Introduction | The Letters | Discussion
Interpreting God's Justice
Laurence Tribe v. Sean Wilentz on Justice Antonin Scalia
Professors Tribe and Wilentz invite you to join their JURIST debate on the reflections of Justice Scalia.
Who's right? Is Justice Scalia truly bitter about democracy and committed to re-infusing religion into the Constitution? Or is he saying something else? Add your comments using the form provided below.
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- Tuesday October 01, 2002 at 11:12 am
I, for one, am greatly perturbed by Professor Wilentz's distorted characterizations of Justice Scalia's remarks, and am greatly appreciative of the civility and clarification provided in response by Professor Tribe, especially since the latter is not one usually perceived as sharing campgrounds with Scalia. The text of the Constitution does not speak either for or against various points that might be raised about divine inspiration or not behind the Constitution or, indeed, whether "God" exists or not. Scalia's references to the coincidental loss of some traditional consensus at a similar point in time to the emergence of democratic governmental institutions simply carry with them the implication that, if any new consensus is to emerge concerning such matters as the death penalty, it will have to be achieved through the vicissitudes of such consensus "bubbling up" through the processes and mechanisms of democratic institutions. I would hope, in any event, that Professor Wilentz would be straightforward enough in any further public comments on the subject, to provide rhetorical support for his arguments by persuasive argumentation dealing with issues from his own perspective, rather than distorting another's (Scalia's) remarks to attack that other perspective. Charles A. Marvin Professor of Law Georgia State U. Atlanta, GA (and no, Professor Wilentz, I do not come from the Deep South, if you have a particular reading to give that one, too)
Charles A. Marvin
Georgia State University College of Law
- Tuesday October 01, 2002 at 6:42 pm
Justice Scalia's remarks demonstrate both his considerable rhetorical skills and his unabashed hypocrisy. Scalia sneers at those who "judicially decree" "procedural and substantive limitations" on the state's power to deprive one of its citizens of life while blithely reading out of the Constitution the oath requiring all office holders to execute the laws of the land. Scalia probably holds the same contempt for Lincoln, in whose mind the oath was sufficient to authorize acts necessary to preserve the union, because it apparently does not (according to Scalia) authorize the same Congress with which he trusts the lives of infants to implement a program of gun control. Undoubtedly he can cite some historical precedent for all the convenient exceptions he needs when his frozen-in-time version of the supreme law of the land would otherwise preclude the result he prefers, but he has not yet publicly revealed his secret source of such indulgences. I think that the debate between Professors Tribe and Wilentz misses this essential attribute of Scalia's rhetoric: Scalia sets up different rules for himself than he seeks to impose on everyone else. The chill factor of his agenda does not depend for its scope on whether it derives from secular or religious authority; that it exists is enough for me. That righteousness, whether of the right or the left, whether religious or secular, and whether inspired by "the hand of God-or any higher moral authority," deserves-at least-a healthy dose of skepticism. Scalia mourns a loss of righteousness, whether caused by democracy or a reaction to modern self-government, because it represents a turning away from the truth-apparently as immutably frozen in time as the Constitution-that all government derives its power from the hand of God (and not, as our founders mistakenly believed, from the consent of the governed). I lament it-somewhat facetiously-because it gives Scalia his monopoly on the truth, to be revealed or not as he sees fit.
David J. Weimer
- Wednesday October 02, 2002 at 6:30 am
Obviously, Mr. Wilentz and Mr. Weimer greatly misunderstand Scalia and the philosophical implications democracy has for Christianity (and vice versa). Dr. Tribe has done a superb job of showing how Wilentz has simply misread Justice Scalia and profoundly misunderstood him, but I think such misunderstandings occur so easily because people like Wilentz "don't get" religion (particularly the Christian religion).
Justice Scalia does not believe democracy is a lesser form of government, wholly inferior to one based upon the notion of Divine Right of kings. The man simply believes that democracy complicates the way in which God's hand is manifested in government affairs; he does not suppose the two are in clear conflict.
As a matter of fact, if Christianity were so inimical to liberal democracy, why do China's Communist leaders so deeply fear evangelical Christianity within it's borders? Obviously, it is precisely because Christianity secures the moral foundations necessary for the philosophical presuppositions that allow for the possibility of democracy that the atheistic Chinese government is worried about Christians in its land (My apologies for the confusing string of prepositional phrases). Simply put, a nation of Christians accepts the idea that all men are created equal and endowed by their Creator with certain inalienable rights--the chief of which are life, liberty, and the pursuit of happiness. Being so, a government that relies on hierarchy, bureaucracy, and violent, totalitarian oppression, and denies the legitimate democratic expression of any such popular will as can be theorized by men like Wilentz, Tribe, or Scalia, has much to fear in the spread of Christianity and the Christian worldview. In other words, only Marxist apologists for totalinarian systems need fear Scalia's rhetoric/logic; true democrats understand that the widespread acceptance of the type of reasoning which characterizes Scalia's particular worldview is what allows democracy to flourish in the first place.
Getting back to the supposed conflict between democracy and the concept that government's authority is derived from God, the solution is very simple and I suggest Wilentz et al go back and read their Locke, Hobbes, etc. Whereas previously in Western society it was presumed (as Scalia outlined) that God annointed kings and legitimized their rule, the American experiment was to show that in fact a government was more legitimate if it's existential purpose was to secure the God-given rights of the people. A constitutional republic then is both an expression of a contract with the people and of government's moral authority being derived from God via the democratic voice of the people. Here also is how "the sum is greater than the parts": No one person or group of persons can make a contract with the government or give said government moral legitimacy; but by deriving it's power from the people democratically, the government thereby operates on a higher moral justification than any one man or group of men could endow it with because it exists to secure the God-given rights of the people.
But the problem is really more basic because Paul's words are not written to explain how any one particular form of government is legitimate, he merely writes to explain that government as an institution exists to further God's will. Thus, the problem is not whether democratic government further's God's will or not, but how God's will manifests itself through the sometimes complex machinery of democratic government as opposed to the much simpler mechanism of Divine Right of kings. Scalia rightly points out that the former does indeed require a more nuanced understanding of the workings of God and government than the latter, and that too often we forget that and end up lapsing into the more morally simplistic approach to democracy, which is to suppose that government has no more moral justification for an act (e.g. capital punishment) than a private person would (e.g. murder). Such simplistic analysis would be more acceptable to me if its proponents likewise extended their logic to taxation and thievery, but alas that is generally not the case.
- Wednesday October 02, 2002 at 9:18 am
Two things strike me in reading Wilentz's critique. First, the telling, "Only a judge could think it better to play Robespierre than to issue too ambitious an opinion." Of course, only an academic would think it better to legislate from the bench than to seek change in the law through legitimate political means (whether legislation or revolution). Second, I find it disturbing that a Professor of American Studies is seemingly so blind to the importance of religion in American society and governance. To ignore the religious underpinnings of American (secular) democracy is to ignore who the Framers were and who influenced their thought. The Framers undoubtedly rejected the divine right of leaders. But the notion that they eschewed all of their Christian beliefs in creating American democracy is patently absurd. Yes, the American system of democratic government is secular by design. But the ideas and philosophies that gave birth to it were not.
- Wednesday October 02, 2002 at 7:59 pm
Mr. Long "greatly misunderstand[s]" Weimer "and the philosophical implications" Scalia has for true debate "(and vice versa)." I agree that Wilentz misunderstands Scalia; my suggestion is that whether Wilentz understands Scalia's position on the interplay between democracy & religion is somewhat beside the point. Instead, I think, we should be concerned by Scalia's methodology--especially to the extent it carries into his judicial decision-making role--of setting up a paradigm that permits no one--not the pope on religion, not his colleagues on the law--to have a valid view but him. I agree with Scalia, for example, (and apparently with Long, for that matter) that the authority of the government is--indeed, must be--greater than that of its component parts, its citizens. So I resist Mr. Long's attempt to lump me with Prof. "Wilentz et al." I do not share their views, whoever "they" are. But I also disagree--vehemently--with Scalia's unspoken rhetorical premise, that he can freely denounce, for example, the decisions of lesser judges as judicial legislation, but he can engage in much the same activity when it suits his purpose. But I feel compelled to point out an apparent inaccuracy in Long's apology for Scalia: Scalia argues not that governments become "more legitimate" the more their "purpose [is] to secure the God-given rights of the people." Instead, Scalia seems to suggest that the individual owes obedience to government--in other words, that the government IS legitimate--because government, however constituted, IS the minister of God on earth. He writes, "the core of [Paul's] message is that government--however you want to limit that concept--derives its moral authority from God." While I do not necessarily accept Scalia's premise, with all its implications, I certainly do recognize his right to espouse it, which distinguishes me from him.
David J. Weimer
- Wednesday October 02, 2002 at 9:13 pm
Wilentz (and Weimer, on this board) seems to misunderstand Scalia's target. Scalia is shooting at libertarians, who believe that the state has no power that the individuals in the polity do not themselves have. For example, (most) libertarians believe the state has no natural right to monopoly on the use of force, but has a right to use force if and only if some citizen had such a right, and so on. The state, in this view, is not itself a moral actor. That view is clearly not the view that Wilentz or any other modern nonlibertarian accepts. If one rejects the libertarian framework, and if one is also, as Scalia is, a Christian, then one must come to understand how the state can be a moral actor. Scalia's solution is simple: all moral actors are created by God. There's nothing problematic or unusual or controversial in the stand, unless it's problematic or unusual or controversial to reject libertarianism or to accept Christianity.
- Friday October 04, 2002 at 5:22 pm
Lynn also seems to misunderstand Weimer's target. Who said Scalia is not shooting at libertarians? In fact, did I not write, "I agree with Scalia, for example, (and apparently with Long, for that matter) that the authority of the government is--indeed, must be--greater than that of its component parts, its citizens."? Why yes, I believe I did. And I even agree with Lynn--if his statement that "Scalia's solution is simple" can be read "simplistic." The problem I see with Scalia is his approach to problem solving more than any given resolution. There is nothing problematic or controversial in my stand either, unless it's problematic or controversial to insist on a level playing field.
David J. Weimer
- Sunday October 06, 2002 at 11:42 am
All law must come from god. Religion is spiritual government by men with the permission of god and can be corrupted by men. Governments are the same. The institutions of man are always corrupt and must constantly be amended. Both of these lucid gentlemen are hard at it. God bless them for that.
Robert I Caulfield
Florida - US
- Monday October 07, 2002 at 8:31 am
It is ridiculous to read into Scalia's statements that he "bemoans" the emergence of democracy because it upset the religious view of a divine source of authority for government. He merely mentions the historical process - as democracy emerged, the the "divine authority" view waned. Nothing more. To say that he, and other religious folks *may* actually be bitter about the emergence of democracy because it displaced an ages old role of religion in government is one thing; however, to say that he made *that* case in the particular passage quoted by Wilentz is another thing. He may wish to revive the "City of God" in his private moments, but he didn't express it in the article derived from the speech he gave at Chicago.
- Wednesday October 09, 2002 at 11:40 am
My first reaction to this whole things was "Wow! A liberal like Tribe actually has the courage to defend Justice Scalia!" But then I read his first letter to Wilentz, and see that he chose not to reply in the Times because of a lack of space. Tribe clearly does not want anyone who reads the extremely biased Times that he would dare to defend Nino Scalia. So while I praise Tribe for taking a stand, I laugh at him for not having the courage to do so in America's most widely read/liberally biased news paper. Fortuantely, we have the Internet. As a Democrat myself, I must say that I don't always agree with Justice Scalia, but usually do. Justice Scalia, love him or hate him, refuses to serve on the highest court as a "super-legislator." He hears cases, and decides them on their constitutional relevance, not what the public wants. People will always remember him as the "Man Who Elected Bush." Why is that moniker not given to the other four justices who constituted the majority in Bush v. Gore? Justice Scalia is unpopular amongst liberal pundits, and media muckrackers because he calls it like he sees it. He will go with the conservative group one day, and against them the next. That is the job of the Supreme Court: TO DECIDE CASES!! PERIORD!! (Credit Whizzer White, who said that in his confirmation hearing) Justice Scalia is frequently misrepresented by the left, as he is by Wilentz. Wilentz does not speak for this liberal. By the Way Sean, it is freedom of religion, not freedom from religion. Face it Sean, religion is here to stay. Get over it.
John P. Grace
Irish Catholic Democrat
- Sunday October 13, 2002 at 10:50 am
In all due respect to the Honorable Justice and both "scholars." We have inherited our law,language and political institutions. This inheritance has been modified by environment to produce what we now recognize as American. Though as Americans we are resourceful and ingenious, we are as Justice Scalia implies, content in the law to abide by familiar formulas. The battered notion of modern civilization with its inhuman mechanisms, its herd mentality, and scorn of human values has only served to give expanded weight to judicial knowledge,(if an agreed statement of facts, or even uncontroverted evidence establishing certain facts does not conform to what is judicially known, judicial knowledge will govern, State v. Main, 69 Conn. 123; O'Brian Lumber Co. v. Wilkinson, 123 Wis.272).
The rhetoric of both scholars and the Honorable Justice is grounded in force of tradition, and professional standards. If logic holds true that each thing is identical to itself, and no reasonable affirmative statement can be simultaneously both true and false, why then is law often confused with justice or common sense? Justice Scalia, Prof. Tribe and Wilentz, each enmesh the death penalty in abstract standards of constitutionality rather than pragmatic standards. As a defense attorney my reading of Justice Scalia's remarks is that,in his environment he would have us belive that certainty in the law is more important than justice.
Given the number of death row inmates who have been wrongfully convicted and recently exonerated it would appear that we as Americans are content to accept that "Ignorance is the best of law reformers"?
Gere Unger, M.D.,J.D., LL.M.
Manchester, NH- USA
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