Justice and the Law

Lincoln E. Steed March/April 2016

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He was pugnacious. He was opinionated. He was humorous, but dangerous when provoked. And he had become an institution in himself.

I’m talking, of course, of the late Supreme Court justice Antonin Scalia, who died last month at 79— at the time the longest serving member of the current court, being appointed justice in 1986. He was seldom quiet. And his influence will likely continue for a long time. He will be missed as a man who spoke his convictions without hesitation. His originalist theory of constitutional interpretation is likely to be quoted for many years; if only as a counterpoint to the more typical Living Constitution model that permeates most of the judiciary.

Many years ago I attended a Christian Lawyers weekend in Canada, which featured Justice Scalia. He was nothing if not controversial. In particular he waved Thomas More, the newly minted Roman Catholic patron saint of lawyers, in front of the mostly Protestant lawyers so provocatively that at one stage the leadership went in to a huddle to see if a formal response was needed. They decided to roll with the many punches. And black-eyed as they became, all ended up enjoying Scalia’s trenchant legal analysis and his quick wit.

He made numerous jibes in the direction of capital justice. One was part of a humorous anecdote about cattle thieves in the wild West. Scalia made much of the either-or reality of trials for cattle rustling. If the court found you innocent, you went free. If you were guilty, they took you out and hanged you.

The story he told has resonance for me as I observe the current political posturing in the buildup to November elections. It went like this.

A certain young fellow had been found guilty of stealing cattle. He was to be hanged. The townspeople, needing some excitement, gathered for the hanging. Standing on the raised platform with the young man, the mayor told him, “These folks have gathered to watch you hang. We have a tradition here that you can talk to the crowd before you die. You can tell them whatever you want. Criticize the town, the judge, me if you like. You are free to talk.”

The rustler looked around at the expectant crowd. He shook his head. “No, I’ve got nothing to say.”

The mayor was amazed. “Son,” he said, “say anything you like. The time is yours. These folk expect it.”

Again “No” and a shake of the head.

This was too much for the local politician. “Will the gentleman yield his time?” he cried out.

The condemned man was puzzled. The mayor explained: the politician saw the potential for a crowd and wanted to address them if he was agreeable.

“Sure,” said the rustler, “but hang me first.”

That joke was good for hearty laughs that somewhat obscured the justice’s stark view of justice. In many ways it characterized his rather one-dimensional “originalist” view of the Constitution. Although I agreed with his point that if what was wanted by legislators or constituency went against the Constitution, there was a plain solution—an amendment to the Constitution.

The reality is that the Supreme Court has periodically stretched the literal law to encompass things far afield from the narrow language of the Constitution. I can think of two that fit this: the Citizens United case and Lawrence v Texas. The framers were indeed corporately minded and they did indeed intend to protect privacy, but I think it hardly worth proving that their minds would have ever wandered enough to envisage CPAC electioneering and gay rights threatening religious freedom rights.

During a lecture Scalia gave that weekend at the University of British Columbia he said something so entirely full of common sense that it struck me he was less dangerous than most of the ideologues in public office. “I may believe these things,” he said, alluding to his very reactionary views on capital punishment and separation (or lack of) of church and state. “But you don’t have to worry about me,” he said, “because of my own view of the original intent of the Constitution.”

Many of us felt his role in the Smith case was a betrayal of religious freedom. But some proof of his ability to hold a view and be constrained by the logic of the Constitution was on display when he supported the right to burn the flag. Right-wingers, including his own wife, could not believe he would vote that way. But the good justice usually voted his legal truth and suppressed his own activism.

My fear is that others on the Court will not have the discipline to override their personal prejudices or identity agendas. In all my time observing the Court, I have been impressed by how imperfectly the justices follow the intended bias of the conservative or liberal factions that nominate them—Scalia (with the nod to my prior point) and Thomas being two very clear exceptions, of course. In a multicultural, multifaith nation the Court presented a red flag of late, with six of the nine Roman Catholics, three Jewish, and none Protestant. No constitutional crisis here, but a religious demographic aberration that in a time of religious contention could bleed through to troubling religious cases.

And my fear is accentuated by the present factional reality. The assumption by both Liberal and conservative is they can load the deck with a reflex partisan. On top of that is an assumption I find terrifying: an assumption that I know Scalia himself would have rejected. It is the view that the Court legislates from the bench. That is a cynical view and one not supported by a reasonable study of the forming of the republic and the constitution.

We need justices who are men and women of honor. The need is not just for legal specialists—most people do not realize that justices do not have to be lawyers or judges—but men and women of moral compass who seek justice. In the Old Testament book of Leviticus, I read this injunction: “You shall do no injustice in judgment. You shall not be partial to the poor, nor honor the person of the mighty. In righteousness you shall judge your neighbor “(Leviticus 19:15, NKJV). Good advice.

Article Author: Lincoln E. Steed

Lincoln E. Steed is the editor of Liberty magazine, a 200,000 circulation religious liberty journal which is distributed to political leaders, judiciary, lawyers and other thought leaders in North America. He is additionally the host of the weekly 3ABN television show "The Liberty Insider," and the radio program "Lifequest Liberty."

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