We have lost a legal giant, a truly great man, a devoted husband, father, grandfather, and teacher. Our prayers and deepest sympathy go out to Justice Scalia’s wife, Maureen, and their entire family.
We have also lost a pivotal and transformative public official, a man who almost singlehandedly transformed modern American jurisprudence. I say “almost singlehandedly” because he was joined in the enterprise to recover the original public meaning of the Constitution as a binding constraint on government, both the political branches and most significantly the judicial branch, by President Ronald Reagan, who appointed him to the high court, and by former Attorney General Edwin Meese. But it was Justice Scalia who was the applied scientist in the originalism project, and who continued to advance that project in the day-to-day work at the Court for his entire thirty-year tenure.
To appreciate the profound importance of Justice Scalia’s life’s work, we have to take ourselves back to the day when no one thought it important even to nod to the text of the Constitution when confronted with questions of constitutional law. The Constitution is whatever the judges say it is, one of his predecessors had famously quipped, so the important thing for “constitutional” law for much of the twentieth century was what the latest pronouncement from the Court had been, not what the Constitution actually said, or what those who drafted and ratified meant by it. Now, thanks to Justice Scalia, it is the rare constitutional case when both sides of the Court are not at least attempting to root their decision in the original meaning of the Constitution.
Justice Scalia’s enterprise of recovering the original meaning of the Constitution parallels almost perfectly the Claremont Institute’s mission of restoring the principles of the American founding to their rightful and preeminent authority in our national life. Indeed, the description of the two missions is so nearly identical that one would be excused for wondering why I included the “almost perfectly” caveat. Why is there not a perfect, 100% alignment? Those few—and they are just a very few—areas of disagreement between Claremont scholars (and in particular the Institute’s mentor and Godfather, Harry Jaffa) and the good Justice are extremely important, and quite instructive at the deepest level of the Claremont Institute’s unique mission in modern conservative thought.
The key point that has, on rare occasion, led to different conclusions about a constitutional decision of the Supreme Court centers on the role of the Declaration of Independence in constitutional adjudication. That is also the key point of departure on those few occasions when Justice Clarence Thomas and Justice Scalia reached different conclusions in cases they confronted at the Court. Indeed, one of the most interesting, and profoundly important, exchanges over time at the Court has been the colloquy between the two Justices on that very point. In his dissenting opinion in Troxel v. Granville, for example, Justice Scalia wrote:
In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all men…are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.
Similarly, Justice Scalia declined to join the final paragraph in Justice Thomas’s dissenting opinion in the race-based affirmative action case of Grutter v. Bollinger, in which Justice Thomas chastised the majority for placing “its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection clause.”
Justice Thomas, in contrast, has recognized that the principles of the Declaration must inform our understanding of, and hence our interpretation of, the Constitution. In Adarand Constructors, Inc. v. Pena, for example—the case striking down a federal contracting program that provided preferential treatment on the basis of race—Justice Thomas wrote a separate concurring opinion to note, with unmistakable clarity and brevity, his differing view about the role of the Declaration in constitutional interpretation. “There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution,” he wrote, citing only paragraph two of the Declaration of Independence in support.
The difference between us at Claremont and Justice Scalia on this key point has, as I said, manifested itself in an outcome-dispositive way only occasionally, but those cases can be quite instructive. The notion that parents have a fundamental right to direct the upbringing of their children, for example—the claim at issue in Troxel—taps into the idea of fundamental, unalienable rights articulated in the Declaration. So, too, the right to freedom of conscience and the free exercise of religion. In 1990, Justice Scalia wrote the majority opinion for the Court in Employment Division v. Smith, upholding Oregon’s prohibition on peyote use against a First Amendment Free Exercise of Religion claim. The right to the free exercise of religion, he held, did not require government to demonstrate a compelling governmental interest before it could refuse to accommodate the religious conscience claim. That did not mean that protection for religious liberty was “thereby banished from the political process,” he noted in his conclusion, for “a society that believes in the negative protection accorded to religious belief [in the First Amendment] can be expected to be solicitous of that value in its legislation as well.” But then Justice Scalia acknowledged the import of his position: “It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.” In other words, the right to the freedom of conscience exists not as an unalienable right judicially enforceable against the majoritarian political process, but rather only as the result of the political process, which is to say, as a benevolent gift of government, or more precisely, the majority. That turns upside down the self-evident truths of the Declaration and the doctrine of unalienable rights that exist prior to government, and the protection for which government exists.
The third case I’d like to discuss where this jurisprudential difference has manifested itself is not one that Justice Scalia decided himself, but it is one about which he frequently expressed his views in opposition. The case is Lochner v. New York, and I can best set the stage for the discussion of the case with a personal story. Some years back, my law school had, at my urging, invited Justice Scalia to give our commencement address. He was unable to accept—May and June are an intensely busy time at the Court—but Justice Scalia told me one day when I was visiting the Court that he would like to speak at the school on another occasion. I asked him what topic he would like to address, and he said, with his characteristic good humor: “Eastman, you’re wrong about Lochner, so I think I’ll talk about Lochner.”
As it turned out, the following year was the one hundredth anniversary of Lochner, and we were planning on re-enacting that landmark case at the law school, so Justice Scalia agreed to participate in the re-enactment. He played the role of Chief Justice Fuller, and he was joined on the bench by several law students and even a couple of undergraduate students, undoubtedly the highlight of their professional/academic lives. The then-attorney general of California argued on behalf of the State of New York. I argued the case on behalf of Joseph Lochner, the owner of a bakery who was criminally charged, convicted, and fined for employing a baker more than sixty hours per week in violation of a New York law (probably passed at the urging of large mega-bakeries who did not like the competition), despite the fact that the employee wished to work (and be paid) for the extra hours. I argued first that the restriction on the consensual employment contract between Joseph Lochner and his baker violated a basic privilege and immunity of citizenship, a clause in the Fourteenth Amendment that had been eviscerated by the Supreme Court some thirty years earlier. I also argued the main point accepted by the Court in the case, namely, that the New York law deprived Lochner and his baker of their liberty to contract, in violation of the Fourteenth Amendment’s prohibition on States depriving any person of life, liberty, or property without due process of law—a so-called “substantive due process” claim. Justice Scalia and I had a jovial exchange; he asking me what part of the word “process” establishes a substantive right, and me responding that it was inherent in the very nature of the word “law” and, moreover, that the right to earn a living in an honest common calling was (absent some threat to the public safety) an aspect of the inalienable right to liberty recognized in the Declaration of Independence. Well, I lost the case at that re-enactment—only one of the students sharing the bench with the Justice was willing to buck his views on the subject—but the case highlights the view that the principles of the Declaration must inform our constitutional interpretation. Those principles are “inherent” in our Constitution, as Justice Thomas stated in Adarand.
The difference of opinion between Justices Thomas and Scalia on this issue was not the first time in our nation’s history that these differing views about the role of the Declaration of Independence—which is to say, the role that the Declaration’s recognition of God-given unalienable rights—has manifested itself. The exact same debate took place more than two hundred years ago, in the landmark case of Calder v. Bull. In that case, Justice Iredell espoused a view quite similar to that taken by Justice Scalia in Troxel:
It is true, that some speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot think that, under such a government, any Court of Justice would possess a power to declare it so…. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void…. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.
Just substitute “unaliable rights” of the Declaration in Justice Scalia’s opinion for “principals of natural justice” in Justice Iredell’s and the parallel is manifestly clear.
Justice Chase had a distinctly different view. Even if the Constitution did not contain an express prohibition on a particular act of the legislature, principles of natural justice would nevertheless constrain it. “I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State,” he wrote. Then he elaborated on what he meant:
The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The Legislature may enjoin, permit, forbid, and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments.
In other words, Justice Chase was of the view that the “great first principles of the social compact,”—that is, of the Declaration of Independence—served to constrain government from violating fundamental rights even if the Constitution itself did not “expressly restrain” the government on the particular matter at hand.
This same debate, at an even more philosophical but also brutally practical level, occurred during the greatest crisis, the greatest challenge to our founding principles, that our nation has ever faced—the controversy over slavery that ultimately resolved itself with the Civil War. For this same dispute, cast in somewhat different terms, was at the core of the debates between Abraham Lincoln and Stephen Douglas. Douglas contended that the positive law of the Constitution did not prevent the spread of slavery into the territories, and therefore that the people of each territory could, upon entering the Union, determine for themselves whether they would have slavery or not. That, in his view, was what democracy required; what “popular sovereignty” was all about.
Lincoln had a decidedly different view. He recognized that the text of the Constitution was but a picture of silver framed around the apple of gold that was the assertion of principle in the Declaration. “The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.” The principle of the Declaration required Lincoln to recognize that “all men” had the same claim to the unalienable rights to life, to liberty, and to the pursuit of happiness, even if the Constitution did not expressly constrain government from expanding slavery. A “popular sovereignty” that allowed the majority to deprive a minority of their unalienable right to liberty was a violation of the great social compact, and could not stand.
Our teacher at the Claremont Institute, Harry Jaffa, taught us this lesson in his famous book, Crisis of the House Divided¸ by first making the case for Douglas as powerfully as it could be made. Jaffa then described how Lincoln confronted and ultimately defeated Douglas’s “popular sovereignty” premise, and by so doing resurrected the self-evident truths of the American founding and gave this nation a new birth of freedom.
This matters greatly, for it turns out that the idea of unalienable rights is so deeply rooted in our body politic that a purely textual claim is not now, and never has been, sufficient to defeat a claim that some right, even though unenumerated, is fundamental and should be respected. That idea is in our national DNA, one might say. The way to defeat an erroneous claim that something is an unalienable right is to challenge the merits of the claim, not simply point to the fact that it is not listed explicitly in the bill of rights. Lincoln understood this. The way to defeat the claim by southern slaveowners that they had a right to take their slave “property” into the territories was to challenge the premise that slaves could be “property” without undermining their own natural right to liberty, just as the way to defeat the claim accept by the Supreme Court in Roe v. Wade that there is a fundamental right to privacy that manifests itself in a right to abortion is likewise to challenge the premise that an unborn child’s fundamental right to life can be ignored as a matter of privacy.
In our time, Justice Scalia has provided for us the strongest and most coherent defense of a majority rule limited by the express terms of the Constitution, but only by the express terms of the Constitution and not by any additional claims of natural justice; of unenumerated, unalienable rights. Without Justice Scalia’s immense success in the enterprise of recovering the original meaning of the Constitution’s text, we could hardly hope to have success in the deeper enterprise of recovering the original principles, the self-evident truths that are its foundation. For that, and for his friendship and lifetime of public service, we shall ever be immensely grateful.