VOLUME: 26 ISSUE: 06 DATE: 1996 06 27: At the Gregorian University, Rome
Of Democracy, Morality and the Majority. Courtesy of Catholic News Service.
JUSTICE ANTONIN SCALIA
"It just seems to me incompatible with democratic theory that it's good and right for the state to do something that the majority of the people do not want done. 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. If the people do not want it, the state should be able to prohibit it," U.S. Supreme Court Justice Antonin Scalia, a Catholic, said May 2 when he gave an address at the Gregorian University in Rome. His widely reported remarks were delivered during a symposium on the political order and the common good. The symposium's theme was "Left, Right and the Common Good." It was what Scalia said about the workings of democracy and the relationship of a nation's laws to natural law and morality that attracted the greatest attention. In the face of bad law, "the whole theory of a democratic system is you must persuade the people that it is bad," said Scalia. "I do not think that any state can provide for its people a society that is any better than the virtue of its people. And if the people do not have that virtue, the state cannot impose it. At least in a democratic system," he said. Catholic News Service transcribed a tape-recording of Scalia's presentation. Here Origins presents the transcription of his address and of the question-and-answer period that followed it.
Foreword by Blogger: Scalia's overriding position is his function as judge of law in a democratic polity.. His position as judge demands that he adjudicate according to the wording of the Constitution set forth by the people through their representatives. As judge, he has no transcendent criterion except the words of the law and their common meaning. He understands that his mission is not to interpret the law according to his personal lights and conscience but to apply the common meaning of the words at their ratification it to concrete circumstances. He is totally in favor of natural law, but it must be found and applied by the people among themselves by democratic procedure and legislation. He makes a radical distinction here between democratic process and application of democratic process, i.e. the written law. Otherwise, it is he and nine unelected judges that are ruling the people as an elite legislature, and not the people ruling themselves. The following talk bears this out clearly.
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First of all, I am very impressed at what a progressive attitude toward scholarship and education the Gregorianum has. I notice on these student consoles out there they are able to vote "placet", "non placet". I don't know if that is activated for this conference. I assume that if it is "non placet", a door opens under here and I go right out.
If there was ever a topic that cried out for a definition of terms it is certainly the one we are discussing today. "Right and left", "right wing" and "left wing" are terms that in America, just as Professor Beneton said is the case in France, there is no fixed meaning for. In political discourse one cannot say that the terms "right" and "left" mean anything in particular except that they all connote, as they do not in European political discourse, a degree of extremism. In America, that is to say, both terms "right" and "left" have a certain pejorative flavor. Thus we have in American political commentary that familiar villain the "right-wing extremist" and more recently that ominous political force the "Christian right". The terms "left-wing extremist" and "Christian left" would have similar overtones of foreboding if they were ever used by the American media, which curiously enough they are not.
Once, however, one gets beyond the pejorative content, it is hard to pin down the meaning of right and left in American political usage. Sometimes the terms are used to denote respectively statists and libertarians, that is, those who favor a strong and authoritarian government vs. those who favor a high degree of individual freedom. In this sense of right and left, former President Richard Nixon would be a man of the right and his opponent in one of the elections, Eugene McCarthy, would be a man of the left.
But if that were the only meaning of the term, both Augusto Pinochet and Fidel Castro would have to be referred to as "right-wingers", because they certainly are both in favor of strong and authoritarian government. So there must be a second and quite different connotation of the terms, which there is, namely, a connotation that distinguishes between laissez-faire capitalists and socialists.
This is not only different from, it is sometimes the opposite of the first connotation, since those who favor a high degree of individual freedom in other matters, that is to say, those who under the first category would be with Eugene McCarthy often favor a high degree of human freedom in economic matters as well. Thus the American Libertarian Party is a party of the left under the first connotation and a party of the right under the second, because it favors economic freedom as well as what you might call Bill-of-Rights freedom.
Yet a third meaning of "right" and "left" is much more relativistic. It draws a distinction between those who favor the status quo and those who favor change, between conservatives and progressives. Since over most of the past century change has been moving from a status quo of capitalism toward socialism, this third connotation tends to produce the same results as the second connotation.
Castro can be called a man of the left in both senses. But of course if and when the tide of history reverses itself and begins moving from socialism to capitalism, the equivalence between these last two connotations disappears. Thus the old-line communists in Russia who resist the change from the status quo toward democracy and capitalism are sometimes referred to in the American press, believe it or not, as the right.
And finally, "right" and "left" may connote a distinction between nationalism and one-worldism. This may be merely one aspect of the first connotation I mentioned, since those who favor a strong authoritarian government, the Richard Nixons of the world, are ordinarily nationalists. But it really must be an entirely separate connotation, since I can think of no other basis for calling the Nazis a party of the right and the communists a party of the left. They are both authoritarian, they are both socialist and they are both untraditional. But the communists are internationalists.
For purposes of my remarks today I am assuming the meaning of "right" and "left" contained in the second connotation. That is the meaning that refers to the distinction between laissez-faire capitalism and socialism. I have chosen that meaning in part because that probably comes closest to the meaning of the terms "right" and "left" in European political discourse, and thus is more likely to be what the conveners of this conference had in mind; and in part because that is the only one of the dichotomies I have mentioned that is the subject of widespread current debate. In the waning years of the 20th century, few are urging a return to authoritarianism, to vigorous nationalism or to traditionalism, whereas capitalism has made something of a comeback.
I must make a second clarification before I proceed to the discussion of the topic: the other term used in the title "The Common Good." I have chosen to interpret the "common good" to mean the Christian common good. Thus I take that system to be conducive to the common good for purposes of this conference, which is conducive to virtue as Christianity understands virtue and which is conducive to sanctification. I assume that this is the meaning of common good that the organizers of the conference had in mind, the Gregorianum being, as I understand it, a school that is ultimately devoted to that sort of good.
Having fully defined my topic, the first thing I wish to say about it is that I do not believe in it. That is to say, I do not believe that a Christian ought to choose his form of government on the basis of which will be most conducive to his faith any more than he ought to choose a toothpaste on that basis. To be sure, there are certain prohibitions that Christian morality imposes upon what a government may do or may permit to be done. A Christian should not support a government that suppresses the faith or one that sanctions the taking of an innocent human life, just as a Christian should not wear immodest clothes. But the test of good government, like the test of good tailoring, is assuredly not whether it helps you save your soul.
Now I suppose that there is, or I am willing to posit that there is, a perfect form of government, one most suited to human nature. And there is certainly nothing wrong with philosophers, including Christian philosophers, trying to figure out what that perfect form of government might be. But there is probably a perfect way to make an omelet too, and I have no reason to believe that the one any more than the other increases the love of God or the chances of salvation.
In that regard I have always been struck, as I think any modern democrat must be struck, by the advice in the letter of St. Paul which says, "Slaves, obey your masters." Not "Slaves of the world, unite, you have nothing to lose but your chains." Even a political system that permitted, though it did not coerce, the institution of slavery, which is certainly not very acceptable to Christians, seemed of small consequence to St. Paul, although at the level of personal action he of course did encourage Christians to emancipate their slaves.
Paul apparently felt, as I do, that the responsibility of government is the here, not the hereafter; that it is not meant for saving souls, but for protecting life and property and assuring the conditions for physical prosperity; and the needs of the here and the hereafter sometimes diverge. It may well be, for example, that a governmental system which keeps its citizens in relative poverty will produce more saints. The rich, as Christ observed, have a harder time getting to heaven. But that would be a bad government, nevertheless.
This recognition of the separate spheres of church and state is not just the teaching of the First Amendment to the U.S. Constitution, it is also, I think, the teaching of Jesus Christ, who spoke of rendering to Caesar the things that are Caesar's, and is not recorded as having indicated any preference about government except one: He did not want to be king.
If, however, I were to engage in the search for the form of government most conducive to Christianity, I would certainly not settle upon the candidate that seems to have such a great attraction for modern Catholic thinkers, to wit, socialism. It is hard to understand that attraction. Surely it does not rest upon the teachings of experience. I know of no country in which the churches have grown fuller as the governments have moved to the left. The churches of Europe are empty.
The most religious country in the West by all standards - belief in God, church membership, church attendance - is that supposed bastion of capitalism least-diluted by socialism: the United States. When I say "least-diluted by socialism," you must understand that I say that in a modern context in which we are all socialists. In the United States that battle was fought and decided in the 1930s with the so-called New Deal of Franklin Roosevelt. No one, even in the most conservative quarters of American society, any longer opposes the welfare state, which provides many benefits and social services to individual citizens. The only real argument is over how numerous those benefits and social services ought to be and how poor one should be in order to qualify.
Few of us even understand anymore what a truly nonsocialist mentality was like. I happened to encounter it by accident when I was a young professor doing research for an article on the subject of sovereign immunity, the legal doctrine which says that a sovereign state cannot be sued without its consent.
I came across a debate in the Massachusetts Legislature, I believe it occurred during the first half of the 18th century, concerning a proposed bill that would provide compensation to a woman who had been seriously injured, physically injured, through the negligence of one of the agents of the state - a policeman or a fireman, I forget the exact manner in which the physical injury had occurred. Those members of the Massachusetts Legislature opposing the bill argued that they had no right, that it was morally wrong, to use public funds for the private benefit of this woman, as opposed to using public funds for a purpose that would benefit the public at large. Because of the doctrine of sovereign immunity, they argued, the Commonwealth of Massachusetts owed this woman nothing, and to agree to pay her out of public funds money that was not legally owed was in effect to use public funds for a private gift, which they said was wrong. What a totally different world of thought. And this, I point out, was a woman who had been injured by the commonwealth. You can imagine what their attitude would have been toward dispensing public funds to the poor who had not been injured by the commonwealth.
Well, as I say, that frame of mind is gone, almost incomprehensible to us moderns. In the United States a small remnant of that nonsocialist attitude lasted into the present century. Our federal constitution in the United States, you may recall, gives Congress not an unlimited power to expend funds, but only the power to expend funds "for the general welfare." And until the triumph of Franklin Roosevelt and the New Deal, there were many who believed that that language prohibited the expenditure of funds for any private assistance. Neither to the rich nor to the poor. That fight, as I say, is over.
We now believe that any expenditure for any citizen is an expenditure for the general welfare: whether to the poor such as the recipients of food stamps, which is what the American welfare system provides, or to the middle class or even fairly well-to-do, such as federal assistance to the victims of a tornado in a very elegant section of Florida, or even assistance to the downright rich such as the shareholders of the Chrysler Corp., whom we bailed out. All of these are now regarded as entirely proper objects of the state's beneficence.
Now, the allure of socialism for the Christian, I think, is that it means well. It is, or appears to be at least, altruistic. It promises assistance from the state for the poor and public provision for all the necessities of life: from maternity care to geriatric care and from kindergarten through university. Capitalism, on the other hand, laissez-faire capitalism, promises nothing from the state except security of person and property, and the opportunity to succeed or fail. Adam Smith points unabashedly to the fact that the baker does not provide bread out of the goodness of his heart but for profit. How uninspiring.
Yet if you reflect upon it, you will see that the socialistic message is not necessarily Christian, and the capitalistic message is not necessarily non-Christian. The issue is not whether there should be provision for the poor, but rather the degree to which that provision should be made through the coercive power of the state. Christ said, after all, that you should give your goods to the poor, not that you should force someone else to give his. One should not forget that the individual voter in a socialist democracy votes not to give his own goods to the needy, but also to force others to do so. They will go to jail for tax evasion if they refuse. And often, as I shall observe later, the needy is he: the voter.
Bear in mind that in this discussion I am not arguing about whether socialism is good or bad as a system of government. If private charity does not suffice to meet the needs of the poor, or if we do not want the poor to regard themselves as the object of charity, or if we even wish to go beyond merely assisting the poor and want to redistribute the wealth of the rich to the middle class, socialism may be a better way to meet those worldly needs and desires. But all of that can be decided on the economic and secular merits of the matter.
The question I am asking is whether Christian faith must incline us toward that system, and the answer, I think, is no. Christ did not preach a chicken in every pot or the elimination of poverty in our lifetime. These are worldly governmental goals. If they were his objectives, he devoted precious little of his time and talent to achieving them, feeding the hungry multitudes only a couple of times as I recall and running away from the crowds who wanted to put him on the throne, where he would have had an opportunity to engage in some real redistribution of wealth.
His message, the Christian message as I understand it, is not the need to eliminate hunger or misery or misfortune, but rather, the need for each individual to love and help the hungry, the miserable, the unfortunate. Indeed, the argument can be made that far from doing Christ's work, state provision of welfare positively impedes it. To the extent the state takes upon itself one of the corporal works of mercy that could and would have been undertaken privately, it deprives individuals of an opportunity for sanctification and deprives the body of Christ of an occasion for the interchange of love among its members.
I wonder, for example, to what extent the decimation of women's religious orders throughout the West is attributable to the governmentalization of charity. Consider how many orphanages, hospitals, schools and homes for the elderly were provided by orders of nuns. They are mostly gone, at least in my country. The state provides or pays for these services. Even purely individual charity must have been affected. What need for me to give a beggar a handout? Do I not pay taxes for government food stamps and municipally run shelters and soup kitchens? The man asking me for a dollar probably wants it to buy liquor.
There is, of course, neither any love nor any merit in the taxes I pay for those services. I pay them under compulsion. And it can be argued the governmentalization of charity affects not just the donor, but also the recipient. What was once asked as a favor is now demanded as an entitlement. When I was young, there used to be an expression commonly applied to a lazy person - one would hear it often: "He thinks the world owes him a living." But the teaching of welfare socialism is that the world does owe everyone a living.
This belief must affect the character of welfare recipients, and not, I suggest, for the better, or at least not for the better in the distinctively Christian framework of things. Surely Christ's special love for the poor was attributable to one quality that they possessed in abundance: meekness and humility. It is humbling to be an object of charity, which is why mendicant nuns and friars used to beg: It is humbling. The transformation of charity into legal entitlement has produced both donors without love and recipients without gratitude.
It has also produced a change in the product that is distributed. Most particularly and most relevantly for purposes of the present discussion, social services distributed by the state in my country, for example, cannot be intermingled with Christian teaching or even, increasingly, with Christian morality. They do not say the Angelus in public orphanages. There are no crucifixes on the walls of public hospitals. And the Ten Commandments are not posted in public schools.
The religiously driven and religiously funded social welfare movements of the 19th century sought to achieve not merely the alleviation of poverty and hardship, but also what was called moral uplift. Of course that is no part of state-administrated social welfare today.
The state-paid social worker whose job is to see to the distribution of welfare funds to those who are legally entitled to them is not, cannot legally be concerned with improving not only the diet but also the virtue of her clients. ("Clients" is the coldly commercial terminology that the welfare bureaucracy uses, in my country at least.) It is quite simply none of her business. And the result is often the elimination of poverty without the elimination of the vices that produce the poverty - indeed, sometimes with a positive reinforcement of those vices through elimination of the pain that they ordinarily produce.
Perhaps the clearest effects of the expansion of the state at the expense of private charity are to be found in the field of primary and secondary education. A relatively small proportion of Americans are nowadays educated in schools run by religious associations. Catholic schools are much less numerous than they were at midcentury. As the costs of primary and secondary education have risen, it has become very difficult for churches to run a system competitive with the tax-funded public schools.
Simultaneously, litigation has caused the public schools to eliminate all religiously doctrinal materials from their curriculum. That is good and proper under our American system, which forbids the official establishment of any religious sect. But the nonsectarian state's increasing monopoly over primary and secondary education can hardly be considered beneficial to Christianity. Whereas such overtly religious texts as "The Pilgrim's Progress" were once the staple of an American schoolchild's education, nowadays religious instruction, if received at all, is obtained one evening a week in confraternity classes or on Sunday.
In more recent years, as society has become more and more diverse in its views concerning morality, the state's control of education deprives children not only of Catholic doctrine but even of essentially Catholic moral formation. Schools distribute condoms, provide advice on birth control and abortion, and teach that homosexuality must not be regarded as wrong. Again, it is not my place or purpose to criticize these developments, only to observe that they do not suggest that expanding the welfare role of government is good for Christianity.
Finally, I may mention that even the seemingly Christian virtue of socialism, namely that it means well and seeks to help the poor, may be greatly exaggerated. It is true in the United States and I believe it is true in all of the Western democracies that the vast bulk of social spending does not go to the poor, but rather to the middle class, which also happens to be the class most numerous at the polls. The most expensive entitlement programs in the United States, Social Security and Medicare, which is public medical assistance, for example, overwhelmingly benefit those who are not in dire financial straits. So one may plausibly argue that welfare-state democracy does not even really have the Christian virtue of altruism. The majority does not say to the rich, "Give your money to the poor" but rather, "Give your money to us."
Just as I believe the left is not necessarily endowed with Christian virtue, so also I believe that the right is not necessarily bereft of it. Laissez-faire capitalism, like socialism, speaks to the degree of involvement of the state in the economic life of the society. Like socialism, also, it does not speak to the nature of the human soul. There have been greedy and avaricious capitalists, but there have also been generous and considerate ones just as there have been altruistic and self-
deprecating socialists, but have also been brutal and despotic ones. The cardinal sin of capitalism is greed, but the cardinal sin of socialism is power. I am not sure there is a clear choice between those evils.
While I would not argue that capitalism as an economic system is inherently more Christian than socialism, at least so long as we are talking about a form of socialism that permits some acquisition and ownership of property, nonetheless it does seem to me that capitalism is more dependent upon Christianity than socialism is. For in order for capitalism to work, in order for it to produce a stable and prosperous society, the Christian virtues are essential. Since in the capitalist system each individual has more freedom of action, each individual also has more opportunity to do evil. Without widespread practice of such Christian virtues as honesty, self-denial and, yes, even charity, the capitalist system will be ineffective and, worse than that, intolerable.
The capitalist system without Christianity - I'm afraid that non-English speakers will not understand this - is Ebenezer Scrooge without the ghosts of Christmas.
Let me conclude, as I began, with a disclaimer. The burden of my remarks is not that a government of the right is more Christlike, only that there is no reason to believe that a government of the left is. To tell you the truth, I don't think Christ cares very much what sort of political system we live under. He certainly displayed very little interest in that subject during his time among us, as did his apostles. Accordingly, we should select our economic and political systems on the basis of what seems to produce the greatest material good for the greatest number, and leave theology out of it. I'll conclude with that.
Moderator: Mr. Justice, I've read some of your writings, and I have to admit that this is the first time I've actually heard you speak. No one has ever accused you of being uninteresting or timid, and now I know why. Thank you for a very stimulating presentation. I open the floor for questions.
Q. It seems to me that this interpretation undermines the idea of the common good. Because if you accept your interpretation, the only thing the government has to do is improve the living condition of life. But according to the general interpretation of the social teaching of the church, of course, the material condition of life is not sufficient. And the economic approach puts aside many important things such as the moral conditions of life.
In this kind of interpretation, work is merchandise, work is something which can be sold as another good, and it seems to me that a good interpretation is given by the pope in his encyclical, in which he makes precise distinction between two kinds of market economies. And if we think that the market economy is autonomous, it seems to me that this idea is hostile to the whole social teaching of the church and the whole wisdom of the church, concerning what is man. Man is not only an economic actor. If you reduce man to an economic actor you reduce this dimension and you undermine, it seems to me, what he is.
Scalia: I do not disagree with the statement that the material condition of life is not sufficient and that if you reduce man to an economic animal it is the antithesis of Christianity. There is certainly nothing more contrary to Pareto optimization, to purely economic acting, than charity, than giving away your money to someone. Nothing could be more contrary to economics. So we do not disagree on the objective. I think where we disagree is upon the extent to which the achieving of that objective is the business of the state.
It is a large jump from the proposition that the material condition of life is not sufficient to the proposition that it is up to the state to produce something more than the natural man. I believe it is the job of the state to take care of the natural man, and it is up to individuals and religious associations to take care of the supernatural man. And it is the supernatural man who is the noneconomic actor. I do not think it is the function of the state to try to achieve that supernatural function.
Q. The natural man is a moral man. Of course we have to distinguish between the natural and the supernatural man, but the natural man is not only an economic man, and you can find an example in security.
In some ways there is an antagonism between security and the material good of the society, of the entire society. So there is a primacy of the common good. In some ways the government has to do many things to avoid some acts, some deeds which act against the security of the country even if this act plays against the material good of the citizens. It is a case in which you have an antagonism between the common good and the realization of private interests. Take as an example pornography - you think the government has nothing to do with pornography?
Scalia: I think, as St. Thomas thought, that it depends upon the extent to which the society happens to share that moral value. A society which shares it, yes can prohibit it. But a society that does not, cannot, and one cannot say that it is the job of the government to attend to that. It is the functioning of the religious forces of the society, the churches and individuals, that can produce the objection to pornography which justifies the state as adopting such a prohibition, because most of the people want it. But the state does not adopt it for supernatural reasons or does not adopt it because it is in the nature of man. The state adopts it because that's what its people want.
Q. Not at all. Take then drugs for example. If the majority of men want drugs, you allow drugs in the free market?
Scalia: Well, it has been done, has it not? I do not think it's a good thing, but then I do not think that any state can provide for its people a society that is any better than the virtue of its people. And if the people do not have that virtue, the state cannot impose it. At least in a democratic system.
It is very unfair to engage in a debate with someone who is not speaking his native tongue. I apologize for doing that.
Q. I graduated from an American law school in 1990 and I just wanted you to know that for me and I know for a lot of others, you are a means of perseverance for us in a sometimes hostile environment, the way American law schools are these days. And I also want you to know that your opinions had a lot of respect of even those who did not agree with you. Many times they would not be so generous in their comments toward Chief Justice Rehnquist, but - I just want you to know that your opinions do carry great weight in the law schools.
My question: I think you explained well that the state shouldn't act in imposing certain theological or religious obligations on the people. However, I think one thing that's still open here is the basis upon which we could say, as you have said, it's not the duty of the state to do good or so forth. It seems to me this cries for some justification. What is the principle which would justify your view?
I would contend that there is a natural law of reason which is separate from theology, separate from any biblical view, separate from the magisterium of the church, which requires and obliges governments and systems to obey certain laws of reason which are derived from man's nature, his substantial nature, I think which Professor Beneton spoke of in his talk. I was wondering if you could comment on that.
What would justify your position to say that the state can do this or can't do that, because it would seem that the natural law based on reason is something that, with experience, develops over time, in the sense that as man becomes more aware of the circumstances and the solutions that work, there's more of an obligation to apply certain activities, certain solutions to problems. Because man with his nature deserves certain - is not just an object. I would appreciate any comments.
Scalia: It just seems to me incompatible with democratic theory that it's good and right for the state to do something that the majority of the people do not want done. 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. 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.
Moderator: Can I offer an intervention here? I think we have to be a little bit careful about how the term "natural law" is used. It's not equivalent to self-evident to all people at all times. It wouldn't be so hard to use it as a principle of government if it were.
I think, going back to the intervention we had just a moment ago, when the justice said the government can't impose virtue, it seems to me you have to make a distinction - and I think the justice did earlier - you have to make a distinction: what you think government can do. And the value of the liberal state was that it avoided civil war better than previous systems, as the losers agreed they would abide by the majority decision even if they were totally opposed to it.
But that's not necessarily identical with the question of virtue. It's a question of what can you ask a political system to do without destroying the system that made a disagreement possible, and agreement, for that matter.
Scalia: Bear in mind that I am not saying, I have never said, I have written my opinions to the contrary, that the government has no business in adopting moral positions such as laws against pornography, but only as a consequence of the desire of the people to have such laws. Not as a consequence of the fact that you are not a just government and a good government unless you have such laws. I have no objection to government acting out of 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, it seems to me, in and of itself is totally neutral on those points. It is the people who must bring out the morality of Christianity or any other morality that is to be reflected through the government. And I think it is inconsistent with democratic theory that the government has an obligation to do that in and of itself.
Q. (Translated from Italian) I would like to say something in reference to the many citations of the Gospel in your speech. Jesus said, "The poor you will always have with you." One could use this phrase to demonstrate that the battle against poverty is lost from the beginning and there's no point in battling it. This shows that isolating a single phrase from the Bible can also be dangerous.
Since it is clearly not Christian behavior to simply avoid the battle against poverty, I want to ask you what is the proper behavior of the Christian in an active political commitment, both regarding poverty or regarding life. Earlier, abortion was cited. I don't know, for example, what you would think about a Catholic official who signs a law allowing abortion, whether he should resign or not. I'm asking your opinion.
Scalia: I do not like the phrase "the active political commitment of a Christian". I should have thought that it's obvious from what I have said that the commitment of a Christian reflects itself in his personal life and in his persuasion of others, not in his acting through the instrument of government.
Now the debate in the United States over abortion and over "Roe vs. Wade" is a totally different issue from whether the government should prohibit abortion if the people do not want it prohibited. What "Roe vs. Wade" held was that even if the people want it prohibited, the states could not prohibit it, because the U.S. Constitution forbids them to prohibit it. That's a totally different issue from what you and I are talking about. And I apologize for just reading small excerpts from the Gospels but I didn't think you wanted me to read the whole thing.
Q. I have a question on the understanding of common good and the good of the majority. You stated somewhere that Jesus himself was not really concerned with things that are material and that gave him the opportunity to move away from the people. I think that again leads to a very fragmentary way of understanding the human being, removing the spiritual from the material. And I tend to think that we cannot separate these two. And again: in looking for the best government, that Christ is not interested in the type of government that we choose and that the government that we should look for is the one that seeks the interest of the greatest majority. But I think that here also there is a problem because what do we do with the minority? I think that is a very crucial problem.
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 U.S. 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 take up arms and conquer the majority. I mean you may always do that, of course. But you either agree with democratic theory or you do not. But you cannot have democratic theory and then say, but what about the minority? 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. Because the minority may be right.
And as for you do not believe that Christianity separates the material from the spiritual, well I hate to "selectively" quote from the Gospels again, but in the Sermon on the Mount, "Do not be concerned what you shall eat, what you shall put on." You know, the ungodly care about those things, but your Father will take care of you, don't worry about it. Is that a prescription for sound government? Don't worry about what the people will eat or what they will put on? It is the function of government precisely to be concerned about those worldly things that Christ tells you not to be concerned about. That is precisely the function of government. Now I see no incompatibility between the two. But let us not try to impose the ends of spirituality upon an instrument that is meant for this world and not for the next.
Q. It seems to me that you have a different kind of democratic dogmatism. It seems to me that it is not a good interpretation of democracy. Democracy is a good government; it is not a system in which the majority can do anything, for example, deciding to kill minorities or to destroy liberty of religions. That means that the will of the people is not, absolutely not, the only source of will of the good....
If you say the people are the only source of the will, the people can do anything, for example, kill the minority. This is absolutely absurd. Of course, a Christian cannot say people want to persecute, to destroy Christianity. If the people want to destroy Christianity, OK, I am a democrat, it's a very good thing to destroy Christianity. So, first, we live the liberal democracy and the will of the people is subordinated to the natural law. If not, no man is the master, people are not the master. Is this not dogmatic democracy?
Scalia: Yes, it is dogmatic democracy, but you know our democracy - and recently Europeans have copied us - we have listed those things that the majority cannot do such as taking someone's life without due process of law, such as impeding freedom of religion and so forth. But my only authority as a judge to prevent the state from doing what may be bad things is the authority that the majority has given to the courts. But ultimately the formation of the state is by the majority, and what the majority decides shall be the rights of minorities is what their rights are, under that legal system.
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. If you want to set yourself above the state, do it the good, old-fashioned, honest way: Lead a revolution!
Q: You know that I am very much agreeing with you, but at this last point - majority - I have some qualms. Because when I was young, being a German, the "Nuremberger gesetze" against the Jews would have been approved by the majority, so it would have been law. And I think there are instances which are beyond constitution and beyond majority. I don't think there are many - but some there are.
Scalia: Well, as I say, we certainly believe that in America, and that'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. Because anyone can make up other ones. I mean, you know, to talk about the natural law is not to talk about something we all agree upon. And it seems to me you cannot set yourself - if you're going to be a faithful, loyal democrat, if you do not like the Nuremberger laws, your duty is to persuade others.
And it's the same thing with the many other bad things that government can do. Can it do bad things? Yes, it can do many bad things which the Constitution does not prohibit. But it is the duty of the good Christian to act by persuading your fellow citizens, which is why freedom of religion and freedom of speech are the first two freedoms set forth in our Constitution and ought to be the first two set forth in any constitution. Because it is ultimately those two that leaven the society, that change the society, so that the majority will want what is good, instead of wanting what is bad. But to presume to judge for yourself what is good or bad and impose it upon the majority simply because it is bad, I cannot accept that.
Q: Yes, but it's not a question that I want to impose something on the majority, but I want, knowing how people are, I know that sometimes the majority, or other ways of legislation, may produce bad laws, and I remember, having read it yesterday, "Lex iniusta non est lex."
Moderator: Can I offer an observation? This is only an observation; it is not a criticism. Some of the discussion is demonstrating why we have begun a specialization in political philosophy. The problem of what constitutes constitutional government is not a simple problem. And historically it took a long time in certain cultures to get to a system that avoided a civil war at the death of the king's son. Also it is perhaps worth noting that, contrary to current belief, Aristotle favored democracy because it was the least bad of all the others. There's an insight to human nature in that.
Q. I think that I will be ill at ease in this discussion because I am in the presence, from what I understand, of a professor of law and a Supreme Court judge, and I would rather engage in the theory of law rather than in the theory of Christianity. I perfectly agree with you that, in speaking about law in a pluralistic society, I don't have to bring in either Christianity or, I would say, natural law.
I feel ill at ease speaking about natural law because somebody would have to stand up and say, "I speak in the name of natural law." So I don't know whether it is the case to enter into questions of natural law.
But I would advance only one question: I remember when I was in the United States studying, there was a professor of mine of political philosophy who said, "Well, the Constitution of the United States is not the first document, because the Constitution is changeable. But there is a document which stands behind the Constitution, and it is the Declaration of Independence." If you stand up against the Declaration of Independence you are un-American, out. And the Declaration of Independence strangely enough sets out the ground which has nothing to do with majority, but with self-evidence, when it says, "We hold these truths self-
evident." Does that not mean that the Constitution of the United States rests on the self-evidence of something which for Thomas Jefferson, at least, was natural law, if somebody likes to put it this way?
Scalia: Well, unfortunately, or to my mind fortunately, the Supreme Court of the United States, no federal court to my knowledge, in 220 years has ever decided a case on the basis of the Declaration of Independence. It is not part of our law. It expresses the underlying sentiment which gave rise to the creation of this Constitution. But it is the Constitution that is the document that governs us.
I am glad that you pointed out that you feel ill at ease talking to a lawyer. I feel ill at ease talking to philosophers. Maybe my very stingy view, my very parsimonious view, of the role of natural law and Christianity in the governance of the state comes from the fact that I am a judge, and it is my duty to apply the law. And I do not feel empowered to revoke those laws that I do not consider good laws. If they are stupid laws, I apply them anyway, unless they go so contrary to my conscience that I must resign.
But the alternative is not to do what is good or apply the law. The alternatives are apply the law or resign because the law is what the people have decided. And if it is bad, the whole theory of a democratic system is you must persuade the people that it is bad. I cannot go around and - with respect to the Nuremberg laws, I would have resigned. But I would certainly not have the power to invalidate them because they are contrary to the natural law. I have been appointed to apply the Constitution and positive law. God applies the natural law.
Q: Yes, but behind your insistence that you have to persuade the people, there is, of course, something higher than the Constitution, because I'm asking for some evidence on which I want to persuade.
Scalia: Yes, of course. I couldn't agree more with that. That is something to be done by private individuals and religious associations.
Q. And by teachers of law?
Scalia: By teachers of law? Teachers of law, in my country at least, bring too many of their own prejudices to the enterprise already.
Q. Why is there in the title a Christian commonwealth. I don't understand the use of the term "Christian".
Scalia: I don't want to repeat it; I said that in the beginning of my speech.
Q. Do you think - I do think - that it is possible to have some kind of Christian inspiration with both of the systems - socialism and the other one [democracy] - without any Christian theological diktat? At least do you think it is possible some Christian inspiration in the second question, at least the second question? You don't like the natural law -
Scalia: No, I love the natural law.
Q. But is it possible that some common, fundamental ethics can give something to the positive law?
Scalia: Yes, of course, and it must. But that process 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. I am not saying that the American Constitution did not embody moral values that were central to Christianity. Of course. My court has said that. But once the Constitution was put in place, it is the Constitution that governs my actions. And it is that that must be amended, and it is amended to conform more closely to natural law, if you wish. But do it by not persuading me, I'm a worldly judge. I just do what the Constitution tells me to do.
Q. As I was trying to follow all of this debate, it seems there's been a change in emphasis in the ways questions have been posed and they've been answered. I believe that's a terminological problem. You began, Judge Scalia, by talking about the natural and the supernatural. People automatically went into a philosophical or theological mode of thinking. Then you have come around at the end more to defending your own way of handling law within a determined historical and constitutional context, that of the United States, what you are allowed to do as a judge.
But your basic issue here, the way you approached it at the beginning, was to say that Christianity as such is not concerned with the political constitution of any state, because Jesus didn't do it. And give to Caesar the things that are Caesar's, and to God the things that are God's. Though I can understand your position very well and I appreciate it, I would have trouble with some of the theological and philosophical conclusions of the very strong distinction you made at the beginning between the temporal things being assigned to the world and the spiritual things being assigned to God - spiritual, the supernatural. That's a very Protestant way of understanding it, whereby the world is a place of will without reason, the world is a place of sin because it has no reason to do anything.
While to the church, revelation belongs, morality and God's will. But that has not been the normal Catholic way of understanding. We have generally talked about man's knowledge of God, man's knowledge of the natural law, which is built into man himself. Any political constitution would have to be within the structures of that natural law, despite what you say about the American Constitution. But we as Catholics who are living within this tradition would then have to make a judgment upon the validity or nonvalidity of any political system and the means of working within it.
Now if we as Catholics maintain that there is a distinction between natural and supernatural, and the supernatural presupposes the natural, and the natural order is based in reason which teaches us of God's will and of the moral law, it would seem that therefore a natural political constitution which did not make any place for religion or the worship of God would be going against reason, because God is known by reason. And a constitution which did not allow for moral values or could allow to go against moral values because of the popular will should therefore be rejected not only by Catholic Christians but also by anyone who claims to be reasonable.
In the concrete instances one must always distinguish between the norm and what is possible, because we are always touched by original sin and, therefore, the most efficient government need not be the best government. In fact sometimes democracy is the best because it is the most inefficient. Can you prohibit -
Scalia: I think I see where we begin to part company. I have no quarrel with the fact that man is a creature that has both a natural and a supernatural life and that both natural and supernatural life is important in this world. But I part company when you believe that it is the function of the state to foster the supernatural life, which is apparently what you do believe, that you cannot select a system of government unless you select one -. I just think it is foolish to think that the state is going to do that when the state is meant for this world. And I'm afraid that a lot of theologians waste a lot of their time becoming political scientists because of that notion that somehow the ends of Christianity will be achieved through the state. It has probably never happened, and I don't think will happen.
Should the state adopt bonos mores? Of course. Every state has always fostered "bonos mores", but in a democracy at least those "bonos mores" are going to be the mores of the society, and it is up to the Christian to change the society if indeed the majority wants bad things.
MARGIN NOTES TO TRANSCRIPT OF ADDRESS AND QUESTION-AND-ANSWER PERIOD AT GREGORIAN UNIVERSITY
Civil law, moral law and democracy were among points discussed by Pope John Paul II in a 1995 encyclical, "Evangelium Vitae" (The Gospel of Life), which appeared in Origins, Vol. 24, pp. 689ff in the issue dated April 6, 1995, especially Nos. 68 and following, pp. 713-716. Here are some excerpts from those pages:
"One of the specific characteristics of present-day attacks on human life ... consists in the trend to demand a legal justification for them," said the pope. Sometimes, he said, "it is claimed that civil law cannot demand that all citizens should live according to moral standards higher than what all citizens themselves acknowledge and share. Hence the law should always express the opinion and will of the majority of citizens and recognize that they have, at least in certain extreme cases, the right even to abortion and euthanasia" (No. 68).
The pope said (No. 69) that "in the democratic culture of our time it is commonly held that the legal system of any society should limit itself to taking account of and accepting the convictions of the majority....
"Furthermore, if it is believed that an objective truth shared by all is de facto unattainable, then respect for the freedom of the citizens - who in a democratic system are considered the true rulers - would require that on the legislative level the autonomy of individual consciences be acknowledged. Consequently, when establishing those norms which are absolutely necessary for social coexistence, the only determining factor should be the will of the majority, whatever this may be. Hence every politician, in his or her activity, should clearly separate the realm of private conscience from that of public conduct.
"As a result we have what appear to be two diametrically opposed tendencies. On the one hand, individuals claim for themselves in the moral sphere the most complete freedom of choice and demand that the state should not adopt or impose any ethical position but limit itself to guaranteeing maximum space for the freedom of each individual, with the sole limitation of not infringing on the freedom and rights of any other citizen. On the other hand, it is held that, in the exercise of public and professional duties, respect for other people's freedom of choice requires that each one should set aside his or her own convictions in order to satisfy every demand of the citizens which is recognized and guaranteed by law; in carrying out one's duties, the only moral criterion should be what is laid down by the law itself. Individual responsibility is thus turned over to the civil law, with a renouncing of personal conscience, at least in the public sphere."
The pope asked (No. 70): "When a parliamentary or social majority decrees that it is legal, at least under certain conditions, to kill unborn human life, is it not really making a 'tyrannical' decision with regard to the weakest and most defenseless of human beings? Everyone's conscience rightly rejects those crimes against humanity of which our century has had such sad experience. But would these crimes cease to be crimes if, instead of being committed by unscrupulous tyrants, they were legitimated by popular consensus?"
The pope continued: "Democracy cannot be idolized to the point of making it a substitute for morality or a panacea for immorality. Fundamentally, democracy is a 'system' and as such is a means and not an end. Its 'moral' value is not automatic, but depends on conformity to the moral law to which it, like every other form of human behavior, must be subject: In other words, its morality depends on the morality of the ends which it pursues and of the means which it employs. If today we see an almost universal consensus with regard to the value of democracy, this is to be considered a positive 'sign of the times,' as the church's magisterium has frequently noted. But the value of democracy stands or falls with the values which it embodies and promotes. Of course, values such as the dignity of every human person, respect for inviolable and inalienable human rights and the adoption of the 'common good' as the end and criterion regulating political life are certainly fundamental and not to be ignored.
"The basis of these values cannot be provisional and changeable 'majority' opinions, but only the acknowledgment of an objective moral law which, as the 'natural law' written in the human heart, is the obligatory point of reference for civil law itself. If, as a result of a tragic obscuring of the collective conscience, an attitude of skepticism were to succeed in bringing into question even the fundamental principles of the moral law, the democratic system itself would be shaken in its foundations and would be reduced to a mere mechanism for regulating different and opposing interests on a purely empirical basis.
"Some might think that even this function, in the absence of anything better, should be valued for the sake of peace in society. While one acknowledges some element of truth in this point of view, it is easy to see that without an objective moral grounding not even democracy is capable of ensuring a stable peace, especially since peace which is not built upon the values of the dignity of every individual and of solidarity between all people frequently proves to be illusory. Even in participatory systems of government, the regulation of interests often occurs to the advantage of the most powerful, since they are the ones most capable of maneuvering not only the levers of power but also of shaping the formation of consensus. In such a situation, democracy easily becomes an empty word.
"It is therefore urgently necessary for the future of society and the development of a sound democracy," the pope said (No. 71), "to rediscover those essential and innate human and moral values which flow from the very truth of the human being and express and safeguard the dignity of the person: values which no individual, no majority and no state can ever create, modify or destroy, but must only acknowledge, respect and promote.
"Consequently, there is a need to recover the basic elements of a vision of the relationship between civil law and moral law, which are put forward by the church, but which are also part of the patrimony of the great juridical traditions of humanity.
"Certainly the purpose of civil law is different and more limited in scope than that of the moral law. But 'in no sphere of life can the civil law take the place of conscience or dictate norms concerning things which are outside its competence,' which is that of ensuring the common good of people through the recognition and defense of their fundamental rights, and the promotion of peace and of public morality. The real purpose of civil law is to guarantee an ordered social coexistence in true justice, so that all may 'lead a quiet and peaceable life, godly and respectful in every way' (1 Tm. 2:2). Precisely for this reason, civil law must ensure that all members of society enjoy respect for certain fundamental rights which innately belong to the person, rights which every positive law must recognize and guarantee. First and fundamental among these is the inviolable right to life of every innocent human being."