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Interpreting God's Justice
Laurence Tribe v. Sean Wilentz on Justice Antonin Scalia
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"Justice Scalia is attacking neither constitutional democra-
cy, nor a republican form of gov-
ernment, but what he deems a
...fallacious line of thought...."

                      - Laurence Tribe
August 13, 2002

Professor Sean Wilentz
Princeton University
Princeton, N.J.

Dear Sean:

I appreciate your prompt reply to the letter I sent you on August 10. I have no difficulty with your suggestion, echoing that of Cromwell to the Scots, that I should entertain the possibility that it was I who was mistaken about both the content of Justice Scalia’s argument and the charges you make as to that argument. I’ve entertained it, reread both the Scalia essay and your attack, and must confess that I remain of the view that I expressed in my August 10 letter.

I am unpersuaded by anything contained in the pair of paragraphs you quoted at some length to demonstrate that, because Justice Scalia did say he thought a certain “consensus ha[d] been upset, . . . by the emergence of democracy,” you were entitled to pen your Q.E.D., observing triumphantly that “[t]he thing speaks for itself.” In a sense, it does, but what I think it says is something very different from what you seek to assert by isolating the quoted material from the two paragraphs that precede it and the four paragraphs that follow. In combination, the half dozen paragraphs from which you extracted your selections make entirely clear that the “consensus” Justice Scalia says democracy’s emergence has upset is the consensus that “accords to the state a scope of moral action that goes beyond what is permitted to the individual,” and that the mechanism by which he believes the “emergence of democracy” has upset that consensus is - just as the passage you quoted observes - how “difficult” it is “to see the hand of God - or any higher moral authority - behind [those] whom we ourselves elect to do our will.” (Emphasis mine.) As Justice Scalia makes too clear to miss, his complaint is not with democracy as such, secular or otherwise, but with how that difficulty, a form of the all-too-familiar challenge of comprehending how the whole can manage to transcend the sum of its parts, has tripped up the moral intuitions of so many in what Scalia describes, in the last line of the first of the six paragraphs that surround your excerpt, as “a predictable (though I believe erroneous and regrettable) reaction to modern democratic self-government.” (Emphasis mine.)

If that isn’t enough to drive home the conclusion that Scalia is not, contrary to your characterization, guilty of “bitterness against democracy,” recall his criticism of, in the last of the half-dozen paragraphs surrounding your chosen two, “[t]he mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals . . . .” (Emphasis mine.) Isn’t it obvious that Justice Scalia is attacking neither constitutional democracy, nor a republican form of government, but what he deems a tempting but fallacious line of thought that is, he thinks, as “erroneous and regrettable” as it is “predictabl[e]” - a line of thought that he urges those he calls “people of faith” to “combat . . . as effectively as possible”?

So it is not I who have omitted or distorted anything in the Scalia essay, Sean. It is, I think, you who, in omitting far more than a line, have confused the meaning of the text you found “chilling”. True, Justice Scalia happens to believe that the most effective way for people who share his religious convictions to combat the fallacy that a government of the people, by the people, for the people can have no claim to moral authority beyond that of its individual members is to preserve “in our public life many visible reminders that,” and here he quotes a famously liberal Supreme Court opinion of six decades ago, “we are a religious people, whose institutions presuppose a Supreme Being.” You are free, as am I, to disagree that our nation’s governing institutions presuppose any such thing. I caution, though, against asserting with such certitude - and with so casual a willingness to reduce the views of “the Framers” to a simple slogan - that we all know whose opinions counted from among the many who contributed to the drafting of the Constitution and its Bill of Rights, and from among the many more who took part in the ratification of those instruments. Not all right-thinking students of the period are bound to share your conclusion that, contrary to the complexity many of us have long insisted characterizes such matters, the chorus of all relevant voices unambiguously and unanimously “acknowledged no divine authority behind government.”

Remarkably, after announcing that simplistic slogan, you ask me whether I “disagree.” Of course I disagree. There were nearly as many strands of thought and sentiment on such matters as there were “Framers,” and, in any event, I have long believed that what the Constitution means, what it should be taken to signify, is not remotely equivalent to what any specific bunch of characters - all male, white, propertied, and quite dead - imagined, expected, or, to use your word, “acknowledged” about the text they played a part in promulgating. I expected that you, not being one of the supposed “originalists” whom you might deride in other contexts, would have hesitated before opining with certitude that Justice Scalia’s belief in a Constitutional mandate of greater tolerance for displays of religious faith in the public square than I believe it justifies amounts, no less, to a “strong dislike for the Constitution’s approach to religion.” (Emphasis mine.) If you mean a strong dislike for Sean Wilentz’s take on the Constitution’s approach to religion, why not just say so? Can you seriously suppose that these matters are so open-and-shut as to be beyond debate?

I have from time to time chided Justice Scalia for being far too sure of himself, and for displaying an unfortunate lack of humility and a corresponding excess of dismissiveness about approaches to constitutional meaning that differ from his own. Nothing in my exchange with you shakes my conviction that this criticism of the Justice has been well taken, but I fear that you tread a similar path in “knowing” what many of the rest of us spend decades of our lives and write thousands of pages trying to figure out.

Least of all, the fact that two great newspapers, rather than just one, duplicated the errors I’ve detailed doesn’t exactly bring me to my knees. Your use of the Washington Post editorial as proof that your reading of Scalia isn’t so “outlandish after all” assumes three things, none of which I can accept: first, that the Post editorial really reaches “much the same conclusion” you do; second, that the Post’s reading of Scalia was wholly independent of yours, which was published earlier in a place that I have to assume the Post’s editorial writers occasionally read; and third, that something is ipso facto not outlandish simply because “reasonable and informed persons” can accept it. That you, Sean, are yourself an eminently reasonable and well-informed person doesn’t immunize you from the possibility of egregious error, any more than my being such a person immunizes me from that possibility.

That said, I see nothing in your renewed attack on Justice Scalia - including your description of your “claims concerning Scalia’s bitterness about democracy” as somehow “measured” in their tenor - that alters my conclusion that you’ve misread his remarks or that requires further elaboration than our existing exchange provides. Like you, I believe that interested readers who study what Justice Scalia had to say in the first instance and who review our exchange about his essay can reach their own conclusions, and I am entirely satisfied to rest with those.

Sincerely,

Larry

AT ISSUE
Justice Antonin Scalia:

"Of course those who deny the authority of a government to exact vengeance are not entirely logical. Many crimes—for example, domestic murder in the heat of passion—are neither deterred by punishment meted out to others nor likely to be committed a second time by the same offender. Yet opponents of capital punishment do not object to sending such an offender to prison, perhaps for life. Because he deserves punishment. Because it is just.

The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects in other areas as well. It fosters civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law—even if it does not compel him to act unjustly—need not be obeyed. St. Paul would not agree. 'Ye must needs be subject,' he said, 'not only for wrath, but also for conscience sake.' For conscience sake. The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible. We have done that in this country (and continental Europe has not) by preserving in our public life many visible reminders that—in the words of a Supreme Court opinion from the 1940s—'we are a religious people, whose institutions presuppose a Supreme Being.' These reminders include: 'In God we trust' on our coins, 'one nation, under God' in our Pledge of Allegiance, the opening of sessions of our legislatures with a prayer, the opening of sessions of my Court with 'God save the United States and this Honorable Court,' annual Thanksgiving proclamations issued by our President at the direction of Congress, and constant invocations of divine support in the speeches of our political leaders, which often conclude, 'God bless America.' All this, as I say, is most un–European, and helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as 'the minister of God,' to 'execute wrath' upon the evildoer."

First Things
May 2002