Copyright (c) 1996 The
The American Journal of Jurisprudence
ARTICLE: JUSTICE SCALIA AND YOGI BERRA: A MATTER OF INTERPRETATION
41 Am. J. Juris. 165
Robert A. Connor
By a straightforward presentation of his Constitutional philosophy devoid of legalese and teased with wit and metaphor before a philosophically and theologically sophisticated audience, 1 Justice Scalia has made the working of adjudication at its highest levels available to scrutiny and critique. We thank him for this. My remarks here are offered with the greatest respect for his thought and with the hope of engaging it in dialogue concerning the epistemology grounding representative government and adjudication within it.
When Justice Oliver Wendell Holmes was entreated by Judge Learned Hand: "Do justice, sir, do justice," he responded: "That is not my job. It is my job to apply the law." 2 Holmes was also known to comment: "I always say . . . that if my fellow citizens want to go to Hell I will help them. It's my job." 3 The recent remarks of Justice Antonin Scalia seem to fall under the same rubric: not do justice but apply the law, and if that law is abortion, "the state should permit abortion, in a democracy." 4 The picture that emerged from Scalia's speech and even more clearly and radically from the question and answer period at the end was that adjudication was less a process of administering justice than a technical and rigid application of a law which is the product of majority vote. In the case of abortion, however, Scalia, as in his reference to the
The different facets of the picture were ...
* * * *
JUSTICE SCALIA AND YOGI BERRA:
A MATTER OF INTERPRETATION
Robert A. Connor
September 17, 1996
By a straightforward presentation of his Constitutional philosophy devoid of legalese and teased with wit and metaphor before a philosophically and theologically sophisticated audience,1 Justice Scalia has made the workings of adjudication at its highest levels available to scrutiny and critique. We thank him for this. My remarks here are offered with the greatest respect for his thought and with the hope of engaging it in dialogue concerning the epistemology grounding representative government and adjudication within it.
When Justice Oliver Wendell Holmes was entreated by Judge Learned Hand: "Do justice, sir, do justice," he responded: "That is not my job. It is my job to apply the law."2 Holmes was also known to comment: "I always say... that if my fellow citizens want to go to Hell I will help them. It's my job"3 The recent remarks of Justice Antonin Scalia seem to fall under the same rubric: not justice but apply the law, and if that law is abortion, "the state should permit abortion, in a democracy."4 The picture that emerged from Scalia's speech and even more clearly and radically from the question and answer period at the end was that adjudication was less a process of administering justice than a technical and rigid application of a law which is the product of majority vote. In the case of abortion, however, Scalia, as in his reference to the
The different facets of the picture were the following:
a) Limitations for a Justice of the Court: It is a mistake to try to "persuade" a Justice of the Court on any point of law since he does not make law. His power is limited to the application of the will of the people brokered by the technical, literal reading of the Constitution and Bill of Rights. Scalia: "It is the Constitution that governs my action... But do it by not persuading me. I'm a worldly judge. I just do what the Constitution tells me to do."6 Therefore, do not talk to him of the philosophy of Constitution, truths grounding the Constitution, etc. Invasion into arenas transcending the Constitution would be flagrant judicial activism and unwarranted
migration of power into forbidden territory and therefore, tyranny by what has become a judiciary elite.
b) Extrinsicism of Religion and Morality: Government is as religiously and morally neutral as a "tooth paste"7 or a "crowbar." It may act out "what is ultimately a motivation of morality, but it is a motivation of morality at the level of the individual citizen which then expresses itself in the majority vote that controls what the government does. But the government... in and of itself is totally neutral on those points. It is the people who must bring out the morality dimension that is reflected through the government. And I think that it is inconsistent with democratic theory that the government has an obligation to do that in and of itself."8
This extrinsicism of morality to government "in and of itself" is repeated again: "But that process (Christian inspiration of law) is achieved not within the context of government but outside the context of government, with free men and women persuading one another and then adopting a governmental system that embodies those Christian precepts."9
c) Majority Rule: Part and parcel of this neutrality is the quantitative rule of the majority. The will of the majority is the source of authority, not any presumed truths concerning the person, rights, morality and even less, faith. The government is blind to faith, morality and inherent rights of the person. The person has no intrinsic rights that are presumed. The same were surrendered on entry into the social civil contract. Such presumed rights would contravene the authority and rule of the majority. Whatever they be, they are given by the majority, e.g., the Bill of Rights. Scalia: "The whole theory of democracy, my dear fellow, is that the majority rules, that is the whole theory of it. You protect minorities only because the majority determines that there are certain minorities or certain minority positions that deserve protection. Thus in the United States Constitution we have removed from the majoritarian system of democracy the freedom of speech, the freedom of religion, and a few other freedoms that are named in the Bill of Rights. The whole purpose of that is that the people themselves, that is to say the majority, agree to the rights of the minority on those subjects -- but not on other subjects. If you want minority rights on other subjects, you must persuade the majority that you desire those minority rights. Or else you take up arms and conquer the majority. I mean you may always do that, of course."10
Scalia concludes his answer with this telling remark: "The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights. Otherwise you do not want a democracy, you want a king to decide what is right."11
d) Democracy as Dogma: Democracy, then, is a political and legal structure incarnating the will of the majority to which one makes an act of self commitment akin to religious faith. Scalia: "Once you adopt democratic theory, it seems to me you accept that proposition. If the people, for example, want abortion, the state should permit abortion, in a democracy.12 If the people do not want it, the state should be able to prohibit it as well. It seems to me the crux of the matter for the Christian in a democracy is to use private institutions and his own voice to convert the democratic society, which will then have its effect upon the government. But I do not know how you can argue on the basis of democratic theory that the government has a moral obligation to do something that is opposed by the people. That works fine in a monarchy, I suppose, but I do not know how you can reconcile it with democratic theory."13
Background: "You Can't Beat Somebody With Nobody"
In a 1989 article "Originalism, the Lesser Evil,"14 Scalia ranges over the topic of constitutional adjudication in search of criterion, be it "originalism" which means attending to the original meaning of the constitutional text (not without serious problems), or be it "non-originalism" which means consulting a conceptual agreement or consensus15 in the light of which the Constitution may be interpreted. Confronting the latter, he pins on it an aphorism of Yogi Berra (or perhaps a Mayor Daly): "You can't beat somebody with nobody,"16 since he finds no consensus on the meaning of the human person or on moral principle with which to interpret the Constitution now. Scalia remarks: "The central practical defect of non originalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned."17 The result is that Scalia, finding "nobody" as authoritative on the level of self evidence18 and therefore truth to direct and order freedom, takes the "somebody" of the constitutional text (and therefore the will of the people as ultimate authority). Anything not in the text does not exist. Religious freedom, freedom of speech, etc. become "invisible" until they reappear in the Bill of Rights as a concession of majority will to the minority. "The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights."19
All this comes down to say that the constitutional structure is not built on truth. Although Scalia can lyricize philosophically "I love natural law"20 or the governmental system "embodies those Christian precepts," in the real world of adjudication he speaks as judge: "But once the Constitution was put in place, it is the Constitution that governs my actions." And this is correct for him to say as judge since his mandate extends to applying the law. But it is not the whole story.
Scalia remarks that he "loves natural law," and he sees the Constitution as "embodying moral values that were central to Christianity." However, he reserves moral values to the sphere of private conscience. There can be no access to those values except by way of private persuasion ("We are fools for Christ's sake"21). In his explicit presentation, the public system of government is a "neutral" mechanical construct. He chides those who contradict this view when he responds: "To say, `Ah, but it is contrary to the natural law' is simply to say that you set yourself above the democratic state and presume to decide what is good and bad in place of the majority of the people. I do not accept that as a proper function." It is not proper function because Scalia presumes by stealth the philosophy of Hobbes and Locke concerning the "state of nature" as the source of rights. Rights are so anemic and so little attached to the person as person that they are "detachable" on entrance into the society and then returned, "secured," by the benevolence of the state. Like them, Scalia presumes that there is no self evident truth because there is no de facto consensus concerning the human person and his rights. The person has no rights in democratic society. "(T)hat's why we have a Bill of Rights. We set them forth in the Bill of Rights. But that is the limit of them, and I do not make up other ones"22 (emphasis mine). The society is not built on natural law or self evidence but on the will of the people as emerging from the state of nature into a social contract.
In "Originalism...," Scalia warns that "the main danger in judicial interpretation of the Constitution ... is that the judges will mistake their own predilections for the law. Avoiding this error is the hardest part of being a conscientious judge...Nonoriginalism which under one or another formulation invokes `fundamental values' as the touchstone of constitutionality, plays precisely to this weakness."23
I would like to address this difference. Scalia sets up the difference with the metaphor of choosing between two librarians to hire. One speaks too loudly, the other too softly. He chooses originalism - the written law of Constitution24 ("values... fundamental to our society") as the librarian who speaks too softly in preference to going beyond the text of the Constitution by imposing one's personally preferred values, i.e., the librarian who speaks too loudly. I will argue that Scalia's choice of originalism (legal text) over nonoriginalism (the search for self evidence) begs the question as to the ultimate grounding of authority. From his standpoint as judge, it is proximately the will of the people. But, the will of the people cannot be the grounding absolute of authority since freedom always raises the question of truth, and the human will is not its own truth since the indeterminacy of human freedom gives witness to the "unfinished"25 state of man. To abandon the search for truth as the authority for freedom's use is to abandon the human person ultimately to being used by forces more powerful than himself. It would mean to abandon him to the tyranny of totalitarianism which in this case would have a democratic stripe. It would appear to be a "rule of law" but in reality it would be a dictatorship of the arbitrary will of individuals. The Pope remarks:
"(T)otalitarianism arises out of a denial of truth in the objective sense. If there is no transcendent truth, in obedience to which a person achieves his full identity, then there is no sure principle for guaranteeing just relations between people... Thus, the root of modern totalitarianism is to be found in the denial of the transcendent dignity of the human person who, as the visible image of the invisible God, is therefore by his very nature the subject of rights which no one may violate... Not even the majority of a social body may violate these rights, by going against the minority, by isolating, oppressing, or exploiting it, or by attempting to annihilate it."26
Therefore, we are confronted with Scalia's assertion that "(t)he central practical defect of non originalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned," and the Pope's counter assertion that "(i)f there is no transcendent truth, in obedience to which a person achieves his full identity, then there is no sure principle for guaranteeing just relations between people." John Paul II concludes that
"if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism."27
Truth: The Absolute As Key to Freedom
To deepen the perspective, Walter Berns testifies that, at the founding of the country, the freedom of self determination vis a vis religion, speech, etc. rests, indeed, on truth as having an absolute dimension.28 He remarks: "These principles (of free government) require the establishment of religious freedom, the right of men to hold whatever opinions they choose respecting God or gods. That men must have this choice is not itself a matter of choice or indifference"29 (underline mine). He continues: "Freedom of religious opinion is absolute... the
It is clear from words such as "self-evident," "palpable," "scientific," not "opinion," "discovered by the new political science" that the truth which grounds freedom of religion is an absolute, even if that absolute has been conceptualized as the "philosophoumenon" of Hobbes's state of nature. A transition took place in Berns from his 1985 "The First Amendment and the Future of American Democracy," to his 1987 "Taking the Constitution Seriously," where he repudiates the absurdity of the "right to be let alone"32 which characterizes the "state of nature." He ends by "taking the Constitution seriously," which means the literal text in the positivistic sense of Scalia's "somebody" (the librarian who speaks too softly). To overcome the porosity of the liberal minded judges for whom there is no truth and therefore no end to the invention of absurd "rights," he opts, like Scalia, for the text of the Constitution which "derives its binding authority... only from the fact that it is an act of the people in their constituting capacity."33 But again, this leaves us in the throes of the conundrum in which we ask: what is the truth - the self evidence - which can guide the will of the people to goodness?
The Search For A "Deeper" Meaning of "Truth"
Original Self Evidence: Historically, at the founding of the country, there was a consensus in truth so strong that it was perceived as self evidence in the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...." Berns remarks: "There was no dispute with respect to the principles on which the Constitution was built."34 "The agreement among them was massive. There was no dispute about freedom of conscience or the free exercise of religion; the adoption of the clause protecting free exercise was an altogether perfunctory matter, giving rise to no difference whatsoever. There was no dispute with respect to the principles on which the Constitution was built; stated in its most radical form, they all agreed that our institutions do not presuppose a providential Supreme Being."35 Again: "the
What is of interest here is the identity between absolute and self-evident truth.38 The need for the absolute is clear enough in Berns that he concludes that if you treat religious and political concepts as equally relative, and there is no absolute, then "the Constitution rests on nothing at all - or rather, on no principle immune from the whims of transient majorities"39. The shame is that Berns, having correctly identified the need of truth in its absoluteness as the grounding of the Republic, fell in with the Enlightenment rubric that all knowledge must be conceptual, and then assigned as content to that absolute concept the philosophoumenon of Hobbes's state of nature.40 Then finally disabused of that fallacy and not realizing that the truth of the person and rights are to be found on a second tier of experience (as we shall see), he collapses into Scalia's textual originalism where he hopes the secretary who speaks too softly can ward off the subjectivism dug up from the liberal penumbra. He concludes that "The only appropriate agenda for conservatives41 is to defend the liberal Constitution - if necessary, to defend it from the liberals - because by that Constitution rights are secured. This knowledge - that as far as the national government is concerned, security for rights is found in the structure elaborated in that text - could be one of the happy lessons learned in this bicentennial season"42 (underline mine).
Universal Christian Faith: This absoluteness, appearing as consensus and self evidence, coincided historically with an almost total presence of Christian faith as praxis in the colonies. Benjamin Hart asserts that "
Christianity Reveals Person and Rights: The task now is to take the self evidence (absoluteness) of the founding principles and the universally held christian faith and to see if they can answer Scalia's conundrum as how "to discern a difference between those political values that (the justice) personally thinks most important and those political values that are `fundamental to our society.'"50 The question really comes down to what "those political values... fundamental to our society" are.
The Declaration of Independence declares that the human person and his right and dignity to self determine are the fundamental political value. Three fourths of that document consists in taking umbrage at the violation of these self evident rights and therefore, "(t)hat these United Colonies are, and of Right ought to be Free and
Now, if the principles on which the Republic is built are pre- conceptual and therefore absolute and self evident as to obviate any ideological debate,52 and Scalia finds that now there are no absolutes commanding universal consensus in whose light he can confidently adjudicate,53 would it not seem reasonable to investigate whether there may be a kind of truth that is pre-conceptual, i.e., experiential and of another order? Perhaps, what has traditionally been referred to as "natural law" may be a second tier of experience massively lived out at the moment of the American founding and which coincided with, or was caused by, the almost universal presence of christian faith. And that being so, in order to beat "somebody with somebody," we would have to have recourse to that experience and that faith again.
My proposal then is to explore what kind of truth is that self evidence and how could christian faith have played into its formation. That is, does the exercise of christian faith yield the consciousness of an absolute - a self consciousness distinct from conceptual truth - which is self evident?
Truth On A Second Tier of Experience
The Phenomenological "Pause:" The first order of business is to determine whether there is another level of experience and knowledge which is legitimate, i.e., objective and realist but not the object of the exterior senses. Wojtyla offers that besides the direct experience of external things, there is also the direct experience of one's own acting: "it seems most improbable that man with his conscious acting or action is not given as the object of experience."54 Suffice it to say that since Descartes, reality has been epistemologically restricted and reduced to exterior sensation.55 What is externally sensed is measured, abstracted and forms a propositional kind of knowing which could be called "cosmological" because it reduces or objectifies reality to the state of cosmos or "thing." Truth on this level consists in a conformity of propositions of logical subjects and predicates to sensed reality. However, the interior, non sensible yet universal experience and consciousness of the "I" has been eliminated as empirically real by being absorbed into the cartesian self as "consciousness" (res cogitans), - the unreal "I" of idealistic subjectivism - not to re-emerge as real until our own day in Karol Wojtyla who retrieves it ( the "I") as "agent of the moral act."56
Wojtyla's philosophic contribution consists in "pausing" at the irreducible experience of the subject freely determining not only the kind of action to be performed but the very self as cause of the action. The pause must take place because the experience of self determination is empirical as real and therefore demands the attention of cognition on this new second tier of experience.57 He remarks: "Lived experience essentially defies reduction."58 Having lost the real "I" in the reductive rationalism of the Enlightenment, until now we have not known how to pause at this irreducible reality.
Hence, Enlightenment man has been left with the welter of conflicting conceptual (reductive) ideologies as the only valid truth with no deeply experienced north that could give them meaning. Besides, these concepotualizations discredit each other by their partial and mutual contradiction,59 thus leaving the mind in a state of skepticism.60 Hence, Scalia's Yogi Berra: "You can't beat somebody with nobody" and Bork's perpetual motion machine testify to the inconclusiveness of working with only this kind of cognition. It is an epistemological dead-end which leaves the positivism of the Constitutional text as the only escape. But it escapes into totalitarianism, as we saw on page 11.61
The Recovery of the "I" and Christian Faith
The proposal here is to suggest that the self evidence of the "I" at the core of the first of our legal documents, the Declaration of Independence, can only be fully retrieved on this second epistemological level of experience where Christian faith is found as moral act - not abstract essence62 - producing both the anthropological experience of self gift and the consciousness of the "I" sufficient to generate a democracy. And the reason is that only Christian faith demands the response of the whole person, and therefore, the "I,"63 to the revealing Person of Christ.64 It initiates an epistemology of self experience rather than an epistemology of sensation and abstraction.
Christian faith offers the existential encounter of the revealing Person to the believing person in the prototypical exchange between Christ and Simon son of John. The "non-I" of Simon is transformed into the christian "I" of Peter. He goes through a name change because he went through an anthropological transformation by entering into the prayer of Christ which was equivalent to "becoming Christ."65 Ratzinger describes the nature of Christ as Person to be pure Trinitarian Relation to the Father - Truth in Person - Who, when incarnate as the man Jesus, translates as prayer. Therefore, "we see who Jesus is if we see him at prayer"66 (underline mine). Simon is called into this prayer (as a lived experience of his "I"), and by so doing becomes like Jesus' "I."
Since fundamental epistemology teaches that like is known by like, Simon's interior transformation of prayer gives him a likeness to Christ such that he experiences in himself what it is to be like Christ in Himself, and therefore, to have a direct, moral experience of being the "Cornerstone"67 who is Christ.68 This validates the name change from Simon to "Petros." Stone mimics stone, and hence, only stone "knows" stone. As the experience of being Simon is transformed into the experience of being Christ, the pre-conceptual consciousness of the "I" of Simon becomes the pre-conceptual consciousness of being Christ. The metaphysical "advance" boosting Simon into the self gift of prayer, produces the epistemological "advance" from Simon to Peter. There is now a full self-evident realization of the dignity of the person and rights which can become, within the proper historical conditions, the grounding truth of American democracy.
The men who had not entered into the prayer of Jesus (with the gift of their "I") and who were working within an epistemology beginning with sight, sound and abstraction, did not recognize him.69 On the other hand, for those who had entered and lived the moral act of faith which is prayer, that pre-conceptual experience turns conceptual upon reflection and Simon-now-Peter is able to formulate as words, "You are the Christ, the Son of the living God."70 Whereupon Christ changes his name to conform to this new metaphysical anthropology: You are Peter, and upon this rock I will build my Church..."71 Stone is named from stone.
This unique form of consciousness of the self as total gift could only take place in the act of Christian faith because Christian faith is uniquely an encounter between persons and not primarily ideology. Christ is the only God that has become man. Christian faith alone is gift of self. Hence, the resonance of persons produces the unique anthropological experience of likeness between two "I's" and therefore confers unparalleled dignity while creating a universal consciousness of equality in all partakers. No matter how varied we all are in talents received, we can be equal in giving it all back. Only christian faith - as life, not concept - would give this sense of radical equality which finds its secular counterpart in representative government and the vote. Thus, I propose that the "I" who is discovered in this act of faith is the "I" of dignity and rights who is the grounding principle of the American founding. The self determination that brought about the gift of self to the revealing Christ, is the same kind of self determination that founded the secular structure of representative government in 1776 and 1789. That is to say that
Phenomenology Interprets Self- Evidence
Wojtyla has given us a phenomenological tool making it possible to "pause" at this experience of the "I" in the moral act (in our case, the act of faith), and by so doing has made it possible to pause at the act of faith as the anthropological experience of person and rights. Hitherto, we have had neither the tool, the pause, nor the recovery of the "I." Hence, he makes it possible to distinguish between subjective "interests" which are subjectivist wishful thinking and "those political values that are `fundamental to our society'"73 which are the subject as truth.
The proposal, then, is to see Christian faith rather than the ideological philosophoumenon of the "state of nature" as the true historical source of the consciousness, the self- evidence, of the dignity of the human person and his rights. Instead of the "right to be let alone" which is really a residue of sin which leaves the person in darkness as to the truth of imaging God,74 Christian faith is the unique anthropological act which restores to self evidence the dignity of the human person. As such, christian faith as a relational act is fundamental for a secular democracy which pretends to build itself on that dignity. In short, there is no grounding self evidence for the state when there is no public provision and space for christian faith. That is to say, "reason shut in on itself does not remain reasonable or rational... Reason needs revelation in order to be able to be effective as reason. The connection between the state and its Christian foundations is imperative precisely if it is to remain the state and be pluralist."75 The state needs the act of living faith, i.e., the experience of truth as an absolute, for its own rationality and freedom. But it needs it as pre-conceptual self evidence, not as abstraction for in that case the Church would become theocracy (the incarnation of religious ideology) and pluralism would cease.
Rights: The Truth Content of "I"
Dignity and rights, understood as dimensions of the person ("I"), are not a subjectivist grab bag from which any self interest can be extracted, much less the rationalist lucubration of selfish isolation in the "state of nature." Scalia offered that it was "very difficult for a person to discern a difference between those political values that he personally thinks most important and those political values that are `fundamental to our society'." His supreme pique seems to be occasioned on the one hand by the "transformation of charity into legal entitlement" or human handicap system of affirmative action which "has produced both donors without love and recipients without gratitude"76 while on the other by the noxious notion of entitlement to abortion, pornography, homosexual marriage, etc. To stop this destructive avalanche, finding "nobody" as truth, he recurs
to constitutional text, positivistic argumentation and wilting sarcasm. But the problem continues to be truth, and its non- perception continues to be caused by its non conceptual character77 while being misrepresented by the bogus mis- conceptualization of the "state of nature." To be the man of the hour, Scalia would have to acknowledge the reality of self evident truth originating from christian faith, in spite of there being no consensus. To do so would be enormously pedagogical78 whether in the majority or in dissent. He would not be teaching religion ideologically, or certainly less, imposing religion institutionally, but acknowledging the religious-truth- now-secular-principle of the person as gift. This "giftedness" whereby one becomes another Christ79 is the truth of the person which grounds what we understand to be "rights." These are certain ways that the "I," discovered in the act of faith, gives itself to God and to the others in the family and civil context. That is, once the person is disclosed by the experience of being gift - both as solidarity (responsible for the others) and subsidiarity (responsible for oneself)80 -, then the "rights" are known as experienced and self evident.81 They are not simply "interests" that can be whimsically snatched from the subjectivities and whims of populace or Court Justices as from a "tinkerer's toolbox."82 They are "objective" dimensions of the person ("subject") who has the unique dignity of determining himself to be gift in the act of imaging the divine Persons who are pure Gift. They are inalienable and inseparable from the person as ways in which he/she lives that one absolute, yet singular, truth.83 They are not gifts "conceded" to the person by the largesse of the majority since, being inalienable from the the being of the person, they cannot be removed in any way, less by "entrance" into society.84 Rather, they are the conditions whereby the person becomes gift and needs service. Their limit is the objective truth of the person, and although that truth does not change, our awareness of it does, provoking us to be open to further developments. How else to explain the qualitative and quantitatively development in Magisterial teaching on rights as seen in Gaudium et Spes #27 (see footnote #79)!
The bulk of Scalia's talk at the Gregorian centered correctly on the confusion of rights with "interests" and the serious damage that is done to persons, government and christianity itself by the "transformation of charity into legal entitlement."85 Since person and truth have no public validity for him, the giftedness of the person to others has no public validity. Hence, Scalia, not perceiving the person and less his constitutive social dimension as the prius of criterion, presumes that Catholic social teaching "must incline us toward that system ("welfare socialism") whereby we would be obliged to put a `chicken-in-every-pot.'" He retorts, "the answer, I think, is no." Sensing correctly the materialism of welfare socialism, he rejects it, but he does so under the Enlightenment aegis of there being no personal rights at all save those conceded by the state. The intrinsically relational person becomes progressively individualized and hence materialized to his own detriment and the detriment of democratic society.
The present discussion concerning the judicial usurpation of politics by the activist side of the Court and the conservative rejoinder from the side of juridical positivism seems to exhaust the noetic options and leave us at an impasse: either go under as a democracy because there is no truth to order freedom, or start a fight to establish new structures. But this exhaustion and impasse take place only on that level of experience which gives rise to abstract thought where freedom and truth are inversely proportional. The more truth, the less freedom; the more freedom, the less truth.
The burden of this paper has been to suggest that there is second level of experience which is also empirical and therefore real where one experiences the "I" as act. Here, freedom and truth are directly proportional not as objectivized "this" and "that," but as dimensions of the same personal subject. The paradigm act of the "I" is christian faith - a moral act - where the "I" enters as gift of self into a relationship with the revealing Christ, producing an experience and consciousness of self as freedom and self as truth. That is, freedom is experienced as dignity of self and right to self-determination precisely when the "I" is given as gift, which is its truth. The historical conditions of the country's founding suggest that the consciousness of this christian experience was surely the dynamic establishing the American people as people and thus the core political principle from which the originating law of the Declaration of Independence and the definitive Constitution emanated. I am proposing that christian faith is the moral, anthropological - let us say secular - act which has becomes the political principle of the American political foundation.
Corresponding to the two levels of experience, the objectivizing sensation/abstraction, and the subjective gift of the "I," the noun "people" has two epistemological meanings which we could materialize as "thick" and "thin." Thin as the quantitative category of the majority which corresponds to the objectivizing sensation/abstraction; thick as rights of the subject on the level of self experience as gift. With this double epistemological experience, we can propose a resolution to the double meaning of "people" in constitutional interpretation as suggested by Arthur Allen Leff: "people rightly see themselves simultaneously as part of `the people' and as autonomous persons."86 As a result, the Constitution "commands that both of these conceptions of the final lodging place of evaluative power be simultaneously reflected in the operations of the American polity."87 Together with the abstractive reasoning which yields the notion of "the people" for majoritarian head counting on a quantitative level and political hegemony over the minority, christian faith produces the consciousness of the intrinsic worth of the individual person whose value as person transcends the quantitative totality of the entire body politic. Hence, constitutional interpretation demands the deployment of both epistemological levels of experience.
Judicial review, then, in order to interpret the Constitution in a truly objective way, needs to pay attention to objective head counting but also to the value of the subject which validates majoritarianism in the first place while grounding the inviolable character of the human person as possessor of human rights. Constitutional interpretation will have to breathe the epistemological atmosphere with the lungs of both first and second tiers of experience. The law must be applied as it reads, but that reading must be interpreted within the christian anthropology that inspired it. To do otherwise is to interpret it in only one dimension and to fail a people in desperate need to understand themselves precisely as people forming a communio personarum, a
Hence, Scalia cannot say (as he does) that "if the people... want abortion, the state should permit abortion, in a democracy." Maybe in a democracy, but not in this democracy! To affirm that the Court has nothing to say about abortion, or assisted suicide, or homosexual marriage, etc. because the Constitution has not written a word about it, is not to say enough about the
Since Scalia is a practical man ("I'm a worldly judge"), when the stakes are high, the most practical thing to do is to be right. A man, committed to truth, in a strategic position and with the political prudence to fight only necessary battles, could galvanize an entire people who await leadership. In opting for truth without abandoning the mandate to apply the law (which is not legal positivism), Scalia may be surprised by the "signs of the times" and the transformations being wrought here in abscondito not dissimilar to 1989 in Central and
On June 6, 1952 in Xavier High School after a final exam in Greek, Justice Scalia witnessed Morton Hill, S.J. write the words "diokete ten agapen" (pursue Love) on the blackboard as final, personal testament to his home room Greek and Latin class. Since Christ's Love and His Truth are identical with His Person, perhaps the writing of those words has now found the person and the historical context for its implementation: "diokete ten aletheian:" pursue Truth.
1 At the
15 Scalia remarks: "(I)t is not very helpful to tell a judge to be a `nonoriginalist.' If the laws is to make any attempt at consistency and predictability, surely there must be a general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another. And it is hard to discern any emerging consensus among the nonoriginalists as to what this might be. Are the `fundamental values' that replace original meaning to be derived from the philosophy of Plato, or of Locke, or of Mills, or Rawls, or perhaps from the latest Gallup poll?" ibid., p. 855.
18 Robert Bork affirmed the same skepticism as to finding any conceptual consensus as to the meaning of man and "what man should become." He likened the prospect to the perennial and frustrating attempt to develop a perpetual motion machine. In line with Scalia's "You can't beat somebody with nobody," Bork urges that "the difficulty with the idea of perpetual motion... is not the accumulation of disappointments in all those garages but there is never going to be such a machine... (T)he problem with overarching systems of morality is not simply that the law professors are not bright... The problem is that this enterprise is doomed to failure." The Tempting of
24 Scalia describes the Constitution as "in its nature the sort of `law' that is the business of the courts - an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law;" in "Originalism: The Lesser Evil," op. cit., p. 855.
25 "(m)an is an unfinished being, as indicated precisely by this `fissure' in him open to the infinite. According to this view, other natures in the world of nature are in their own way `finished beings,' while man, open to the absolute, awaits his completion;" John Paul II and Andre Frossard, Be Not Afraid,
28 "They (the founding Fathers) were fully convinced that the Constitution of the United States derived from a `self- evident' truth respecting man's nature and the government appropriate to it. In fact, toleration of different religious opinions rests, and can only rest, on this political truth; The First Amendment and the Future of American Democracy, Gateway Editions 1985,ibid., p. 146; "The change (permitting Communists to teach in the Universities) has been dramatic, but it is not a change that reflects a change in Communism.... It is a change that reflects, instead, the fact that the Constitution is now held to stand for the equality of all ideas;" ibid., p. 184, et seq.
32 "There is, and can be, no general constitutional right to be let alone. Let alone to do what? To worship? Absolutely. To read? Yes. To waste time? Even that. But to rob a bank? To counterfeit money? To `utter' checks? To make noise? To refuse to be vaccinated? To shoot heroin? To manufacture it? To make child pornography film? In countless ways the law invades privacy, even...the privacy of the home. So it is not enough to speak abstractly of a right to be let alone..." He concludes that if rights are reducible to "interests," then we would revert to the "state of nature" where life would be "solitary, poor, nasty, brutish, and short." However, Berns here has lost his taste for "truth" since his repudiation of granting "interests" the status of "rights" is its impossibility, "and it is impossible because not all interests can be satisfied." See Taking the Constitution Seriously,
35 W. Berns, The First Amendment and the Future of American Democracy, op. cit., p. 10. Note that the point is not whether "our institutions do not presuppose a providential Supreme Being" but that they are in massive agreement on self-evident first principles. My purpose is to show that the universal act of christian faith yields a non-conceptual knowledge of self and rights by the experience of the self as gift. Conceptually, it presupposes a "providential Supreme Being" while experientially it gives a consciousness of "I" and rights. It is on this Christian exercise that the principles of democratic government rest.
36 ibid., p. 83.
38 That Berns think that the absolute be a political concept like the right to be left alone deriving from the state of nature is irrelevant to my thesis. What is most significant is that he saw that historically there was a consciousness of absolute truth such that it was considered self evident. That the content of that concept be "that our institutions do not presuppose a providential Supreme Being" is irrelevant because the character of the truth that I am proposing is not primarily conceptual with but experiential on a second tier of experience as explained below. However, the absoluteness of it as self evident to all is vital to be recognized as truth. To not establish this is already to fall into the trap of positivism as it seems Scalia has.
40 "(S)o far as the Constitution of the
44 Concerning the Christianity of this religious phenomenon, Patrick Henry remarked at the Constitutional Convention that "It cannot be emphasized too strongly or too often that this great nation was founded not by religionists but by Christians, not on religion but on the Gospel of Jesus Christ."
45 "Taking the Constitution Seriously," op. cit., p. 111. See also: "The proscription of religious tests in Article VI (of the Constitution) (at that time) only to national office or national trust, and any attempt to broaden its coverage to forbid state religious tests would almost surely have failed.;" ibid., p. 167.
51 "What is noteworthy in the debates leading to the adoption of the First Amendment is the absence of that kind of religious problem. It is not the differences among the participants in that debate but rather the extent of their agreement that is remarkable. What divided them were differences on what can only, in the light of that history, be called secondary issues... Compared to these differences, the agreement among them was massive. There was no dispute about freedom of conscience or the free exercise of religion; the adoption of the clause protecting free exercise was an altogether perfunctory matter, giving rise to no difference whatsoever. There was no dispute with respect to the principles on which the constitution was built..." (bold mine); Berns, The First Amendment... op. cit. p. 10.
52 Scalia asserted at the Gregorian that "the Supreme Court of the
53 Let us remind ourselves of the spur under Scalia's saddle: "I also think that the central practical defect of nonoriginalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned;" "Originalism: The Lesser Evil," op. cit., p. 862.
55 "To reduce the range of experience to the functions and the content of sense alone would lead to deep contradictions and serious misunderstandings... what then is given directly in experience? Is it only some `surface' aspect of the being called `man,' an aspect detectable by sense, or is it man himself?... It does not seem reasonable to believe that we are given only some more or less undefined set of qualities in, or rather of, man, but not man himself. Moreover, it seems most improbable that man with his conscious acting or action is not given as the object of experience" ibid., p. 8-9.
56 Since the moral act is ascertainably real, and doing follows on being, the being of the doing must be real. And since my "I" self determines itself when it causes the act, and there is an inner experience of that self determination a (a passage from real potency to real act), there is a direct experience of the "I" as reality, distinct from the subjective penumbra of consciousness which has dominated the Enlightenment since Descartes'res cogitans. Phenomenology is the method that gives us respect for this experience and legitimates the "pause." This is the heart of Wojtyla's philosophy. See Wojtyla's Participation or Alienation,? in Person and Community, Lang, 1993, p. 199.
57 "This `pausing' should be understood in relation to the irreducible. The traditions of philosophical anthropology would have us believe that we can, so to speak, pass right over this dimension, that we can cognitively omit it by means of an abstraction that provides us with a species definition of the human being as a being, or, in other words, with a cosmological type of reduction (homo = animal rationale). One might ask, however, whether in so defining the essence of the human being we do not in a sense leave out what is most human, since the humanum expresses and realizes itself as the personale." He continues: "Lived experience essentially defies reduction. This does not mean, however, that it eludes our knowledge; it only means that we must arrive at the knowledge of it differently, namely, by a method or means of analysis that merely reveals and discloses it essence. The method of phenomenological analysis allows us to pause at lived experience as the irreducible... Such a disclosure - the deepest possible disclosure - would seem to be an indispensable means for coming to know the human being as a personal subject...." Subjectivity and the Irreducible in the Human Being, in Person and Community, op. cit., pp. 215-216.
59 Enlightenment rationalism construes freedom as relativizing reality and thought. Wherever there is the absolute, there is no freedom. Hence, truth (which is an absolute in some way) is separated from freedom and the two become inversely proportional. The more truth, the less freedom; the less truth, the more freedom. It will only be on a deeper level of experience and consciousness that Christ's "the truth will make you free" (Jn. 8, 32) can be understood. It will be important to revalidate this interior level of moral experience available to phenomenology (and not to positivism) where truth is experienced as an act of free self gift, and in the very experiencing of this truth of the "I," one becomes conscious of the complementary pluralism of these free absolutes.
60 "The problem (with overarching systems of morality) is that their enterprise is doomed to failure, no matter how intellectually adroit they are. Their quest is doomed for reasons given by MacIntyre:
The most striking feature of contemporary moral utterance is that so much of it is used to express disagreements; and the most striking feature of the debates in which these disagreements are expressed is their interminable character... (T)hey apparently can find no terminus. There seems to be no rational way of securing moral agreement in our culture; (A. MacIntyre, After Virtue, 51 (2nd. Edition 1984 at 6).
This is true, he says, because there is no longer a consensus about what man should become. Only a shared teleological view of the good for man can lead to common ground about which premises of morality are sound.... (O)ur public moral debates over such matters as abortion and capital punishment have been interminable and inconclusive because we start from different premises and have no way of convincing each other as to which are the proper premises... If we have no way of judging rival premises, we have no way of arguing to moral conclusions that should be accepted by all." R. Bork, The Tempting of
61 It may be useful to consider John T. Noonan, Jr.'s thesis that law tended to be made in a state of abstraction and that (n)eglect of persons... had led to the worst sins for which American lawyers were accountable." His thesis calls for an historical epistemology that will retrieve the "I" (the person) from behind the "masks" of abstract categories where it is hidden and imprisoned. He concludes: "The central problem, I think, of the legal enterprise is the relation of love to power. We can often apply force to those we do not see, but we cannot, I think, love them. Only in the response of person to person can Augustine's sublime fusion be achieved, in which justice is defined as `love serving only the one loved;'" Noonan most tellingly quotes Oliver Wendell Holmes, Jr. re the nature of persons in the law: (P)ersonality is an illusion only to be accepted on weekdays for working purposes. We are cosmic ganglia; so I believe as much as I believe anything. And personality is merely the gaslight at the crossroads with an accidentally larger or smaller radius of illumination." Persons and Masks of the Law, The Noonday Press, 1976, p. xii and p. 106. An account of the epistemology of non-ganglionic persons is the aim of this paper.
62 "The most fundamental of the first type of error occurs when the faith is considered as a sort of abstract essence. The legitimate distinction between faith and its expression can lead those concerned with inculturating the faith to search for or create an unincarnated `Christianity'... This temptation to preach an abstract Christianity can be offset by a steady concern for Christological anthropology, that is, by an appreciation and understanding of the human based on revelation in Jesus;" Francis E. George, OMI, Inculturation and Ecclesial Communion, Urbaniana University Press, 1990, p. 221. Christological anthropology is the shift from object to subject where faith is the reciprocal moral act of response, the gift of self, to the gift of the revealing Self of Christ.
63 "Recollectedness, therefore, is the condition which enables man to say, `God is here, the Living, the Holy of whom Revelation speaks, and here also am I.' But not the vague I of everyday life, that confused something which sits down at table, walks through the streets of the town, works at the office, but the real I - the self. This is the I which makes me responsible for my existence, that I - humble and poor though he may be - which is unique and irreplaceable and which God had in mind when He created me and to which the words `God and my soul and nothing else in the world' apply. That I awakens only before God" (underline mine). R. Guardini, The Art of Praying, Sophia, 1985, p.18.
64 "(A) person's true identity is only fully revealed to him through faith, and it is precisely from faith that the Church's social teaching begins;" Centesimus Annus, #54. It must always be recalled that "Christian faith... is not simply a set of propositions to be accepted with intellectual assent. Rather, faith is a lived knowledge of Christ, a living remembrance of his commandments, and a truth to be lived out;" Veritatis Splendor, #88, 5.
65 From a technical point of view, the anthropological change is metaphysical, i.e., from potency to act, while epistemologically, it is from object to subject. That is to say, it is one thing is to speak about the subject, another is to experience (erlebnis) and be conscious of being the subject. For example, even when Thomas Aquinas speaks of the person and subject, he speaks within the epistemology of objectification, i.e., "about." Wojtyla remarks: "We can see here how very objectivistic
67 Acts 4, 11: "This is `The stone that was rejected by you, the builders which has become the corner stone'"; Eph., 2, 20: "you are built upon the foundation of the apostles and prophets with Christ Jesus himself as the chief corner stone...."
68 The mechanism of this transference is the following: "Self- consciousness, like self-possession, as the name itself suggests, is not transferable beyond the individual concrete I, or self, that experiences itself and consequently understands itself in this manner. Although I cannot experientially transfer what constitutes my own I beyond myself, this does not mean that I cannot understand that the other is constituted in a similar fashion - that the other is also an I. For the other to be so constituted, self-possession conditioned by the other's own self- determination will be essential. An understanding of this truth defines to some extent the relation of my own concrete I to all other human beings. They are not just others in relation to my I; each of them is also another I. The other is always one of those I's, another individual I, related experientially in some way to my own I.... Thus the reality of the other does not result principally from categorical knowledge, from humanity as the conceptualized essence `human being,' but from an even richer lived experience, one in which I as though transfer what is given to me as my own I beyond myself to one of the others, who, as a result, appears primarily as a different I, another I, my neighbor. Another person is a neighbor to me not just because we share a like humanity, but chiefly because the other is another I," (underline mine); K. Wojtyla, Participation or Alienation? in Person and Community, op. cit., pp. 199-201.
69 "Now Jesus, having come into the district of Caesarea Philippi, began to ask his disciples, saying, `Who do men say the Son of Man is?' But they said, `Some say, John the Baptist; and others, Elias; and others, Jeremias, or one of the prophets.' He said to them `But who do you say that I am?'" Jn. 16, 13-16.
72 This is the overall thrust of the first two chapters of Walter Berns's Taking the Constitution Seriously. First, there is Chapter 1: "Constituting the People of the
74 Catholic theology sees sin as the isolation of man in loneliness or the equivalent of Hobbes's "state of nature." Made in the image of likeness of a Trinity of Persons who are intrinsically relations, the temptation "You will be like God," (Gen. 3, 5), was an ontological impossibility for man as creature. Therefore, what Hobbes is describing is precisely the christian understanding of Hell and its isolation. "The human being is relational, and he possesses his life - himself - only by way of relationship. I alone am not myself, but only in and with you am I myself. To be truly a human being means to be related in love, to be of and for. But sin means the damaging or the destruction of relationality. Sin is a rejection of relationality because it wants to make the human being a god. Sin is loss of relationship, disturbance of relationship...;" J. Ratzinger, "In the Beginning..." Our Sunday Visitor Publishing Div., 1990, p. 60.
77 The non-discernment of the person conceptually could be compared in some way with Etienne Gilson's attempt to present the thomistic esse as the primum metaphysicum whose intellectual content is not susceptible to abstractive conceptualization. He remarks: "Because it lies beyond essence, existence lies beyond abstract representation, but not beyond the scope of intellectual knowledge;" Being and Some Philosophers, PIMS, 1949, p. 202. Another obvious cause of the non discernment of the dignity of the person is the weakened state of the christian faith as lived which dims the veritatis splendor of the divine image.
78 Appositely, Noonan writes: "Teaching - the main activity of appellate judges; for what else are 95 percent of their written opinions? -... Teaching is, necessarily, person to person, informing and evoking. It cannot be equated with Pavlovian conditioning as an exercise in applied force. Addressing both Holmes's bad man (...) and also the larger audience made up of the uncertain, the confused, the conforming, and the aspiring, legislators, and judges are educative. Their success is far more by persuasion that they are right than by coercion. To think of law as a science of power, unlocked by a key, badly obscures this function" (underline mine); Persons and Masks of the Law, op. cit., pp. 12-13.
80 "Persons are the active and responsible subjects of social life. Intimately linked to the foundation, which is man's dignity, are the principle of solidarity and the principle of subsidiarity. By virtue of the first, man with his brothers is obliged to contribute to the common good of society at all its levels. Hence the Church's doctrine is opposed to all the forms of social or political individualism. By virtue of the second, neither the state nor any society must ever substitute itself for the initiative and responsibility of individuals and of intermediate communities at the level on which they can function, nor must they take away the room necessary for their freedom. Hence the Church's social doctrine is opposed to all forms of collectivism;" Instruction on Christian Freedom and Liberation, Sacred Congregation for the Doctrine of the Faith, March, 22, 1986, pp. 47-48.
81 John Paul II enumerates them: "the right to life at every stage of existence; the rights of the family, as the basic social community, or `cell of society;' justice in employment relationships; the rights inherent in the life of the political community as such; the rights based on the transcendent vocation of the human being, beginning with the right of freedom to profess and practice one's own religious belief;" in On Social Concern, #33. Vatican II in Gaudium et Spes #27 enumerated them negatively: "all offenses against life itself, such as murder, genocide, abortion, euthanasia and wilful suicide; all violations of the integrity of the human person, such as mutilation, physical and mental torture, undue psychological pressures; all offenses against human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children, degrading working conditions where men are treated as mere tools for profit rather than free and responsible persons. All these and the like are criminal: they poison civilization; and they debase the perpetrators more than the victims and militate against the honor of the creator." Also in the Pope's Letter to Families #17: "The rights of the family are closely linked to the rights of the person: if in fact the family is a communion of person, its self- realization will depend in large part on the correct application of the rights of its members. Some of these rights concern the family in an immediate way, such as the right of parents to responsible procreation and the education of children. Other rights... touch the family indirectly: among these, the right to property... and the right to work..."
83 This truth as absolute is the very subject himself and therefore does not dissolve freedom but, as we saw above in Berns, is its condition. That the human person - as subject (not choosing objects) - be self determining means that he is free from having any ideology or religious establishment imposed on him. Part of his truth is that he is self determining; the other is that he must seek the true pattern according to which he must make that free determination. He must not be determined - "used" - by another, not even God. As Wojtyla says: "On the part of God, indeed, it is totally out of the question since, by giving man an intelligent and free nature, he has thereby ordained that each man alone will decide for himself the ends of his activity, and not be a blind tool of someone else's ends;" Love and Responsibility, Farrar, Straus, Giroux, 1981, p. 27.
84 Scalia attempts to restrict the subjectivism of "interests" by restricting "rights" as limited concessions from the majority (read government). Thus he rails against "christian" chicken-in- every-pot socialism (see CNS, p. 11) which he thinks, wrongly, to be christian social doctrine. Since he works only with the abstraction of law as his truth, and not with the truth of person as gift, he misses the personalist doctrine of the Church which teaches only the person. Sed in contra: The way of the Church is person, not structure. But the person is a process of two dimensions: he/she becomes self by making the sincere gift of self (Gaudium et Spes #24). These dimensions are the basis of the two fundamental principles of subsidiarity (dignity of persons) and solidarity (service to others). The solution of the Church to poverty is not socialism but the ordinary professional work of persons as the concretion of the self gift. Scalia is stagnating behind the mask (see Noonan) of abstract law without reaching its source and truth which is persons. At best, he jury rigs with originalism. At worst, he errs by calling christianity socialism. Apposite to the point are the observations in the Instruction on Christian Freedom and Liberation, Sacred Congregation for the Doctrine of the Faith, 1986, #75.
posted by The Augustine Club at
with permission of the author, October 1997