Miracles and Mummeries
Antonin Scalia and American Religion
Late in life, Thomas Jefferson took a razor to his King James Bible and cut out all the nice parts from the Gospels: Christ’s life and death, the Sermon on the Mount, the parables, the Golden Rule. He pasted those parts alongside corresponding Greek, Latin, and French translations and gave the world The Life and Morals of Jesus of Nazareth. Gone are the angels, the miracles, Christ’s divinity, the resurrection, anything supernatural. What’s left is a clean and ethical extraction. (You can still read the chaff at the Smithsonian: Jefferson kept his carved-up King James intact, like the preserved skeleton of a vanished species.) For Antonin Scalia, this arrogant violation made Jefferson the first activist judge. It is cowardly and ungrateful to cut out the parts you don’t like, to take the good without the bad.
Scalia’s antipathy to the Jefferson Bible, which he expressed in a 1996 speech at the Mississippi College of Law, was key to his variety of “originalism,” the philosophy of constitutional interpretation with which he was most associated. Originalism insists on interpreting the Constitution as it was understood at the time of its ratification, but this definition only raises questions: about whose understanding matters, about the virtues and vices of the framers, about the framers’ intentions versus the text’s public meaning, about whether our responsibility is to 18th-century language or 18th-century values, about whether we can know the past at all. The clearest thing one can say about originalism is that it opposes the idea of a “living Constitution.” Beyond that, it is a label that obscures a great many contradictions within the ranks of conservative jurisprudence.
Scalia’s originalism was a form of self-abnegation consistent with the ritual self-abnegations of Catholic history. It says to the interpreter, don’t be led into temptation, but it acknowledges how tempting those temptations can be. (Not for nothing did Robert H. Bork, the first originalist martyr — and later a convert to Catholicism — title his book The Tempting of America: The Political Seduction of the Law.) Who wouldn’t want to carve up the Bible and ignore the hard parts? Who wouldn’t want to extrapolate a general right to privacy from the rights specifically mentioned in the Constitution? (In Griswold v. Connecticut , Justice William O. Douglas found that general right in the Constitution’s “penumbras” and “emanations” — the kind of vocabulary, and decision, that originalists despise.) Who wouldn’t want to believe that the Constitution lives, that its meaning evolves as our own sensibilities and technologies evolve, that the old We the People who wrote and ratified the Constitution includes the modern We the People, too? Alas, the living Constitution is a false miracle: “The Constitution that I interpret and apply,” Scalia wrote in 2002, “is not living but dead — or, as I prefer to put it, enduring.” Originalism kills the Constitution so that the Constitution can endure, so that the Constitution won’t betray itself.
The nomination of a Supreme Court justice is the closest thing the United States has to the election of a pope.Tweet
To be an originalist is to be surrounded by temptations. It is certainly tempting to suggest, as the liberal Warren Court suggested in Brown v. Board of Education (1954), that “we cannot turn the clock back to 1868, when the [14th] Amendment was adopted,” but rather have to “consider public education in the light of its full development and its present place in American life throughout the Nation.” The originalist says that we can turn back the clock, and we must, because the text demands it — even when our modern antiracist, integrationist pieties would prefer not to. Even to claim the mantle of “higher law” — as emancipatory movements often have, from abolitionism to civil rights — is itself a temptation. While the citizen might be able to indulge in such pleasures without ruining the state, the originalist judge is bound by what’s written. He is a priest who reads, not a prophet who writes.
In theory, this sort of originalism allows no imagination, because most of the time, originalists consider the text’s historical meaning to be self-evident — a “piece of cake,” as Scalia said. Naturally, this raises the hackles of academic historians (like me) who are obliged to insist that history is hard, or at least theoretically and epistemologically interesting. But Scalia was charismatic in his confidence about the transparency of the past. One of the “false notions” refuted in Reading Law, his handbook, is the idea that “lawyers and judges, not being historians, are unqualified to do the historical research that originalism requires.” Judges do history all the time! In a 2006 debate between Scalia and Justice Stephen Breyer, Breyer (a liberal advocate of the “living Constitution”) said that if historical truth was all that mattered, then “we should have nine historians on the court” and be done with it. Scalia’s response was that nine historians — even amateur historians — would be better than nine ethicists. And indeed his originalism was not an ethics: it was a refusal to participate in ethics.
Perhaps this is why Scalia was such a good writer. The imagination that originalism did not demand was funneled into his prose, which had the bite of Tory satire and the grandeur of Counter-Reformation polemic. His dissents drip with disdain for liberalism as a false church. At times he condemned judicial activism the way the early church condemned Gnostic heresies: “What secret knowledge,” he sarcastically mused in a 1996 case about whether the government could hire or fire someone on the basis of that person’s political views, “is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?” In 2015’s landmark gay-marriage case, Justice Anthony Kennedy aligned the high court with “the highest ideals of love, fidelity, devotion, sacrifice, and family,” and with “a love that may endure even past death.” But Scalia scoffed at these “mummeries and straining-to-be-memorable passages.” Mummery! A nice old word for a “ridiculous ceremony (formerly used esp. of religious ritual regarded as pretentious or hypocritical),” or the “extravagant costume or other paraphernalia associated with or worthy of such ceremony,” according to the Oxford English Dictionary. Mummery is a word early Protestants hurled at Catholics; Scalia turned the tables, and hurled the 16th-century insult at a 21st-century liberal tear-jerker. His obscurer insults — argle-bargle, jiggery-pokery — have a similar Elizabethan whiff, though they are newer coinages.
Is it strange that the highest court in the land is all Catholics and Jews? American Protestants of an earlier age would have choked on their graham crackers. Is it stranger or less strange that when the new pope addressed Congress, three of the six Catholics didn’t show up? Antonin Scalia is an illuminating figure to follow through the recent history of American religion and politics, for his career was both illustrative and idiosyncratic. To read him within and against that history will require a few tangents, some religious stereotyping, and some conspiratorial thinking.
Scalia had nine children (a nice Court-size number), and he drove an extra hour to the Cathedral of St. Matthew the Apostle so he could hear the Latin Mass. “The kid was a conservative when he was 17 years old. An archconservative Catholic,” a former classmate told the New York Times in 1986, when Scalia was nominated. “He could have been a member of the Curia.” If Jefferson was Scalia’s villain, his hero was Sir Thomas More, the great opponent of the Protestant Reformation in England and the patron saint of lawyers. In Nelson Shanks’s 2007 portrait of Scalia, an image of More peeks out from beneath a book on the desk. Scalia even wore a replica of More’s iconic hat to Barack Obama’s second inaugural. More’s last words — “I die the king’s good servant but God’s first” — were read, fittingly, at Scalia’s funeral.
Scalia was not the first Catholic justice, but a certain Catholic sensibility became jurisprudentially interesting with his ascent. The first Catholic justice was Roger Taney, chief justice from 1836 to 1864. He was a Jacksonian Democrat, remembered now for the disastrous Dred Scott v. Sandford, which drew on the framers’ original intention to give black people no rights whatsoever, and accelerated the coming of the Civil War. In the 20th century, there was an unofficial “Catholic seat” alongside the better-known “Jewish seat” inaugurated by Louis Brandeis in 1916. The import of both seats was demographic rather than theological or ideological: in 1986, Scalia’s Queens-marinated Italian-Americanness was more noteworthy than his preference for the Latin Mass. This was soon after the emergence of the so-called Reagan Democrat — working-class white ethnics who gravitated toward the Republican Party and away from their economic interests. Senate Democrats, spooked by this supposed exodus, didn’t want to antagonize Italian-Americans, or Queens, by resisting Scalia’s nomination. But soon Catholicism became less a matter of demographics or representation — both Catholics and Jews being bizarrely well represented ever since — and more a matter of ideology.
One moment from Scalia’s career stands out to me as particularly revealing. In 1996, he gave a speech at the Mississippi College of Law — a private Southern Baptist institution. The speech led to some grumpy liberal op-eds, because it was not customary for a Supreme Court justice to encourage his listeners to be “fools for Christ’s sake” (invoking Paul to the Corinthians), or to “pray for the courage to endure the scorn of the sophisticated world.”
Scalia’s originalism exists primarily to disagree, and it reaches its apotheosis in dissent.Tweet
It was also unusual for a justice to discuss religious miracles, as Scalia did that day — and as he would in later years, usually before Catholic audiences. In 2001, about secular media: “Even if a miracle occurred under their noses, they would not believe.” In 2005, to the Knights of Columbus: “Intellect and reason need not be laid aside for religion. It is not irrational to accept the testimony of eyewitnesses who had nothing to gain. There is something wrong with rejecting a priori the existence of miracles.” And in 2010, to the St. Thomas More Society, which gave him the replica hat: “A faith that has no rational basis is a false faith. . . . What is irrational is to reject . . . the possibility of miracles in general and of the resurrection of Jesus Christ in particular.”
As a matter of faith, Scalia believed in miracles (as I do). As a matter of logic, he insisted (as I would) that belief in miracles is rational, while a priori nonbelief in miracles is irrational. He pushed back against the “worldly wise” — intellectuals, journalists, academics — who “just will not have anything to do with miracles.” This erasure of the miraculous was another reason Scalia couldn’t stand the Jefferson Bible, back to which, in the same speech, he traced the history of this current of self-serving skepticism. The Southern Baptist lawyers in training gave him a standing ovation.
That may seem unsurprising now, but the Baptists’ ovation strikes me as far stranger than a Catholic justice’s contrarian but earnest belief in miracles. For how could a Southern Baptist in good conscience acknowledge the Catholic statues that miraculously wept in a Virginia suburban church, or the painful stigmata that appeared on the resident priest’s wrists? (The particular miracle that Scalia mentioned was the 1992 case of Father Jim Bruse.) Not so long ago, a good Protestant would have dismissed this as Romish superstition. And on the other side, Scalia’s argument against a priori rejection of miracles was originally a Catholic argument deployed against Protestants.1 Is there nothing to be said for denominational distinction? Has ideological polarization so trumped questions of theology that Catholics and Southern Baptists can harmoniously lie down together, lion and lamb, as conservative bedfellows?
That episode of Baptists’ applauding a Catholic’s weeping statues is a vivid miniature of the alliance of evangelical Protestants and conservative Catholics that shapes this country’s conservative politics. We might be witnessing the first rumblings of its collapse, so now is a good time to pay our respects to it. Nixon brought part of the “Catholic vote” into the Republican coalition, siphoning anti-abortionists from the Democratic Party’s fraying New Deal coalition in the early 1970s. Alongside that story runs a current of intellectual and theological history that inflected Scalia’s constitutional moment more directly and forms the context of his religious invocations. The rapprochement between evangelicals and Catholics is best captured by a manifesto from 1994: “Evangelicals & Catholics Together: The Christian Mission in the Third Millennium.” It was signed by fifteen dignitaries — clergy, ministers, theologians, heads of ministries and missions — from both sides of the Reformation’s narrowing aisle. It was endorsed by bright lights of Christian academia, like the historians Mark Noll and Nathan Hatch, and by dimmer but far-reaching lights of the Christian right, like former presidential candidate Pat Robertson.
The main authors were Father Richard John Neuhaus and Chuck Colson. Colson was an old Nixon hand who found God shortly before going to prison for his involvement in Watergate. Neuhaus had written The Naked Public Square: Religion and Democracy and America (1984), which lamented the secularization of American public life and the privatization of religion. Formerly a Lutheran pastor, Neuhaus followed the road to Rome in 1990, the same year he founded the journal First Things, which remains the major intellectual outlet of conservative Christianity (and which published “Evangelicals & Catholics Together”).
This document remains the clearest and soberest statement of conservative Christian ecumenism. These traditional rivals gathered in a Venn diagram of common beliefs (“a free economy,” “parental choice in education,” “Western culture”) and joined forces against Christendom’s common enemies (abortion, militant secularism masquerading as multiculturalism, pornography, “antireligious bigotry in the entertainment media,” public funding for art like Piss Christ). In a reactionary, restorationist mode, the signers agreed to “contend together for a renewal of the constituting vision of the place of religion in the American experiment.”
The things that evangelicals and Catholics disagree about — grace versus works, symbolism versus transubstantiation, remembrance of Mary versus devotion to Mary, “the sole authority of Scripture (sola scriptura)” versus “Scripture as authoritatively interpreted in the church” — were, for the time being, put aside. Perhaps one could read about them in the journal Second Things, which does not exist, but should. The new allies also agreed to stop “sheep stealing” — proselytizing across the evangelical/Catholic divide. There were more than enough sheep fleeing the liberal mainline Protestant denominations.
This alliance grounded itself in a variety of originalism different from Scalia’s. This originalism looked to the American revolutionary generation and the Constitution’s framers for “moral truth”: “With the Founders of the American experiment, we declare, ‘We hold these truths.’ With them, we hold that this constitutional order is composed not just of rules and procedures but is most essentially a moral experiment.” Consider the First Amendment, which protects the “free exercise” of “religion” against congressional infringement. According to the originalism of First Thingers, this is a protection of religion against nonreligion, not a “wall of separation between Church & State.” (That phrase is not in the Constitution; it’s Jefferson’s renegade metaphor from a letter to some Connecticut Baptists.) The First Amendment’s prohibition of an “establishment of religion” implied no sanction against religion; rather, it marked a compromise among religiously diverse states, some of which still had state-level religious establishments. This is why the alliance rejoiced at the 2014 case Burwell v. Hobby Lobby Stores, Inc., in which the conservative wing of the court (all Catholic) imputed religious beliefs to corporate “persons” and unburdened the Pentecostal owners of Hobby Lobby of the Affordable Care Act’s “contraception mandate.” When that case was decided, First Things suggested that Neuhaus was “smiling down from heaven.”
This alliance embraced Scalia as its hero on the court. First Things has eulogized him as “Our Mighty Rearguard.” But I can imagine him shrugging at this insistence on “moral truths” and “moral experiments,” even while he basically went along with it. His originalism demanded submission, not moral heroism. It did not insist on the Constitution’s moral content, only its semantic stasis. Scalia’s Constitution is not a sacred text, after all: a sacred text might be open to sectarian dispute, and Scalia’s is not. By contrast, Hugo Black, an originalist avant la lettre, famously carried a copy of the Constitution in his pocket, the way a Protestant fundamentalist carries a dog-eared Bible. And Black was a bastion of the liberal Warren Court who inventively deployed originalist arguments to liberal ends, invoking the framers’ intentions as if they were morally visionary. Scalia was different. His Constitution has authority not because it is holy, not because the vision of its authors was moral, but because it is the Constitution.
The habits of recalcitrance, absolutism, and scorn disqualify a mind from brilliance.Tweet
There is satisfaction in tautology. A constitution has what Scalia called an “antievolutionary purpose,” and to suggest that its meaning could evolve was, in his eyes, to throw away the only thing that could possibly serve as a rudder: “Perhaps the most glaring defect of Living Constitutionalism, next to its incompatibility with the whole antievolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution,” he wrote in 1997. “As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful.” The Constitution governs not because it is intrinsically good, true, or beautiful. It isn’t. It governs because it is an institution, in the form of a document, which “We the People” agreed would not evolve. For Scalia, having a rock is a lot better than not having a rock.
Marriages of convenience often end in divorce. The evangelical-Catholic marriage might, too. The new pope — a social-gospel progressive of an older Catholic style — has undermined the ideological premises of “Evangelicals & Catholics Together.” Francis is theologically as Catholic as, well, the pope, but he has prioritized poverty, human migration, and the environment over the culture-warring of his predecessors and of the United States Conference of Catholic Bishops. Second things have a way of becoming first things again, and suddenly the future of Catholicism looks quite different than it did even three years ago. And intra-Catholic crises rise again to the surface, as conservative Catholics, bereft of the conservative magisterium of John Paul II and Benedict XVI, scramble to other bulwarks of orthodoxy. These tensions enter American politics in bizarre ways, as when some clever conservative saboteurs maneuvered the pope into the same room with the Kentucky county clerk (Kim Davis — a Pentecostal county clerk) who had refused to issue gay-marriage licenses.
The unholy alliance might fray for internal American reasons as well. Consider the religious pluralism of the Republican Party, if pluralism is the right word. In 2012, both vice-presidential candidates were Catholics: Joe Biden from the old-guard Irish Catholic wing of the Democratic coalition, Paul Ryan from the newer wing of Catholics who read Ayn Rand. The Republican candidate was a Mormon, which was a difficult pill for the Huckabees (Southern Baptist) and Santorums (Catholic) to swallow. It is easy to forget how hostile evangelical Christians were to Romney, particularly in the South. But what a miracle that the Grand Old Party — founded, historically, by antislavery, frequently anti-Catholic, and definitely anti-Mormon Protestants in the 1850s; currently home to a white, evangelical, generally antipluralist “base” — gave American politics its first non-“Protestant” presidential ticket ever. (That is, if we don’t see Mormonism as a Protestant denomination. When Romney was nominated, Billy Graham’s website had to remove Mormonism from its list of cults.) And ultimately, the only one of the final four to have told of an evangelical-Protestant conversion experience, albeit obliquely, was Barack Obama, in his account of joining Chicago’s Trinity United Church of Christ in Dreams from My Father.2 In the current Republican primaries, the Southern Baptist (Ted Cruz) attacked the cradle Catholic (Marco Rubio) while the Catholic convert (Jeb Bush) withered on the vine. They all claim Scalia as their favorite justice. Donald Trump (technically Presbyterian, but only in a way that calls to mind the old joke that Presbyterians are Methodists with money) clashes with the pope over the unity of mankind and hints that Scalia was murdered. Wrecking the alliance of conservative Christianity and conservative politics would be the only thing for which Trump could conceivably be applauded. That alliance has been bad for Christianity and bad for conservatism.
American religious-political alliances almost always involve strange bedfellowships and Faustian bargains. This is what makes American politics interesting for a historian of religion. And it gives the United States a place in larger, cosmic dramas of the divine and demonic. If I have called for a renewal of interdenominational strife (a strange argument, I admit), it is only because I don’t want the ideological certainties of this world to pollute or dilute theological seriousness. Conservative clamors about “religious freedom” have, perversely, only hastened the secularization of intellectual life, by painting “religion” into a corner of anti-intellectualism and victimology. An ideologically rigid defense of “religion” narrows and tarnishes what it tries to defend, and leaves out everything that is powerful and true and sacred about religious experience.
The Supreme Court is our Holy See. The court promises stability, tradition, and ancient-sounding Latin rituals. In costumes of somber glory, it speaks ex cathedra on the meaning of the Constitution, and for some reason we believe it has the authority to do so. Marbury v. Madison is our First Vatican Council. Judicial review resembles papal infallibility, and is, in the end, as fragile as papal infallibility (although we rarely reflect on that fragility). The nomination of a Supreme Court justice is the closest thing the United States has to the election of a pope: from an extremely narrow pool of judicial cardinals and insiders comes a new statesman in robes. He (usually he) is presented to the public in the Rose Garden, America’s balcony of St. Peter’s, ready to assume a lifetime position. His face will be new to most of the millions who are now his flock, but his every past action and utterance will be combed for clues to our future.
Then come the twin gauntlets of democratic interrogation and popular spectacle, and the analogy falters. The new pope is insulated from questions about how “a wise Latina woman” might rule differently from “a white male who hasn’t lived that life.” But other analogies surface — martyrdom, for instance, or sainthood. Remember Chief Justice John Roberts’s unblinking eyes in his Senate confirmation hearings? They were like the judicial version of Renée Falconetti’s eyes in Carl Dreyer’s Passion of Joan of Arc. Clarence Thomas (a Catholic who considered entering the priesthood) called the allegations against him a “high-tech lynching,” but they allowed him to perform the role of a would-be martyr.
The first originalist martyr was Robert H. Bork, the arch-conservative judge nominated by Ronald Reagan a year after Scalia’s ascent and rejected by the Senate in a dramatic standoff — an episode that left us bork as a verb. Bork, who called himself an atheist when he was nominated and rejected, converted to Catholicism only after this original borking. Anthony Kennedy, who took his place, is also Catholic, but has upheld Roe v. Wade, to the bitter disappointment of antiabortion Catholics. Bork’s conversion was a bittersweet victory: “With Bork on the court, Roe might have been overturned,” one conservative Catholic activist suggested. “But on the court Bork might not have found God and the Church.” In law, as in life, the shepherd sometimes abandons “the ninety-nine sheep to find the single lost one.”
Scalia’s career invites these sorts of reflections because he was outspoken about the Constitution and about Catholicism. When he spoke as a Catholic, he insisted that he wasn’t speaking as a justice, and when he spoke as a justice, he insisted that his fidelity to the plain text of the Constitution insulated him from religious or ideological bias. Luckily for him, his Catholicism and his originalist conclusions generally happened to agree. Of course this was a fantasy: he was ideological in the extreme. Corey Robin devotes a chapter to Scalia in his study of The Reactionary Mind, and what emerges is a conservatism that “would have been recognizable to Social Darwinists of the late nineteenth century,” and that manifested itself as a hostility to regulation, gun control, environmentalism, and the presidency of Al Gore. But Robin’s greatest insight is about style: “Where others seek security” in their reading of the Constitution, “Scalia seeks sublimity.” He relished the hard way, and saw “being tough and traditional” as “a heavy cross to bear.” His excellent pun: “Duresse oblige.”
This, in a sense, is the convert’s way. Scalia was a cradle Catholic, but as a jurist he wrote with the contrarian zeal, bite, and humor of a convert. Catholic converts, it is worth noting, have a curious position in modern intellectual history: the most important British and American intellectual voices of Catholicism, the historian Patrick Allitt notes, have been converts — John Henry Newman, G. K. Chesterton, Dorothy Day, Thomas Merton. This is not surprising, since the convert is best positioned to challenge former co-religionists and former co-skeptics. The convert writes to convince or to annoy the as-yet-unconverted.
Scalia carried this energy into the secular arena of constitutional interpretation, and it could (or should) discomfit the Protestant as much as the secular humanist. He delighted in pointing out the heresies of his opponents. Ostentatious in his orthodoxy, he took pleasure in dogmatism for dogmatism’s sake. Slippery-slope thinking is built into jurisprudence, but Scalia reveled in it especially, as the master of disproportionate outrage — hence the slope from homosexuality to murder, polygamy, and animal cruelty in Romer v. Evans (1996). He preferred the German term Kulturkampf to “culture war,” as if the movement for gay rights were as powerful as Otto von Bismarck’s campaign against Catholics in the 1870s. When, in 2001, the court let a disabled golfer ride in a cart during professional competition, in a case about the Americans with Disabilities Act, Scalia launched into a splenetic invocation of Animal Farm.
Eventually, convert intellectuals find themselves in peril, for what happens when the rock shifts beneath your feet? This brings us back to the pope’s visit to Congress, and the absence of three of the court’s Catholic conservatives: Samuel Alito, Thomas, and Scalia. Alito and Thomas had other engagements, apparently. Scalia’s absence was more conspicuous, although he liked skipping congressional events, notably the State of the Union. Or maybe, with his disdain for international law, Scalia considered Francis’s visit to be as irrelevant as the visit of any foreign head of state.
But the episode nevertheless draws attention to Scalia’s disagreements with Rome, and it is grimly fitting to close with the sharpest of them: the morality and constitutionality of the death penalty. On this issue, Scalia’s Catholicism and his originalism were most pronounced. (He noted with pleasure that Thomas More, who was himself beheaded in 1535, had no problem imposing the death penalty as Lord Chancellor of England.) The Vatican’s opposition to the death penalty predates Pope Francis; John Paul II’s encyclical Evangelium Vitae (1995) condemned it, along with abortion and euthanasia. Scalia could follow the pope’s position on abortion and euthanasia, but not on the death penalty. In a 2002 speech at the University of Chicago Divinity School, published in First Things, Scalia held to the harder line, noting that “the more Christian a country is, the less likely it is to regard the death penalty as immoral.” How else to account for the fact that “post-Christian Europe” was where the death-penalty-abolition movement was most successful, while support for the death penalty is still strong in the “church-going United States”? In a line that has often been taken out of context, his explanation was that “for the believing Christian, death is no big deal.”
What he meant was that as a moral matter, the death penalty seems horrible only if you believe that execution ends someone’s existence; if execution sends that person to God, then it can (though might not always) be just. The church had been tricked, or was betraying itself: the modern Vatican’s “opposition to the death penalty is the legacy of Napoleon, Hegel, and Freud rather than St. Paul and St. Augustine.” As a constitutional matter, it was absurd to suggest that the death penalty violates the Eighth Amendment, because none of the framers who put “cruel and unusual” into the Constitution thought the death penalty was cruel and unusual. To ignore that was like Jefferson ignoring the resurrection. This was a classic Scalia line of argument: erudite, logically convincing, but dogmatic in a way that makes it fruitless to argue with. It is like arguing with a piece of cake.
Much has and will be written about Scalia’s legacy, and about whether originalism will carry on without him. He made the liberals on the bench bicker about the 18th century, which was at least a victory for antiquarians. But liberal originalisms have emerged to co-opt Scalia’s conservative variety, and even the conservatives sometimes mocked his logic, as when Alito snarkily wondered whether Scalia wanted to know “what James Madison thought about video games.” (Scalia, cleverer than Alito, replied, “No, I want to know what James Madison thought about violence,” a statement behind which I like to infer an original intent to punch Alito in the mouth.) I am left wondering how useful or worthy he was as an opponent; whether his conservatism had the effect of strengthening liberalism. He was often a terrible ally, and wrote few majority opinions because his arguments were too extreme to convince a moderate. But his ideological opponents on the court reportedly looked forward to his blistering comments, which toughened their own thinking. That may be his most lasting contribution, and it makes sense, for his originalism is a contrarian’s creed. It exists primarily to disagree, and it reaches its apotheosis in dissent.
By now it’s a commonplace that Scalia had a “brilliant legal mind,” but eventually the habits of recalcitrance, absolutism, and scorn disqualify a mind from brilliance. And a hermetic disregard for the real suffering of people eventually qualifies as a sin, however gloriously that sin is cloaked in originalism, textualism, traditionalism, anti-purposivism, or “judicial restraint.” For instance, Scalia’s interpretation of “the right of the people to keep and bear arms” was flatly wrong, even by his own yardstick of fidelity to the historical meaning of the Constitution, and cruel in its amorality. In general, Scalia’s influence was a scourge visited on democracy. In that sense, at least, his originalism was grounded in history, for the original Constitution was in many ways an undemocratic document. It put the election of the President in the hands of an arcane electoral college, and it pointedly gave no say to the House of Representatives, our only directly elected governing body, in the selection of Supreme Court justices. Scalia’s originalism was bound inescapably to the values of the propertied, often slave-owning, white men who authored this Constitution. But that need not be the original vision we are stuck with, because even in 1787, “We the People” meant more than Scalia wanted it to mean.
Enjoyed this article? Subscribe to n+1.
For Catholics, a miracle is a “special grace,” distinct from the sacraments: an extraordinary sign from God. During the Reformation, a miracle could be a Catholic’s proof of the one true church’s divinity against Protestant challenges, while a Protestant would see such miracle-mongering as proof of the church’s corruption. But in the centuries since, Protestants have been much more divided than Catholics over miracles and their meaning. A miracle might indicate an individual’s salvation, or might be as small (or as large) as God’s providential hand guiding your finger to a particular passage of Scripture. In the modern era, a miracle might defy modern science or sanctify it. This background accounts for why Catholics don’t close the Gospel of Mark and start handling deadly snakes, and the Virgin Mary does not appear on a Protestant’s piece of toast. In any case, something is lost when “miracles” are just a shorthand for a simple, self-congratulatory, anti-secular conservatism, because true miracles make us ponder the natural and the supernatural, our own individual relationship to the divine, and the relationship of sacred history to our own mundane histories. ↩
“And in that single note — hope! — I heard something else; at the foot of that cross, inside the thousands of churches across the city, I imagined the stories of ordinary black people merging with the stories of David and Goliath, Moses and Pharaoh, the Christians in the lion’s den, Ezekiel’s field of dry bones. Those stories — of survival, and freedom, and hope — became our story, my story; the blood that had spilled was our blood, the tears our tears; until this black church, on this bright day, seemed once more a vessel carrying the story of a people into future generations and into a larger world. . . . As the choir lifted back up into song, as the congregation began to applaud those who were walking to the altar to accept Reverend Wright’s call, I felt a light touch on the top of my hand. I looked down to see the older of the two boys sitting beside me, his face slightly apprehensive as he handed me a pocket tissue. Beside him, his mother glanced at me with a faint smile before turning back toward the altar. It was only as I thanked the boy that I felt the tears running down my cheeks.
“‘Oh, Jesus,’ I heard the older woman beside me whisper softly. ‘Thank you for carrying us this far.’” ↩