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Anthony GiambroneMarch 01, 2016

The sudden death of Justice Antonin Scalia on Feb. 13 inspired an outpouring of eulogies and appreciations for a man recognized, even by his critics, for his unmistakable integrity, keen intelligence and powerful personal charm. Jesuit-trained and the father of a priest, he was a favorite of many Catholics and conservatives for his strongly held views and clear decisions.

It is important, however, in the wave of sentiment and consternation surrounding the loss of this significant Catholic figure—a civil servant who stood in the center of so much controversy in contemporary American public life, and who stood so often and so vocally on the right but losing side—not to confuse esteem for the man with a celebration of his legal thinking.

What exactly was Justice Scalia’s philosophy of jurisprudence? On Jan. 7, little more than one month before his death, the justice gave a public lecture in Washington, D.C., to celebrate the 800th jubilee of the Dominican Order. He took the occasion—the feast of St. Raymond of Penyafort, the patron saint of canon lawyers—to contrast his theory of legal interpretation with that of the great Dominican theologian, St. Thomas Aquinas.

Justice Scalia began by noting that in the Summa Theologica (II-II, q. 60 a. 5), Aquinas argues that a judge ought to render justice according to what stands in the written law. Here the justice beamed in manifest agreement. In answering objections to this position, however, Aquinas adds—and here the justice immediately became uncomfortable—that a judge can for the sake of “the equity which the lawgiver had in view” disregard a poorly written law to uphold some natural right. For Justice Scalia, this concession of the Angelic Doctor was wittily bemoaned as a horror “worthy of the Warren Court!” What precisely is at issue in this disagreement?

As It Is Written

Justice Scalia was known above all for his principled, articulate resistance to every whiff of judicial activism. In the former law professor’s sharply “textualist” or “originalist” philosophy of judicial interpretation, the law should be respected exactly as it stands written. And what is not written is not legislated, to quote the ancient adage.

The textualist perspective must first of all be distinguished from so-called strict constructionism, which Justice Scalia called “a degraded form of textualism that brings the whole philosophy into disrepute.” The essential difference for the textualist is that “common sense” can intervene in interpreting the text of the law in question. The strict constructionist, by contrast, is cast as a simple-minded legal literalist who, for instance, would understand “the use of a gun” in a crime to mean not merely its employment with violent intent but even its bartered use in exchange for drugs—obviously not the intent of the words of the law.

Textualism might be compared with the hermeneutic of Reformation theologians, who appealed to the “plain sense” of Scripture. This confidence in the perspicuous insight of common sense may indeed allow for more sophistication than various fundamentalist follies, but it is hardly an adequate approach. And it is not only Catholic exegetes who appreciate this. It is a mark of our age, chastened perhaps by the experience of thousands of denominations disagreeing on the “plain sense,” that we appreciate with new clarity the need for controls (like tradition) to guide scriptural exegesis and hermeneutics.

As one professionally occupied with the job of interpreting texts (albeit sacred ones), I do not hesitate, despite my lack of schooling in law, to register an instinctive discomfort with the idea of textualism as a legal theory. The impulse behind it, of course, is another thing.

At base, Justice Scalia’s textualism represents his reaction to what he saw as the deplorable state of legal interpretation in U.S. courts, where, as he wrote, there is “no intelligible, generally accepted and consistently applied, theory of statutory interpretation.” It was his aim to supply this missing theory. However attentive his theory is to a reasonable, contextual construal of the written law, his position, nevertheless, is rather clearly an expression of legal positivism.

Law, in this positivist view, gains its force from contingent social factors, not from its moral merits or participation in right reason. The role of the judge is, accordingly, not to improve bad laws but to take the text as the settled law, for good or ill, whether it be liberal or conservative, whether this proceeds from good counsel and cooperation or through crooked compromise. Textualism is an overemphasis upon the text, plain and simple: an overreaction to the real problem of judges insufficiently bound to what stands written.

Higher Law

Returning to the Summa, Justice Scalia allowed that Aquinas knew infinitely more about theology. But he himself, the justice insisted, knew a great deal more about judges and judging. And he was certainly correct to desire some safeguard against manifest distortions like Roe v. Wade, in which justices discover gross injustices as “rights” where no compelling textual foundation can be provided. A crack in the door, like the case of Church of the Holy Trinity v. United States—which allowed that the “spirit” of the law might prevail over the “letter”—is open to abuses too evident to bear enumerating.

And yet, two things make the medieval theologian a much deeper juridical thinker than the judge.

First, Justice Scalia’s legal theory has no ultimate framework for holding the government accountable before God. He was unable, for instance, when questioned after the lecture, to defend an administration of justice such as the Nuremberg Trials. The trials, of course, famously appealed to the natural law to convict men who had simply enforced the promulgated, positive law of Nazi Germany. When pressed on the issue, the justice steadfastly disavowed any such appeal to a higher unwritten law. To justify the war trials, he instead simply maintained that, as he saw it, winners in a war have a right to punish the losers. “Might makes right” is the classic formula for this barbaric doctrine.

In charity, one may assume the justice did not wish to accept all that this implies, but it is worth commenting on the consequences all the same. In a word, praise God the United States won the war; for one shudders to imagine the work of the “courts” had the Nazis been victorious. The Soviets, too, were winners in the Second World War—and they simply drove the German “losers” to the gulags. Is that also the proper work of justice? Were these trials as humane and upright as Nuremberg with its appeals to a higher law?

Textualism in Justice Scalia’s inflection has no analogical understanding of law. God’s own unwritten commands are, thus, allowed no entry into public, legal discourse. (Justice Clarence Thomas, it might be noted, would differ here from Justice Scalia. Though less a theorist than his colleague on the bench, Justice Thomas broadly acknowledges the force of the natural law. He further points out that the framers wrote the Constitution under the same conviction—a different spin on “originalism.”)

Corrective Justice

A second deficiency in the viewpoint of Justice Scalia, less severe in its ultimate import but more revealing of challenges proper to the American system of law, is his anachronistic reading of Aquinas. Specifically, the saint was working with a very different, much more biblical, conception of the “judge.” In particular, the separation of powers, which Americans take as axiomatic, a system which siphons off judges entirely from the work of making laws—or at least attempts to—is in fact a queer novelty in the history of jurisprudence.

Functionally, of course, the familiar system of checks and balances ensures protection against particular abuses. But the three branches of government also scatter the integral elements of law in some fundamentally problematic ways. It is very important that Americans be honest and enlightened on this point. For all its certain advantages, the administration of justice is, on account of separated powers, an unusually disjointed operation in our society, susceptible to its own abuses and tragic breakdowns.

For Aquinas, the judge was also the legislator—a plenipotentiary, like a king—not simply the hand-bound interpreter of some legislature’s promulgated text. The modern issue of “judicial activism” is, accordingly, tied up with a very different set of historical and legal assumptions, specific to the American context. There is something to be learned, however, from the older viewpoint. In the scriptural worldview, shared by the Christian Middle Ages, judgment was an act that could compensate when the written statutes fell short of the perfection intended. Indeed, judgment was exactly this: the place where injustice was corrected.

The question we must put to our own ministers of justice (not only judges) is this: Where is this mechanism of judgment in our system? Who will undo the injustice, which at times we inflict by law upon ourselves? Increasingly we are becoming a nation lacking judgment. Who will decide aright for this land’s afflicted?

Judgment Day

Our constitution is a wondrous prodigy of statecraft. But can judges really be divorced from all lawmaking behavior? Should they be? We object to the alternative, perhaps, because in a blush of democratic idealism we wish the law to be promulgated only “by the people”—not by “unelected officials,” as we often derisively name our judges. But, in the machinery of this republic, is the court not also representative in its own special way? And is it, in fact, so clear that the court has really served this country more poorly than the Congress or many we have duly elected as our commanders in chief?

In our common law system, precedent itself is a form of legislation. This means that judges are indeed effectively lawmakers. It is true, the court is not the right instrument for deciding every issue; but it will not serve the common good if Catholics in this country concerned about crucial issues like abortion and same-sex marriage rally around the illusion that judges have no share in legislating.

If the significance of Nuremberg failed to register adequately with Justice Scalia, as a believing Catholic and honest steward of the common good, he understood well the urgent need for an escape clause in the event—ever more real in our nation—that civil servants must face some proximate cooperation with evil. Recusal was Mr. Scalia’s answer for judges. Judges might thus save their skin and their conscience—but not the country. Aquinas’s appeal to a higher law grounded in divine authority is obviously another, stronger option, for it provides a corrective to the disordered situation, not simply a way out for the judge.

For Justice Scalia, however, “natural law” was just rhetorical cover for the preferred moral agenda of any given judge. Such skepticism is profoundly disappointing. If in times and places, such as our own, the natural law can erode in a people’s perception—even to the point that its dictates are no longer widely grasped, a circumstance Aquinas himself allows—then the answer should not be a frightened moratorium on appeals to God’s eternal law. (This is not to say, however, that the natural law should always be positively legislated, as both Thomas Aquinas and Justice Thomas would agree.)

Justice Scalia has now gone to meet the one who judges justly, and I am confident that his public witness and career of service will find its just reward. As the country now solemnly seeks to fill his chair on the Supreme Court, we may hope judges like this good man may still be found. Though burdened with a problematic theory, Justice Scalia was nevertheless blessed through the gift of faith with a moral insight often lacking in the secularism that surrounds us. It would serve our nation well if more judges let such knowledge inform their administration of justice. Otherwise, it is certain that those bound neither to the text nor to God’s unwritten law will continue to “legislate from the bench,” advancing the same injustices that make us cry, “Lord…judge your people in justice!” (Ps 72:1).

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J Cabaniss
8 years 1 month ago
It seems the question before judges is this: do they rule based on what the law says, or on what they think it should say? If the former, then they risk rendering unjust rulings in cases where the laws are badly written, or do not provide adequate protection for peculiar situations. If the latter, however - which appears to be what you are recommending - they assume the right to "correct" all laws to fit their personal views of justice. The problem with that approach ought to be clear: it is not possible to limit the scope of the judge who sees it as his mission to behave justly according to his personal tastes. Regarding the Nuremberg Trials, it would seem that Scalia's position was, since there were no laws governing the situation, governments could do as they chose. Either a judge is bound by the law or he isn't; he cannot be bound by some and not by others. You appear to want him unbound by unjust circumstances, but since the determination of the "circumstances" will be made by him alone, expecting him to "do what is right" disconnects him entirely from the law. Scalia's position does require him to render unjust rulings if that is what the law requires, but it also makes clear that it is the legislator's job to create just laws, not the judge's job to correct their "errors" as he sees fit. As for Natural Law, appeals to it are all but dead. For Aquinas "It is therefore evident that the natural law is nothing else than the rational creature's participation of the eternal law." Given that we no longer have a common perspective regarding the existence of the divine there can hardly be any acceptance that there is such a thing as an eternal law, and if there is no eternal law there can be no natural law.
J Yates
8 years 1 month ago
J Cabaniss, Forget the underlying premise of your argument, which I'd suggest completely undermines your argument (if man invents justice then man defines it as he pleases, therefore appeals to injustice are merely appeals to whatever might owns the definition). Fortunately in the context of the United States it's much more black and white. It is true that Natural Law must find root in an eternal Ground. It is not true that we don't have a common perspective, which is the original perspective, the principles of which were outlined in our nation's Declaration. You may not adopt that perspective, but then to what do you appeal? You're own personal view?
J Cabaniss
8 years 1 month ago
It is not a question of whether "man" invents his laws; that is obviously true. The issue here is how those laws get made: whether they are instituted by a legislature, or whether they are imposed by a court. It was Scalia's opinion that the current Supreme Court had arrogated to itself the authority to create law by fiat. That is, it is the justices who are appealing to their own personal views, and the opinions of the rest of the country are irrelevant, right up to the point where something is done to restrain the court.
E.Patrick Mosman
8 years 1 month ago
Article III of the Constitution set forth the duties of the Supreme Court and unfortunately the judges appointed for life and Court has deemed itself to be a maker of laws rather than deciding on the constitutionally of State and Federal laws: The Court has undertaken new roles such as the "Sherlock Holmes" court which has discovered hidden in the "the "penumbras" and "emanations" of the Constitution new rights. Progressives and Liberal judges, even SCOTUS Judge Roberts, obviously have no qualms and, in fact, relish the idea that the Constitution can be read as a work by Lewis Carroll who thought he was creating a fictional world with Alice in Wonderland. It is reminiscent of Humpty Dumpty in "Through the Looking Glass", who "said in a rather scornful tone,' it (a word) means just what I choose it to mean, neither more nor less." in an exchange with Alice about words and their meanings. Actually we are living in it now as Chief Justice Robert's and his four liberals had to search "the "penumbras" and "emanations" of the Constitution to find a tax where the authors, sponsors worked diligently to insure that the word "Tax" did not appear in the ACA ie Obamacare law and the President made sure that all Americans understood that there would be no tax in in his healthcare proposal. Lying and duping the American people should be a high crime and not just a misdemeanor. The Justices had to twist legal logic into a pretzel shape to turn a "penalty" into a tax and "by the State" into the Federal government. Humpty Dumpty could not have been more right. "How strangely will the Tools of a Tyrant pervert the plain Meaning of Words" - Samuel Adams
William Atkinson
8 years 1 month ago
A super great article, we will be copying this and using it and comments for all our theology and philosophy, biblical anthropology and archeology students, great thanks to Anthony and all for this deep and on spot contextual writings and discussion material, you should publish it Anthony.
Brian Richard Joseph
8 years 1 month ago
I for one will let 'higher' Authorities render the verdict on the net effects of Scalia's tenure. Meanwhile I am still saying the Our Father in the hope I can eventually forgive him for his decisive part in consolidating the fraudulent election of George W Bush. An event that led directly to the war in Iraq, which by the calculations of public health experts at Harvard, Johns Hopkins and MIT (published in the British Medical Journal LANCET and later updated) cost over 1 million CIVILIAN deaths, exceeding even the blood bath of the Rwandan genocide. I still recall sitting by the printer as that U.S. Supreme Court Decision came in page by page. Talk about your judicial horrors! I'll take Aquinas-thank you very much. Dr. Brian Richard Joseph, Ph. D. (Harvard) Commissioner, The Law Reform Commission of Nova Scotia.
E.Patrick Mosman
8 years 1 month ago
"in the hope I can eventually forgive him for his decisive part in consolidating the fraudulent election of George W Bush." Perhaps the following article from the NY Times will provide the necessary information to ease your soul and allow you to offer forgiveness and an apology for spreading false information about Bush/Gore election which Bush won fair and square "Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote" By FORD FESSENDEN and JOHN M. BRODER Published: November 12, 2001 "A comprehensive review of the uncounted Florida ballots from last year's presidential election reveals that George W. Bush would have won even if the United States Supreme Court had allowed the statewide manual recount of the votes that the Florida Supreme Court had ordered to go forward." http://www.nytimes.com/2001/11/12/politics/12VOTE.html?pagewanted=all Can one assume that rest of your charges are as poorly researched as the above?
Brian Richard Joseph
8 years 1 month ago
Writing on March 13, 2016 from Chandigarh, India: 1. The judicial legacy of Justice Atonin Scalia will, in part, be determined by his role in awarding the 2000 U.S. Presidential election to George W. Bush. Justice Scalia and his colleagues on that bench did NOT have access to the later ballet counts reported in the New York Times and elsewhere at the time of their historic decision. They awarded the election to Bush rather than Gore on the basis of what many consider flawed jurisprudence. To describe the 2000 U.S Presidential election as having been won “fair and square” sets too low a standard for the conduct of free and fair elections. 2. The interpretative foundations on which Justice Scalia erected his own arguments in that case and in others are the subject of the present article contrasting the interpretative frameworks of Scalia and Aquinas on which we are commenting. Aquinas gets my vote. 3. Here is the citation for the original 2004 and 2006 LANCET articles to which I referred: 2004: The Lancet Oct. 29, 2004; 2006: The Lancet Oct. 11, 2006. Interested readers can follow the many subsequent revisions to the civilian death toll in Iraq as well as the several methodological and measurement debates from there onward. - BRJ.
E.Patrick Mosman
8 years 1 month ago
1./2/ "To describe the 2000 U.S Presidential election as having been won “fair and square” sets too low a standard for the conduct of free and fair elections." What low standard when the actual, certified final count of all ballots confirmed that George W. Bush won the Florida vote. How can a correct decision be "flawed" when a decision to award the election to Al Gore would have been wrong and would have created total chaos when all ballots had been counted months later showing Bush the winner after Gore was awarded the Presidency by unelected judges? How would that Constitutional crisis, the loser in the White House, be decided? So "what many consider flawed jurisprudence" provided the correct decision without having the final count means that "the many", including Aquinas, were wrong." Fair and Square" means the winner is the one with the most votes by the voters not some vote by nine judges. 3. Your decision to quote only the Lancet figures shows that my question of your lack of research was prescient and justified. There are a number of readily available sites which report different figures for civilian deaths much lower than the Lancet number. -Documented civilian deaths from violence 155,758 – 174,152 Further analysis of the WikiLeaks' Iraq War Logs may add 10,000 civilian deaths. https://www.iraqbodycount.org/database/ There a number of estimates of civilian casualties that are lower than the Lancet estimates in the following: https://en.wikipedia.org/wiki/Casualties_of_the_Iraq_War There are also questions on the validity and accuracy of Lancet's methodolgy. https://en.wikipedia.org/wiki/Lancet_surveys_of_Iraq_War_casualties As usual the anti-war advocates opt for results more favorable to their political/social beliefs while those supporting the war do the same. In fact both sides should provide all possible data for and against their views as Professor Feynman advocated in his presentation on and explanation of Cargo Cult Science.
William Rydberg
8 years 1 month ago
I think that this discussion would be more interesting to me should one compare Aquinas and Scalia under the lens of the 14th Amendment, specifically, the rise of Corporate Theory...
Beatrice Parwatikar
8 years 1 month ago
I don't deny Judge Scalia intelligence or his devotion to the church. The one thing I'm seem to notice in his interpretation of the law he did not seem to find an interpretation that included the poor, people of color and the environment. Beatrice Parwatikar Shoreham, VT
James Mullin
8 years 1 month ago
I am very grateful for this article. It crystallizes nicely why I am so disgusted with the magazine America, in general, and with the modern Jesuit order in particular. Lets face facts - the Jesuits of the 1950s and 60s bear no resemblance to this order - or this Church - today. You have broken faith with an entire generation of American Catholics. It will take generations to repair the gaping wound you've created. Rebounding from the unspeakable scandal of pedophilia - of which the Jesuits bear much guilt themselves - this order's tone deafness regarding the laity they are supposed to serve (I know, funny) is monumental. Good luck with raising money from the liberal elite, Jesuit order! You may find them a tad more tight fisted than the traditional, conservative Catholics you have so blithely disregarded.
E.Patrick Mosman
8 years 1 month ago
For the record, I was taught by the old Jesuits in the late 1940s early 1950s, and a few years ago I was told by a younger Jesuit that I had had a bad education. Pope Francis may be old but his thinking is right out of the liberation theology handbook used by several new liberation theology Jesuit priests I met while working in South and Central America in the 1980s. Pope John Paul II knew how to handle the old/new armed Jesuits leading the liberation theology movement.
James McParland
8 years 1 month ago
For one who forthrightly admits that he has no training or expertise in law or jurisprudence, Fr. Giambrone (and by extension, America magazine) are certainly courageous to criticize the legal theories of Justice Antonin Scalia. By way of criticizing Scalia's textualism, Giambrone says that judges should, in fact, view themselves as legislators, and embrace their lawmaking power to impose morality on our justice system, correct injustices, and "hold government accountable before God." Giambrone thus favors a medieval model of jurisprudence (overseen by all-powerful benevolent philosopher-kings, presumably) over our system of separated and limited powers. It is amusing in the extreme to see Fr. Giambrone criticize Justice Scalia's interpretation of Aquinas as "anachronistic, " while Fr. Giambrone urges us to reject a system adopted by our founding fathers and replace it with one better suited for medieval village life 800 years ago. As always, I get a big kick out of this magazine's attempt to put a thin veneer of scholarship and intellectualism on its "progressivism." Say what you will about Justice Scalia's conservatism or rigidity, at least he never tried to tell Fr. Giambrone the right way to interpret ancient scriptures.
Robert Lannan
8 years 1 month ago
I wholeheartedly disagree with this article. However, I think the best way I can respond to Fr. Giamgrone's argument is to refer readers to these brief remarks by Justice Scalia himself: https://www.youtube.com/watch?v=bDxEnSxt5qA Within these remarks, Justice Scalia summarized much of his judicial philosophy in one sentence: "I believe in Natural Law, but I believe in democratic political institutions, it's up to the people to decide what they think Natural Law demands." We've ceded too much of this responsibility to nine unelected, lifetime-appointed aristocrats. The result has been too many "manifest distortions" like the one Fr. Giambrone decries (Roe v. Wade), with too little democratic recourse to correct them. The Judiciary is supposed to be the "least dangerous branch." When its members usurp the prerogatives of the people's elected representatives, the consequences can be disastrous. Dred Scott v. Sanford is probably the best example of this.

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