Where are Scalia’s intellectual children?

Last week, on Oct. 2, Supreme Court Justice Antonin Scalia became the inaugural speaker of the Herbert W. Vaughan Lecture Series at Harvard Law School. His subject, “Methodology of Originalism,” was given before a crowd of over 650 students, faculty and the general public.

Originalism, or “strict constructionist,” is a form of judicial philosophy that approaches constitutional interpretation according to the original intent of the Constitution’s framers wherever possible. As an originalist, Scalia is loathe to impose his own personal views or opinions of the Constitution into any of his judicial opinions because he believes to do so violates the separation of powers doctrine and places the judge into the realm of lawmaker – a super legislator – a function a judge is ill-equipped to legitimately perform.

“The initial approach to interpretation of the U.S. Constitution,” Scalia said, “which remained as orthodoxy until the Warren Court, holds that the Constitution is no different from any other legal text such as statutes that do not change meaning from generation to generation.”

My association with Justice Scalia, or I should say my attempted association with this legendary conservative jurist, goes back 20 years when I was a graduate student at Harvard. Concurrent with this period, I became a conservative and took a few courses at the law school.

In the late 1980s, I began to read some of Scalia’s judical opinions and started writing Scalia and other members of the Court about my ideas on the Constitution. Later, I sent him various book manuscripts, law review articles and books on constitutional law, legal philosophy and judicial philosophy I had written as gifts of gratitude for his yeoman’s work on the bench.

While I received replies from justices representing all three judicial philosophies of the Court – liberal (Ginsburg, Breyer), moderate (Souter, O’Connor), conservative (Thomas), nevertheless I have yet to receive any reply from Justice Scalia – nor did I receive one from then-Chief Justice Rhenquist, both conservative justices.

Why? To give Scalia the benefit of the doubt, perhaps as a matter of policy or practice he doesn’t respond to unsolicited gifts from the public. I understand that as a member of the Supreme Court he receives lots of bizarre and crazy correspondence, but as I stated before, I wrote him as a young student of constitutional law whose philosophy was in part nurtured by his originalism jurisprudence. I was trying to pay homage to Justice Scalia, and I feel remiss that to date he has yet to acknowledge my gratitude of him, though several of his colleagues on the Court have done so repeatedly, including Ginsburg, Breyer and Souter, jurists whose ideas about the Constitution are antithetical to my own.

Perhaps a reason that I never received a response from Justice Scalia over the past 20 years is that my approach to constitutional interpretation and jurisprudence, while strongly rooted in the original intent of the Constitution’s framers, is nevertheless also grounded in moral philosophy, which, according to his lecture at Harvard Law School last week, Scalia considers a “non-originalist” approach to constitutional intepretation.

On Scalia’s lecture, Elaine Mc Ardle wrote:

Scalia took to task proponents of a non-originalist approach, whom he says improperly stray into the realm of moral philosophy. “Much as I love Harvard Law School, it didn’t make me a moral philosopher,” he said. Not only are lawyers better suited to historical inquiry than to moral philosophy, “that task has become easier over time,” he said, with the proliferation in the past 20 years of legal historians in the academy as well as the increasing number of historically laden amicus briefs submitted to the Court, especially in controversial cases.

While I venerate Scalia’s work on the Supreme Court, if he truly made those comments equating moral philosophy with non-originalism, I must demur in the strongest possible terms, for if one considers himself to be a constitutional originalist, then one must come to the understanding that it is frankly impossible to separate law from morality. Moreover, it is intellectually dishonest to try and separate history from moral philosophy, particularly when discussing America’s constitutional and jurisprudence history.

Scalia’s ideas on this subject reminds me of a very rude correspondence I received from Judge Robert Bork whose nomination to the Supreme Court by President Reagan in 1987 was scuttled by a cabal of liberal Democrats, leftist academics, including Laurence Tribe, and the National Organization of Women among other organizations of the left.

In that correspondence about seven or eight years ago, Judge Bork was replying to my letter of gratitude for his contributions to constitutional law, particularly in his books “The Tempting of America” (1990) and “Slouching Towards Gomorrah” (1996). I especially thanked him for his moral and historical philosophical approach to constitutional interpretation, which I viewed as indebted to and reliant upon Natural Law philosophy and the original intent of the Constitution’s framers.

Judge Bork up to this point had never responded to any of the books and law review articles I had sent him, but he finally could tolerate no more. He sent me a terse e-mail stating that nothing in his writings on constitutional law has anything to do with Natural Law and that he does not view Natural Law philosophy as having any bearing on his understanding of the Constitution in modern times.

Of course, Judge Bork’s reply devastated me … then I became angry, now regretful.

I found Judge Bork’s reply to me to be particularly regretful and bewildering, because for a time he and I were even affiliated with the same academic institution – Ave Maria – a law school founded by Domino’s Pizza CEO Tom Monaghan, a devout Catholic who put up millions of his own money to create a law school that proposed a Natural Law approach to the law and a veneration of the original intent of the Constitution’s framers.

While I realize that there are legal scholars at prestigious law schools and universities across America who in their research and writings pay lip service to the voluminous and distinguished record of the Constitution’s framers, nevertheless for whatever reasons are loathe to acknowledge the underlying religious veneration of the framers that is rooted in the Judeo-Christian traditions of intellectual thought. This school of legal thought is largely founded on humanism, liberalism and Positive law – a separation of law from morality.

In modern times, it is beyond all rational argument that the writings of the Constitution’s framers were inextricably founded upon the Bible, Natural Law and the moral philosophy of Blackstone, Locke, Montesquieu, Hobbes and others. (Note the emphasis on rational because many of the ideas from the left on the constitutional interpretation are based on feelings and emotions, not the dispassionate rule of law).

In an earlier column, “Why the left so hates America,” I tried to put the ideas and writings of Constitution’s framers in a proper historical context:

What writers and writings most influenced the constitutional framers? To answer this question, University of Houston political science professors Donald Lutz and Charles Hyneman in 1985 published a monumental study that took them 10 years to bring together. They amassed over 15,000 items, including 2,200 books, newspaper articles, pamphlets and monographs of political materials written between 1760-1805 and discovered that the three writers the constitutional framers quoted from the most often were: 1) Barron Montesquieu (1689-1755), 2) William Blackstone (1723-80), and 3) John Locke (1632-1704). Incidentally, all of these men were strong adherents of Natural Law philosophy, which believed in an inseparable connection between law and morality.The Pilgrims, the Puritans and the constitutional framers all insisted on cementing the connection between law and morals by infusing biblical precepts into the Declaration of Independence, the Constitution and Bill of Rights. In fact, one other source was quoted more than Montesquieu, Blackstone and Locke combined – the Bible. Fully 96 percent of the literature, books, articles, monographs and political tracts the framers used and that were analyzed in the Lutz/Hyneman study had their origins in the Word of God.

Returning to Scalia’s lecture, at this venue surrounded by liberal jurists like Tribe, Dershowitz and those who believe an activist justice in the tradition of a Warren, Brennan, Thurgood Marshall, Blackmun, Stevens, Ginsburg and Breyer to be the ideal judge, I am convinced that Scalia missed an important and rare opportunity to be exceedingly definitive in his denunciations that political activism on the bench of any ideology openly perverts the original intent of the Constitution’s framers by conflating the judicial branch with the legislative branch.

Instead, Scalia on occasion seemed to try to placate his audience with phrases like:

“My burden as an originalist is not to show that originalism is perfect but merely to show that it beats the other available alternatives, and that is not difficult. …”

However, in other parts of his speech, Scalia aquitted himself quite well in his delineation of originalist jurisprudence particularly in the excerpts below:

Regardless of which medium is involved, libel is unprotected speech. For that reason, Scalia said, a decision such as New York Times v. Sullivan, in which the Warren Court determined that good faith libel of public figures would be “good for democracy,” deviates from the Court’s proper role under the Constitution.
[A]n exchange with HLS professor Alan Dershowitz that provided the liveliest moment. Dershowitz referenced a 2003 case on the Fifth Amendment, Chavez v. Martinez, which addressed whether the Constitution prohibits coercion in eliciting self-incriminatory statements. In that case, Scalia joined the majority opinion by Thomas in finding that the coercive questioning by police under the circumstances of the case was not a constitutional violation. In the opinion, according to Dershowitz, there was “not a single word about history” because such inquiry would have led to a different result.

Although overall Scalia performed very well at the inarguaral Herbert W. Vaughan Lecture, my only regret is that while Tribe, Dershowitz, Ogeltree, Noah Feldman, Lani Guiner and the majority of liberal law professors at Harvard Law School have many “children,” i.e., students, to propagate their ideas, Scalia seems content to be a highly sought-after conservative jurist … yet virtually alone.

To my knowledge, Justice Scalia has not found it important during his distinguised judicial career to encourage a new, younger generation of legal scholars like myself (as Justice Clarence Thomas has done) to propagate his originalist ideas to America’s law schools, American society and throughout the world. Unless Justice Scalia reaches out to a new generation of legal scholars, I predict that he will leave this earthy realm with few intellectual children of his own and that his judicial ideas and his intellectual legacy will pass away like the sands of time.
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