Hadley Arkes on Scalia

SCALIA CONTRA MUNDUM


Review Essay on ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997).

Harvard Journal of Law and Public Policy (Fall 1997)

In The Federalist No. 78, Alexander Hamilton noted the rule that guided the courts in dealing with statutes in conflict: The statute passed later is presumed to have superseded the law enacted earlier.[1] The same rule does not come into play, of course, with the Constitution, for a Constitution framed earlier would have to be given a logical precedence over the statute that came later. Were that not the case, the Constitution would lose its function, or its logic, as a restraint on the legislative power. But these rules for the interpretation of statutes are nowhere mentioned in the Constitution. As Hamilton remarked, they were "not derived from any positive law, but from the nature and reason of the thing."[2] Somewhat later, in The Federalist No. 81, he went on to point out that the notion of "parliamentary supremacy" in Britain had never been taken to mean that the legislature was empowered to overturn a verdict rendered in a court.[3] The understanding seemed to be settled that the legislature might act instead to "prescribe a new rule for future cases."[4] But here, too, this understanding was not expressed anywhere in the positive law of the Constitution. And so what made it valid or authoritative as an understanding bound up with the Constitution itself?. As Hamilton explained, this understanding was simply anchored in "the general principles of law and reason."[5]

Blackstone had written in a similar way about "the law of nature and reason," and when jurists of the founding generation spoke in these accents, it seemed to be understood that they were pointing beyond the positive law to the principles of natural justice.[6] That kind of pointing has not exactly been part of the repertoire of conservative jurists in our own day. One even has the impression at times that these passages in Hamilton must have been expunged from the edition of the Federalist papers read by conservative judges. Some of the judges have proudly claimed their names as "positivists," or they have made their point, in the style of Justice Scalia, by engaging in a certain good-natured scoffing at natural law. But now, in his Tanner Lectures at Princeton,[7] Justice Scalia seems to have induced some confusion among his liberal adversaries by coming at the problem of our law from the angle of Hamilton. For he too finds himself writing here of rules of construction to guide the judge: rules that are found nowhere in the Constitution, but which clearly do not spring merely from the whimsy of the judges. Justice Scalia does not invoke "the laws of nature and reason," but it is evident that he regards these rules as, well, reasonable. We might even say, irresistibly reasonable. One of these rules, in fact, had been cited by Hamilton: expressio unius est exclusio alterius. The expression of one marks the exclusion of the other. "If you see a sign that says children under twelve may enter free, you should have no need to ask whether your thirteen-year-old must pay."[8] Or: noscitur a socis--that something is known by its companions or associates. It is known, that is, in context. As Justice Scalia explains, "If you tell me, 'I took the boat out on the bay,' I understand 'bay' to mean [something different from what it meants in the sentence] 'I put the saddle on the bay."[9]

Not all of these principles spring from the same logical core. Something more would be needed to explain that rule of construction, held firmly by judges in the 1920s and 1930s, that "statutes in derogation of the common law are to be narrowly construed." That rule of construction grew out of a commitment to a certain kind of regime, a regime in which judges wove a vast tapestry of law by expounding the principles of equity and natural justice. The rule of construction reflected an emphatic preference for honoring the kind of law shaped in that way, and leaving it as little disturbed as possible. Justice Scalia is far more skeptical about that law and its premises, but he takes that figure of the common-law judge as the irony that supplies his path of entry into these lectures: his principal lecture in this volume bears the title "Common Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws." The study of the law begins in America with the classic cases of the common law--the old English cases, crafted by judges when the law was spare. Those cases display the stringent clarity and wit of the judges, applying the "principles of law" in a series of cases, often before the advent of statutes. We may recall, for example, that doctrines on libel and slander were carved out by the judges before a legislature would codify that law in statutes. The mystique of the law may be imparted then to students in this way, in the example of the common-law judge, concentrating his genius within the field marked off by the maxims of the law, and annexing to his judgment the authority to command.

The majesty that attaches to the judges carries over from those fabled days of the common law; and yet we are now in the age of statutes. With the American Constitution, the legislature was supposed to take itself out of the business of acting in the style of a court, pronouncing judgments on parties in cases. And that shift has altered also the vocation of judging. As Justice Scalia points out, most of what the federal judges do is interpret the meaning of statutes and regulations and the text of the Constitution. But that enterprise is undertaken now in a profession that no longer has the same confidence that there are fixed rules of construction, anchored in the enduring principles of law. Justice Scalia has made his career as a legal skeptic, but plainly he wants to summon now to his cause the convictions that once imparted to the Constitution and the laws the sense of a fixed meaning, which would not alter with the political seasons. And a Constitution standing in that way, with its own integrity, would not be so open to the manipulation of judges. The liberals celebrate a "living Constitution," kept current with the times by judges, who are apparently more in tune with the times than ordinary politicians. For Justice Scalia, the "living Constitution" is a stylish title that covers a rather unlovely state of affairs: namely, a shift of power to the hands of judges, who become free then to project into the Constitution the ethic, or the peculiar politics, of the class that now dominates in the law schools and the universities.

[I]t is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated. ... It is the law that governs, not the intent of the lawgiver. ... A government of laws, not of men. Men may intend what they will; but it is only the laws that they enact which bind us.

... When you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant, and are assured that there is no necessary connection between the two, your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean. ...[10]

And yet, the understandings that once imparted more fixity to the Constitution, and discipline to the judges, could not be detached from the lingering attachment to natural law. Justice George Sutherland, as a youngster, used to copy into his commonplace book long passages from Burlamaqui on the natural law." But even where justices were not exactly versed in the bibliography, there were still certain convictions, settled among the judges, that there really were some anchoring truths in this profession they were practicing. One minor problem for Justice Scalia is that he cannot restore the law as it was without drawing again on that metaphysic still locked away in his soul, even though he cannot quite bring himself to pronounce its name.

On this point he was twitted by some of his critics, who were invited to fill out this volume by appending their commentaries to his lectures. In the conditions that prevail now in the American academy, the presence of a single conservative on the Faculty may be quite a disturbing event, which must be modulated through a firm policy of assuring that there will not be a second. In the case of Justice Scalia, it may be altogether too unsettling: for an academic place such as Princeton to give a prominent platform to a conservative scholar and jurist of his caliber, who annexes, to the force of his arguments, a certain personal dash and comes bearing, in addition, the authority of high Office. As the line goes, serious measures must be taken. Careful provision must be made for "hearing the other side"--in this instance, by offsetting Justice Scalia with a panel of worthies, of notable professors in the law, with a membership strongly tilted, of course, to the side of his adversaries. Princeton, as ever, would not stint, and so the panel of commentators gathered around Justice Scalia included: Ronald Dworkin, Laurence Tribe, Gordon Wood, and Mary Ann Glendon. The main gesture toward "balance" within the panel came with Professor Glendon, who managed to reinforce Justice Scalia through some angles that proved both novel and compelling.

Professor Dworkin would strike a posture of civility on a high plane--from which he could then condescend to instruct Justice Scalia in his own argument and offer some useful thoughts for his better ordering. With a comparable tone, civil on the surface, disparaging beneath, Professor Tribe could engage in some decorous twitting, though it must be said that this was twitting at a high level, touching points at the center of the argument. In that vein, Professor Tribe noted that Justice Scalia evidently follows certain rules as to when he would apply, or relax, the doctrine of stare decisis. Professor Tribe could properly ask then, "what is the origin of those rules?"[12] They were not in the Constitution, and so "they certainly are not derived from the 'original meaning' of the text of the Constitution."[13] Tribe was inviting Justice Scalia to recognize that he was standing on some ground outside the positive law, and to consider just where he might be placing himself in the universe of writers who found the anchor of their positions in one school or another of natural justice.

Anyone who has spent five minutes with Justice Scalia knows that the vocation of the law is absorbed in his character, and so he can hardly help himself: He cannot speak deeply and searchingly of the law without speaking the language of natural law, and the recognition hardly comes as news to him. But it does seem to unsettle his critics, who fancy, in their bafflement, that they have spotted the threads of contradiction running through his lectures. In point of fact, they have merely failed to grasp the design of his argument. Or as Jane Austen had Mr. Bennet say in Pride and Prejudice, they have not had the pleasure of understanding him. And so, Professor Dworkin arranged his critique of Justice Scalia to culminate in the conclusion--as portentous as it was understated--that there was, finally, an "inconsistency of [Justice Scalia's] lectures as a whole."[14]

[Justice Scalia's] most basic argument for textualism is drawn from majoritarian theory: he says that it is undemocratic when a statute is interpreted other than in accordance with the public text that was before legislators when they voted and is available to everyone in the community afterwards. His most basic argument for rejecting textualism in constitutional interpretation, on the other hand, reflects his reservations about majority rule.[15]

Professor Dworkin was evidently satisfied that he had distilled, in this manner, the fallacies running through Justice Scalia's lectures. But, to borrow a line from Henry James, Professor Dworkin might merely have made himself the victim of perplexities :from which a single spark of direct perception might have spared him. Justice Scalia's teaching has its turns and shadings, and yet there should not be much mystery about the main lines of that teaching. One version may be condensed in this way: The United States did not offer a novelty to the world in 1787 because it brought forth a novel form of oligarchy, managed by nine men, unelected, wearing robes. The new order for the ages, proclaimed in America, was the right of a people to govern itself. The decision in 1787 was for popular government, or government by consent, and it was not thought to be the least inconsistent with that scheme that a free people would place itself under moral restraint. As Plato taught, a man with self-control was not a weaker man, and the rule of the people did not become a weaker version of self-rule when the people came to acknowledge certain powers they had no right to claim, certain ends; they had no right to pursue, even in the name of their right to govern themselves.

As Justice Scalia understands the matter, that was precisely the purpose or function of the Constitution: A free people legislated for itself certain powers, and certain ends, that would be placed outside the reach of ordinary politics and ordinary majorities. To that extent, his notion of constitutionalism does contain a recognition of certain things placed beyond the rule of the majority. But that was of a striking exception that only brought out, even more dramatically, the character of that regime in which it stood as an exception. The decision in 1787 was for democratic government: a regime in which the people, or their representatives, would deliberate in public on the gravest questions, the questions of moral consequence that stood at the center of their public lives.

That sense of the matter stands in sharp contrast with the understanding expressed to me by a seasoned lawyer in Washington a few days after the Supreme Court, in 1986, refused to strike down the laws on sodomy in the separate States.[16] With some astonishment he asked, "Do you want politicians making decisions on matters of that kind?" In the estimate of this veteran of the law, decisions of moral consequence reposed more properly in the hands of judges---of people who had been trained in the best law schools, such as the school from which he himself had sprung. And implicit in this perspective was the most damning critique that one could offer of democratic government: that as people are elevated to positions of authority through the process of elections, they become, in that measure, impaired in addressing the most serious questions of justice.

In this contrast we find exactly what is at stake for Justice Scalia in the ongoing argument over our jurisprudence. To the extent that the Constitution can be altered in its critical passages--or even inverted in its meaning--through the inventiveness of the judges, the Constitution ceases to function as a restraint on political power. Even more plainly, it ceases to function as a restraint on the power of the judges themselves. And to the extent that the judges embark on a grand aesthetic project, a project involving nothing less than the remolding of the constitutional order, Justice Scalia has the most profound sense that they are changing the regime itself. For Dworkin, that prospect is overborne by the grand accomplishment of the judges over the past forty years in expanding the domain of "rights." But this cheery assessment becomes far easier to deliver if one happens also to screen from one's view of the landscape the casualties that have been produced by liberal jurisprudence. If there is ample reason, then, to think that human lives are being destroyed in abortions, a record of thirty million killings over the past twenty-four years hardly stands as a monument to the "rights" created under Roe v. Wade.[17] That point has not made an impression on Dworkin, but the unborn children killed in these surgeries evidently suffered the most notable contraction of their "rights."

For Justice Scalia, it seems plain that if judges modify the Second Amendment to bring it into consonance with the times---or with the sense of the times prevailing in liberal circles--there would be a serious erosion of the right of the people to bear arms. But then, of course, every articulation of a new "right" on the part of the courts for one class of litigants may be seen as a contraction of rights on the part of some other people. And so, was it too much to ask of Deborah Weisman that she merely sit in silent respect as others offered prayers of thanks at her commencement from high school? If Weisman had a "right" not to be burdened in that way, then she had a right also to deprive other students and families of the right to offer a prayer of gratitude in circumstances in which they thought themselves obliged to express that gratitude in public.

Professors Tribe and Dworkin seem at least aware that Justice Scalia is no enemy of rights. But, ever-helpful, ever-professorial, they are ever-willing to instruct Justice Scalia in the implications of his own argument, and to find, in his defense of rights, a confirmation of their own doctrines. After all, Justice Scalia voted to protect, under the First Amendment, the freedom to burn the American flag or to burn crosses outside the homes of black families.[19] Is it not clear then, asks Professor Tribe, that Justice Scalia is not "freezing a fixed set of rights into the constitutional ice"; that he is willing to bring under the First Amendment liberties that would not have been protected in the Eighteenth Century, or for that matter in the 1940s?[20] Is that not in fact an exercise of adapting the provisions of the Constitution to the circumstances of our own day? Has Justice Scalia not provided us then with living evidence of the "living Constitution"?

And yet, what seems to have slipped, quite curiously, from Professor Tribe are the properties of a "principle." Once we grasp the principle by which the ball rolls down the inclined plane, we understand that the principle is utterly indifferent to the color of the balls and the planes, and whether they are made of aluminum or wood. It is precisely because a principle is abstract that it can be applied, over time, to a limitless number of instances. Once we understand what is wrong in principle with discriminations based on race, we need no new principle to explain the wrongness of barring people, on the basis of race, from their access, say, to swimming pools, tennis courts, xerox machines, or marriage licenses. We would understand that these are all but instances in which the same principle is being manifested.[21] If we understand the principles behind the protection of "speech," then we would understand how those principles may be engaged in circumstances quite distant in time and quite varied in their technology, from quills to computers. In the case of the burning crosses and the burning flags, I happen to think myself that Justice Scalia made a grievous mistake, that he read into the First Amendment a moral relativism that forms no necessary part of the protections of speech.[22] But whether we happen to coincide with his judgments there or not, it should be clear that Justice Scalia did not need any novel principle in order to cover, with the First Amendment, the "expression" engaged in burning draft cards or burning crosses. There was no need for him to "update" the First Amendment. As Justice Scalia understands it, the principle that protects speech under the Constitution means now what it has ever meant, and the task of the judge now, as ever, is to apply the principles; of the Constitution to the novel cases that arise in our daily lives.

But then is it not also possible that we may draw out of those principles implications that have heretofore gone unforeseen? Indeed, the moral life itself may involve an ongoing effort to draw out of our principles--to bring to a new level of awareness--implications that had previously gone unnoticed. In 1971, in Cohen v. California, Justice Harlan announced that "one man's vulgarity [wa]s another's lyric," and with that move, he grafted onto the First Amendment a new relativism." With those new premises, it became harder for the law to justify restrictions based on the "content" of speech, and with the accumulation of cases, it became harder for the law to restrict the marching of Nazis and the burning of crosses.[24] Justice Scalia has clearly made himself part: of that project, emanating from Cohen v. California, for he has joined his colleagues now in finding, in the First Amendment, rights that were not there as recently as thirty years ago. But Justice Scalia himself has made it clear that he finds deeply uncongenial the results of his own decisions in protecting the burners of crosses and flags. If he has extracted these implications from the First Amendment, it is evidently because he finds them contained in the logic of that Amendment. And his own artful efforts, in summoning the reasons and making his case, should be enough to ward off any charges that his judgments in this field have been "arbitrary."

But in that event, why would he not be open to the plea, offered by Professors Tribe and Dworkin, that their own allies on the bench deserve quite the same presumption in their favor: why should we not begin at least by crediting their earnest claim that they too are seeking to extract from the Constitution the implications that have been there all along? Why would we be warranted in assuming that they are "making up the Constitution," any more than we would be warranted in making that assumption about Justice Scalia? On this matter, there is probably no more dramatic case in point than the problem of the Fourteenth Amendment and miscegenation. Senator Lyman Trumbull, one of the managers of the Amendment, had assured his colleagues that there was nothing in the Amendment that would overturn the laws on miscegenation in the separate States. As Trumbull reasoned, those statutes would not violate the "Equal Protection of the Laws" because they bore equally on blacks and whites: they barred whites from marrying blacks, as they barrett blacks from marrying whites.[25] We would not take that view of the matter today, and not merely because "times have changed." It might be as apt to say that times have changed precisely because we have come to understand, in a more demanding, rigorous way, the principle that bars discriminations based on race.

To put the matter another way, it is possible for jurists and legislators in our own day to find, in the principles behind the Fourteenth Amendment, an understanding that was not shared by the men who had enacted the Amendment. And yet, that reading of the Fourteenth Amendment would be quite plausible--quite in accordance with the deep principles contained in the Amendment--and judges and legislators who extracted this implication could not be accused merely of "making up" their own version of the Fourteenth Amendment. But if that understanding has become plausible for us, there should be nothing implausible in the prospect, set forth by Professor Dworkin, of judges drawing out the implications embedded in the very logic of the American Constitution. On the other hand, one could hardly fault Justice Scalia for a certain worldly skepticism. After all, the judges who practiced a jurisprudence of natural rights in the Eighteenth and Nineteenth Centuries understood that their judgments were indeed grounded in "the laws of nature and reason." But where is the discipline that now confines those judges who soar grandly beyond the text, and yet acknowledge no moral truths that could possibly provide a tether for their judgments? Professor Tribe has helped articulate new constitutional rights to privacy and abortion, but he insists at the same time that there are, behind these rights, no moral truths that make them truly "rightful." In place of truths, Professor Tribe can offer merely convictions "powerfully held."[26]

But the obvious retort has been that if these judgments are traceable in the end to no truths, there is no reason why we should be ruled by the convictions "powerfully held" by judges, rather than by the sentiments, firmly held by the people who are ruled by the judges. And yet, even if the judges had detached themselves from the relativism of Professor Tribe--even if they found the anchor of their jural reasoning in moral truths--there is still something that must be said on the side of Justice Scalia, and the occasion for saying it has been provided by Hawaii. There, the courts have been arranging the unsolicited gift of gay marriage. In two separate phases of litigation, the courts have been preparing to extract this novelty in the law from Hawaii's version of the Equal Rights Amendment (ERA).[27] That Amendment barred discriminations based on sex or gender, and the argument played out in this way: The State issues a license of marriage only to a couple composed of a man and a woman. But it will not issue such a license to two people of the same sex. There is a discrimination made then in the laws, and that difference turns entirely on the gender, or sex, of the people composing the couple.

On its own terms, this argument may be plausible, unless there are compelling reasons for connecting marriage to the "N"-word [nature]--the inescapable fact that it requires two persons, not more than two and not less, a man and a woman, to beget a child. Not all loves require marriage for their completion, but marriage does have a distinct rationale as a framework of lawfulness to envelop the begetting and nurturing of children. The purpose of marriage is connected then to the purpose that is marked, in our natures, by the very presence of gender.[28] "Male and female created He them."[29] If the enterprise of jurisprudence could be detached, on this question, from "nature" and the natural sense of a marriage, then the decision churned out by the judges in Hawaii might be an arguable rendering in the current state of the American law. But one flaw in this construction is that this "implication" of the ERA is regarded as bizarre by the people of Hawaii. Even in a State legendary for its tolerance, the surveys reveal that more than seventy percent of the public remain quite opposed to the notion of "gay' marriage."[30] It appears now that this opposition will finally be felt in the laws, or even in the amending of the Hawaiian Constitution. But until that amendment is voted on in November, we are faced with a neat problem in the debate between Justice Scalia and his adversaries. The question may be posed in this way:

The people of Hawaii voted, in an act of sovereign judgment, to amend their constitution and install an Equal Rights Amendment. 'the judges of Hawaii, armed with their juridical science, now find in that Amendment an implication that had not been noticed or advertised when the Amendment had been passed. It would appear that the people who voted for the Amendment never had any reason to suspect that they were voting also to install "same-sex marriage" as part of their fundamental law. Still, the judges advise the public that these implications are indeed contained in the principle that the public had placed in the constitution, and those implications are there quite regardless of whether the public happens to find them congenial.

Fair enough, on both sides: the judges are doing their jobs according to the requirements they find in their profession, and the people, for their part, are now exerting their influence to change the law. But as it was remarked in one of the briefs submitted to the Supreme Court of Hawaii, the judges in the State had taken it upon themselves to impose a judgment that "transforms the oldest institution in organized society in a manner that no civilization since the dawn of recorded history has accepted."[31] The judges were willing to order these changes, in the very matrix of the law, on the strength of a constitutional amendment that never mentioned gay marriage. The public that voted for the amendment never had any inkling that it was voting to establish gay marriage, and it is evident even to the dimmest onlooker that the amendment never would have passed if the public: had any reason to suspect that it was voting for gay marriage. In the presence of these points, I suppose that a judge might be determined nevertheless to "expound" the law with a respect for its own integrity and let other people worry about the fallout. But a willingness to persist marks a willingness on the part of judges to use their leverage, in effect, against the people who form the political community of Hawaii. There must be a willingness to impose on the people the burdens of summoning extraordinary majorities and jumping through a series of legal hoops, simply for the sake of preventing judges from imposing on them an arrangement they find deeply repugnant, deeply at odds with the moral grounds of the law. There must be in all of this a quotient of chutzpah that should make even the most confident judge pause and reflect. He might well consider at that moment whether a sense of propriety in a democracy should induce him to hold back. Is there not at least that lingering respect for a democratic regime that would induce a judge to leave, to the people themselves, the fight to deliberate in public and reach their own judgment on a matter that runs to the very roots of the law in family, marriage, and nature?

But an appeal of this kind to prudence may itself be a tacit admission that there is something tenable in the persuasions on either side, and that the problem can yield only to a sense of moderation. And yet, in the interplay between Justice Scalia and his critics, there is a curious omission of that moderating device in the Constitution itself that was applied in the most compelling way by Lincoln. Judges might indeed be free to expound the law in the style of Professor Dworkin, but that prospect may seem far less threatening if we understand that any extravagant decision by the courts could readily be limited or confined by the political branches. Presidents Jefferson, Jackson, and Lincoln reminded us that presidents and members of Congress bear their own, necessary responsibility to interpret the Constitution, and they may confine or limit the power of the courts through the simple expedient of confining the judgments of the courts to the parties in litigation. "We do not propose," said Lincoln, "that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free."[32] But Lincoln and his party would

oppose that decision as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision.[33]

Lincoln would respect the judgment of the Court as it settled the case of the litigants. But the broader principle articulated in the case he would not be obliged to accept until he was persuaded of its rightness. And with that understanding, the Lincoln Administration proceeded to reverse decisions taken in the Buchanan Administration, as different parts of the executive branch showed a willingness to apply the principle of the Dred Scott case even to circumstances quite remote from the situation of former slaves litigating over their freedom.[34] In my own reckoning, I cannot see how Lincoln could possibly have been wrong, and if Lincoln's understanding remains immanently legitimate--and perfectly shaped to the American Constitution--then it gives rise to this possibility: A conservative presidential administration could make it clear that it accepts the disposition of the case in Roe v. Wade, but that it will not adopt the principle articulated in that case in the decisions that come under the hand of the executive. That reach of the executive may be far wider than we suppose, even on the matter of abortion. It may encompass, for example, the question of whether the National Institutes of Health would be free to use in their research and therapies the tissue drawn from fetuses who have been killed in elective abortions. The executive may also have to determine whether abortion should be regarded as a surgery fit to be performed under the authority of the United States in the diplomatic and military outposts abroad.

A turn of that kind might be quite startling in our current politics, and yet it would not be in the least novel, and it would require no changes in the Constitution. That Professors Dworkin and Tribe are not drawn to this solution can hardly be a surprise. But the curious point is that even conservative jurists such as Justice Scalia and Judge Bork have not been drawn to that modulated scheme, taught and practiced by Lincoln and other presidents and judges both before and since. Judge Bork has flown instead to a plan of having decisions by the Supreme Court overturned by the vote of a majority in both houses of Congress.[35] But a plan of that kind is bound to be seen as radical and threatening, and one must wonder why even conservative jurists would rather leap to a measure so unlikely to be enacted or used, rather than a far more modest measure that requires not the least change in the Constitution, and promises to yield a far more dramatic result. An old saying has it that the silence of a wise man is always instructive. In this situation, the notable silence of conservative judges may be a telling sign that even they have accepted a certain preeminence for the judges in fixing the meaning of the Constitution without the interference of the political branches.

What could be said, however, on behalf of Justice Scalia is that the "interference" of the political branches is already incorporated in his understanding of jurisprudence and the vocation of judging. When judges work under a discipline of restraint, they leave power in the hands of others. When they show the gravest reluctance to remold the meaning of the Constitution, they manifest their willingness to be governed by the design and understanding of the Founders. At the same time, they would preserve for the people themselves the main authority to decide just when that design will be amended. And when the judges show a certain fastidious concern to stay close to the statute as it was written, they show a willingness to be guided by the legislators who drafted and enacted the law.

A judge who constitutes himself in this way may not cultivate a reputation for inventiveness or originality, but he will be positioned to see several "home truths" quite clearly. For one thing, he will be utterly clear, along with Justice Scalia, that what is enacted is the statute and not the legislative history. In our own time, as Justice Scalia has pointed out, a virtual industry has sprung up to write legislative histories.[36] Speeches may be planted in the congressional record, reports may be spun out by staffs, sounding themes that can be cited later by judges as they are invited, in effect, to remold the statute by choosing the meaning they prefer. But we do not know who has read these reports or been moved by the speeches. We know only the language which the legislators were finally willing to vote upon. Justice Scalia, anchored as he is, can see remarkably past the fashions that have distracted many Washington hands and recognize that legislators legislate only the law. At the same time, he can draw the simple but telling corollary that "[t]he legislative power is the power to make laws, not the power to make legislators. It is nondelegable."[37] It is not within the power of legislators to shift the legislative power to others--to councils of businessmen and unions (as in the days of the New Deal), to staffs, to administrative agencies--in short, to people who bear no direct responsibility to the public. Under those conditions, small clusters of groups may be freer to vote their interests--and impose those interests .on the rest of the community with the binding force of law.[38]

Justice Scalia recalls one lawyer artless enough actually to say, in a brief, that the legislative history of a certain statute was rather murky, and so he would turn instead to consider the statutory language.[39] That state of mind may explain why Justice Scalia can survey the field and find, in the profession, no settled canons for the interpretation of statutes. The application of statutes forms the work of most lawyers, most of their days, and yet it has become clear that lawyers do not take their main bearings these days from the language in the statute. If this situation were suddenly viewed from the outside--from a "comparative" perspective on law--the conventions that have grown familiar to us might be seen more truly as striking. Or to put it another way, they may be seen for what they are.

That perspective was supplied in A Matter of Interpretation by Professor Mary Ann Glendon, who has encompassed in her own work the comparative study of divorce and abortion in Europe.[40] From the angle of the comparativist, Professor Glendon weighs in with the most powerful reinforcement for Justice Scalia: America was supposed to be the land in which the rule of judges would be supplanted by the rule of statutes. Instead of judges wielding vast discretion, inventing the law from case to case, the judges would be guided by statutes, enacted by legislators, elected by the people, and more sensitive then to the range of interests in the community. Yet the study of statutes and their drafting has nearly vanished from the training of lawyers, along with the study of canons of interpretation, just as the study of the Constitution itself, in its text and structure, has receded into the background in the study of constitutional law.[41] In a curious inversion, the new legal ethic, promised in the New Land, has been cultivated more fully in the Old World, or the Continent. There, the tradition has been dominated by the code law, with judges fixed on the reading of statutes.[42] But now, judges on the Continent are trying to flex some new-arts, in expounding the principles that lie behind the code.[43] In the meantime, in America, the professors of law fly from one affectation of "theory" to another, to schemes even more exotic: from Marxism to deconstruction and "literary theory," and then onward to "feminist epistemologies" and "critical race theory." As the professors soar beyond the world that most of us inhabit, they well understand that the purpose of their flight is to detach themselves from those "laws of reason and nature" that provided the anchors of our law in the past. But the practitioners of the new law may not entirely understand that they detach themselves at the same time from the protections that the law used to provide. In her culminating lines, Professor Glendon warns, with Tocqueville, that "[t]yranny ... need not announce itself with guns and trumpets. It may come softly--so softly that we will barely notice when we become one of those countries where there are no citizens but only subjects."[44] And as Justice Scalia warns now, judges swollen with the most benign motives, animated by the most tender sentiments, determined to open vast new regions of rights, may nevertheless have acted, unwittingly, to convert a nation of citizens into a settlement of subjects. In order to create new, unpopular rights in the days of the Warren Court, the judges had to detach their decisions from the text of the Constitution and from the discipline of fixed jural truths. Indeed, the judges had to take it as part of their mission to detach the public itself from any lingering reverence for the truths that used to stand behind the Constitution and confine the power of judges. Justice Scalia now registers his own lament for a public that may be detached from these ancient, wholesome prejudices. That may be a public less suited now in temperament, less disposed now in conviction, to accept the moral restraints of a Constitution. After all, the judges have fashioned a new law, in the image of an "autonomous" man, who trumps, with his autonomy, the claims of traditional morality. A public tutored in these new maxims may will that same autonomy for itself; it may be less inclined now to indulge a naive reverence for a Constitution that would cast up barriers to its wants. Justice Brennan and his colleagues in the 1960s and 1970s were no doubt bent on improving the republic, but the project may have run quite beyond them, until it changed the regime itself. And along the way, the judges managed to cultivate a people far less willing to abide the constraints of lawfulness.

1. See THE FEDERALIST NO. 78, at 468 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
2. Id.
3. THE FEDERALIST NO. 81, supra note 1, at 484.
4. Id.
5. Id.
6. 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *67.
7. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3-47 (Amy Gutmann ed., 1997) [hereinafter A MATTER OF INTERPRETATION].
8. Id. at 25.
9. Id. at 26.
10. Id. at 17-18.
11. See ARKES, GEORGE SUTHERLAND, supra note *, atvi.
12. Laurence H. Tribe, Comment in A MATTER OF INTERPRETATION, supra note 7, at 65, 83.
13. Id.
14. Ronald M. Dworkin, Comment, in A MATTER OF INTERPRETATION, supra note 7, at 115, 127.
15. Id.
16. See Bowers v. Hardwick, 478 U.S. 186 (1986) (holding that there exists no constitutionally-protected right to engage in sodomy).
17. 410 U.S. 113 (1973) (holding that there exists a constitutionally-protected right to have an abortion). Regarding the number of abortions that have occurred in the United States since Roe v. Wade, see ALAN GUTTMACHER INSTITUTE, FACTS IN BRIEF: INDUCED ABORTION 1 (1997) (stating that over 31 million abortions occurred in the United States between 1973 and 1994); NATIONAL RIGHT TO LIFE EDUCATIONAL TRUST FUND, ABORTION IN THE UNITED STATES: STATISTICS & TRENDS (1997) (estimating 35.3 million abortions in the United States between 1973 and 1996).
18. See Lee v. Weisman, 505 U.S. 577 (1992) (holding that the First Amendment prohibits public schools from including clergy who offer prayers as an official part of graduation ceremonies).
19. See United States v. Eichman, 496 U.S. 310 (1990) (striking down an anti-flag burning statute on First Amendment grounds); Texas v. Johnson, 491 U.S. 397 (1989) (holding flag burning is "speech" protected by the First Amendment); R.A.V.v. City of St. Paul, 505 U.S. 377 (1992) (holding unconstitutional on First Amendment grounds a city ordinance prohibiting the display of symbols, including swastikas and burning crosses, that one knows or reasonably should know arouse anger, alarm, or resentment on the basis of race, color, creed, religion, or gender).
20. Tribe, supra note 12, at 81.
21. That must also stand as the telling sign of a certain obtuseness in Chief Justice Warren when he remarked, at the beginning of Loving v. Virginia that "[t]his case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment." 388 U.S. 1, 2 (1967). The Court had never addressed discriminations based on race? Or restrictions on marriage? The observation, offered by Chief Justice Warren, becomes comprehensible only with the recognition that in the host of cases dealing with racial discrimination--and including, most famously, Brown v. Board of Education, 347 U.S. 483 (1954)--the Court never did manage to explain what was wrong "in principle" with segregation, or with discriminations based on race. On this matter, see HADLEY ARKES, THE PHILOSOPHER IN THE CITY 223-58 (1981) [hereinafter ARKES, PHILOSOPHER].
22. One of my own students expressed puzzlement over this point: Justice Scalia had found no such lurking principle of moral relativism in the First Amendment when it came to protecting people who engaged in nude dancing or lewd entertainments. In Barnes v. Glen Theatre, he thought that the legislature could properly "enforce the traditional moral belief that people should not expose their private parts indiscriminately, regardless of whether those who see them are disedified." 501 U.S. 560, 575 (1991) (Scalia, J., concurring). In that respect, there did not seem to be much question for him that the legislature could act, not merely for the sake of dealing with the "secondary effects" of lewdness, but for the sake simply of conveying a moral understanding--that certain acts were "contra bonos mores," or immoral. Id. But in that event, my student was moved to wonder just why a local legislature might not find something comparably "immoral" in an attempt to terrorize black people through the burning of crosses, a gesture that was long understood in our common usage as a gesture of assault and threat. Under the traditional doctrine of 'fighting words," it had been possible, after all, to recognize certain forms of expression that constituted assaults, and it was possible to restrain those modes of expression without interfering in any way with the freedom of people to make substantive arguments. For an extended treatment of this problem, see ARKES, PHILOSOPHER, supra note 21, at 23-91.
23. 403 U.S. 15, 25 (1971).
24. See, e.g., Skokie v. Collins, 439 U.S. 916 (1978) (denying certiorari and allowing a Nazi parade to march in the village of Skokie, Illinois); R.A.V., supra note 19; ARKES, PHILOSOPHER, supra note 21, at 63-74.
25. See CONG. GLOBE, 39th Cong., 1st Sess. 505 (exchange among Senators Trumbull, Fessenden, and Johnson during the debates over the Civil Rights Act of 1866); id. at 600 (exchange between Senators Trumbull and Davis). This early understanding was also incorporated in some early cases testing the laws on miscegenation under the Fourteenth Amendment. See In re Hobbes, 12 Fed. Cas. 262 (C.C.N.D. Ga. 1981); State v. Gibson, 36 Ind. 389 (1871); State v. Hariston and Williams, 63 N.C. 451 (1869); Lonas v. State, 50 Tenn. 287 (1871).

It is worth noting that we would not have discovered, in our own time, an understanding of the principle that was not already grasped in the Congress that passed the Fourteenth Amendment. Indeed, this more exact implication of the principle in the Fourteenth Amendment was drawn out by legislators who had sought to resist a sweeping principle of racial equality in the laws. And so Maryland's Senator Johnson pressed this argument in the face of Senators Trumbull and Fessenden: "Now there is a State law which says to the black man, 'You shall not marry a white woman.' and so to the white man, 'You may.'" Id. at 505. It seemed to Johnson that this arrangement ran afoul of a new law that barred discriminations based on color. Senators Trumbull and Fessenden appeared not to credit that argument. Whether they were sincere or not, it could hardly be argued that our own generation discovered a principle that was not evident to legislators even at the time.

* 26. See LAURENCE H. TRIBE, CONSTITUTIONAL CHOICES 5, 6, 8 (1985).
* 27. See Baehr v. Lewin, 852 P.2d 44 (1993) (remanding case questioning constitutionality of prohibition of same-sex marriage with instructions to decide using strict scrutiny standard); Baehr v. Miike, CIV. No. 91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996), appeal docketed, No. 20371 (Haw. 1997) (holding that a prohibition on same-sex marriage fails strict scrutiny under the Equal Rights Amendment to the Hawaii Constitution).
* 28. For the way this ancient understanding had to come into play recently in the argument for the Defense of Marriage Act, see Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th Cong. 87 (1996) (statement of Hadley Arkes); Hadley Arkes, Odd Couples, NAT'L REV., Aug. 12, 1996, at 48.
* 29. Genesis 5:2 (King James).
* 30. See David Orgon Coolidge, Same-Sex Marriage: As Hawaii Goes. ... FIRST THINGS, Apr. 1997, at 33; Hadley Arkes, Gay Marriage in 1996?, AM. ENTERPRISE, May/June 1995, at 57; Hadley Arkes, Questions of Principle, Not Predictions: A Reply to [Stephen] Macedo, 84 GEO. L.J. 321 (1995).
* 31. Brief for Defendant-Appellant at 1, Baehr v. Miike, appeal docketed, No. 20371 (Haw. Apr. 27, 1997).
* 32. Abraham Lincoln, Sixth Debate with Stephen A. Douglas, at Quincy, Illinois (Oct. 13, 1858), in 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN 255 (Roy P. Basler ed., 1953).
* 33. Id.
* 34. For a discussion of these cases and Lincoln's understanding of them, see HADLEY ARKES, FIRST THINGS 416-22 (1986).
* 35. See ROBERT H. BORK, SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE 117 (1996).
* 36. See SCALIA, supra note 7, at 34 ("One of the routine tasks of the Washington lawyer-lobbyist is to draft language that sympathetic legislators can recite in a pre-written 'floor debate'--or, even better, insert into a committee report.").
* 37. Id. at 35.
* 38. For a fuller statement of this problem, arising from the litigation and controversies of the New Deal, see ARKES, GEORGE SUTHERLAND, supra note *, at 103-10, 159-75.
* 39. See SCALlA, supra note 7, at 31.
* 40. See generally MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW (1987).
* 41. See Mary Ann Glendon, Comment, in A MATTER OF INTERPRETATION, supra note 7, at 95, 96-97, 111.
* 42. See id. at 97.
* 43. See id. at 102-03.
* 44. Id. at 113-14.

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By HADLEY ARKES

HADLEY ARKES, Hadley Arkes is the Edward Ney Professor of Jurisprudence at Amherst College. His most recent book is THE RETURN OF GEORGE SUTHERLAND (1994) [hereinafter ARKES, GEORGE SUTHERLAND].