March 20, 2003

On Tribe on Wilentz on Scalia

Now comes the estimable and sharp-witted James Glass before the bar of logic and argument, bringing forward Larry Tribe as a witness to defend Antonin Scalia against my bill of indictment accusing him of being a theocratic intellectual zombie--that is, somebody who belongs in the court of a medieval Pope like Innocent III, and not on the Supreme Court of Thomas Jefferson's and Abraham Lincoln's United States of America.

Tribe's witness for Scalia takes the form of a critique of a New York Times commentary by Sean Wilentz, who also attacked Antonin Scalia for being, well, a theocratic intellectual zombie.

I confess I am not convinced by Tribe's argument and prefer my own conclusions (surprise! surprise!). Let me try to indicate why:

In his critique of Wilentz, Tribe makes four substantive points:

  1. It is simply wrong for Wilentz to say that Scalia blames the emergence of democracy for the breakdown of that consensus that held that state power was to be obeyed because it was in some sense special and holy, for Scalia is "[f]ar from holding democracy’s emergence responsible for what he laments as the breakdown of that consensus."
  2. It is simply wrong for Wilentz to describe Scalia's desired aim as the injection of Catholic theology or even the infusion of a religious sense into the Constitution.
  3. Scalia's main aim is, instead, to express his "deep disagreement with... the mistaken tendency to believe that a democratic government's actions have no special extra moral power or authority," a tendency that has led to many bad things, one of the chief of which is civil disobedience.
  4. But, Tribe says, Scalia's argument as a whole is untenable: Scalia "positions himself simultaneously to: accept as morally correct the binding Church teaching that abortion is always wrong; remain on a Court that permits abortion and sanctifies it as a right; vote with a Court that routinely permits legislatures to take a permissive posture toward abortion while banning infanticide; and reject (as theologically misguided and morally obtuse) the teaching that capital punishment is always wrong while saying he could not remain on a Court that permitted capital punishment if that teaching were binding. It’s an interesting position, but one that... cannot successfully endure..."

Let me take the first three of these points in sequence.

Tribe's first point is silly, stupid, and wrong. Scalia says exactly what Wilentz says he says--and exactly what Tribe claims that he does not say. Scalia says that the "consensus has been upset, I think, by the emergence of democracy." For Tribe to say that Scalia is "[f]ar from holding democracy’s emergence responsible for what he laments as the breakdown of that consensus" is simply for Tribe to make himself look like a real idiot, at least to everyone who goes back and consults what Scalia actually said.

Tribe's second point is also silly, stupid, and wrong. Scalia wants to reverse an erroneous and regrettable belief that he describes as a fall from an earlier consensus. He wants us to return to that earlier consensus. How does he describe that earlier consensus?

St. Paul had this to say (I am quoting, as you might expect, the King James version): "Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake." (Romans 13:1–5)

This is not the Old Testament, I emphasize, but St. Paul.... [T]he core of his message is that government—however you want to limit that concept—derives its moral authority from God. It is the “minister of God” with powers to “revenge,” to “execute wrath,” including even wrath by the sword (which is unmistakably a reference to the death penalty)...

How do we return to this earlier consensus? By fighting "this tendency of democracy to obscure the divine authority behind government." "People of faith" need to resolve "to combat [this tendency] as effectively as possible." If the aim of this "combat" is not "infusing a religious sense into the Constitution," I have no clue what "infusing a religious sense into the Constitution" might possibly mean. For Tribe to claim that this call for combat is not a call to infuse a religious sense into the Constitution is, once again, for Tribe to make himself look like a real idiot, at least to anyone who goes back and reads what Scalia actually wrote.

Tribe's first two points are so contrary to the expressed words and overall message of Scalia's piece that I can only shake my head in astonishment at the fact that he makes them. How much time could he have spent on Scalia's essay to have misread it so completely?

Tribe's third point is correct: Scalia's main point is that governments have special moral authority: their special moral authority comes from God, who wants us to obey our governments. In Scalia's view, people who don't obey the law--who engage in civil disobedience, or who revolt, or whatever--are contravening God's command. St. Paul has promised them "damnation." This position seems to me to entail the judgment that Martin Luther King, Jr., was a bad man because he broke the duly-passed laws of the state of Alabama: Scalia expressly says that civil disobedience is an "adverse effect... which proceeds on the [false] assumption that what the individual citizen considers an unjust law—even if it does not compel him to act unjustly—need not be obeyed." Scalia's position seems to me to entail the judgment that George Washington was a bad man because he led a rebellion against his due hereditary sovereign jure divino of George III Hanover-in-Parliament: in Scalia's view, unjust authorities should be obeyed rather than revolted against, for "'Ye must needs be subject,' [St. Paul] said, 'not only for wrath, but also for conscience sake.' For conscience sake."

The interesting thing to me about Tribe's point three is that Tribe does not take exception to this argument of Scalia's. Tribe does not make the natural, obvious, American point, the point that Jefferson would have regarded as fundamental: that the Creator has not endowed us with a government that we should obey, but has instead endowed us with rights. It is our task not to obey our governments' commands but to make sure our governmen secures our rights, among which are life, liberty, and the pursuit of happiness. I had always understood that the foundations of America were not that the Declaration and the Constitution told us to obey our government, but instead that they told the government it had limited powers it was to use to secure our rights. After all, we don't teach our children that King and Washington (and Lincoln!) were bad men who contravened God and did things that St. Paul had told them deserved damnation. Instead, we hold public holidays in their honor.

So the three of Tribe's four points that are pro-Scalia seem to me to be either (a) silly, stupid, and wrong, or (b) to miss the mark so widely as to casue my jaw to drop in amazement. I really don't know what Tribe thinks he is doing here: his enterprise seems fundamentally silly, at least if you consider it to be anything other than an exercise in gaining Scalia-brownie-points for some future use...

The basic, the fundamental point, I think, is that Antonin Scalia has preached a sermon on the following text: "The powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation." Now it was very common to preach on this text back in the days of the divine right of kinds and emperors, back in the days when, as Richard Rumbold said immediately before his execution, it was accepted doctrine that some people were born with saddles on their backs to be ridden, and others booted and spurred to ride them.

But it is a damned odd thing for an American to do...

Posted by DeLong at March 20, 2003 06:37 PM | TrackBack


Wow, I can't believe that your horde of usual posters on this subject haven't leapt to point out all the logical flaws in your argument. I'm sure they're just getting around to it.
Then we'll all know for sure that Scalia is not, and never has been, a theocratic intellectual zombie.

Posted by: John Isbell on March 20, 2003 06:53 PM


Brad got stung! I guess the comments on the politeness thread must have been too much for him ;-) How sharper than a serpent's tooth it is to have thankless bloggers!

Posted by: andres on March 20, 2003 07:03 PM


Ok, so I was laughing as I was typing. That explains the irritating exclamation marks. Apologies to all, I'm normally more sedate...

Posted by: andres on March 20, 2003 07:16 PM


Before the arrival of the hordes about whom I must be civil or they'll cry, I'd just like to shoehorn in on my URL a little thing comparing Scalia's attitude to the death penalty to Hamas's. People have called my piece dirty pool (because Scalia doesn't say exactly what Hmas does but the logic is the same: religious people live in the eternal and "don't think death is such a big deal" (Scalia's words, which are much the same as what Hamas says).

Just for the record: one of the unique things about the American constituion when it was ratified was that its degree of secularity, which was not matched anywhere in the world at that time. Most of the right and many centrists are unaware of this and some of them (Scalia) lie about it. Scalia wants something different.

I've also been meaning to put together something about Opus Dei, a highly reactionary lay Catholic group to which Scalia belongs which flourished in Franco's Spain and has many bizarre beliefs and practices. Opus Dei is highly secretive and encourages its members to be evasive.

But I haven't gotten around to it. are a few URLS, mostly from Catholic sources: (in Spanish)

Posted by: zizka on March 20, 2003 07:33 PM


I find controversy about Justice Scalia to be quite interesting. He is just a bowl full of contradictions. The question of abortions and capital punishment only scratches the surface. He decries judicial activism, while actively seeking to transform the United States from the bench. He lectures endlessly on "strict constructionism" and "original intent" while twisting the words and actions of the framers to be whatever he wants. Finally, my personal favorite, he is thought by many, including himself, to be a genius, but he prefers to belittle people with insults and bullying. Didn't Jesus say something about the meek?

IMHO, Justice Scalia doesn't deserve to be on the Supreme Court. If there was any justice in life, he would be teaching social studies at a second rate Catholic school somewhere. Then again, I wouldn't force my worst enemy to sit in his class.

Posted by: Christopher McGrath on March 20, 2003 08:16 PM


Well, well, seems like old times. Re-reading the "politesse" thread (from the Jim Glass link)on the seven month anniversary was a lovely stroll down memory lane.

I stand by my rebuttal posted back then. But to present the highlight, let me put this quote from Scalia's address into the mix:

"I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty—and if that fails, lead a revolution. But rewrite the laws he cannot do."

DeLong's point was that, at another point inthe speech, Scalia criticized civil disobedience. From that, DeLong extrapolated, among other things, the conclusion that Scalia condemned Martin Luther King.

Yet in the same speech, Scalia contemplates a disgruntled judge leading a revolution! This apparent contradiction is easily resolved - civil disobedience should be a last choice, not a first choice. Folks using Kazaa to get free music will not impress Scalia with their civil disobedience arguments, however deeply felt.

So, my point - DeLong takes a couple of sentences and extrapolates wildly, despite offsetting ideas in the same speech. Fun, no doubt, but uhh - well, Lawrence Tribe-like.

Posted by: Tom Maguire on March 20, 2003 08:53 PM


I'm reminded of Tribe's lame performance on Gore's behalf at oral argument. He and Scalia went back and forth like it was a faculty lounge and Tribe didn't even seem prepared or to care very much that he was losing. David Boies looked so much better in comparison.

Tribe's only redeeming quality is that he was a math major.

Posted by: andrew lazarus on March 20, 2003 09:45 PM


Tom Maguire: We have, one the one hand, an argument by Scalia that every person has a divinely-mandated obligation to obey civil authority and, on the other hand, an apparent approval by Scalia of resistance to civil authority on grounds of individual conscience. One possible conclusion is that Scalia is inconsistent. You propose instead that we understand the argument in question to be qualified in a way that would reconcile it with the sort of civil disobedience Scalia describes. That's a reasonable enough interpretative option, and it's nice to be guided by charity and interpret someone so as to make them come out consistent, when we can. But notice that the position we then end up attributing to Scalia is the following doctrine: although the source of the authority of civil government is the divine will, individuals can except themselves from that authority. I suppose that's conceptually coherent, but does it really strike you as plausible that someone who believes in divine commands would allow that they can be trumped by reasons of individual conscience?

Posted by: Alp Aker on March 21, 2003 12:00 AM


"Yet in the same speech, Scalia contemplates a disgruntled judge leading a revolution!"

So, a revolution >= civil disobedience. In fact what Scalia is arguing is: abide by the rule, or somehow change them, be it via a political campain or via a complete revolution.

How about changing the rules via civil disobedience??? (Seems to me to be a less disruptive way of changing the law than leading a revolution...) The reason there exists such a term as civil disobedience is precisely to distinguish it as a form of political activism. Otherwise, we might as well call it a dismeanor...

I don't think that downloading "free" music with Kazaa generally counts as civil disobedience. I would consider it as a form of IPR's piracy, perhaps? (Not that I hold the music industry is very high esteem. It may be that some users use Kazaa as a form of civil disobedience.)

Posted by: Jean-Philippe Stijns on March 21, 2003 12:07 AM


Hmm, I sense flickers of support for some middle position. Anyway, as to Alp Akers question about Scalia's apparent inconsistency, my short answer is yes.

And my long answer is not much different. Way back in my original comments, I suggested that DeLong could have probabbly written a compelling piece pointing out that Scalia is not nearly as consistent in his logic as he would like us to pretend.

But that is not what the Prof did - instead, he assumed absolute consistency by Scalia to just one part of the speech, and ended up with wild conclusions (in the thoecratic zombie post) such as:

"We know that Scalia condemns Martin Luther King, Jr. as a moral cretin for failing to obey the segregation laws of his day. But how much further does he go? There seems to be no stopping point before the equivalent of Nero. Thus Charles de Gaulle for his rebellion against the collaborationist French government of Philippe Petain and Pierre Laval stands, in Scalia's eyes, condemned as an enemy of God. "

So, DeLong's criticism is not of Scalia's inconsistency. Rather, he criticizes Scalia for an (imagined) hyperconsistency which Scalia's own speech refutes.

Actualy, I have high hopes of enlisting Zizka to my banner. The Scalia-Hamas comparison is revealing, but clearly contradicts the "theocratic zombie" position, since Hamas seems to engage in uncivil disobedience. However, to buttress the Scalia-Hamas overlap, Zizka could dump DeLong's position and rally to my "Vive Scalia Revolutionario!" banner. Our combined position will be that Scalia supports both civil disobedience and revolution, and therfore could support both Martin Luther King and Hamas.

As a matter of tactical deployment, I will attempt to engage the DeLong forces from the center, although I may find myself drifting a bit to the right. Zizka, you are one of the few people we could entrust with the job of outflanking the Prof from the left - are you ready?

Posted by: Tom Maguire on March 21, 2003 03:35 AM


That quote from Scalia's speech is horrific. How could a man with such beliefs be put a possition with so much power? Believing that one acts with God's authority used to be a sin of the first order!

It's hard to believe that the right way to illuminate that fact is to build as complex a tangle of point and counter point as is outlined in the first paragraph of Brad's posting.

How could anybody in America support a man with beliefs like that in a position of such power. It's fine if you want to hold such beliefs, but have we really come to a time in history when our democratic institutions can't protect us people likt that taking power?

People with beliefs like that don't give power back, God speaks to them not the people!

Posted by: Ben Hyde on March 21, 2003 05:28 AM


[Brad, and you delete my earlier posting, I mis-attributed the quote
to Scalia]

That quote is quite is horrific. Believing that one acts as God's
agent, well that's kind of the limit case of agency problems isn't it.
It is a very useful world view for those who are confident of their
infalliblity. Confidence is a good thing, excesive confidence kills.

It is a view of political power which western civilization apparently
must keep sweeping the dust bin of history over and over again. It is
purest kind of politically incorrect. The right's version of leftist
romantic optomism that inequality can be casually wished out of existance.

It's climbing our of the dust bin again. Once again we are going to
have to relearn that believing yourself filled with the breath of the
lord is a sin; a very dangerous sin.

Posted by: Ben Hyde on March 21, 2003 05:50 AM


I'm definitely to the left of DeLong, but on most issues he's quite centrist. You must have a limited range of acquaintances if you know very few who are to the left of Brad. After all, a plurality of Americans voted for Gore, and while Brad isn't much, if at all, to Gore's left, a lot of Gore voters were. The majority of Nadersymps showed great discipline, held their noses, and voted for the DLC guy.

Posted by: zizka on March 21, 2003 05:54 AM


For the record, I didn't participate in the original Scalia thread which led to all the fuss. I have my own reasons for objecting to Scalia which aren't based on DeLong's, with which I am not completely familiar.

For example, I don't have a link, but either Scalia or Rehnquist recently said that executing an innocent man is not a legal problem if procedures have been followed correctly. I am aware that an argument from principle has been constructed supporting that position, but to me the outcome of the argument is bad enough to call the principle behind it into question too.

Posted by: zizka on March 21, 2003 06:08 AM


From Zizka: "You must have a limited range of acquaintances if you know very few who are to the left of Brad".

I am touched by your continuing concern for the social life of those on the right. However, rest assured, we are legion, we are moving, and at least some of us are kidding.

Posted by: Tom Maguire on March 21, 2003 09:10 AM


I suggest a reading of William Stringfellow's and Anthony Townes' book, Suspect Tenderness. Stringfellow, a lawyer, recounted being told by an FBI agent (as he was being arrested for harboring Dan Berrigan, a fugitive) that the Bible said that citizens had a duty to obey the governing authority. Stringfellow said this is a favorite passage of governors (like Scalia), but after Stringfellow pointed out to the FBI agent what the Bible had to say about the nature of JUST governors who deserved to be obeyed, the agent wasn't so keen any more. Justice Scalia is not doing so well with the rest of this picture either.


Posted by: charles moore on March 21, 2003 09:35 AM


While I agree with most of the stuff that Brad puts on this site, I think his criticism of Scalia is unfair. He's putting Scalia's quotation of Paul in the wrong context.

The Roman Catholic Church has never followed a "strict construction" of the Bible -- the proper interpretation of the Bible is always constrained by the Catholic tradition and hierarchy. Even if they did, Paul's comment in Romans is not the only thing the Bible has to say about the relationship between the individual and the state. So it's not fair to say that just because Scalia quotes this passage of Romans with approval, he would also approve of any inference from the plain text of the same passage.

Why did Scalia consider Paul's remark relevant in this particular speech? Because it illustrates how, in the era before democracy, Christians distinguished between murder, a sin committed by individuals, and execution, a privilege of the state.

He went on to suggest that the rise of democracy has blurred this distinction; people in secularized democratic countries see their governments as little more than the instruments of the citizens, so they are uncomfortable with the idea that a government is allowed to kill someone in circumstances where a private citizen has no such right. Scalia is telling his audience that this is wrong -- the moral authority of the state, he says, is derived from God, not the voters. And the quote from Romans is his proof-text for that thesis.

Does that mean that, in Scalia's view, the state has the God-granted moral authority to do whatever its rulers want? Absolutely not. Look at how Scalia criticizes the anti-death-penalty Evangelicum Vitae encyclical. He doesn't say that the encyclical is incorrect because it constrains the God-given authority of the state -- he says the encyclical is incorrect because it is inconsistent with Catholic tradition regarding the purpose of punishment.

The point of Scalia's speech is that he can be a good Catholic, and a good Supreme Court justice, and still condemn people to execution. You may not agree with that point, but to infer a belief that MLK was immoral or that QE2 is our rightful sovereign is just silly.

Posted by: Seth Gordon on March 21, 2003 09:40 AM


Tom, will you excuse me for not having a sense of humor any more? When I look at the hard core of the Bush constituency, I am appalled. There really are a lot of neo-Confederates, dispensationist Christians, and free-market nihilists in there. (Free-market nihilists: sell the national parks, put public libraries on a paying basis, replace the public schools with vouchers, defund the Smithsonian, : this is all stuff I've really seen.) When I realize that Ann Coulter, Rush Limbaugh, Matt Drudge, and Michael Savage and the like are taken seriously by large parts of the electorate and are really important influences on American life, I am more than appalled. A fair part of the media (Fox, Wash Times, Mewsmax) either are on that wavelength or playing footsie, and very few in the mainstream media dare confront the bunch of them.

And is it just as bad in the Democratic party? The answer is no. I've seen the arguments, and it isn't. Farrakhan and the Trotskyists are not important factors in the Democratic Party. Certainly not committee chairs in the Senate.

To me a conservative is someone who thinks that Trent Lott is a fine statesman (he still is a committee chairmen, you know) whereas the late Paul Wellstone was a dangerous, frightening extremist. (A moderate is someone who thinks that the two are about equal and can go either way). It's actually hard for me nowadays to communicate in a friendly way with conservatives. There are some sensible conservatives out there and you may well be one of them, but I do not share their, or your, confidence that it's you who really run the Republican Party and not the vicious little nut cases.

I've had a number of net exchanges with urbane conservatives who are not in the least bothered by the swarm of vague threats coming from the semi-respectable right. They're amused that I don't get the joke and seem worried. Well, these threats are made against me, not them. That's why. Threats made against other people are obviously less frightening.

At this point I am not really worried that someone's going to show up at my front door and blow me away. But there's a nasty mood in the air which could lead to that kind of thing, especially when Bush's economy collapses as it seems certain to do.

The topic of this particular post of mine, incidentally, is not Scalia, but my lack of a sense of humor and my generally combative attitude. At least now you know what my reasons are, whether you accept them or not.

I like this site, but there are far too many conservatives camped out here sniping and jeering and flicking shit. Some are civil and some less so (I've quickly grew tired of David Thomsen accusing liberals of being Stalinist Maoist Nazis who have caused the starvation of millions in the third world). Some make intelligent points and others just offer ideological rants which they repeat over and over again like energizer bunnies. (The accusations I've seen here against Paul Krugman, whether on professional, ideological or ethical grounds, seem especially worthless). The result is that what could be interesting discussions turn into trench warfare between two sides which really have almost no common ground and nothing to talk about.

I speak only for myself and have my own motives. I don't run this site. I have actually absented myself from the site a couple of times because I got tired of some of people here. But in yesterday's thread I became irate when a lot of the guys I'm talking about, plus some strangers one of them sent over, became indignant at DeLong's attempts to assert some control over his own site. With that, some people I already disliked slipped another notch in my estimation.

I have actually worked out my own web-etiquette protocols and have them posted at my URL. They are highly partisan but anyone who wants to can easily adapt them. A key idea is that guests should treat the host with respect, a rule which a fair group of people (and on Atrios and Pandagon) here routinely ignore.

Posted by: zizka on March 21, 2003 10:03 AM



That's a very interesting post, thanks. I am still a little concerned about Scalia's statement even if we interpret it according to your guidelines instead of Brad's.

You state that "the moral authority of the state, [Scalia] says, is derived from God, not the voters" and that the State does not have "the God-granted moral authority to do whatever its rulers want?" just whatever is not, for example, "inconsistent with Catholic tradition regarding the purpose of punishment".

Isn't this a really dangerous blurring of religion into affairs of the state? That not only should the State impose laws that have theological backing but that we should not oppose such laws (even though it is okay to oppose laws that have no theological backing)?

I have very serious qualms about this interpretation. Isn't Sharia just a more extreme version of this, except we use Islam instead of Christianity to lend moral weight to laws? I am hoping you can shed light on these qualms since you were able to articulate the context for Scalia's remarks well.

Also keep in mind that I could be reading you wrong. After all, my reading comprehension skills have been questioned by Patrick Sullivan, and those of us who have read this blog for a while no how astute Patrick is in divining the intent of the written word.

Posted by: achilles on March 21, 2003 10:11 AM


"He says the encyclical is incorrect..."

and is therefore not a Catholic. Period. He is a cafeteria catholic that does not at all understand the tenets of the faith he pretends to profess. He is therefore a religious hypocrite.

This is not the worst thing in the world to be, and indeed nearly every "Catholic" in the country is too. But you can't disagree with papal encyclicals and be a real Catholic.

Some people may not like this. Some may insist that it's not true. I went to Jesuit school though, and unlike a lot of my classmates I really listened. Catholicism _requires_ obedience to all church teachings.

I am with Opus Dei on this one, though I despise their methods and beliefs. Catholics cannot just pick and choose. Pro-life, pro-execution people are just as wrong as pro-choice anti-execution people in the eyes of Rome.

Posted by: biz on March 21, 2003 10:13 AM


achilles: Any *individual* who has political power and strong religious convictions is going to let those convictions influence how they exercise their power. This applies to Joe Lieberman as much as to Antonin Scalia. I don't think this is a problem in and of itself -- since most people don't make a secret of their religious convictions on the campaign trail, you can take those into account when deciding whom to vote for (or, if you're a United States Senator, whom to confirm). The unacceptable blurring, I think, happens when a political *institution* gets tangled up with a religious *institution*, so you need to have an endorsement from one in order to have a position in another.

biz: I am not a Catholic, but as I understand it, the rules for what Vatican pronouncements a Catholic is *doctrinally required to accept* are rather strict -- which is why Scalia explicitly said, in his speech, that he consulted with Catholic jurists who assured him that _Evangelicum Vitae_ is not binding. What is your source for believing that Scalia's advisors, who presumably got as good a Catholic education as you did, are incorrect? Why should I believe that the people who sneer at "cafeteria Catholics" are more expert in canon law?

Shabbat shalom,

Posted by: Seth Gordon on March 21, 2003 10:46 AM


(Without specific reference to DeLong's original post or Scalia's statement that elicited it).

One of the distinctive innovations of the Constitution when it took effect was its very high degree of secularity. There was a vigorous, deliberate attempt to put government on a rational, human, foundation. The God they speak of was the God of reason, available to all, rather than the God of revelation, tradition, or institutional authority. I'm sure that Scalia, a smart, energetic, relentless, and piously unscrupulous guy, has produced tons of explanations why I'm wrong in what I say. I'm equally sure that he's being evasive.

In answer to the conservatives' unspoken question: No, I haven't read Scalia's explanations. You don't have to eat the whole egg to know that it's rotten. Some of the stuff he's said and done is bizarre enough that I don't really need to work very hard on this.

Posted by: zizka on March 21, 2003 11:08 AM


"The unacceptable blurring, I think, happens when a political *institution* gets tangled up with a religious *institution*, so you need to have an endorsement from one in order to have a position in another."

So I should not really get worried until the judicial branch and the executive branch start acting like they have a divine endorsement of their policies!

Posted by: achilles on March 21, 2003 11:17 AM


"On Tribe on Wilentz on Scalia"
On Comet, On Cupid... Oh, sorry.

Seriously, Achilles, I believe that is exactly what Scalia is claiming, and I think if you could question W on this topic, he'd agree, unless he forgot his script.

Unless you were being ironic and I failed to catch it, not impossible.

Posted by: Chuck Nolan on March 21, 2003 11:30 AM


"On Tribe on Wilentz on Scalia"
On Comet, On Cupid... Oh, sorry.

Seriously, Achilles, I believe that is exactly what Scalia is claiming, and I think if you could question W on this topic, he'd agree, unless he forgot his script.

Unless you were being ironic and I failed to catch it, not impossible.

Posted by: Chuck Nolan on March 21, 2003 11:31 AM


Oops. My bad. Sorry.

Posted by: Chuck Nolan on March 21, 2003 11:34 AM


achilles: The time to worry is when the states ratify a Constitutional amendment stating "no person may serve as a judge without being certified as a member in good standing of ____ Church" -- or, conversely, "no person may serve as a pastor without authorization from the _____ Department."

Posted by: Seth Gordon on March 21, 2003 12:40 PM


On the contrary I think the time to worry is long before that, when it looks as if religion is a pervasive influence (and dare I say it) the guiding light behind policy decisions (not personal decisions but decisions that change the lives of millions of others) of those in power. I may, however, be in the minority on that one as it applies to chistianity.

But I dare say many who are comfortable with the status quo now would react very differently if the religious beliefs that guided Scalia and which he expresses so eloquently in public were grounded in the Koran and not the Bible.

Posted by: achilles on March 21, 2003 01:00 PM


Tom Maguire: If I seemed to support, even flickeringly, your position, then I'm even more obscure than I thought I was.

Perhaps you don't understand why it is so implausible to attribute your hybrid position to Scalia. That the obligation to obey "God's representative" could be balanced against a right to revolution or an obligation to engage in civil disobedience would marry the Pauline doctrine with political ideas that are perhaps superficially consistent with it, but whose sources are _not_. The idea of right of revolution, on any standard understanding, flows from the understanding of government as deriving its powers from the rights of the governed. That latter idea is flat-out inconsistent with the Pauline doctrine. So Scalia's supposed hybrid position would have to understand the right of revolution in some truly idiosyncratic way. Similarly, arespect civil disobedience in a political culture is, historically, grounded on the understanding that individuals are ultimately responsible not only to their government but also to their own reason and judgment. That each individuals is in part the author of the norms that they must live by is also flat-out inconsistent with the Pauline doctrine, even if, again superficially, the bare idea of civil disobedience isn't.

So Scalia would, to be consistent, have to understand civil disobedience and just revolution in ways that are quite foreign to our political culture. You would have him doing so, without breathing a word about the novelty of what he'd be doing, or offering any caution that civil disobedience or just revolution would have to be something else than what his audience would expect them to be, or offering any hint whatsoever about what, according to his principles, the bases of just revolution or civil disobedience are supposed to be.

This is also why it was not unfair of Prof. DeLong to draw the consequences from Scalia's statement that he did. On any standard understanding of civil disobedience, what Scalia said implies that civil disobedience is an "affront against God".

Should Prof. DeLong have mentioned that Scalia inconsistently seems in one instance to allow for resistance to civil authority? I don't see why. That passage read to me as if Scalia is shying away from drawing an obvious conclusion from his own principles. Faced with a case where his own principles would imply a conclusion that's repugnant to attitudes that are a central part of our political culture, he simply quietly avoids drawing the inference that would cast doubt on his principles. He's trying to have his cake and eat it too. I don't see why one should let him to do so.

Posted by: Alp Aker on March 21, 2003 01:01 PM


I see that Scalia is opposed to considering the American constitution a living document. Does he prefer it to be a dead letter then?

Posted by: Joerg Wenck on March 21, 2003 04:49 PM


"I am touched by your continuing concern for the social life of those on the right. However, rest assured, we are legion . . ."--Tom Maguire

For He said to him, "Come out of the man, unclean spirit!"
Then He asked him, "What is your name?" And he answered, saying, "My name is Legion; for we are many."

Posted by: rea on March 21, 2003 06:15 PM


The great uninvestigated issue is the connection of so many right wing nutso Roman Catholics' (including Scalia)connection with Opus Dei, as well as right wing wacko protestants with the reconstruction movement. Come on reporters where are you?

Posted by: secular clergyman on March 21, 2003 09:26 PM


"Now comes the estimable and sharp-witted James Glass before the bar of logic..."

Professor, please, call me Jim. People only call me "James" when they're mad at me ... Oh. ;-(

I feel at a handicap defending what I wrote before. To have the space necessary I'd need my own blog (you've almost got me there.) And if Laurance Tribe's reasoning re the legal issues on all this "makes him look like a real idiot" what chance could I possible have?

Still, as a long-time useneteer I am compelled to futile effort in argument. If Tribe's logic doesn't impress you, maybe your own will. But some observations before that.

First, we've got to note that in addition to one of the top righty legal minds in the nation being an "intellectual zombie" we now also have one of the top leftish legal professionals being "silly, stupid, and wrong ... a real idiot". We're trashing the top ranks of an entire profession, right-to-left on a non-ideological basis! Entirely usenet-worthy!

Next, skipping all of Tribe, let's get right to your nub. Let's assume, solely for argument, that Scalia indeed preaches a sermon: "The powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God"

Let's say he preaches it every day. Heck, let's say he believes the Archangel Gabriel appeared to him and instructed him on this in person.

OK, what is "the power that be" in the US that he is religiously committed to defend and make others obey? The source of *all* governmental power? It is the Constitution. So the guy believes he has a deep duty to do his best to obey and apply the Constitution, to the limits of his ability. And to see that others follow, obey, it!

This is supposed to be disqualifying in a judge? Just because his belief in his obligation to do his duty -- to do his best in implementing and seeing that others obey the Constitution -- has a *religious* root?

What kind of judge would you rather have on the Court...
[] One you think is "crazed" because his deep-felt obligation to do his best by the Constitution, and to see that others obey it, has a religious base, tied to this sermon as taught to him by the Archangel, or
[] A "sane" secularly-motivated fellow who has little respect for the Court or judging, and who views his seat on it mainly as something to parlay into a big political job, and that helps him hit on women in the meantime.
Take your pick.

I suspect somehow the word "power" in the sermon has set you off in a rush thinking of jackbooted police kicking in doors. But that's absurd. If the jackbooted don't have a proper warrant they'd be defying the *real power* of the government, the Constitution -- and since they disobeyed that power the good judge would smite them!

Really, where in the world from anything Scalia has *actually done* in a very long and prolific career have you drawn any evidence that he has *any* sympathy at all for jackboot power rather than Constitutional power?

This is the guy who in _Kyllo_ let drug dealers go free because he said the police had violated their rights by conducting an unreasonable search *without* even going on their premises, by aiming heat sensors at their house to detect a drug-growing greenhouse from outside! Is that the act of a religious worshipper of state power to you? Well, not of police power, certainly. Constitutional power, yes.

Scalia has a copious public record. Unless you can find evidence of him showing unhealthy worship of some kind of extra-Constitutional "power" in *that*, I'd suggest that as a social scientist you consider marking your certainty in your interpretation of him to market for lack of supporting empirical evidence.

What else? I can hardly go through the whole list, but apparently you think a religiously grounded defender of the Constitution would...

[] Object to revolutionaries and secessionists, like George Washington circa 1776. Well, *yes*. So would a secularly grounded one. See the trial of Aaron Burr and the Civil War. The Constitution does not tolerate revolutionaries, even for good causes. No excuses. They are indeed *bad people* under the Constitution. (Does your argument really drive you to support secessionism?)

[] Believe "Martin Luther King, Jr., was a bad man because he broke the duly-passed laws of the state of Alabama". But the *power of the state* that the Archangel instructed Scalia to enforce is the Constitution, not the laws of Alabama. If Alabama enacted laws that disobeyed that power in Scalia's opinion, surely he would smite it!

[] Be a tool of the papists. No, that can't be right. The Pope is opposed to capital punishment but Scalia says it is constitutional.

OK, I know can't win and I should stop. I'll make just one more point. You are fond of citing "the dog that didn't bark". Well, here are a couple examples.

[] In my clipping files I've got NY Times op-eds by various social activist non-economists spouting off on economic subjects like: the stock market does nothing to help finance businesses because when you buy shares the money goes to some other person not to a business; and there's been little real increase in worker welfare in 100 years in spite of much higher incomes because today workers have to waste money on two cars, commuting, bigger health bills, etc. and so on. I keep this stuff for amusement, and to keep the Times in perspective.

Yet "the dogs never bark". You real economists never spend any effort replying to refute such nonsense and hooey.

Ah, but if one of the top-rank economists in the world -- a Stiglitz, Lucas, Romer or Krugman say -- gave a major public speech saying the stock market as it is should be abolished and replaced with a system of administered "just prices" for shares, as per Aquinas -- well the hounds of economics would be howling then, wouldn't they? (If only to say "up your dosage and get well soon!") I bet they would.

[] A short while ago one of the top nine judges in the US legal system gave a speech that the whole profession heard, and as far as the theocratic religious implications went, responded "zzzzz". The dogs all snoozed. No headlines in legal newspapers and journals, no law review articles, nothing. Dogs of left and right napped together.

Then a Times op-ed was written by an academic historian (no legal credentials) who is also a long-time partisan political activist, e.g. having organized petitions signed by the likes of Bianca Jagger to protest election results in Florida and bash certain judges involved. This particular op-ed also bashed one of those same judges, on the basis of selected excerpts from that earlier speech, painting him as a "theocrat".

The reaction of the entire legal profession, left-and-right? The dogs continued napping, silent, not even a "yip" from a pup. Listen to them.

Possible conclusions: The entire legal profession, left and right, has secret theocratic sympathies? Nobody in the legal profession pays attention to Supreme Court Justices? All lawyers are brain dead? It was just one of those Times op-eds ?

I suggest that Occam's razor reduces it to one of the last two.

Posted by: Jim Glass on March 22, 2003 01:17 AM


Gents (and ladies?) I have solved this puzzle! And since I am at home and have just showered, I may even give this the full "Eureka!".

Where are we? Scalia gives a speech. Wilentz has an interpretation. Tribe sees it differently. So does DeLong. Jim Glass, making excellent sense, chimes in, as does Alp with his AA fire on the other side.

And what is Scalia famous for? If you aren't sure what a law means, learn the original intent from the public record. But we can't agree on the original intent of one man within one short speech!

Now, I don't know that highlighting the difficulty of establishing "original intent" was DeLong's original intent, but these posts sure have served that purpose. A very clever rebuttal to Scalia's fundamental philosophy.

OK, lab rates get cheese - what's in it for me?

Posted by: Tom Maguire on March 22, 2003 05:32 AM


Proving that Scalia is independent of the Pope based on his support of capital punishment (and presumably, of the Iraq war and the use of napalm, etc.) is not encouraging to most of us.

The Catholic church did traditionally make allowances for disobedience to civil authority, but this mostly meant the right of Catholic subjects of Protestant rulers to assassinate their rulers. Again, not encouraging.

Scalia just declared that the Bill of Rights guarantees only minimum rights. Dotting the i's and crossing the t's, presumably this means that the vast majority of civil liberties cases over the last 5-8 decades have overgenerously applied the Bill of Rights, and that we're due for some rollback.

The reasons for opposing Scalia are multifarious and diverse. If Brad picked up the wrong one the first time around, just reach into the barrel and pull out the next one. Opus Dei grants considerable leeway to its members as far as dissimulating and occulting their real views goes. These are not "speak your piece and let the chips fall as they may" types. I'm confident that he's worse than he seems.

The Francisco Franco connection bothers me. Should it not?

Posted by: zizka on March 22, 2003 12:40 PM



I'm no expert on the Opus Dei, however what characterize them is that they are the rightwing catholic response to calvinism, or puritans. They are at once religious integrist, and favorables to making money. Franco did not like them it seems, however as integrist they were anticommunists, and they had the competences he needed to get out Spain from the autarcy that keep her in misery, so he gave them high roles from the end of the fifties to his death. From a strictly economical perspective, it didn't go that bad, so the fascist regime could metamorphose in a rather democratical monarchy. "Opusdeistas" are abundant in the high places of economy and politics, mostly on right and centre-right parties. But some says there are too in the non-communist left.

I reckon that Aznar is more rightwing that the median member of the Opus Dei.


Posted by: Antoni Jaume on March 22, 2003 02:37 PM


Jim Glass writes:

>>I feel at a handicap defending what I wrote before. To have the space necessary I'd need my own blog...<<

Well!?!? What excuse do you have?

Posted by: Brad DeLong on March 22, 2003 07:04 PM


"He decries judicial activism, while actively seeking to transform the United States from the bench."

There are two types of judicial activism: 1) the type that violates the Constitution, and 2) the type that follows the Constitution, after the Congress, the President, and even previous Supreme Courts, have broken the Constitution.

It is NOT a contradiction to to decry the first, while practicing or supporting the second.

In fact, in the case of Supreme Court judges, EVERY judge takes an *oath* to be the second type of judge.

"He lectures endlessly on "strict constructionism" and "original intent" while twisting the words and actions of the framers to be whatever he wants."

You have some examples in mind?

P.S. This is not a post defending Antonin Scalia. The best I can say for him is that he's the second least worst judge on the Supreme Court (Clarence Thomas is the least worst). (Always accentuate the positive. ;-))

Posted by: Mark Bahner on March 24, 2003 09:36 AM


As there is one comment giving "Catholic" URLs about Opus Dei from a negative point of view, I want to add some others URLs from the other point of view: (in Spanish)

Posted by: Juan Rodillo on December 30, 2003 01:14 AM


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