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JUSTICE ANTONIN SCALIA:
LIVING IN ANOTHER WORLD

Professor Ali Khan
Washburn University School of Law
JURIST Contributing Editor

I admire Supreme Court Justice Antonin Scalia a Sicilian-American success story (his father emigrated from Sicily), a religious believer, a caring father of nine children, a literary man skilled in the art of linguistic combat, sometimes an inimitable judge but always an intellectual provocateur.

With or without recognizing his ingenuity, Scalia痴 many critics have been both harsh and unkind. For them, Scalia痴 jurisprudence is 砥nprincipled and his speech 都arcastic; for them, he interprets a 電ead constitution.納1] But by no means is the Justice without admirers. The United States Vice President is just one among many who hold Scalia痴 multiple talents (including his shooting skills) in high esteem.[2]

Perhaps so does the President of the American Society of International Law (ASIL), who has invited Justice Scalia to be the keynote speaker at the ASIL annual conference to be held this week in Washington DC. The invitation is a brain teaser, since Scalia champions normative isolation, refuses to recognize an emerging world without borders, and often insists that engineers of the Constitution need not pay attention to universal values. Driven by a patriotic belief that American law is unique, Scalia dismisses the experiences of what he calls foreign nations, including Europe, the homeland of his forebearers. In disagreeing with his Supreme Court colleagues who acknowledge 殿 wider civilization and see no wrong in legal cross-pollination, Scalia accuses them of 斗iving in another world.納3] Frequently sharing his isolationist vision with Justice Thomas, Scalia has manufactured a constitutional island set to live apart from the rest of the humanity.

Scalia痴 constitutional island

For Scalia, the Constitution that came into formal existence in 1789 is a normative island that must be fortified against eroding foreign and modernist influences. The infrequent invasions that the island experiences, and to which Scalia submits, are wrought through the upheavals of constitutional amendments. Otherwise, Scalia prefers that his constitutional island not be spoiled by interpretive engineers of the Constitution. In United States v. Virginia, Scalia dissents because 鍍he Constitution of the United States--the old one--takes no sides on an all men痴 military academy.[4] The phrase 鍍he old one is aimed at the majority and at Justice Ginsberg, who delivered the Court痴 opinion, for supposedly inventing a new constitution that forces the academy to admit women. Scalia scolds the Virginia court for writing 鍍he current preferences of the society into our Basic Law and demands that the Court preserve and not revise the 田onstant and unbroken national traditions.納5] This nostalgia for the conservation of the good old (boys) constitution is a constant theme of Scalia痴 opinions.

Most intriguingly, Scalia痴 constitutional island is closed to foreign ferries. In Lawrence v. Texas, Justice Kennedy, writing for the Court, invokes the decisions of the European Court of Human Rights and the imperative of 殿 wider civilization to argue that American constitutional development cannot ignore a right (in this case a right to sexual preference) that has been 殿ccepted as an integral part of human freedom in many other countries.納6] Kennedy痴 reference to a wider civilization poses a threat to Scalia痴 island. In his dissent, predictably, Scalia dismisses any constitutional connections with a wider civilization and insists upon finding rights 途ooted in this Nation痴 history and tradition.納7] Designating foreign views as 杜eaningless and 電angerous dicta, Scalia quotes Justice Thomas to reaffirm that 鍍his Court should not impose foreign moods, fads, or fashions on Americans.

Back in 1988, Scalia痴 pre-commitment to a constitution disconnected from the rest of the world showed most strongly when the Court forbade the execution of William Wayne Thompson who was 15 years old at the time of his offence.[8] Justice Stevens, in delivering the Court痴 judgment, listed a number of countries that had outlawed juvenile executions. Stevens also invoked the International Covenant on Civil and Political Rights and the American Convention on Human Rights, both of which ban the execution of children under 18 at the time of the offense.[9] Dissenting, Scalia rejected the international argument as having no persuasive force. Instead, he constructed a moat around the constitution, arguing that 田ivilized standards of decency in other countries are totally inappropriate as a means of establishing the fundamental beliefs of this Nation.

A year later, Scalia got his wish (upon a star) to fortify the Eighth Amendment from external influences and writes the majority opinion, permitting the execution of children who committed crime at 16 and 17. The universal argument against the execution of juveniles under 18---as if it carries no dignity to be included in the text of his main opinion---is ducked down to a footnote that dismisses 鍍he sentencing practices of other countries (as) irrelevant.納11] Repeating his mantra of legal patriotism, Scalia stated in the same footnote: 展e emphasize that it is American conceptions of decency that are dispositive.納12] (At the time, only eight countries in the world executed juveniles. Now the count has dropped to four, and the United States tops the list in child executions.)[13]

As Scalia matures on the Court, his resolve to disconnect the Constitution from universal values shows few wrinkles. Last year in Grutter v. Bollinger, Scalia ridiculed the ideas of 田ross-racial understanding and 電iverse workforce and society that Michigan University Law School advanced to recruit a racially diverse law class.[14] This time, though upset at what he calls racial preferences, Scalia drew no footnotes to nurse the separation of world and America. Strangely though, and somewhat unintelligibly, Scalia chose the words 殿 patriotic, all-American system of racial discrimination in hiring to mock the idea of diversity. Although the humor behind these words is a bit obtuse, they contain mystical (his word) causticity aimed at those ushers who would open the door of opportunity to previously excluded groups.

In contrast to Scalia痴 declamation against cross-racial diversity, Ginsburg began her concurrence opinion in Grutter with the 妬nternational understanding of the office of affirmative action. She cited the International Convention on the Elimination of All Forms of Racial Discrimination, which permits 都pecial and concrete measures to provide full and equal enjoyment of rights and freedoms to racial groups. Ginsberg also cited the International Convention on the Elimination of All Forms of Discrimination against Women that also promotes 鍍emporary special measures aimed at accelerating de facto equality. These references to international legal materials were designed to demonstrate that affirmative action is no unique charity solicited only in this Nation, but is a universally recognized value.

Justices Breyer, Souter, Stevens, Kennedy, Ginsberg, and O辰onnor all argue that comparative perspectives on constitutional adjudication carry enormous value. Their judicial opinions incorporate references to comparative law, and often to European legal systems. Perhaps to torment Scalia and Thomas, the two most vocal opponents of comparative jurisprudence, Breyer even predicts the triumph of the comparative view in American constitutionalism. Since majority is the name of the Supreme Court, the comparative view has already won by six votes.

Does Scalia have a point?

Though losing the battle, does Scalia have a point in arguing for an indigenous jurisprudence for this Nation? In my view he does, but only to an extent.

First, though, distinguish between comparative law and international law approaches to constitutional adjudication, for a comparative view of the Constitution is not the same as internationalization of the Constitution. The comparative view borrows legal reasoning and even outcomes reached under constitutions of other nations. In contrast, internationalization of the Constitution treasures the norms of international law, embodied in treaties, customary international law, and cases decided by international tribunals such as the International Court of Justice.

Since the comparative approach devalues the mythology of difference, it is bound to weaken American exceptionalism an idea dear to Scalia. But America is unique not in any supremacist sense of race, fortune, intelligence, or morality, though such views exist in some quarters. America is undeniably unique in its diversity, as this Nation is one in which ethnic groups of diverse customs, cultures, languages, and legal traditions, from all over the world, have come to live together. This mosaic, which Scalia may or may not cherish, is the core theme of American exceptionalism.

Many of Scalia痴 colleagues look across the Atlantic to monitor legal developments in Europe. Borrowing from European legal systems seems natural to them, for these systems are highly developed and, most importantly, in borrowing, a wider civilization between Europe and America is re-validated. Scalia, however, assumes no such vigorous connections between America and Europe. Understandably, Thomas, with his African-American heritage, might resist a comparative approach that cultivates new bonds between America and Europe, to the exclusion of any such bonds with other continents. The comparative approach loses much of its universalism if it simply Europeanizes the American Constitution.[15]

But internationalization of the Constitution is a different matter. The Constitution explicitly recognizes the supremacy of international law. Under Article VI, 殿ll treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the Land. Note that the reference is not confined to treaties made in 1789 or before. The supremacy clause is futuristic in its scope and mandate. It provides an evolutionary process of reading the laws of this Nation in light of present and future international law.

High constitutional barriers, however, have been built to resist the supremacy of international law. Lower respect accorded to customary international law, almost no respect reserved for treaties signed but not ratified, the doctrine of non-self executing treaties, the supremacy of prior constitutional cases over treaty provisions---these and other such doctrines have effectively blocked internationalization of the US Constitution.

American exceptionalism that defies the jurisprudence of any one continent is perhaps laudable. But when it repudiates universal values, it is neither lovely nor desirable. Undeterred by the distinction, Scalia would uphold an American value 兎ven if it contradicts the uniform view of the rest of the world.納16] In my view, Americans need not live in a normative island disjoined from the World. And engineers of the Constitution need not close the door to universal values and read Noah Webster痴 dictionary for shedding light on constitutional phrases. According to a proverb from the island of Sicily--Megghiu friscu di chiazza ca friscu di sfilazza釦he fresh air from the square is better than a draft from a crack.


NOTES

1. Sherry F. Colb, The Unprincipled Jurisprudence of Justice Scalia: Reflections in the Wake of Bush v. Gore (2000). In a speech at the University of Kansas School of Law, Scalia himself said, though jokingly, that he advocates a dead constitution. Laurence H. Tribe, Revisiting the Rule of Law, 64. N.Y.U. L. Rev. 726 (1989).

2. Autumn Fox & Stephen McAllister, An Eagle Soaring: The Jurisprudence of Justice Antonin Scalia, 19 Campbell L. Rev. 223 (1997) (Scalia is compared to an eagle having a strong vision of what the Constitution is all about.) Justice Scalia is reported to have gone pheasant hunting with Dean McAllister, and duck hunting with the Vice President.

3. Board of County Commissioner v. Umbehr 518 U.S. 668, at 711 (Justice Scalia, dissenting)

4. 518 U.S. 515 (1996)

5. Id.

6. 123 S. Ct. 2472 (2003).

7. Emphasis in original.

8. Thompson v. Oklahoma, 487 U.S. 815 (1988).

9. Id. at 831, note. 34.

10. Id, at 869, note 4 (Scalia, J. dissenting) (emphasis added).

11. Stanfrod v. Kentucky, 492 U.S. 361, at 380, note 1 (1989).

12. Id. (emphasis original).

13. http://web.amnesty.org/pages/deathpenalty_children_eng

14. 539 U.S. 306 (2003).

15. Bruce Ackerman is also opposed to the Europeanization of American constitutional theory.

Ali Khan is a professor at Washburn University School of Law in Kansas. His publications are available here.

March 29, 2004

CONTRIBUTING EDITOR

JURIST Contributing Editor Ali Khan is Professor of Law at Washburn University School of Law in Topeka, Kansas. A law graduate of Punjab University in Lahore, Pakistan, he also holds LL.M. and S.J.D. degrees from New York University, where he was the Robert Marshall Fellow in Civil Liberties and the Judge Jacob D. Fuchsberg Fellow in Criminal Law. At Washburn he teaches international law and human rights. He has published numerous articles on international law. His latest book, A Theory of Universal Democracy: Beyond the End of History has just been published by Kluwer.

Professor Khan is a member of the New York Bar.