By DONALD DeMARCO
Common sense may not be chic in the eyes of the elite, but it provides a solid ground on which edifices can be mounted that will not crumble. We live in an age in which people pride themselves in being “progressive.” But this fashionable term can mean abandoning one’s roots in the interest of achieving something presumably better. Nonetheless, one cannot build a skyscraper without a firm foundation.
The late Antonin Scalia (1936-2016), former associate justice of the United States Supreme Court, together with Bryan A. Garner, attend to this problem in their groundbreaking book, Reading Law: The Interpretation of Legal Texts (2012). In the light of the chaos generated by the apparent overturning of Roe v. Wade, this 400-page volume is a welcomed antidote for the judicial activism that has caused more problems than it has solved. A few excerpts from the book provide its essential spirit and offer a corrective to the “liberal” interpretations that have gained fashion in the contemporary world of jurisprudence.
“[W]e seek a return to the oldest and most commonsensical interpretive principle; in their full context words mean what they conveyed to reasonable people at the time they were written.” During the construction of St. Paul’s Cathedral, the chief architect, Christopher Wren, took Britain’s monarch on a tour. When the tour was completed, the monarch told the architect that he found it to be “amusing, awful, and artificial.” Wren was not insulted because in seventeenth-century England, these words meant, respectively, “amazing, awe-inspiring, and artistic.” Words mean what they mean in the context of the time in which they were spoken. Scalia was a staunch advocate of “textualism.”
“Since the mid-twentieth century, there has been a breakdown in the transmission of . . . [our] heritage.” All we need to consider with regard to this point is the current cry of “cancel culture.” I recall being on a live television show in Toronto. The audience consisted of high school students who were encouraged to make comments or criticisms. I had mentioned Martin Buber, made famous for his “I-Thou” philosophy. One student criticized me for referring to someone who is “dead.” My critic spoke with confidence, assuming he had the full support of his colleagues as well as contemporary society.
Buber, of course, is part of our heritage and has had a decisive influence in theology, psychology, and psychiatry, as well as in philosophy. My adolescent authority did not seem to realize that when a person dies, his thoughts do not necessarily die with him. As Walt Whitman has so beautifully stated: “So when a great man dies, For years beyond our kin, The light he leaves behind him lies, Upon the paths of men.”
The distinguished lawyer Arthur Schlesinger has remarked: “Science and technology revolutionize our lives, but memory, tradition, and myth frame our response.” Society is in danger of losing the virtue of piety, respect for our ancestors and the treasures they have bequeathed us.
Scalia wrote: “Over the past 50 years especially, we have seen the judiciary…take control of territory…that ought to be settled legislatively.”
And as Justice Samuel Alito has declared, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely.”
In the same vein, Justice Scalia once stated: “The permissibility of abortion and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” It should appeal to common sense that the United States Constitution does not provide a right for a mother to kill her unborn child, or that it has the authority to change the meaning of marriage.
Again, Scalia: “[S]ome commentators have claimed since the mid-20th century that all language is ambiguous.” We consider how the literary fad known as “deconstruction” has rendered all words as “undecidable.”
A nadir, in this regard, was reached when former President Bill Clinton stated: “It depends on what the meaning of the word ‘is’ is.”
One pundit claimed that “words are merely vacuum capsules to be filled in by the listener.” The Constitution consists in nothing but words. If language is essentially ambiguous and the meaning of words is undecidable, then the Constitution cannot possibly be interpreted. Likewise, the Bible has been deconstructed and no longer has either authority or force. It is utmost folly to think that Supreme Court justices are required, by a solemn oath, to interpret something that is essentially uninterpretable. We have re-entered the Tower of Babel and do not know what we are talking about.s
The proper interpretation of the Constitution is critical, perhaps more critical than it has ever been. The consequence of culture losing sight of common sense, disparaging tradition, overstepping legitimate boundaries, and rendering language ambiguous has had its effect on Supreme Court justices.
Antonin Scalia remains a national treasure. He had the modesty to avoid judicial activism (more properly understood as “judicial recklessness”) and to abide honorably and intelligently to what he was sworn to do, namely, to interpret the Constitution.
Reading Law is a bit pricey, but it may be available at one’s local library. One does not need to be a lawyer to appreciate the commonsense richness of this splendid work. It is written for a broad audience, and the authors do not lack a sense of humor.
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