“My view is that regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad – regardless of how you come out on that – my only point is the Constitution does not say anything about it,” Justice Scalia stated. “It leaves it up to democratic choice. Some states prohibited it and some states didn’t. What Roe v. Wade said was that no state can prohibit it.” (CNN’s Piers Morgan versus U.S. Supreme Court Justice Antonin Scalia on Roe v Wade)
“Now and then we have to tell the majority, the people, that they can’t do what they want to do, that what they want to do is unconstitutional and, therefore, go away. It’s the American people that gave us that power, it’s the American people that said, ‘No, we’re not going to let future legislatures do what they want no matter what.’” (“Scalia: Limitations possible for gun control”)
I believe that the task of conserving America’s liberty, and the constitutional republic which implements it, is the practical heart of what it means to be an American “conservative.” Sadly these days, despite the large plurality of Americans who identify themselves as conservatives, that conservative task seems more and more tragically improbable. Through the false lens of the elite faction’s sham partisanship, conservatives are supposed to see only Obama and his cohorts as the Iago-like orchestrators of this tragedy. They are supposed to believe that once these villains are tossed out of office, the republic will be secure.
If only it were that straightforward! A little reflection on the two statements of Justice Antonin Scalia quoted above makes clear why it’s not. Of the justices on the Supreme Court, Scalia is undoubtedly the most admired among Americans who self-identify as conservative. If you ask those who take at least an occasional interest in issues like abortion, religious liberty, or Second Amendment rights which Supreme Court justice is the staunchest guardian of the U.S. Constitution’s meaning and integrity, Scalia’s name will be mentioned most frequently. In any given case, the opinions he writes or supports are likely to coincide with the outcomes conservatives prefer.
In view of Justice Roberts’s recent abandonment of constitutional principle regarding the U.S. government’s power of taxation, it’s understandable that Scalia seems to shine more brightly than ever, as an “evening star” of hope against the shadow of Obama’s attempts to eclipse America’s liberty. Every now and then, however, the general public gets a glimpse of the path Justice Scalia takes to the outcomes most conservatives admire. The statements quoted above offer such a glimpse. If we think them through, we begin to understand why the conservatives’ simply hopeful view of Justice Scalia is one of the saddest aspects of the unfolding tragedy of American constitutional liberty.
When Scalia reminds us that constitutional government means that the people can’t always do what they want to do; that the terms of the Constitution constrain the powers of government, even those wielded by elected majorities in the legislative branch; his words give comfort to Americans who value the liberty and rights of individuals. It’s the American people who established those constitutional constraints, Scalia says, repeating the sound logic of such American founders as Alexander Hamilton, who wrote in The Federalist No. 78:
“Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both: and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”
But this correct understanding of the source of constitutional authority begs the obvious question: From whence does the more permanent will of the people, as declared in the Constitution, derive its authority to dictate terms to those who wield the power of government? If the people say that black is white, does their will govern the observations of empirical science? If they say that blacks are sub-humans, does their will alone decide black freedom or servitude? Like the Constitution itself, Justice Scalia assumes that the just powers of government are derived from the consent of the people but, like the injustice of abortion, this is nowhere explicitly stated in the Constitution itself.
To be sure, the Constitution provides for periodic elections to determine who shall take responsibility for certain offices in the government; it even makes clear that the words of the people, as expressed in the Constitution, shall be the Supreme Law of the Land. But if, in the name of history, social justice, or progress for humanity and the earth, someone claiming superior knowledge, virtue or effectiveness challenges the right of the people to wield such authority, where in the Constitution do we find the terms with which to answer their challenge?
We do not find them in the Constitution. It declares the people’s will, without justifying their claim to rule by it. We find that justification in the words of the Declaration of Independence. Therein are presented the self-evident truths which justify the claim that just government must be based upon the consent of the governed. But these truths acknowledge a source of authority that transcends human will, that is, the authority of the Creator, God. So, just as the superior will of the people logically governs the will of the branches of government the people ordain and establish in the Constitution, so the superior will of God logically governs the will of the people, whose right God endows and substantiates.
This means that, contrary to Justice Scalia’s assertion, the arbitrary and unconstrained will of the people, no matter how great a majority it represents, may not claim, by itself, to decide matters that involve God-endowed right. In these matters, the people themselves appeal to God to substantiate their claims. So, when the people’s will contravenes God-endowed unalienable right, they contradict, and so cut off at its source, the superior authority by which they logically claim the right to ordain and establish the constitutional rule of government. Neither the people nor their agents can logically claim to govern by means of an instrument they have thus fundamentally destroyed. The first constraint of constitutional self-government of, by, and for the people, is the one that requires respect for its premises. If that foundation be destroyed, no Constitution will do.
Of course, there are and always have been those who say that it’s not the superior logic of the people’s claim that substantiates their authority, it’s the superior power derived from their numbers. Is this the ultimate ground of Justice Scalia’s jurisprudence? If so, conservatives should think upon it and take care. For such human power, like all human glory, is fleeting; as is the courage derived from it. Could that be why America’s founders trusted instead in the transcendent power of God?