The Optimist

For Scalia, Textualism Was a Matter of Trust

The recent death of Justice Antonin Scalia has produced a flood of commentary about nearly every conceivable feature of the man’s life. For good reason. Scalia was the most consequential American judge of at least the past fifty years, and possibly since Oliver Wendell Holmes Jr. Many have remarked on his interpretive legacy of textualism and originalism. Scalia was a pioneer in making others see that the raw materials of legal interpretation—words—limit the range of meaning that a judge can extract from them. Others have noted his pungently elegant writing style, which blended the virtues of direct, clear, brilliantly colorful, and incisive prose in equal measure. My own students find these qualities appealing, but they appreciate just as much his unified, logical, and cogent vision of the Constitution. They admire the coherence of system and the lucid order that Scalia shows them in the Constitution’s structural divisions and careful allocations of power. And still others have remembered his charm, his warmth, and his capacity to disarm opponents by sheer force of personality and good humor. No Justice of the Supreme Court—and few statesmen in the history of the American Republic—ever was blessed with his panache.

Scalia influenced the law in just about every way that a judge can, and it exceeds my ability to evaluate his contributions comprehensively here. Yet it is possible to say that of the many threads that stitch together Scalia’s jurisprudence, perhaps the most durable and the least remarked is his abiding, unshakeable, sometimes confounding, occasionally maddening optimism about the character of the American people. In nearly every area of the law he touched, Scalia was animated by the firm conviction that ordinary people—their judgment, their customs, their traditions, their political and moral sensibilities, their wisdom and commonsense—would always reward the enormous confidence he reposed in them.

Consider his textualism and originalism—two of the most discussed and most misunderstood (or at least misdescribed) features of his jurisprudence. Both interpretive approaches draw strength from a deeply hopeful, even faithful, wellspring about the nature of law, the people who make it, and the people who are governed by it. The interpretation of law, as written down in statutes and the Constitution, is not merely political will. It is not the exercise of raw power by surreptitious or clever means. It is not a game to be won by the most politically astute manipulator. Texts have certain fixed meanings, and the process of enacting those texts democratically presupposes that the enactors are using words in ways that other citizens—in their own historical period and in time future—understand and approve. To say that texts have fixed meanings is of course not to deny that sometimes those meanings will be vague or underdetermined. But textualism and originalism vindicate the lawmaking process—ennoble and validate it as a rational and worthwhile human endeavor. The fairest of Scalia’s critics have pointed out that he was not fully committed to his methods, that he applied his textualism and originalism with something less than complete consistency, that he was only a “fainthearted” and perhaps even an opportunistic originalist. He acknowledged these objections. And yet he maintained that judges respect the activity of lawmaking when they respect the law’s words. By doing so, and by avoiding linguistic distortion, they honor both the people who worked to create the law and those subject to it.

Scalia’s profound faith in the American character was also manifested in his stubborn resistance to the Supreme Court’s penchant for inventing new constitutional rights, as well as his reliance on American history and tradition to give substance to constitutional text. In the absence of specific authority to the contrary, American people were to be trusted in governing themselves. Their traditions, their political settlements, their manner of doing things, and their social arrangements were not to be disrespectfully bulldozed, no matter how self-righteously certain the bulldozers might be about the direction of progress. He decried decisions, as in United States v. Virginia, that blithely tossed aside longstanding American traditions and institutions that have endured and served the people. He rejected his colleagues’ efforts to read their own bien-pensant visions of fairness and justice into the Constitution, and yet this was in large part because he appreciated and valued the inherited traditions of fairness and justice at the root of American political and legal history. When Justice Brennan complained in his Burnham v. Superior Court concurrence that “contemporary notions of due process” required the Court to reject “the perpetuation of ancient forms that are no longer justified,” Scalia responded in the plurality opinion that contemporary and traditional fairness are one and the same. It is American tradition that renders a particular practice or manner of doing things reasonable and fair as a matter of due process.

His optimism is perhaps nowhere more evident than in his Establishment Clause opinions, which express his appreciation for the traditions of the American accommodation of law and religion, and his hopeful expectation that American people would maintain, cherish, and be sustained by that inheritance. That optimism underlies much of his jurisprudence. In constitutional law, he believed that tradition is itself an independently powerfully reason in the law’s interpretation. That emphasis on American tradition led him to the view (often expressed in dissent) that “acknowledgement of the contribution that religion has made to our Nation’s legal and governmental heritage” is permissible under the Establishment Clause.

In my judgment, he was largely correct about this. Even more, however, Scalia was convinced that the American tradition of public religion—public prayer, for example—was a uniting force of civic fellowship. Hearing a public prayer in a tradition different from one’s own, he argued in his Lee v. Weisman dissent, would not lead to public discord, but to greater harmony, mutual understanding, and even civic “affection.” How old-fashioned this view seems amid today’s cacophony of demands for validation based on identity or interest group.

Yet it is in his free-exercise jurisprudence that Scalia’s optimism in the commonplace American character was tested and stretched to the breaking point. His seminal contribution was Employment Division v. Smith, where the Court held that a neutral law of general application did not implicate the Free Exercise Clause even if the law had the effect of burdening religion. Many critics of Smith (I am one) miss that what may first appear as a hard and parsimonious rule for religious freedom is closely coupled in Scalia’s opinion with a deep faith and optimism that people, acting through their legislatures, would do right by their religious brethren, would be magnanimous and charitable toward them whenever they could be:

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.

Scalia was determinedly sanguine in his opinions about American solicitude for religion. Religious liberty and tolerant good will could never be eradicated from the core spirit and innate generosity of the American people. The people might go astray; they might make mistakes. But in the long run and in the main, the best and most secure outcomes for religious freedom will reflect popular negotiations rather than Court-imposed “solutions.”

So sanguine was he that even as late as 2012, Scalia—a deeply faithful and committed Catholic—could obdurately persist in telling John Allen in an interview that “if the bishops want an exception from the law [in this case the contraception mandate in Obamacare], they should try to get it through the democratic process…. Americans are very generous about accommodating religious beliefs.” The Congress that passed the Religious Freedom Restoration Act in 1993 was more pessimistic in its long-term assessment of the character of the American people. Alas, it was probably more accurate as well.

In fact, one may wonder whether Justice Scalia’s faith in the American people in the long run will be rewarded. Certainly he must have had his doubts. Especially toward the end, he must have known and regretted that his “wins” were so “damn few.” So they were, and so, perhaps, they will be. But to Scalia’s great credit, those doubts and regrets never appeared in his written opinions. And over the truly long run, optimism is not so bad a bet.

Marc O. DeGirolami is professor of law and associate director of the Center for Law and Religion at St. John’s University School of Law.

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