History Lesson I – Sean Wilentz, the peripatetic Princeton historian who spends a great deal of time embroidering and publicizing historical pedigrees for his favorite liberal causes (here the Founding Fathers would support abortion rights, there they would oppose Clinton’s impeachment, etc.), recently published a sclerotic attack on Justice Scalia in the New York Times. Juan Non-Volokh effectively demolished it on The Volokh Conspiracy here and here, and little needs to be added here.
But perhaps one additional comment is in order. The necessity to oppose Clinton’s impeachment seems to have shown Wilentz the utility (at least occasionally) of an originalist interpretive pose, and thus he lambasts Scalia for attempting to substitute his own views of the proper relationship between religion and government for the founders’ — “Justice Scalia seeks to abandon the intent of the Constitution’s framers and impose views about government and divinity that no previous justice, no matter how conservative, has ever embraced.”
According to Wilentz,
Justice Scalia’s remarks show bitterness against democracy, strong dislike for the Constitution’s approach to religion and eager advocacy for the submission of the individual to the state. It is a chilling mixture for an American.
I will leave to readers and others more qualified than I the determination of whether Wilentz’s interpretation of Scalia is fair, or even accurate (in my view, it is neither). Scalia has made it clear, in the very speech that launches Wilentz upon his diatribe, that he regards the death penalty as moral (contrary to the teachings of the church that he is alleged to follow slavishly); that he would uphold a hypothetical state law providing for freely available abortions, which he opposes; and that a judge called upon to do something immoral should resign and even perhaps lead a revolution. What interests me here is what Wilentz’s advice would be to a judge who was called upon to enforce a law that he or she regarded as clearly both Constitutional and immoral.
This is not a new dilemma. Judges who thought slavery immoral were in that position before the passage of the 13th Amendment. (Robert Cover wrote a terrific book about that problem over 25 years ago: Justice Accused: Antislavery and the Judicial Process, Yale University Press, 1975). There can be no doubt that the original Constitution protected slavery. What would Wilentz have had those antislavery judges do? The implication of his attack on Scalia is that he would regard any judge who deigned to place his own morality above “democracy” and the Constitution as a fearful despot.
UPDATE – [7/11/2002 8:00PM]
I said above that “I will leave to readers and others more qualified than I the determination of whether Wilentz’s interpretation of Scalia is fair, or even accurate (in my view, it is neither).” That person is Peter Berkowitz, and his devastating rebuttal to Wilentz’s “scurrilous” attack on Scalia should be read. It can be found on National Review Online.