law schools of Harvard or Yale, and accordingly, they are hardly a cross-section of the people. They assume, he said, that they have more wisdom than the people, but attention to their writing demonstrates that they clearly do not.
One might think, as is the custom, that Scalia was defending conservative ideology. But this misses the point. Some of his decisions actually constituted support for the liberal side, and more to the point, his agenda was to defend the democratic structure created by the Constitution. This structure, he explained in his opinions, is twofold. First, it consists of a division of powers among the three branches (executive, legislative, and judicial) of the federal government. Secondly, it designates certain powers of the federal government and reserves the rest to the States. He considered this to be the best structure of government humans had ever devised, and more importantly, he considered it the sworn duty of the Supreme Court to be faithful to that constitutional governmental structure. On many occasions, in speaking against a law or an appeal, he indicated that what was desired by the law or the appellant could be done, and it may be a good idea, but it must be done in a different way, in accordance with the governmental structure devised by the Constitution, the founding document of the nation. In some cases, it should be done by Constitutional Amendment, the procedures for which had been established by the Constitution itself (and which, incidentally, has been an approach taken historically by progressive social movements).
Scalia maintained that fidelity to and consistency with the constitutional structure of the nation was necessary for the legitimacy of government. If everyone participating in public debates follows the rules established by the Constitution, then even the losers will feel satisfied that they have had a fair hearing; and they will respect the law, because they respect the process. But when a majority of nine justices circumvents the process, social discord and the delegitimation of the government is the result.
Originalist and textualist methods of interpretation
Scalia subscribed to the principle of constitutional interpretation known as originalism. He writes that, for originalists, “the provisions of the Constitution have a fixed meaning, which does not change except by Constitutional Amendment.” In contrast, “The non-originalists say that the Constitution changes;” that it is a “living” document that “changes from age to age as social necessity and convenience demand.” Originalism, he notes, was constitutional orthodoxy until the post-World War II era of the Warren court. Today, “it no longer matters what the Constitution meant; the only relevant question is what ought it to mean today?”
Scalia criticizes a number of post-World War II Court decisions from the vantage point of the principle of originalism. The Supreme Court held in 1957 that pornography could not be prohibited. However, he writes, “there was no historical precedent for this restriction on a democratic society’s ability to use its police powers to regulate matters of sexual morality.” The first amendment was not meant to place this restriction on the state, and the Constitution does not confer on the Supreme Court the authority to restrict the federal government or the states in their regulation of sexual morality. It is for the legislators to decide, and there need not be the same level of sexual permissiveness from state to state.
In addition, he criticizes the Court’s interpretation of the First Amendment restriction that “Congress shall make no law respecting an establishment of religion.” He maintains that the First Amendment was not meant to prohibit a state policy of favoring religious practices in general. He writes that “those who wrote the Constitution believed that morality was central to the wellbeing of society and that encouragement of religion was the best way to foster morality.” Scalia therefore dissented in a case in which the Court majority wrote that “the First Amendment mandates governmental neutrality between religion and non-religion.” There is no support for this view, which is inconsistent with the practices all of our presidents and congresses and with the sentiments of the majority of the people. Only the Supreme Court has taken this position, and only since the middle of the twentieth century. The true constitutional principle, Scalia wrote, is that the government cannot favor one religion over another. The Court’s decisions mandating governmental neutrality between religion and non-religion, going against the meaning of the words in the text of the Constitution, and going against the traditions of the nation and the sentiments of the people, illustrates the undemocratic character of the “living Constitution” method of interpreting the Constitution.
Scalia criticizes the Court’s 1961 decision that has affected the presentation of evidence at criminal trials. It is indeed true that the Fourth Amendment prohibits unreasonable searches and seizures. But nowhere does the Constitution say that the sanction for unreasonable searches and seizures must be the exclusion of the evidence from criminal trial. Nor was there any basis in national tradition for a policy, as Scalia expressed it, of punishing the policeman by setting the criminal free. This was not the meaning of the Fourth Amendment.
Scalia criticize the famous 1966 Miranda decision. The Fifth Amendment provides that no person in any criminal case should be compelled to be a witness against himself. The Supreme Court held that this requires the exclusion of seemingly voluntary confessions made in police custody, unless the prisoner has been formally advised of his right to silence and to have an attorney. Scalia maintains that there was no basis for this decision in historical practice.
Scalia maintains that the Eighth Amendment, in prohibiting cruel and unusual punishment, did not mean capital punishment, as is evident by the common practice, unchallenged at the time, of capital punishment for a variety of crimes, including horse stealing. It may be a good idea to prohibit capital punishment, but the Eighth Amendment does not do so.
Scalia further maintains that the Constitution says nothing about abortion. “The States may, if they wish, permit abortion on demand. But the Constitution does not require them to do so,” and there is a long tradition of states prohibiting it. In mandating that the states cannot prohibit abortion, Roe v. Wade elevated the social division over abortion to the national level. The Court should get out of the abortion issue, and let it be decided in the political arena, state by state. The debate cannot be resolved by a Court ruling.
The role of the Supreme Court is to read the constitutional text according the meaning of the words at the time and context in which they were written; and in the case of ambiguous language, to discern the society’s traditional interpretation of that text. The Court should not interpret the text on the basis of the value judgments of its members, which is, in effect, writing new text. Only the people are authorized to write new text, through the procedures established by the Constitution for constitutional amendments.
When the Court went beyond this beyond this role in Roe v. Wade, it elevated value judgments as the basis for interpretation of the Constitution. It thereby created a context in which the justices are bombarded with expressions of opinion concerning what the Court should decide, as though the decision should be based on today’s public opinion. This distortion of the judicial process has been unleashed by the Court itself, because if the opinions of the Court are based on values, then it is reasonable for the people to protest, demanding that their values be followed, rather than those of the members of the Court. The people are responding to the circumvention of the democratic process by the Supreme Court majority. “The American people love democracy and the American people are not fools.”
As with abortion, so it is with marriage, Scalia maintains. The issue should not be decided by a Supreme Court decision but by the political process through public debate and the participation of the elected representatives of the people. Prior to 1992, the people were debating the issue of marriage in the States. Eleven states had decided to expand the traditional meaning of marriage; many had decided not to. This is how it should be. In its 1992 decision on marriage, the Court majority, Scalia maintains, invokes the language of liberty, but it goes against the guarantees of liberty that are found in the Constitution’s governmental structure of federalism, which leaves power to the States with respect to issues not specifically mentioned in the Constitution.
For Scalia, “a system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” Such a system undermines governmental legitimacy, because it is important for a political forum “to give all participants, even the losers, the satisfaction of a fair hearing and an honest fight.”
Scalia says he is not a “strict constructionist,” as is commonly said. Texts should be construed reasonably, not strictly. Freedoms of speech and the press, for example, refer not literally to speaking and the press, but to “the expression of ideas.” Thus, flag-burning is a form of speech, and thus protected by the Constitutional right to freedom of expression.
In support of the non-originalist justices and judges, deconstructionists argue that words have no inherent meaning, a view that Scalia considers absurd. For example, a careful examination of “the right to bear arms,” demonstrates that, in its use at the time, the phrase meant the right to have arms for personal use, including self-defense. It may be that in our time this is a bad idea, but if it is and the people see it as such (which many do not), they can change it in a democratic way, through a constitutional amendment. But the Supreme Court is not empowered by the Constitution to change the meaning of the words or to abolish the Second Amendment.
In Scalia’s view, the non-originalist justices indulge in unauthorized judicial social engineering. For them, as for the non-originalists among the people, the Constitution means whatever they think it ought to mean.
Scalia uses a similar method, which is called textualism, with respect to interpretations by the courts of statutes, or laws passed by the legislators. The courts are sworn to avoid “judicial lawmaking.” He maintains that “it is simply not compatible with democratic theory that laws means what they ought to mean, and that unelected judges decide what that is.” Judges are not authorized to write new laws that a changing society needs. Only the legislators, elected by the people, are authorized to make laws. Further, “textualism should not be confused with so-called strict constructionism, a degraded form of textualism.” Texts should be construed neither strictly nor leniently, but reasonably.
Governmental Structure
Scalia stresses the importance of the governmental structures of the American Republic, that is, the division of powers among the three branches (legislative, executive, and judicial) and the specific powers of each; and the different powers of the federal and state governments. Scalia maintains that in assigning distinct kinds of governmental power to the three branches, and in allocating distinct powers to the federal and state governments, the Constitution prevented the concentration of power in the same hands. He argued that this structure of government is more important than any declaration of rights such as the Bill of Rights, because when power is concentrated in the same hands, the declared rights can be ignored. What really matters is the structure of government, and whether or not those structures prevent the centralization of power in one man or one party.
Scalia maintains that the federalism created by the U.S. Constitution is a form of government midway between the extremes of local autonomy and centralized government. In the Federalist Papers, Hamilton defended the virtues of federalism against colonial disunity; but today, there is more of a need to defend federalism against over centralization. The judgment concerning which level should have authority is a pragmatic one, Scalia maintains. On the one hand, local control permits diversity; but in some matters, there is need for national action. Speaking in 1982, Scalia observed that general hostility toward national law had become a feature of conservative thinking, undermining the necessary balance between federal and local. He speculated that this tendency had emerged in part because of conservative distrust of government in general, and in part due to the fact that conservatives have been outgunned by liberals at the federal level since the 1930s.
Here it should be noted the federalism created by the Founders in 1789 illustrates that governmental structures are shaped by particular historical and political contexts, and therefore, democratic structures will take different forms in different nations. The American Founders were responding to the abuse of power by the King of England, and they wanted to establish structural checks from that happening in the American republic. By contrast, in Cuba, a neocolonial republic was established under U.S. tutelage, with structures of government like the American Republic. However, the people found that those structures did not prevent the concentration of power in the hands of a foreign and national elite and its political representatives. So in 1976, the Cuban Revolution established structures that concentrated power in the legislative branch, and that ensured the people’s representation in and oversight of the unicameral legislative branch. In Cuba, the power of government was to be checked by the people, rather than having three branches checking each other. In the USA, the branches have been under the control of the elite, undermining the power of the people, a limitation that Scalia, in spite of his exceptional insight, does not appear to appreciate.
Conclusion
In his exceptional thirty years of service as a Supreme Court Justice, Antonin Scalia argued in defense of the principle that all citizens, regardless of ideology, should practice utmost respect for the structure and process that were created by the founding Constitution of the nation. This is the necessary foundation for the legitimacy of the government, whether it be a centrist, rightist, or leftist government. Governmental legitimacy in the eyes of the people is the necessary foundation for the capacity of the state to mobilize the people in the attainment of any national objective or addressing any national problem.
I have directly observed such respect for constitutional structures in Cuba. With any and all measures, the Cuban Revolutionary Government takes great care to proceed in full compliance with constitutional clauses and legal statutes, which themselves have been proclaimed and emitted with ample participation and influence by the people. This repeated respect for constitutionality and legality is a key reason for the high legitimacy of the Cuban government in the eyes of the people. Even when a citizen disagrees with a policy, oftentimes the citizen appreciates that the policy was developed with full respect for the process, and therefore accepts the policy as legitimate.
In the USA, leftists, progressives, and liberals should be opposed to the “living Constitution” approach, because it undermines the legitimacy of government itself, undermining the potential capacity of the Left to use state structures for the defense of the people and social justice causes. What is worse, the justices imposing the “living Constitution” approach have done no more than impose certain reforms that reflect an urban, upper-middle class worldview, which the conservative Justice Scalia clearly discerns and denounces.
I personally am committed to several fundamental changes in the American political culture and process, including: the abolition of the imperialist foundation of American foreign policy; the establishment of affordable health care, quality education, comfortable housing, and adequate transportation as rights of citizens, unconditioned by capacity to pay; and the creation of alternative political structures that would guarantee that the elected representatives of the people respond to the needs and desires of the people, and not the interests of the corporate elite and the rich. But I equally believe that all such changes, if they are to ever be implemented and sustained, must be accomplished in the right way, in accordance with fundamental principles in the American political tradition, as Justice Scalia has outlined. And this implies that the first step is not necessarily the shouting of slogans in the streets but the political education of our peoples and the elevation of historical and global consciousness.
Scalia does not seem to see some of the limitations of the American political process, which create a dynamic in which the elected representatives do not respond to the needs of the people; rather, the elected representatives are skilled at the art of pretending to represent the interests of the people as they represent the corporations and their large campaign contributors. But no matter. Concerning our different views on the matter, Scalia would say that I have every right to proceed, and I should seek to convince a majority of the people of the correctness of my ideas, so that the people can make changes in the right way, in accordance with the Constitution.
Reading the legal opinions of Justice Scalia deepens appreciation of the extent to which American Constitutional Law is a literary world unto itself. Scalia dedicated his passion for understanding and truth in that world. He arrived to a profound understanding of the meaning of the Constitution, and he stood against the members of the Supreme Court who ignored its meaning and imposed their own philosophy of what the Constitution ought to mean. But following this commitment, Scalia did not enter into the world of Third World revolutionary thinkers. He therefore was not well positioned to understand the limitations of modern capitalism from the vantage point of the neocolonized. For this he can be forgiven. What he contributed was an understanding of the meaning and the importance of the U.S. Constitution. What more can we ask of a justice on the U.S. Supreme Court? Of him it can be said, duty fulfilled.
I believe that the Left has failed since the late 1960s to fulfill its mission of guiding the nation toward a greater commitment to social justice at home and abroad. And I believe that a major reason is that the Left has not presented itself to the people in a form that has made clear its commitment to the Republic and its Constitution. Indeed, we of the Left often have given the impression of indifference, if not hostility, toward the Constitution and the Republic. We have not demonstrated that we understand the importance of the structures of government that the Constitution created, and that if the people were to entrust us with power, we would respect those governmental structures, come what may. Today, the Left, confused and divided, could learn a thing or two from Antonin Scalia.
If the Left were to reformulate its discourse by appropriating the insights of Scalia, it could significantly expand its reach among the people. Above all, the discourse of the Left should make clear its commitment to accomplish its social justice goals in accordance the Constitution and the governmental structure that it created. This is absolutely necessary, because the Left must assure the people, that if it were to arrive to power, it would respect national traditions and structures that have been designed to ensure that power is not concentrated in the same hands.
The Left could put forth a proposal for a constitutional amendment that would establish the responsibility of the federal government to ensure affordable and quality health care and education and comfortable housing for all citizens. Such an amendment would provide a constitutional foundation for federal laws and programs that would disproportionately benefit blacks and Hispanics, but they would be designed and presented as laws and programs for the benefit of all.
The Left could put forth the call that divisive issues like marriage and abortion be addressed in the states. It could issue guidelines that stress the search for common ground in each state, including full and reasonable public discussion of each issue. In recognizing that states may resolve these issues differently, the Left would be demonstrating its respect for the diversity of the United States.
Many people of the international Left support socialist Cuba and its commitment to a women’s right to abortion. Many on the Left do not know, however, that Cuba does not allow “abortion on demand.” In practice, abortions are obtained only during the first ten weeks, a restriction that exists essentially for medical reasons; and a woman under eighteen years of age cannot obtain an abortion without the permission of a parent or guardian. In addition, with strong extended families in Cuba, with wide social support for a diversity of family forms, and with employment laws and customs that affirm maternity/paternity leave and parental rights and duties, practical alternatives to abortion are available. Traditionally a Catholic country, Cuba found reasonable common ground decades ago, and this philosophically and ethically complex issue is not divisive today.
In the current historic moment of global civilization crisis, the Left in the United States has the duty to appeal to the people to support the social justice program of the Left and to empower leaders of the Left to govern in the name of the people. In order to credibly issue such an appeal to the people, the Left must be committed to the defense of the constitutional governmental structure of the nation, which has been designed to ensure that no group, including Leftist leaders riding a temporary wave of popular support, concentrates power in its hands.
The social justice program of the Left inevitably leads to the accusation that we are socialist, even when we do not present our proposal as such. We should undertake the necessary ideological groundwork to be able to declare, when disruptive elements accuse us of being socialist, “Yes, we are socialists. But we are American patriots, too.”
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