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    George Anastaplo on Scalia and Holmes

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    Anastaplo_In Re Scalia (Holmes)

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    George Anastaplo on Scalia and Holmes

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    6 views5 pages

    Anastaplo - in Re Scalia (Holmes)

    Uploaded by

    benjamin_newton2762
    George Anastaplo on Scalia and Holmes

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    © All Rights Reserved
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    In re Antonin Scalia GEORGE ANASTAPLO tr {the] Declaration fof Independence) is ot the rah et et the salt book in which we find i nd ter ot! —Abraham Lincoln (1258) tn Apsit 1997, Justice Antonin Scalia paid a well-received visit lo the campuses of Loyola University of Chicage. His Tuiks during the visit drew oa his book A Matter of Inser- pretation: Federal Courts and the Lav! "Among the jusdce's public appearances was a Convoca- tion on 7 April 1997, which beard papers by three Loyola faculty members, including me, and his responses to those Prpcet The justice commented on my ébservations sbout the pervasiveness of his jurisprudence, about his opinions ‘Sith respect to the Declaration of Independence, and sboot {he constitutional sus of capital punishment. Twill briely ‘consider each ofthese topics in tam. 1 Here is the way I come into the justice's response, as recorded jn a transcript published in Blackacre, a iw-sti- Sent newspeper at Loyola: “Let me say a few words about Professor Anastaplo's remarks. Gee, I'm glad to know 'm in the mainstream, Professor Anastapio:it really feels good. iAtthough, of course, ['m sll not in the mainstream of asad. mia”? He then alluded to differences between ws ebout ‘Shether homosexuals should be considered “a politically ee George Anastaple is a professor of law at Layola Universi tp of Chicago, lecturer in the liberal ars a the University Of Chicago, and professor emeritus of politcal scence and (of philosplry at Dominion Universi. | daquinyy *gZ aUINOA "6661 FANAK powerful minority" and whether afSrmative action can ever >be constitutionally permite. “This was the justice's recognition, however brief, of what {Thad ssid in the opening and closing passages of the pre~ ‘pared remarks ("On Justice Scals's Coastitutonslism’) to ‘which he was responding. (My complete remarks, which Ivers published in Blackacre on 6 May 1997, are appended to this article.) Here is my opening passage: 1k is formate, considering how accommodating Justice Scaie hes been a a mach-prizad gues of chisunivesity, hit the questions fam now obliged to pose about the arguments th bas made, both im he recent published book and in bik ‘Sik bore, have litle to do with him personaly. What I gues ton ina school of thought of which be kappens, fr the mo- ‘ot, to be s pardculalyinloetial spokesman. The under~ pelea bare is wit the legal etcation that as be=n ‘allble in tis county nce the Second World War. The (Bore presdgious and hence the more sophisticated the few ebook one w associted with the woese the legal ning (or is key to receive in exalrepecs. “The priviany eiiclom I willbe making on this oocasion can be Giraed nok only at Jasice Scalia but also ais it~ ice both be and mot of them we ytares one way er anoth- = of contemporary socal sienc=, ‘And bere is the closing passage of my prepared remarks (app. par. 13): “The critiques Lev collected hee a anything but new. Tis ‘ould again assure 0 thatthe reservations 1 ave ventured {p expres abou Josce Seales consitutionalism are dires- ‘2! oo aginst him perooally but adr aginst the dominant fhotary opinion today, «pestvisic opinion which oo {seme post share in priniple, powever much be may ds St on secondary points which a not relly as import ax they may for the moment appess. | wll say more, futher on, about bow positivism bears on the satus both of our consitutionsl docurments and of the ‘comman In, topics on which positivists have had much to say for almast two centuriss. aotaINg PONY WO saayaadsieg ‘ime 1999, Volume 28. Nurber a Tat Justice Scalia is, in effect 2 positivist and a legal realist he is aot likely to deny, whatever aversion he may hheppen to have tothe wse of these terms. Mortimer Adler, in his hook Haves without Have-Nots. suggests “that legal ponitvism places law on a plane apart from any moral ors. It regards all such norms a5 being subjective in ure: thus they cannot be treated as having objective jiday, Positive law, however, inthe sense that i isthe law of ths state, can be ascertained without regard to moral con- in the philosophy of law and jestice.” Adler suggests, “isthe issue between the posi- Livisi and the naturalists” —between «a those who hold that positive or man-made laws are prior tw and determine what is deemed to be just and unjust in any community at any time and place and who, accord- ingly, also hold that what is deemed just and unjust changes with changes in the positive laws and govern- rent of a given community: and », dase who bold that there are principles of natural law, criteria of justice, and natural rights that enable us to dtermine whether laws and constitutions are just or un {ast and, if unjust, in need of rectification and amend He then directs us to Plato's Republic: “There [we] find the sophist, Thrasymachus. arguing against Scrat saying that Justice is nothing but the interest ofthe singer” and Socrates trying to refie Thrasymachus by de Ging justice without any regard (0 the edie o laws of thse with the might to enfore thet, cording to Thrasymachus, those with the power to wlan and enfore the laws ofthe Ind al those Who obey {har Tas just subjects. and those who disobey them unjust. Te words jus” and “unjus™ have no other meaning. er tunly no meaning whereby a despotic ryrant ara fyrapaical trary, ring in slfinterest, 0t forthe good ofthe ale, ‘tbe called unjust ‘With the statement that justice i nothing bu the interest ofthe stronger, we have the origin of te doctrine that mt et, for those withthe might to govern ae the any ones tho can determine what ish and wrong. ‘Adler goes on to trace the opposition between Socrates and Thrasymachus down to our day in this fashion: ‘Te postion taken by Thrasymachus is taken later by the Raman juraconsult Ulpian for whom “whatever pleases the race has te force ofthe low” and sl Inier by Thoms Fes in his Leviathan where be declares that. i any cam rimnity, what Jost and unjast is whelly determined by the Dpeitive or man-made laws enacod by those with the power [ardain and enforce them, 18 the mieteeth century. the Dantivist view is advanced by Jeremy Bentham in his Prin= ples of Morals and Legislation, and by John Austin in his Prmnince of urispradence Determined. and in the twentieth ‘Siry advanced by professors in American law schools ‘oho call themselves legal eli. "On the cer side, the naturalist view iitited by Socrates leis dapat with Thrasymochs find ampliGeation in Ars- tive’s disinction between patural and legal justice. in hero's discussion of [the] natural: Augustine's statement ‘Sat “an unjust law fs a lay is same only” (representing might without right, power without authority: in Aquinas's Philosophy of law’ wherein principles of justice are antecedent to, independent of, and applicable 1 positive of ‘mam-made laws; and in the doctrine of moder philoophes, ‘Bich as John Lacke and Immanoel Kant, for wham matural Fights preexst positive, man-made Inws and become the basis for aisessing their justice and injustice * Adler, in his usual systetnatc fashion, spells out “the consequeneds that follow from embracing the positivist of the naturals side ofthe issue.” Ths he says ustice Scalia does not seem to appreciate the constitutional system. implicit in the Declaration of Independence. IF the positivist view of the reason berween lw and justice i cores. follows: 1. eat mig igh 2: that there can Be no such thing asthe iraney of the inact: 3. that the ae no exer for judging lw ronson as ‘ajo and jp ned of retonton dr tmendment 4 that foster local nd transient not univers and im fruuble, but eifeent fife ples sno wire 5, that postive laws have force only. and no suo. etng cadence aly tush the fear ofthe piste tha ompries geting eaeht in disobeying ter an 6 thatthe fo dition Between mak poh nd mala (ae, nanely. berwnen at that ae wrong simply breause ty ae lgaly pro Hed (such as breaches of afc ordinance and ‘bse hat ar wrong in themisves. whether they are prohibited by positive law (coch as murdering human Beings or ening the.” Ades then spells out, in opposition to each of these points, “the namuralist view of the relation between law and poli- tics.” beginning with the observation that “might is not ight” and that "majorities can be (yrennicel and unjust™ “Justice Scalia evidently is not eware, by the way, of the extent to which legal positivism, with its tendency toward ‘moral relativism and away from natural-law and natural= right doctrines. is discouraged by the Roman Catholicism to ‘which he is known 10 be a devout adherent, We can be re ‘minded here of how mach one’s religious allegiance is like ly to be determined by circumstances. Circumstances or accidents, such as temperament, career ‘opportunities, and political associations. 10 say nothing of divine providence, may also have inclined Antonin Scalia 10 conservatism (just as most liberals may be shaped by sheir circumstances). I should at once be aided tha intellectuals, a including some judges, ae not as respectful of nature and justice as practicing politicians have to be, One can see, on ‘uudying Justice Sealia's arguments, why Hamy Jaffa con siders such people unrelible allies as conservatives. (Lib- crals can be unreliable in similar ways.) Indeed, Professor Jka can speak of “the mainstream” as a polluted stream. Vv. : | tum now to my differences with Justice Scalia with respect to the Declaration of Independence. . [suid in my prepared remarks of 7 April 1997 tat the legal realist cavalierly disavows the natural-rightatural- law tradition vital 10 the Anglo-American constitutional system. | then observed (app. par. 7) someone challenges the “wisdom” of our day about the ‘commen lnv-thal common law upon which the Constiti- Sn st nesd not be because be is Being presamproots. Rather it can merely reflet the reuctance ofa tre conser- ‘ative lo repudiate the sensible eachings and seady practice by sentunes of thougheul jurists in the Anglo-American [egal adition, a tndiion grounded in turnin the naturl- ‘iphhatua-iaw eadison cat the modem Igl realist cave- ely dagrows thereby helping Rome to bur ‘This diavowal extends 10 ignoring the Declaration of Independence in constational ‘even though that document is identified inthe fst volume ofthe United ‘Sates Sarutes af Large es one of the organic laws of the nied Sales Symptomatic of this nelet isthe fare of the United States Supreme Court in Brown x. Board of Edu- ‘ution (1954) to Tefer tothe Declaration of Independence, ven though the ruling in that case redeemed the “cated cya langue of the Declaration as it came tobe appied ‘tbe Fourteenth Amendment 1 lt hardy do to #2, at sce Seale with many others says, Cathe Consiution is pot really "aspiational™ ins tems nd tone. Justice Sealia, very much the legal realist, does have quite a Uifferent view of this matter: 1 do't think the Declaration of lndependence is part of our fowl ws drafied before the federal government even exist- The Declaration of Independence, unlike the Consitu- tion unite the BU! of Rights, isan aspirational Cocument! "Thats where you Dear sich wonderfl stuf [about] lif, tib- ‘ry, and the post of happiness. “far Deviation of Independence is aspirational. That's seni yo ini ope with stoning 3 9 (oe law cour with He startied several in his Loyola audience when be went ‘ono insist that he asa judge should have naching to do with the Declaration of Independence: “The Bill of Rights, on be ther hand, has nove of tha pile “phic! poppycock nf Ue ute pocise. “Til by Jury in got mans involving more than $20°—tha's pot the Freneh Declaration ofthe Universal Rights of Man I's not ‘pitta, fs law! The Declaration of Independence was to ia sf do nok apply it in my opinions ‘Any comment that {might make here about this kind of dis tmissal ofthe Declaration of Independence is anticipated in the following eamment by Martimer Adler: Coaly om the naturales view does the great second paragraph (0 the Declaration of Independence proclaim seifevident Iulia. On Ge positivist view, it ig 25 Jeremy Bentham ‘laine a the time. apiece of flamboyant rhetoric, aimed st Perspectives» Poi Solent ‘winning converts tthe cause ofthe rebelion, bt without an tance of truth in is pious proclamations about unalienable Fights and how governments. which decive their Just powers {om the contot of the governed, a formed io ake pr=x- intng natural rights more secure. “Philosophical poppycock” may be a shorthand way of ‘summing up Bentham’s “flamboyant rhetoric... without an ‘ounce of truth in its pious proclamations.” Justice Scalia does not seem to appreciate the constitutional system i plicit in the Declaration of Independence. In addition, be has a limited view of what law is—and what it rests upon. ‘The Declaration of Independence, we must remember, does not purport to ereate or ley down the law, but rather to reveal and reafirm it—and itis this that provides the grounding for the Constitution of 1787 and for repeated efforts to im- prove the Constitution since its ratification V. Of course, Justice Scalia, like most of us, is derivative: He is nota primary source of the arguments he makes. Per: heps the most important immediate influences on him are Oliver Wendell Holmes Jr. and his disciples, with the Holmes influence (which can be taced back at least to ‘Thomas Hobbes) transmitted through people such as Felix Frankforer and Edward H. Levi, and 10 a Jesser extent through Learned Hand and Louis Brandeis. The following bas been said of Justice Holmes: (Un) an era that war amsious to pezpetmate te illusion that ‘decision making was somehow diferent from other Kinds of offical decision making. since judges merely ound” of “declared” aw, Holmes demonsraed that jude: ing was inecapably an exercise in policymaking. This in Sight was a breath of fash air ia a sale Jurpradeatial cl ‘mala Again! the ponderous intonation of ether juiges that {hey were “making no laws, deciding 90 policy. [and] never cic into the domain of public action” Holmes offered the thoory the! they were doing all hose things. American jarispradence was never the seme agin." ‘This recognizes Holmes's contribution to legal realism. an approach that is evident in the opening paragraph of his famous book The Common Law: “The object of this book isto peseat = general view of the Common Law. To accomplish the tak, cther tools re need fd besides loge tis something to show thatthe conssien- fy ofa nytem requires prticolarrsuly, but iit al Te life of the law has nt been logics it has been experience. The {elt ncoesies ofthe tine, the prevalent moral and politcal theories, intone of public poiey, vowed ar unconsciows. ven the prejudices which jodges share with their felow- ‘en, have had # good deal mors to do than the syllogism i Getraining the rules by which men should be governed. The law embodies the stay of a nation's development though ‘many cronies, se itcannoc be dealt with ari it contained ‘only the axioms and coolaries af 2 book of mathematics. In rer to know wat ti, we mes know wht thas tee, nd ‘what tends to Become. We mast sliemately cosa history tng exiting theories of legislation. But te mos dificult labor wil be to undersand the combination of the two ints new products at even sage. The subsance a the law at 2ny ten time proty nearly corresponds, sofas it ees wih ‘what is thon undersioed to be conveaient but is form and Winter 1999, Volume 28, Number machinery and the degree 10 which i ix able to work out ‘devitod results, depend very much upon is past? ‘The emphasis on experience and history in the Holmes book isin effect, an emphasis on chance, unless there is something 19 which human beings and their communities look sn determining what experiences to have and how to deal with them, Vitel here is the status of nature and a pru-

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