August 12, 2002
Professor Laurence Tribe
Harvard Law School
Harvard University
Cambridge, MA
Dear Larry,
This morning, while wrapping up a brief vacation, I read the Washington Post’s editorial criticizing Justice Scalia and his First Things essay on almost exactly the same grounds I did in the Times last month. Then I returned home to find your letter of August 10. As the Washington Post editorial shows, my reading of Scalia is not so patently outlandish after all. While you say I “grievously misrepresented” Scalia, other reasonable and informed persons can read Scalia independently and come to much the same conclusion I did. Is it possible that all of us are right - and that you are the one who is wrong?
Your lengthy letter devotes only two paragraphs to the actual substance of what I wrote. Let me refute those paragraphs. First, you assert that Justice Scalia does not (contrary to my characterization of him) blame the emergence of democracy for the downfall of the biblically-derived traditional idea that the state is God’s minister. Second, you say I wrongly charge Justice Scalia with trying to inject Catholic theology - or, short of that, religious doctrine - into constitutional interpretation. Third, you claim that Justice Scalia would, if he found the death penalty immoral, resign from the court, and that I miss the mark when I accuse him of opportunism.
On the first point: Here, at the risk of getting tedious, is exactly what Justice Scalia wrote, after he quoted from Romans 13:1-5 on the divine origins of government (emphasis mine):
This is not the Old Testament, I emphasize, but St. Paul. One can understand his words as referring only to lawfully constituted authority, or even only to lawfully constituted authority that rules justly. But the core of his message is that government - however you want to limit that concept - derives its moral authority from God. It is the “minister of God” with powers to “revenge,” to “execute wrath,” including even wrath by the sword (which is unmistakably a reference to the death penalty). Paul of course did not believe that the individual possessed any such powers. Only a few lines before this passage, he wrote, “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.” And in this world the Lord repaid-did justice-through His minister, the state.
These passages from Romans represent the consensus of Western thought until very recent times. Not just of Christian or religious thought, but of secular thought regarding the powers of the state.
That consensus has been upset, I think, by the emergence of democracy. It is easy to see the hand of the Almighty behind rulers whose forebears, in the dim mists of history, were supposedly anointed by God, or who at least obtained their thrones in awful and unpredictable battles whose outcome was determined by the Lord of Hosts, that is, the Lord of Armies. It is much more difficult to see the hand of God-or any higher moral authority-behind the fools and rogues (as the losers would have it) whom we ourselves elect to do our own will. How can their power to avenge-to vindicate the “public order”-be any greater than our own?
FT at 19 (emphasis added). The thing speaks for itself. Scalia explicitly blames the emergence of democracy for the decline of the godly State.
Second, nowhere in my essay do I charge that Scalia wants to inject Catholic theology or any other religious doctrine into constitutional interpretation. Rather, I charge that Scalia wants to give the Constitution “a religious sense that is directly counter to the abundantly expressed wishes of the men who wrote the Constitution.” That is, Scalia, like other hard-line conservative officials and writers, many of them Protestants, asserts that our government, like all government, rests on divine authority. Scalia says so, again explicitly, when he writes of democracy’s tendency “to obscure the divine authority behind government.”
My point, which you mischaracterize, is simply that the Framers acknowledged no divine authority behind government. Do you disagree?
Third, it is moot whether Scalia would quit the Court if he thought the death penalty immoral. He doesn’t, so he won’t - but he does demand that his adversaries quit. Logically and morally, this is a pretty convenient stance for Scalia to take. But that’s not why I call him an opportunist. He is an opportunist because, in his writings, he repeatedly mislabels his own private observations as “conservatism,” and insists wrongly that his views on divine authority are consistent with strict construction and an originalist reading of the Constitution.
And now, it seems, the Washington Post, independently, has arrived at exactly the same conclusion that I did: that Scalia’s First Things essay proclaims what the Post calls a disturbing “radicalism,” based on Scalia’s apparent rejection of the fact that “the American state was not conceived as an arm of God.” (Here, in case you missed it, is the URL for the Post editorial:
http://www.washingtonpost.com/wp-dyn/articles/A6702-2002Aug11.html)
Contrary to your portrayal, my op-ed is actually measured in my claims concerning Scalia’s “bitterness against democracy,” referring only to what he sees as democracy’s errors in obscuring the divine foundation of government. And as for the Framers’ views and the Constitution, I relish the opportunity to engage the various eccentric claims, some of them quite scholarly, about the supposedly divine foundations of our national government, if that is what you have in mind.
As you’ve gathered, I will retract nothing that was in my New York Times piece. But like Cromwell to the Scots, I beseech you, in the bowels of Christ, think it possible you are mistaken.
Yours sincerely,
Sean Wilentz
