By JUDE DOUGHERTY
In this election season, we can appreciate all the more the role that Justice Antonin Scalia played during his 30 years of service on the United States Supreme Court.
There are many facets to the campaigns waged among the contenders for the presidency of the country, but none are more significant than presidential appointments to the Supreme Court.
In the fifth century B.C., Heraclitus of Ephesus wrote, “The people must fight for their laws as for their walls.” After two and a half millennia that dictum remains relevant. The rule of law is often at stake in appointments to the nation’s highest court.
When it comes to interpretation of the U.S. Constitution, Justice Scalia is associated with the principle of “strict construction.” Others hold to the concept of a “living Constitution.” It makes a difference, as we shall show.
In the last half of the 20th century, the people of the United States have seen the erosion of the rule of law at the level of the federal judiciary, as federal courts, particularly the Supreme Court, have struck down many constitutional provisions and legislatively enacted laws usually associated with the protection of life, liberty, and civility. “To fight for one’s laws” is first to understand the source and purpose of law, its feasibility for the promotion of the common good, and its limitations as well.
If Justice Scalia is associated with a strict interpretation of the Constitution, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit in Chicago, also a senior lecturer at the University of Chicago Law School, may be taken as an example of those who favor a living interpretation. Posner holds that a judge has no moral or political duty to abide by the written Constitution.
Until late in the last century, all American constitutionalists have treated the authority of the Constitution as axiomatic, even while acknowledging that the Constitution has frequently been rewritten in the guise of interpretation.
Posner has argued to the contrary, namely, that a judge’s loyalty should be directed to the official practice of the American government. From Posner’s perspective, law is a morally neutral tool for the achievement of goals set by wholly extralegal considerations. No contested position can be considered right or wrong, better or worse, unless translated into other terms such as economic efficiency or social order.
Furthermore, the argument goes, given the complex, heterogeneous society that is the United States of America today, moral disagreement over a spectrum of social issues is inevitable. The near impossibility of consensus, or even broad agreement among factions, forces a court to seek a generally accepted solution. Posner will cite the abortion and other decisions of the Supreme Court, favored by the left, as generally acceptable.
Given the chasm between left and right in American politics, Ronald Dworkin, a distinguished professor of law at New York University, before his death in 2014, appropriately raised the question, “Is democracy possible here?”
In his Scribner Lecture delivered at Princeton in 2005 he attempted to identify those principles to which Americans and almost all citizens of other nations with similar political cultures could agree.
He identified two principles: 1) Each human life is intrinsically of equal value, and 2) Each person has the responsibility for identifying and realizing that value in his personal life.
Two things may be noted here. Dworkin was convinced that democracy cannot remain healthy with deep and bitter divisions and no real agreement in the populace, for it then becomes vulnerable to a tyranny of numbers. The possibility of democracy rests on a certain unity of outlook in the populace. Although a man of the left and a Jew, Dworkin finds that he cannot ignore the nation’s debt to the Christian sources of its culture, and he even endorses what he calls “a new emphasis on religion in our politics and government.”
It does not take an acute observer of American politics to know that when the left calls for common ground, it is usually a demand for acquiescence on the part of the right, and typically, given the liberal bias of major media, the right is intimidated and the left prevails.
If, following the liberal principle of neutrality between right and wrong, good and bad, the court must remain indifferent with respect to majority and minority claims, a new problem arises given the influx of migrants from the Middle East.
It remains for policymakers and intellectuals on the left to show how the principles of liberty and equality can be maintained when addressing the integration of Islam within Western societies, given the Muslim’s demand for concessions that will enable him to live in his customary way under his own law, the law of Sharia.
That Islam may not be commensurate with liberal principles, or that it may pose a threat to liberal societies, is yet to be honestly faced by the left, which is working in tandem with Islam to challenge Western society. The problem may signal the death of multiculturalism.
The problem of integrating Muslims into the United States is not confined to the left. The First Amendment to the United States Constitution clearly states, “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof.” How is a strict constructionist to deal with that?
We look to the political philosophy of Justice Scalia for an answer. Posner and Scalia differ here. Posner would find the answer in his living Constitution. Scalia would not.
Scalia would find the answer in what he called a “flexible Constitution.” That concept goes something like this: If you think the death penalty is a good idea, persuade your fellow citizens and then legislatively write it into law. If you think it a bad idea, persuade them the other way and eliminate it. The result will be a democratically enacted law or policy that the court can interpret without claiming that it is somehow found in the Constitution. The same is true for any other controversial issue, such as abortion, gun control, or same-sex marriage.
The discussion does not end here. What we have is a conflict between two political philosophies. Scholars can trace the origin of those policies to their wellsprings in the 18th and early 19th centuries. Scalia stands in a natural law tradition with roots in antiquity, an outlook that maintains that nature and human nature are purposive in a God-given, intelligible universe.
Absent that conceptual grounding, the rule of law is deprived of its rightful anchorage and becomes whatever a legislator or jurist declares it to be. We see this daily as a political class grappling for ever more power enacts laws at odds with common sense and normal human aspiration.
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(Dr. Dougherty is the author of Briefly Considered: From the Mainstream: Notes and Observations on the Sources of Western Culture, available at amazon.com.)
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