Laurence Tribe v. Sean Wilentz on Justice Antonin Scalia
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Interpreting God's Justice
Laurence Tribe v. Sean Wilentz on Justice Antonin
Scalia
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August 10, 2002
Professor Sean Wilentz
Princeton University
Princeton, N.J.
Dear Sean:
As someone who often disagrees with Justice Antonin Scalia both on substantive constitutional matters - like his conclusion that capital punishment, about whose constitutionality I have no firm view, is immune from challenge under the Eighth Amendment’s cruel and unusual punishment clause because it was “clearly permitted when the Eighth Amendment was adopted,” Antonin Scalia, God’s Justice and Ours, First Things 17 (May 2002) (hereinafter, “FT”) - and on matters of interpretive methodology - as with his simplistic equation of the “living Constitution” school with the “the-Constitution-means-what-we-right-thinking-(or, rather, left-thinking)-people-think-it-ought-to-mean” school - I was initially more intrigued than put off by the account in your op-ed, From Justice Scalia, a Chilling Vision of Religion’s Authority in America, in The New York Times this July 8.
I thought it rather improbable, frankly, that Justice Scalia had actually said quite the things you attributed to him in the interpolations among the few directly quoted passages in your piece. Inasmuch as the Times gave the piece pride of place on its op-ed page and devoted an unusual amount of space to it (1366 words is more than I think they’ve ever given me!), I nevertheless imagined that perhaps the sharp-tongued jurist had finally allowed his considerable intellect and his undoubted rhetorical skills to get the better of his judgment. I accordingly decided to read for myself what Justice Scalia actually had to say.
Having read and reread Scalia’s piece in FT and having concluded that you grievously misrepresented the Justice’s views, I would ordinarily have written a letter to the editor of the Times in hopes that, especially coming from a constitutional scholar and a sometimes harsh critic of Justice Scalia, my words might help offset what I regard as the extreme, if conscientiously based and well intended, misunderstanding that yours are likely to engender. Particularly given my high regard for some of what you have written in the past, however, I was a bit reluctant to attempt a rebuttal within the cramped word limits of the Times’ Letters to the Editor section. I therefore decided to write this message in the form of a letter directed, in the first instance at least, to you alone.
As I hope the following observations will elucidate, what Justice Scalia wrote in FT - in remarks that, when read in full and understood in the context in which he wrote them, leave an impression very different from that conveyed by the excerpts you quoted and by the statements you paraphrased - in no sense amounts to the blast at secular democracy and the proclamation of a divinely inspired anticonstitutionalism that, if truly characterizing the Justice’s philosophy of adjudication, would appear to call for his resignation, if not for his impeachment and removal from office. The blunt truth is that nothing in the Scalia essay warranted your apocalyptic conclusion that Justice Scalia “seeks to . . . impose views about government and divinity that no previous justice . . . has ever embraced.” One could reach that conclusion only by twisting the views Scalia in fact expressed.
To judge from your op-ed, one would’ve imagined that Scalia has it in for secular democracy, which you quote him as charging with the crime of upsetting the “Christian . . . consensus” that the state, if lawfully constituted, is the instrument of a just retribution that no mere individual can purport to administer (and hence that the death penalty may be just though murder is not). Indeed, you describe Scalia as “alarmingly . . . wish[ing] to rally the devout against democracy’s errors.” But in the passages you selectively quote and paraphrase, Scalia says almost precisely the opposite. He describes “the consensus of Western thought until very recent times” - “[n]ot just of Christian or religious thought, but of secular thought regarding the powers of the state” - as a consensus that “lawfully constituted authority, or [at least] lawfully constituted authority that rules justly,” even when entrusted to the hands of “the fools and rogues (as the losers would have it) whom we ourselves elect to do our own will,” can have a moral right “to avenge - to vindicate the ‘public order’“ that is “greater than our own” when we act individually. Far from holding democracy’s emergence responsible for what he laments as the breakdown of that consensus, Justice Scalia affixes blame squarely on an “equation of private morality with government morality” that he says is “a predictable (though I believe erroneous and regrettable) reaction to modern self-government.” FT at 18.
The major thrust of Justice Scalia’s argument in FT, then, is to elaborate his deep disagreement with what he calls “[t]he mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals,” a “tendency” that he argues “has adverse effects in other areas as well,” including “foster[ing] civil disobedience” in circumstances Scalia clearly deems inappropriate. FT at 19. Nor is it fair to describe Scalia’s mission as the injection of Catholic theology into constitutional interpretation or even the infusion of “a religious sense,” to quote your accusation, into the Constitution. What Justice Scalia says he would have to do if he regarded capital punishment as “immoral,” whether as a matter of papal teaching, a matter of religious reflection - a process of reflection in which he engages freely, disagreeing conspicuously with the Pope at several points in his FT essay - or as a matter of secular reasoning, is, after all, to resign his seat on the Court, not to impose his religious and/or moral convictions on the nation as a Justice. This is hardly “opportunism,” let alone an endorsement of “papist mind control,” and I fail to see how “it threatens democracy.”
To be sure, there is much in Justice Scalia’s essay with which I take issue. Most importantly, perhaps, I dispute his argument that, as a judge sitting on the Court that ultimately decides which death sentences may be carried out, he “could not take part in that process if [he] believed what was being done to be immoral,” whereas he, as “a judge, . . . bears no moral guilt for the laws society has failed to enact ….” FT at 18. Justice Scalia concludes from this distinction that, for example, “if a state were to permit abortion on demand, [he] would - and could in good conscience - vote against an attempt to invalidate that law for the same reason that [he] vote[s] against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence [him]) no power over the matter.” FT at 18.
Entirely apart from the question whether the Constitution - construed with a sensitivity to its structure and spirit resembling that which Justice Scalia himself displays when, as in Printz v. United States, 521 U.S. 898 (1997), he extracts, from the document as a whole, limits on the national government and correlative states rights that he concedes cannot be grounded in its text or even in specific historical understandings - should be deemed to be as silent as the Justice seems to believe it is on questions of reproductive liberty, I nevertheless take issue with the dichotomy he draws between that matter and capital punishment. His analysis is straightforward but, in my view, deeply flawed: “With the death penalty,” he writes, he sees himself as “part of the criminal-law machinery that imposes death - which extends from the indictment, to the jury conviction, to rejection of the last appeal.” FT at 18. His further explication of the suggested dichotomy, in terms of “the ethical principle that one can give ‘material cooperation’ to the immoral act of another when the evil that would attend failure to cooperate is even greater ...,” is subtle but, in my view, both flawed in itself and difficult to square with his similarly subtle analysis in his concurring opinion in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). There, Justice Scalia argues that the act-omission dichotomy, while perhaps sufficiently rational to be upheld when invoked by legislators to justify permitting some forms of mercy-killing (as by disconnecting a respirator) while outlawing others (as with so-called “physician-assisted suicide”), is, in the end, morally bankrupt and an insufficient guide for an exercise in line-drawing that aspires to something more than minimal rationality.
The distinction is a crucial one in Justice Scalia’s overall position because he must explain how (a) his willingness - notwithstanding Church teachings about the right to life that he regards as both morally correct and of enduring Catholic pedigree - to remain part of a Court, and indeed to vote with the majority of a Court (in this respect), that permits lawmakers simultaneously to punish the killing of infants but not to punish the killing of the unborn at all, can coexist with (b) his belief that, but for his disagreement with the encyclical Evangelium Vitae and the Catholic catechism, “according to which the death penalty can only be imposed to protect rather than avenge, and that since it is (in most modern societies) not necessary for the former purpose, it is wrong,” FT at 20, he could not remain part of a Court that permits the execution of some death row petitioners and thereby make himself “part [of a] process” that Justice Blackmun once described as “the machinery of death.” Justice Scalia rejects what he sees as the facile attempt of others to read “the very latest version of the Catholic catechism” simply “as an affirmation of two millennia of Christian teaching that retribution is a proper purpose (indeed, the principal purpose) of criminal punishment, [and] … merely adding the ‘prudential judgment’ that in modern circumstances condign retribution ‘rarely if ever’ justifies death,” FT at 20. His rejection demonstrates instead, in a powerful display of argument against self-interest, that the logic underlying that rationalization of Evangelium Vitae’s position on capital punishment is untenable. Justice Scalia thus positions himself simultaneously to: accept as morally correct the binding Church teaching that abortion is always wrong; remain on a Court that permits abortion and sanctifies it as a right; vote with a Court that routinely permits legislatures to take a permissive posture toward abortion while banning infanticide; and reject (as theologically misguided and morally obtuse) the teaching that capital punishment is always wrong while saying he could not remain on a Court that permitted capital punishment if that teaching were binding. It’s an interesting position, but one that, as I’ve said, I think cannot successfully endure, particularly given what Justice Scalia termed, in Cruzan, to be “the irrelevance of the action-inaction distinction.” Cruzan, 497 U.S. at 296 (Scalia, J., concurring).
It is apparent, then, that one could take Justice Scalia to task in a serious and substantive way for making so much of his argument in FT turn on an act/omission dichotomy that he has himself trashed in another analogous context. It’s hardly my point, then, that his excerpted remarks are beyond telling criticism. Nor is it my point that Justice Scalia is an unfair target because he is disabled, by some canon of judicial responsibility or some higher obligation to remain silent apart from his official judicial pronouncements, from coming to his own defense. On the contrary, Justice Scalia is hardly in need of defenders from the academy even against pieces like yours that take him to task for arguments that he has never made and for attitudes that he has never displayed. For Justice Scalia has manifestly been willing to write and speak publicly about his judicial philosophy, as evidenced by the very piece you attacked. Indeed, he even authored the Supreme Court’s recent opinion in Republican Party of Minnesota v. White, 122 S.Ct. 2528 (2002), upholding the First Amendment right of a candidate for state judicial office to announce his or her views on controversial issues likely to come before that candidate if elected, and striking a state rule forbidding those who express their views in this manner to serve as judges. Justice Scalia is thus perfectly capable of rebutting your mischaracterizations himself.
But getting down and dirty in a back-and-forth debate with you or with anyone else even in the august pages of The New York Times would plainly be unseemly. As Justice Scalia no doubt believes - given his insistence during his confirmation hearings that he should not discuss with the Senate Judiciary Committee his views on questions likely to come before him as a sitting Justice (a defense for which the dissenters in Republican Party of Minnesota tweaked him, perhaps a bit unfairly) - his right to state his views on such questions in a public forum outside the Court hardly translates either into a duty to do so or even into the propriety, let alone the wisdom, of doing so. In short, I doubt that the Justice would feel free to exercise his prerogative to parry your criticisms in a responsive editorial. I regret, then, that constraints of time prevent me from writing a more complete refutation.
I troubled to write you this message nonetheless, in the hope that it might lead you frankly to reconsider your reading of the Justice’s words -- so that perhaps you might correct, to the degree a subsequent retraction can ever catch up with the initial misimpression, the false picture you have painted in so public a place.
Sincerely,
Larry Tribe
Interpreting God's Justice
Laurence Tribe v. Sean Wilentz on Justice Antonin
Scalia
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August 12, 2002
Professor Laurence Tribe
Harvard Law School
Harvard University
Cambridge, MA
Dear Larry,
This morning, while wrapping up a brief vacation, I read the Washington Post’s editorial criticizing Justice Scalia and his First Things essay on almost exactly the same grounds I did in the Times last month. Then I returned home to find your letter of August 10. As the Washington Post editorial shows, my reading of Scalia is not so patently outlandish after all. While you say I “grievously misrepresented” Scalia, other reasonable and informed persons can read Scalia independently and come to much the same conclusion I did. Is it possible that all of us are right - and that you are the one who is wrong?
Your lengthy letter devotes only two paragraphs to the actual substance of what I wrote. Let me refute those paragraphs. First, you assert that Justice Scalia does not (contrary to my characterization of him) blame the emergence of democracy for the downfall of the biblically-derived traditional idea that the state is God’s minister. Second, you say I wrongly charge Justice Scalia with trying to inject Catholic theology - or, short of that, religious doctrine - into constitutional interpretation. Third, you claim that Justice Scalia would, if he found the death penalty immoral, resign from the court, and that I miss the mark when I accuse him of opportunism.
On the first point: Here, at the risk of getting tedious, is exactly what Justice Scalia wrote, after he quoted from Romans 13:1-5 on the divine origins of government (emphasis mine):
This is not the Old Testament, I emphasize, but St. Paul. One can understand his words as referring only to lawfully constituted authority, or even only to lawfully constituted authority that rules justly. But the core of his message is that government - however you want to limit that concept - derives its moral authority from God. It is the “minister of God” with powers to “revenge,” to “execute wrath,” including even wrath by the sword (which is unmistakably a reference to the death penalty). Paul of course did not believe that the individual possessed any such powers. Only a few lines before this passage, he wrote, “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.” And in this world the Lord repaid-did justice-through His minister, the state.
These passages from Romans represent the consensus of Western thought until very recent times. Not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset, I think, by the emergence of democracy. It is easy to see the hand of the Almighty behind rulers whose forebears, in the dim mists of history, were supposedly anointed by God, or who at least obtained their thrones in awful and unpredictable battles whose outcome was determined by the Lord of Hosts, that is, the Lord of Armies. It is much more difficult to see the hand of God-or any higher moral authority-behind the fools and rogues (as the losers would have it) whom we ourselves elect to do our own will. How can their power to avenge-to vindicate the “public order”-be any greater than our own?
FT at 19 (emphasis added). The thing speaks for itself. Scalia explicitly blames the emergence of democracy for the decline of the godly State.
Second, nowhere in my essay do I charge that Scalia wants to inject Catholic theology or any other religious doctrine into constitutional interpretation. Rather, I charge that Scalia wants to give the Constitution “a religious sense that is directly counter to the abundantly expressed wishes of the men who wrote the Constitution.” That is, Scalia, like other hard-line conservative officials and writers, many of them Protestants, asserts that our government, like all government, rests on divine authority. Scalia says so, again explicitly, when he writes of democracy’s tendency “to obscure the divine authority behind government.” My point, which you mischaracterize, is simply that the Framers acknowledged no divine authority behind government. Do you disagree?
Third, it is moot whether Scalia would quit the Court if he thought the death penalty immoral. He doesn’t, so he won’t - but he does demand that his adversaries quit. Logically and morally, this is a pretty convenient stance for Scalia to take. But that’s not why I call him an opportunist. He is an opportunist because, in his writings, he repeatedly mislabels his own private observations as “conservatism,” and insists wrongly that his views on divine authority are consistent with strict construction and an originalist reading of the Constitution.
And now, it seems, the Washington Post, independently, has arrived at exactly the same conclusion that I did: that Scalia’s First Things essay proclaims what the Post calls a disturbing “radicalism,” based on Scalia’s apparent rejection of the fact that “the American state was not conceived as an arm of God.”
Contrary to your portrayal, my op-ed is actually measured in my claims concerning Scalia’s “bitterness against democracy,” referring only to what he sees as democracy’s errors in obscuring the divine foundation of government. And as for the Framers’ views and the Constitution, I relish the opportunity to engage the various eccentric claims, some of them quite scholarly, about the supposedly divine foundations of our national government, if that is what you have in mind.
As you’ve gathered, I will retract nothing that was in my New York Times piece. But like Cromwell to the Scots, I beseech you, in the bowels of Christ, think it possible you are mistaken.
Yours sincerely,
Sean Wilentz
Interpreting God's Justice
Laurence Tribe v. Sean Wilentz on Justice Antonin
Scalia
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August 13, 2002
Professor Sean Wilentz
Princeton University
Princeton, N.J.
Dear Sean:
I appreciate your prompt reply to the letter I sent you on August 10. I have no difficulty with your suggestion, echoing that of Cromwell to the Scots, that I should entertain the possibility that it was I who was mistaken about both the content of Justice Scalia’s argument and the charges you make as to that argument. I’ve entertained it, reread both the Scalia essay and your attack, and must confess that I remain of the view that I expressed in my August 10 letter.
I am unpersuaded by anything contained in the pair of paragraphs you quoted at some length to demonstrate that, because Justice Scalia did say he thought a certain “consensus ha[d] been upset, . . . by the emergence of democracy,” you were entitled to pen your Q.E.D., observing triumphantly that “[t]he thing speaks for itself.” In a sense, it does, but what I think it says is something very different from what you seek to assert by isolating the quoted material from the two paragraphs that precede it and the four paragraphs that follow. In combination, the half dozen paragraphs from which you extracted your selections make entirely clear that the “consensus” Justice Scalia says democracy’s emergence has upset is the consensus that “accords to the state a scope of moral action that goes beyond what is permitted to the individual,” and that the mechanism by which he believes the “emergence of democracy” has upset that consensus is - just as the passage you quoted observes - how “difficult” it is “to see the hand of God - or any higher moral authority - behind [those] whom we ourselves elect to do our will.” (Emphasis mine.) As Justice Scalia makes too clear to miss, his complaint is not with democracy as such, secular or otherwise, but with how that difficulty, a form of the all-too-familiar challenge of comprehending how the whole can manage to transcend the sum of its parts, has tripped up the moral intuitions of so many in what Scalia describes, in the last line of the first of the six paragraphs that surround your excerpt, as “a predictable (though I believe erroneous and regrettable) reaction to modern democratic self-government.” (Emphasis mine.)
If that isn’t enough to drive home the conclusion that Scalia is not, contrary to your characterization, guilty of “bitterness against democracy,” recall his criticism of, in the last of the half-dozen paragraphs surrounding your chosen two, “[t]he mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals . . . .” (Emphasis mine.) Isn’t it obvious that Justice Scalia is attacking neither constitutional democracy, nor a republican form of government, but what he deems a tempting but fallacious line of thought that is, he thinks, as “erroneous and regrettable” as it is “predictabl[e]” - a line of thought that he urges those he calls “people of faith” to “combat . . . as effectively as possible”?
So it is not I who have omitted or distorted anything in the Scalia essay, Sean. It is, I think, you who, in omitting far more than a line, have confused the meaning of the text you found “chilling”. True, Justice Scalia happens to believe that the most effective way for people who share his religious convictions to combat the fallacy that a government of the people, by the people, for the people can have no claim to moral authority beyond that of its individual members is to preserve “in our public life many visible reminders that,” and here he quotes a famously liberal Supreme Court opinion of six decades ago, “we are a religious people, whose institutions presuppose a Supreme Being.” You are free, as am I, to disagree that our nation’s governing institutions presuppose any such thing. I caution, though, against asserting with such certitude - and with so casual a willingness to reduce the views of “the Framers” to a simple slogan - that we all know whose opinions counted from among the many who contributed to the drafting of the Constitution and its Bill of Rights, and from among the many more who took part in the ratification of those instruments. Not all right-thinking students of the period are bound to share your conclusion that, contrary to the complexity many of us have long insisted characterizes such matters, the chorus of all relevant voices unambiguously and unanimously “acknowledged no divine authority behind government.”
Remarkably, after announcing that simplistic slogan, you ask me whether I “disagree.” Of course I disagree. There were nearly as many strands of thought and sentiment on such matters as there were “Framers,” and, in any event, I have long believed that what the Constitution means, what it should be taken to signify, is not remotely equivalent to what any specific bunch of characters - all male, white, propertied, and quite dead - imagined, expected, or, to use your word, “acknowledged” about the text they played a part in promulgating. I expected that you, not being one of the supposed “originalists” whom you might deride in other contexts, would have hesitated before opining with certitude that Justice Scalia’s belief in a Constitutional mandate of greater tolerance for displays of religious faith in the public square than I believe it justifies amounts, no less, to a “strong dislike for the Constitution’s approach to religion.” (Emphasis mine.) If you mean a strong dislike for Sean Wilentz’s take on the Constitution’s approach to religion, why not just say so? Can you seriously suppose that these matters are so open-and-shut as to be beyond debate?
I have from time to time chided Justice Scalia for being far too sure of himself, and for displaying an unfortunate lack of humility and a corresponding excess of dismissiveness about approaches to constitutional meaning that differ from his own. Nothing in my exchange with you shakes my conviction that this criticism of the Justice has been well taken, but I fear that you tread a similar path in “knowing” what many of the rest of us spend decades of our lives and write thousands of pages trying to figure out.
Least of all, the fact that two great newspapers, rather than just one, duplicated the errors I’ve detailed doesn’t exactly bring me to my knees. Your use of the Washington Post editorial as proof that your reading of Scalia isn’t so “outlandish after all” assumes three things, none of which I can accept: first, that the Post editorial really reaches “much the same conclusion” you do; second, that the Post’s reading of Scalia was wholly independent of yours, which was published earlier in a place that I have to assume the Post’s editorial writers occasionally read; and third, that something is ipso facto not outlandish simply because “reasonable and informed persons” can accept it. That you, Sean, are yourself an eminently reasonable and well-informed person doesn’t immunize you from the possibility of egregious error, any more than my being such a person immunizes me from that possibility.
That said, I see nothing in your renewed attack on Justice Scalia - including your description of your “claims concerning Scalia’s bitterness about democracy” as somehow “measured” in their tenor - that alters my conclusion that you’ve misread his remarks or that requires further elaboration than our existing exchange provides. Like you, I believe that interested readers who study what Justice Scalia had to say in the first instance and who review our exchange about his essay can reach their own conclusions, and I am entirely satisfied to rest with those.
Sincerely,
Larry