Justice Scalia, “Learn to Love the Gridlock”

By now you’ve probably heard that Justice Scalia died over the weekend at a west Texas ranch where he’d been visiting.

Texas Governor Greg Abbott issued this statement:

“Justice Antonin Scalia was a man of God, a patriot, and an unwavering defender of the written Constitution and the Rule of Law. He was the solid rock who turned away so many attempts to depart from and distort the Constitution. His fierce loyalty to the Constitution set an unmatched example, not just for judges and lawyers, but for all Americans. We mourn his passing, and we pray that his successor on the Supreme Court will take his place as a champion for the written Constitution and the Rule of Law. Cecilia and I extend our deepest condolences to his family, and we will keep them in our thoughts and prayers.”

Scalia and ReaganAntonin Scalia, R.I.P. — Honor His Legacy as a Foe of Judicial Imperialism by the editors of National Review is both a tribute to Justice Scalia and an editorial about the Court, Obama, and the 2016 presidential election.

“Justice Scalia was a champion of textualism and originalism in the reading of both statutes and the Constitution, and he was the reliable anchor of the Supreme Court’s originalist wing in an era of deep division and conflict with the “living Constitution” approach to jurisprudence that holds down the other wing of the Court…

“…But his abiding contribution was in trying to stem the tide of government by judiciary. When puncturing the pretensions of “levels of scrutiny” or skewering the progressive invention of “rights” to abort the unborn or to change the legal definition of marriage, Scalia was the Great Dissenter of our age.”

The editors also write that, “In constitutional law, Scalia championed the structural features of the separation of powers and federalism.” He discussed this in October 2011 when he appeared before the Senate Judiciary Committee on Considering the Role of Judges Under the Constitution of the United States.

In honor of Justice Scalia, this is a civics lesson to remember,”Learn to love the gridlock.”

Justice SCALIA. Thank you, Mr. Chairman, members of the committee. I am happy to be back in front of the Judiciary Committee where I started this pilgrimage.

“I am going to get even more fundamental than my good friend and colleague. Like him, I speak to students, especially law students but also college students and even high school students, quite frequently about the Constitution because I feel that we are not teaching it very well. I speak to law students from the best law schools, people presumably especially interested in the law, and I ask them: how many of you have read the Federalist papers? Well, a lot of hands will go up. No, not just No. 48 and the big ones. How many of you have read the Federalist Papers cover to cover? Never more than about 5 percent. And that is very sad, especially if you are interested in the Constitution.

“Here is a document that says what the Framers of the Constitution thought they were doing. It is such a profound exposition of political science that it is studied in political science courses in Europe. And yet we have raised a generation of Americans who are not familiar with it.

“So when I speak to these groups, the first point I make—and I think it is even a little more fundamental than the one that Stephen has just put forward—I ask them, what do you think is the reason that America is such a free country? What is it in our Constitution that makes us what we are? And the response I get—and you will get this from almost any American, including the woman that Stephen was talking to at the supermarket—is freedom of speech, freedom of the press, no unreasonable searches and seizures, no quartering of troops in homes, etc.—the marvelous provisions of the Bill of Rights.

“But then I tell them, if you think that the Bill of Rights is what sets us apart, you are crazy. Every banana republic has a bill of rights. Every president for life has a bill of rights. The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours. I mean that literally. It was much better. We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff.

“Of course, they were just words on paper, what our Framers would have called ‘‘a parchment guarantee.’’ And the reason is that the real constitution of the Soviet Union—think of the word ‘‘constitution;’’ it does not mean a bill of rights, it means structure. When you say a person has a sound constitution, you mean he has a sound structure. Structure is what our Framers debated that whole summer in Philadelphia, in 1787. They did not talk about a Bill of Rights; that was an afterthought, wasn’t it? The real constitution of the Soviet Union did not prevent the centralization of power in one person or in one party. And when that happens, the game is over. The bill of rights becomes what our Framers would call ‘‘a parchment guarantee.’’

“So the real key to the distinctiveness of America is the structure of our Government. One part of it, of course, is the independence of the judiciary, but there is a lot more. There are very few countries in the world, for example, that have a bicameral legislature. England has a House of Lords for the time being, but the House of Lords has no substantial power. It can just make the Commons pass a bill a second time. France has a senate; it is honorific. Italy has a senate; it is honorific.

Very few countries have two separate bodies in the legislature equally powerful. It is a lot of trouble, as you gentlemen doubtless know, to get the same language through two different bodies elected in a different fashion. When there is a disagreement, they just kick him out. They have a no-confidence vote, a new election, and they get a prime minister who agrees with the legislature.

“You know, the Europeans look at our system and they say, well, the bill passes one House, it does not pass the other House (sometimes the other House is in the control of a different party). It passes both Houses, and then this President, who has a veto power, vetoes it. They look at this and they say, ‘‘It is gridlock.’’

“And I hear Americans saying this nowadays, and there is a lot of that going around. They talk about a dysfunctional Government because there is disagreement. And the Framers would have said, ‘‘Yes, that is exactly the way we set it up. We wanted this to be power contradicting power because the main ill that besets us,’’ as Hamilton said in the Federalist paper when he justified the inconvenice of a separate Senate, is an excess of legislation.’’ This is 1787. They did not know what an excess of legislation was.

“So unless Americans should appreciate that and learn to love the separation of powers, which means learning to love the gridlock that it sometimes produces. The Framers believed that would be the main protection of minorities—the main protection. If a bill is about to pass that really comes down hard on some minority, so that they think it terribly unfair, it does not take much to throw a monkey wrench into this complex system. So Americans should appreciate that, and they should learn to love the gridlock. It is there for a reason: so that the legislation that gets out will be good legislation.

“And thus I conclude my opening remarks.”

I first read part of this transcript at Hot Air. I’ve taken my title from that post. Here is a link to the C-Span video of the Judiciary Committee hearing if you’d like to watch it in all or in part. Justice Scalia begins these remarks just after 17:30 of the video.


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