Wednesday, February 17, 2016

A Critique of Justice Scalia's Legal Philosophy

JUSTICE SCALIA AND YOGI BERRA: "You Can't Beat Somebody With Nobody" - Hence Legal Text Trumps Truth = Legal Positivism 

(Incomplete without footnotes)

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 Nuremberg laws, "would have resigned."5 

"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.

The question concerning the legal mind of Justice Scalia is the question of the absence of truth and the prevailing nihilism globally, the general loss of meaning. the dictatorship of relativism which gives prority to the outward, the immediate, the visible, the quick, the superificial and the provisional" (Pope Francis: Joy of Evangelizing) In the absence of truth, Scalia recurrs to a legal positivism of words. He 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 that the majority wills 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 Quantity in numbers trumps quality in truth absolutely since there is none.

All this comes down to say that the constitutional structure is built on the sand of lexicology. Although Scalia can lyricize philosophically "I love natural law"20 or, "(the governmental system)embodies those Christian precepts." However, in the real world of adjudication he speaks as judge: "(o)nce the Constitution was put in place, it is the Constitution [as text] that governs my actions." Obviously, this is correct for him to osay 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 a proper function because Scalia presumes by stealth the philosophy of Hobbes and Locke concerning the "state of nature" as the source of rights.

    But I hasten to add that the human person and his conscience is always above the democratic state. Historically John Adams formulated the very meaning of the democratic state from the dictates of conscience and the consciousness accruing to the experience of live Christianity.That conscience took semantic form in the Declaration of Independence and the Consitution. Scalia's pleads a distinction between the "Declaration" as "underlying sentiment" and Constitution as "law" and that it is law, not sentiment that rules the body politic. But it must be said that it is precisely the "underlying sentiment" that has become law, and without which this country would not have the law it has.(Gregorian 15-16)) 

 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.

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 the “Cogito, ergo sum” of Descartes, the “I” has been taken to be vapid consciousness and bereft of ontological weight and density. And in the search for a grounding reality on which to establish the political order, Justice Scalia appeals to the democratic quantitative majority of the vote. 
Karol Wojtyla has made an extraordinary philosophic and therefore jurisprudential contribution in deploying the phenomenology of lived experience to the “I.” By it, he finds the Enlightenment turn to the “I” as the locus of the greatest ontological density rather than the least, and hence the unique self as the locus of the self-evident universal truths that we find in conscience, the so-called natural law, and in our case here, the Bill of Rights and the Constitution. Basically, Wojtyla provides the metaphysical account of what John Adams experienced in colonial America in 1789 and wrote into the Constitution to be found by Justice Scalia. The result is that Scalia can with total safety vis a vis his Christian conscience and philosophic absoluteness function as a radical “originalist” because it has been already packed into the wording of the Constitution, ratified by the totality of the United States at that time, leaving Scalia with the burden of merely searching for “original intent” in the words. Problematic of that, of course, is that Scalia runs the risk of being accused – and rightly so – of being a legal positivist, if he can make no justification for the saturation of the wording of the Constitution with a Christian metaphysic. 

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 United States. They continue to need the foundation of the gift of self which is christian faith as anthropology. And it must be kept clear that christianity does not enter the public square as christian theocracy (Christendom) nor church establishment nor creed. It enters precisely as gift of self in secular work and the family.It must enter now as it had entered the United States from 1620 to 1776 by a lived Christianity.May the year of Mercy, and the thrust of Pope Francis to the peripheries be such a catalyst.
Think also of the first ever meeting (February 13, 2016) in Cuba of Francis with Kirill, Patriarch of the Russian Othodox Church, healing the split (after 1,000 years of being one) of the Christian Church (in 1054) as the vital step of showing the world the Face of Jesus Christ after the second 1000 years of invisibity for the Muslims.It seems that all the fragmentation (including the Protestant Reformation and the unbelievable fractures of the Middle East) of the second millennium derives from 1054. What great things may be in store! 

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