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 CNS Story:

TEXT SCALIA Jun-13-1996

Text of Justice Scalia's remarks at Gregorian Univeristy

By Catholic News Service
ROME (CNS) -- Here is the transcript of a tape-recording of
U.S. Supreme Court Justice Antonin Scalia's speech and
question-and-answer session at the Gregorian University May 2, at
a symposium on "Left, Right and the Common Good." Scalia's talk
was titled, "The Common Christian Good."

First of all, I am very impressed at what a progressive
attitude toward scholarship and education the Gregorianum has. I
notice on these student consoles out there they are able to vote
"placet, non placet." I don't know if that is activated for this
conference. I assume that if it is "non placet," a door opens
under here and I go right out.

If there was ever a topic that cried out for a definition
of terms it is certainly the one we are discussing today. Right and
left, right-wing and left-wing are terms that in America, just as
Professor Beneton said is the case in France, there is no fixed
meaning for. In political discourse one cannot say that the terms
right and left mean anything in particular. Except that they all
connote, as they do not in European political discourse, a degree
of extremism. In America, that is to say, both terms, right and
left, have a certain pejorative flavor. Thus we have in American
political commentary that familiar villain the "right-wing
extremist" and more recently that ominous political force, the
"Christian right." The terms "left-wing extremist" and
"Christian left" would have similar overtones of foreboding if
they were ever used by the American media, which curiously enough
they are not.

Once, however, one gets beyond the pejorative content it
is hard to pin down the meaning of right and left in American
political usage. Sometimes the terms are used to denote
respectively statists and libertarians, that is those who favor a
strong and authoritarian government versus those who favor a high
degree of individual freedom. In this sense of right and left,
former President Richard Nixon would be a man of the right and his
opponent in one of the elections, Eugene McCarthy, would be a man
of the left.

But if that were the only meaning of the term, both Augusto
Pinochet and Fidel Castro would have to be referred to as
"right-wingers," because they certainly are both in favor of
strong and authoritarian government. So there must be a second and
quite different connotation of the terms, which there is: namely,
a connotation that distinguishes between laissez-faire capitalists
and socialists. This is not only different from, it is sometimes
the opposite of, the first connotation, since those who favor a
high degree of individual freedom in other matters, that is to say
those who under the first category would be with Eugene McCarthy,
often favor a high degree of human freedom in economic matters as
well. Thus the American Libertarian Party is a party of the left
under the first connotation and a party of the right under the
second, because it favors economic freedom as well as what you
might call Bill-of-Rights freedom.

Yet a third meaning of right and left is much more
relativistic. It draws a distinction between those who favor the
status quo and those who favor change, between conservatives and
progressives. Since over most of the past century change has been
moving from a status quo of capitalism toward socialism, this third
connotation tends to produce the same results as the second
connotation. Castro can be called a man of the left in both senses.
But of course if and when the tide of history reverses itself and
begins moving from socialism to capitalism, the equivalence between
these last two connotations disappears. Thus the old-line
communists in Russia who resist the change from the status quo
toward democracy and capitalism are sometimes referred to in the
American press, believe it or not, as the right.

And finally, right and left may connote a distinction
between nationalism and one-worldism. This may be merely one aspect
of the first connotation I mentioned, since those who favor a
strong authoritarian government, the Richard Nixons of the world,
are ordinarily nationalists. But it really must be an entirely
separate connotation, since I can think of no other basis for
calling the Nazis a party of the right and the Communists a party
of the left. They are both authoritarian, they are both socialist
and they are both untraditional. But the Communists are
internationalists.

For purposes of my remarks today I am assuming the meaning
of right and left contained in the second connotation. That is the
meaning that refers to the distinction between laissez-faire
capitalism and socialism. I have chosen that meaning in part
because that probably comes closest to the meaning of the terms
right and left in European political discourse, and thus is more
likely to be what the conveners of this conference had in mind; and
in part because that is the only one of the dichotomies I have
mentioned that is the subject of widespread current debate. In the
waning years of the 20th century, few are urging a return to
authoritarianism, to vigorous nationalism, or to traditionalism,
whereas capitalism has made something of a comeback.

I must make a second clarification before I proceed to the
discussion of the topic: the other term used in the title, "The
Common Good." I have chosen to interpret the common good to mean
the Christian common good. Thus I take that system to be conducive
to the common good for purposes of this conference which is
conducive to virtue as Christianity understands virtue and which
is conducive to sanctification. I assume that this is the meaning
of common good that the organizers of the conference had in mind,
the Gregorianum being, as I understand it, a school that is
ultimately devoted to that sort of good.

Having fully defined my topic the first thing I wish to say
about it is that I do not believe in it. That is to say, I do not
believe that a Christian ought to choose his form of government on
the basis of which will be most conducive to his faith, any more
than he ought to choose a toothpaste on that basis. To be sure,
there are certain prohibitions that Christian morality imposes upon
what a government may do or may permit to be done. A Christian
should not support a government that suppresses the faith or one
that sanctions the taking of an innocent human life. Just as a
Christian should not wear immodest clothes. But the test of good
government, like the test of good tailoring, is assuredly not
whether it helps you save your soul.

Now I suppose that there is, or I am willing to posit that
there is, a perfect form of government, one most suited to human
nature. And there is certainly nothing wrong with philosophers,
including Christian philosophers, trying to figure out what that
perfect form of government might be. But there is probably a
perfect way to make an omelet, too. And I have no reason to believe
that the one any more then the other increases the love of God or
the chances of salvation.

In that regard I have always been struck, as I think any
modern democrat must be struck, by the advice in the letters of St.
Paul, which says, "Slaves, obey your masters." Not, "Slaves of
the world, unite, you have nothing to lose but your chains." Even
a political system that permitted, though it did not coerce, the
institution of slavery, which is certainly not very acceptable to
Christians, seemed of small consequence to St. Paul. Although at
the level of personal action, he of course did encourage Christians
to emancipate their slaves.

Paul apparently felt, as I do, that the responsibility of
government is the here, not the hereafter; that it is not meant for
saving souls, but for protecting life and property and assuring the
conditions for physical prosperity; and the needs of the here and
the hereafter sometimes diverge. It may well be, for example, that
a governmental system which keeps its citizens in relative poverty
will produce more saints. The rich, as Christ observed, have a
harder time getting to heaven. But that would be a bad government,
nevertheless.

This recognition of the separate spheres of church and
state is not just the teaching of the First Amendment to the United
States Constitution, it is also, I think, the teaching of Jesus
Christ, who spoke of rendering to Caesar the things that are
Caesar's, and is not recorded as having indicated any preference
about government except one: He did not want to be king.

If, however, I were to engage in the search for the form
of government most conducive to Christianity, I would certainly not
settle upon the candidate that seems to have such a great
attraction for modern Catholic thinkers, to wit, socialism. It is
hard to understand that attraction. Surely it does not rest upon
the teachings of experience. I know of no country in which the
churches have grown fuller as the governments have moved to the
left. The churches of Europe are empty.

The most religious country in the West by all standards --
belief in God, church membership, church attendance -- is that
supposed bastion of capitalism least-diluted by socialism: the
United States.

When I say least-diluted by socialism, you must understand
that I say that in a modern context, in which we are all
socialists. In the United States that battle was fought and decided
in the 1930s with the so-called New Deal of Franklin Roosevelt. No
one, even in the most conservative quarters of American society,
any longer opposes the welfare state, which provides many benefits
and social services to individual citizens. The only real argument
is over how numerous those benefits and social services ought to
be and how poor one should be in order to qualify.

Few of us even understand anymore what a truly nonsocialist mentality was like.
I happened to encounter it by accident when I was a young professor
doing research for an article on the subject of sovereign immunity,
the legal doctrine which says that a sovereign state cannot be sued
without its consent. I came across a debate in the Massachusetts
Legislature, I believe it occurred during the first half of the
18th century, concerning a proposed bill that would provide
compensation to a woman who had been seriously injured, physically
injured, through the negligence of one of the agents of the state
-- a policeman or a fireman, I forget the exact manner in which the
physical injury had occurred. Those members of the Massachusetts
Legislature opposing the bill argued that they had no right, that
it was morally wrong to use public funds for the private benefit
of this woman, as opposed to using public funds for a purpose that
would benefit the public at large. Because of the doctrine of
sovereign immunity, they argued, the Commonwealth of Massachusetts
owed this woman nothing. And to agree to pay her out of public
funds money that was not legally owed was in effect to use public
funds for a private gift, which they said was wrong. What a totally
different world of thought. And this, I point out, was a woman who
had been injured by the commonwealth. You can imagine what their
attitude would have been toward dispensing public funds to the poor
who had not been injured by the commonwealth.

Well, as I say, that frame of mind is gone, almost
incomprehensible to us moderns. In the United States, a small
remnant of that nonsocialist attitude lasted into the present
century. Our federal constitution in the United States, you may
recall, gives Congress not an unlimited power to expend funds, but
only the power to expend funds "for the general welfare." And
until the triumph of Franklin Roosevelt and the New Deal, there
were many who believed that that language prohibited the
expenditure of funds for any private assistance. Neither to the
rich nor to the poor. That fight, as I say, is over. We now believe
that any expenditure for any citizen is an expenditure for the
general welfare: whether to the poor, such as the recipients of
food stamps, which is what the American welfare system provides;
or to the middle class or even fairly well-to-do, such as federal
assistance to the victims of a tornado in a very elegant section
of Florida; or even assistance to the downright rich, such as the
shareholders of the Chrysler Corporation, whom we bailed out. All
of these are now regarded as entirely proper objects of the state's
beneficence.

Now, the allure of socialism for the Christian, I think,
is that it means well. It is, or appears to be at least,
altruistic. It promises assistance from the state for the poor and
public provision for all the necessities of life: from maternity
care to geriatric care, and from kindergarten through university.
Capitalism, on the other hand, laissez-faire capitalism, promises
nothing from the state, except security of person and property, and
the opportunity to succeed or fail. Adam Smith points unabashedly
to the fact that the baker does not provide bread out of the
goodness of his heart but for profit. How uninspiring.


Yet if you reflect upon it you will see that the socialistic
message is not necessarily Christian, and the capitalistic message
is not necessarily non-Christian. The issue is not whether there
should be provision for the poor but rather the degree to which
that provision should be made through the coercive power of the
state. Christ said, after all, that you should give your goods to
the poor. Not that you should force someone else to give his. One
should not forget that the individual voter in a socialist
democracy votes not to give his own goods to the needy but also to
force others to do so. They will go to jail for tax evasion if they
refuse. And often, as I shall observe later, the needy is him: the
voter.


Bear in mind that in this discussion I am not arguing about
whether socialism is good or bad as a system of government. If
private charity does not suffice to meet the needs of the poor, or
if we do not want the poor to regard themselves as the object of
charity, or if we even wish to go beyond merely assisting the poor
and want to redistribute the wealth of the rich to the middle
class, socialism may be a better way to meet those worldly needs
and desires. But all of that can be decided on the economic and
secular merits of the matter.


The question I am asking is whether Christian faith must
incline us toward that system, and the answer, I think, is no.
Christ did not preach a chicken in every pot or the elimination of
poverty in our lifetime. These are worldly governmental goals. If
they were his objectives, he devoted precious little of his time
and talent to achieving them, feeding the hungry multitudes only
a couple of times as I recall, and running away from the crowds who
wanted to put him on the throne, where he would have had an
opportunity to engage in some real redistribution of wealth. His
message, the Christian message as I understand it, is not the need
to eliminate hunger or misery or misfortune, but rather, the need
for each individual to love and help the hungry, the miserable, the
unfortunate.


Indeed, the argument can be made that far from doing Christ's
work, state provision of welfare positively impedes it. To the
extent the state takes upon itself one of the corporal works of
mercy that could and would have been undertaken privately, it
deprives individuals of an opportunity for sanctification and
deprives the Body of Christ of an occasion for the interchange of
love among its members. I wonder, for example, to what extent the
decimation of women's religious orders throughout the West is
attributable to the governmentalization of charity. Consider how
many orphanages, hospitals, schools and homes for the elderly were
provided by orders of nuns. They are mostly gone, at least in my
country. The state provides or pays for these services. Even purely
individual charity must have been affected. What need for me to
give a beggar a handout? Do I not pay taxes for government food
stamps and municipally run shelters and soup kitchens? The man
asking me for a dollar probably wants it to buy liquor.


There is, of course, neither any love nor any merit in the
taxes I pay for those services. I pay them under compulsion. And
it can be argued the governmentalization of charity affects not
just the donor, but also the recipient. What was once asked as a
favor is now demanded as an entitlement. When I was young, there
used to be an expression commonly applied to a lazy person -- one
would hear it often: "He thinks the world owes him a living." But
the teaching of welfare socialism is that the world does owe
everyone a living.


This belief must affect the character of welfare recipients,
and not, I suggest, for the better, or at least not for the better
in the distinctively Christian framework of things. Surely Christ's
special love for the poor was attributable to one quality that they
possessed in abundance: meekness and humility. It is humbling to
be an object of charity, which is why mendicant nuns and friars
used to beg: it is humbling. The transformation of charity into
legal entitlement has produced both donors without love and
recipients without gratitude.


It has also produced a change in the product that is
distributed. Most particularly and most relevantly for purposes of
the present discussion, social services distributed by the state
in my country, for example, cannot be intermingled with Christian
teaching, or even, increasingly, with Christian morality. They do
not say the Angelus in public orphanages. There are no crucifixes
on the walls of public hospitals. And the Ten Commandments are not
posted in public schools. The religiously driven and religiously
funded social welfare movements of the 19th century sought to
achieve not merely the alleviation of poverty and hardship, but
also what was called moral uplift. Of course that is no part of
state-administrated social welfare today. The state-paid social
worker whose job is to see to the distribution of welfare funds to
those who are legally entitled to them is not, cannot legally be,
concerned with improving not only the diet but also the virtue of
her clients. "Clients" is the coldly commercial terminology that
the welfare bureaucracy uses, in my country at least. It is quite
simply none of her business. And the result is often the
elimination of poverty without the elimination of the vices that
produce the poverty -- indeed, sometimes with a positive
reinforcement of those vices, through elimination of the pain that
they ordinarily produce.


Perhaps the clearest effects of the expansion of the state at
the expense of private charity are to be found in the field of
primary and secondary education. A relatively small proportion of
Americans are nowadays educated in schools run by religious
associations. Catholic schools are much less numerous then they
were at mid-century. As the costs of primary and secondary
education have risen, it has become very difficult for churches to
run a system competitive with the tax-funded public schools.
Simultaneously, litigation has caused the public schools to
eliminate all religiously doctrinal materials from their
curriculum. That is good and proper under our American system,
which forbids the official establishment of any religious sect. But
the nonsectarian state's increasing monopoly over primary and
secondary education can hardly be considered beneficial to
Christianity. Whereas such overtly religious texts as "The
Pilgrim's Progress" were once the staple of an American
schoolchild's education, nowadays religious instruction, if
received at all, is obtained one evening a week in confraternity
classes or on Sunday.


In more recent years, as society has become more and more
diverse in its views concerning morality, the state's control of
education deprives children not only of Catholic doctrine but even
of essentially Catholic moral formation. Schools distribute
condoms, provide advice on birth control and abortion, and teach
that homosexuality must not be regarded as wrong. Again, it is not
my place or purpose to criticize these developments, only to
observe that they do not suggest that expanding the welfare role
of government is good for Christianity.


Finally, I may mention that even the seemingly Christian virtue
of socialism, namely that it means well and seeks to help the poor,
may be greatly exaggerated. It is true in the United States, and
I believe it is true in all of the Western democracies, that the
vast bulk of social spending does not go to the poor, but rather
to the middle class, which also happens to be the class most
numerous at the polls. The most expensive entitlement programs in
the United States, Social Security and Medicare, which is public
medical assistance, for example, overwhelmingly benefit those who
are not in dire financial straits. So one may plausibly argue that
welfare-state democracy does not even really have the Christian
virtue of altruism. The majority does not say to the rich, "Give
your money to the poor" but rather, "Give your money to us."


Just as I believe the left is not necessarily endowed with
Christian virtue, so also I believe that the right is not
necessarily bereft of it. Laissez-faire capitalism, like socialism,
speaks to the degree of involvement of the state in the economic
life of the society. Like socialism, also, it does not speak to the
nature of the human soul. There have been greedy and avaricious
capitalists, but there have also been generous and considerate
ones. Just as there have been altruistic and self-deprecating
socialists, but have also been brutal and despotic ones. The
cardinal sin of capitalism is greed, but the cardinal sin of
socialism is power. I am not sure there is a clear choice between
those evils.


While I would not argue that capitalism as an economic system
is inherently more Christian than socialism, at least so long as
we are talking about a form of socialism that permits some
acquisition and ownership of property, nonetheless it does seem to
me that capitalism is more dependent upon Christianity than
socialism is. For in order for capitalism to work, in order for it
to produce a stable and prosperous society, the Christian virtues
are essential. Since in the capitalist system each individual has
more freedom of action, each individual also has more opportunity
to do evil. Without widespread practice of such Christian virtues
as honesty, self-denial and, yes, even charity, the capitalist
system will be ineffective and, worse than that, intolerable.


The capitalist system without Christianity -- I'm afraid that
non-English speakers will not understand this -- is Ebenezer
Scrooge without the ghosts of Christmas.


Let me conclude, as I began, with a disclaimer. The burden of
my remarks is not that a government of the right is more
Christ-like, only that there is no reason to believe that a
government of the left is. To tell you the truth, I don't think
Christ cares very much what sort of political system we live under.
He certainly displayed very little interest in that subject during
his time among us, as did his apostles. Accordingly, we should
select our economic and political systems on the basis of what
seems to produce the greatest material good for the greatest
number, and leave theology out of it. I'll conclude with that.
- - -


Moderator: Mr. Justice, I've read some of your writings and I
have to admit that this is the first time I've actually heard you
speak. No one has ever accused you of being uninteresting or timid,
and now I know why. Thank you for a very stimulating presentation.
I open the floor for questions.


Q. It seems to me that this interpretation undermines the idea
of the common good. Because if you accept your interpretation, the
only thing the government has to do is improve the living condition
of life. But according to the general interpretation of the social
teaching of the church, of course, the material condition of life
is not sufficient. And the economic approach puts aside many
important things, such as the moral conditions of life. In this
kind of interpretation, work is merchandise, work is something
which can be sold as another good, and it seems to me that a good
interpretation is given by the pope in his encyclical, in which he
makes precise distinction between two kinds of market economies.
And if we think that the market economy is autonomous, it seems to
me that this idea is hostile to the whole social teaching of the
church and the whole wisdom of the church, concerning what is man.
Man is not only an economic actor. If you reduce man to an economic
actor you reduce this dimension and you undermine, it seems to me,
what he is.


Scalia: I do not disagree with the statement that the material
condition of life is not sufficient and that if you reduce man to
an economic animal it is the antithesis of Christianity. There is
certainly nothing more contrary to Pareto optimization, to purely
economic acting, than charity, than giving away your money to
someone. Nothing could be more contrary to economics. So we do not
disagree on the objective. I think where we disagree is upon the
extent to which the achieving of that objective is the business of
the state. It is a large jump from the proposition that the
material condition of life is not sufficient, to the proposition
that it is up to the state to produce something more than the
natural man. I believe it is the job of the state to take care of
the natural man and it is up to individuals and religious
associations to take care of the supernatural man. And it is the
supernatural man who is the non-economic actor. I do not think it
is the function of the state to try to achieve that supernatural
function.


Q. The natural man is a moral man. Of course we have to
distinguish between the natural and the supernatural man, but the
natural man is not only an economic man, and you can find an
example in security. In some ways there is an antagonism between
security and the material good of the society, of the entire
society. So there is a primacy of the common good. In some ways the
government has to do many things to avoid some acts, some deeds
which act against the security of the country even if this act
plays against the material good of the citizens. It is a case in
which you have an antagonism between the common good and the
realization of private interests. Take as an example pornography
-- you think the government has nothing to do with pornography?
Scalia: I think, as St. Thomas thought, that it depends upon
the extent to which the society happens to share that moral value.
A society which shares it, yes can prohibit it. But a society that
does not, cannot, and one cannot say that it is the job of the
government to attend to that. It is the functioning of the
religious forces of the society, the churches and individuals that
can produce the objection to pornography which justifies the state
as adopting such a prohibition, because most of the people want it.
But the state does not adopt it for supernatural reasons or does
not adopt it because it is in the nature of man. The state adopts
it because that's what its people want.


Q. Not at all. Take then drugs for example. If the majority of
men want drugs, you allow drugs in the free market?

Scalia: Well, it has been done, has it not? I do not think it's
a good thing, but then I do not think that any state can provide
for its people a society that is any better than the virtue of its
people. And if the people do not have that virtue, the state cannot
impose it. At least in a democratic system.


It is very unfair to engage in a debate with someone who is
not speaking his native tongue. I apologize for doing that.


Q. I graduated from an American law school in 1990 and I just
wanted you to know that for me, and I know for a lot of others, you
are a means of perseverance for us in a sometimes hostile
environment, the way American law schools are these days. And I
also want you to know that your opinions had a lot of respect of
even those who did not agree with you. Many times they would not
be so generous in their comments towards Chief Justice Rehnquist,
but -- I just want you to know that your opinions do carry great
weight in the law schools.

My question: I think you explained well that the state
shouldn't act in imposing certain theological or religious
obligations on the people. However, I think one thing that's still
open here is the basis upon which we could say, as you have said,
it's not the duty of the state to do good or so forth. It seems to
me this cries for some justification. What is the principle which
would justify your view? I would contend that there is a natural
law of reason which is separate from theology, separate from any
biblical view, separate from the magisterium of the church, which
requires and obliges governments and systems to obey certain laws
of reason which are derived from man's nature, his substantial
nature, I think which Professor Beneton spoke of in his talk. I was
wondering if you could comment on that. What would justify your
position to say that the state can do this or can't do that,
because it would seem that the natural law based on reason is
something that, with experience, develops over time, in the sense
that as man becomes more aware of the circumstances and the
solutions that work, there's more of an obligation to apply certain
activities, certain solutions to problems. Because man with his
nature deserves certain -- is not just an object. I would
appreciate any comments.


Scalia: It just seems to me incompatible with democratic theory
that it's good and right for the state to do something that the
majority of the people do not want done. Once you adopt democratic
theory, it seems to me, you accept that proposition. If the people,
for example, want abortion, the state should permit abortion, in
a democracy. If the people do not want it, the state should be able
to prohibit it as well. It seems to me the crux of the matter for
the Christian in a democracy is to use private institutions and his
own voice to convert the democratic society, which will then have
its effect upon the government. But I do not know how you can argue
on the basis of democratic theory that the government has a moral
obligation to do something that is opposed by the people. That
works fine in a monarchy, I suppose, but I do not know how you can
reconcile it with democratic theory.


Moderator: Can I offer an intervention here? I think we have
to be a little bit careful about how the term natural law is used.
It's not equivalent to self-evident to all people at all times. It
wouldn't be so hard to use it as a principle of government if it
were. I think, going back to the intervention we had just a moment
ago, when the justice said the government can't impose virtue, it
seems to me you have to make a distinction -- and I think the
justice did earlier -- you have to make a distinction: what you
think government can do. And the value of the liberal state was
that it avoided civil war better than previous systems, as the
losers agreed they would abide by the majority decision even if
they were totally opposed to it. But that's not necessarily
identical with the question of virtue. It's a question of what can
you ask a political system to do without destroying the system that
made a disagreement possible, and agreement, for that matter.


Scalia: Bear in mind that I am not saying, I have never said,
I have written my opinions to the contrary, that the government has
no business in adopting moral positions, such as laws against
pornography, but only as a consequence of the desire of the people
to have such laws. Not as a consequence of the fact that you are
not a just government, and a good government, unless you have such
laws. I have no objection to government acting out of what is
ultimately a motivation of morality, but it is a motivation of
morality at the level of the individual citizen, which then
expresses itself in the majority vote that controls what the
government does. But the government, it seems to me, in and of
itself is totally neutral on those points. It is the people who
must bring out the morality of Christianity or any other morality
that is to be reflected through the government. And I think it is
inconsistent with democratic theory that the government has an
obligation to do that in and of itself.


Q. (Translated from Italian) I would like to say something in
reference to the many citations of the Gospel in your speech. Jesus
said, "The poor you will always have with you." One could use
this phrase to demonstrate that the battle against poverty is lost
from the beginning and there's no point in battling it. This shows
that isolating a single phrase from the Bible can also be
dangerous. Since it is clearly not Christian behavior to simply
avoid the battle against poverty, I want to ask you what is the
proper behavior of the Christian in an active political commitment,
both regarding poverty or regarding life. Earlier abortion was
cited. I don't know, for example, what you would think about a
Catholic official who signs a law allowing abortion, whether he
should resign or not. I'm asking your opinion.


Scalia: I do not like the phrase "the active political
commitment of a Christian." I should have thought that it's
obvious from what I have said that the commitment of a Christian
reflects itself in his personal life and in his persuasion of
others, not in his acting through the instrument of government. Now
the debate in the United States over abortion and over Roe v. Wade
is a totally different issue from whether the government should
prohibit abortion if the people do not want it prohibited. What Roe
v. Wade held was that even if the people want it prohibited, the
states could not prohibit it, because the United States
Constitution forbids them to prohibit it. That's a totally
different issue from what you and I are talking about. And I
apologize for just reading small excerpts from the Gospels but I
didn't think you wanted me to read the whole thing.


Q. I have a question on the understanding of common good and
the good of the majority. You stated somewhere that Jesus himself
was not really concerned with things that are material and that
gave him the opportunity to move away from the people. I think that
again leads to a very fragmentary way of understanding the human
being, removing the spiritual from the material. And I tend to
think that we cannot separate these two. And again: in looking for
the best government, that Christ is not interested in the type of
government that we choose and that the government that we should
look for is the one that seeks the interest of the greatest
majority. But I think that here also there is a problem because
what do we do with the minority? I think that is a very crucial
problem.


Scalia: The whole theory of democracy, my dear fellow, is that
the majority rules, that is the whole theory of it. You protect
minorities only because the majority determines that there are
certain minorities or certain minority positions that deserve
protection. Thus in the United States Constitution we have removed
from the majoritarian system of democracy the freedom of speech,
the freedom of religion, and a few other freedoms that are named
in the Bill of Rights. The whole purpose of that is that the people
themselves, that is to say the majority, agree to the rights of the
minority on those subjects -- but not on other subjects. If you
want minority rights on other subjects, you must persuade the
majority that you desire those minority rights. Or else take up
arms and conquer the majority. I mean you may always do that, of
course. But you either agree with democratic theory or you do not.
But you cannot have democratic theory and then say, but what about
the minority? The minority loses, except to the extent that the
majority, in its document of government, has agreed to accord the
minority rights. Otherwise you do not want a democracy, you want
a king to decide what is right. Because the minority may be right.


And as for you do not believe that Christianity separates the
material from the spiritual, well I hate to "selectively" quote
from the Gospels again, but in the Sermon on the Mount, "Do not
be concerned what you shall eat, what you shall put on." You know,
the ungodly care about those things, but your Father will take care
of you, don't worry about it. Is that a prescription for sound
government? Don't worry about what the people will eat or what they
will put on? It is the function of government precisely to be
concerned about those worldly things that Christ tells you not to
be concerned about. That is precisely the function of government.
Now I see no incompatibility between the two. But let us not try
to impose the ends of spirituality upon an instrument that is meant
for this world and not for the next.

Q. It seems to me that you have a different kind of democratic
dogmatism. It seems to me that it is not a good interpretation of
democracy. Democracy is a good government, it is not a system in
which the majority can do anything, for example, deciding to kill
minorities or to destroy liberty of religions. That means that the
will of the people is not, absolutely not, the only source of will
of the good.... If you say the people are the only source of the
will, the people can do anything, for example, kill the minority.
This is absolutely absurd. Of course, a Christian cannot say people
want to persecute, to destroy Christianity. If the people want to
destroy Christianity, OK, I am a democrat, it's a very good thing
to destroy Christianity. So, first, we live the liberal democracy
and the will of the people is subordinated to the natural law. If
not, no man is the master, people are not the master. Is this not
dogmatic democracy?


Scalia: Yes, it is dogmatic democracy, but you know our
democracy -- and recently Europeans have copied us -- we have
listed those things that the majority cannot do, such as taking
someone's life without due process of law, such as impeding freedom
of religion and so forth. But my only authority as a judge to
prevent the state from doing what may be bad things is the
authority that the majority has given to the courts. But
ultimately, the formation of the state is by the majority, and what
the majority decides shall be the rights of minorities is what
their rights are, under that legal system. To say, "Ah, but it is
contrary to the natural law" is simply to say that you set
yourself above the democratic state and presume to decide what is
good and bad in place of the majority of the people. I do not
accept that as a proper function. If you want to set yourself above
the state, do it the good, old-fashioned, honest way: lead a
revolution!


Q: You know that I am very much agreeing with you, but at this
last point -- majority -- I have some qualms. Because when I was
young, being a German, the "Nuremberger gesetze" against the Jews
would have been approved by the majority, so it would have been
law. And I think there are instances which are beyond constitution
and beyond majority. I don't think there are many -- but some there
are.


Scalia: Well, as I say, we certainly believe that in America,
and that's why we have a Bill of Rights. We set them forth in the
Bill of Rights. But that is the limit of them, and I do not make
up other ones. Because anyone can make up other ones. I mean, you
know, to talk about the natural law is not to talk about something
we all agree upon. And it seems to me you cannot set yourself --
if you're going to be a faithful, loyal democrat, if you do not
like the Nuremberger laws your duty is to persuade others. And it's
the same thing with the many other bad things that government can
do. Can it do bad things? Yes, it can do many bad things which the
constitution does not prohibit. But it is the duty of the good
Christian to act by persuading your fellow citizens, which is why
freedom of religion and freedom of speech are the first two
freedoms set forth in our Constitution, and ought to be the first
two set forth in any constitution. Because it is ultimately those
two that leaven the society, that change the society, so that the
majority will want what is good, instead of wanting what is bad.
But to presume to judge for yourself what is good or bad and impose
it upon the majority simply because it is bad, I cannot accept
that.


Q: Yes, but it's not a question that I want to impose something
on the majority, but I want, knowing how people are, I know that
sometimes the majority, or other ways of legislation, may produce
bad laws, and I remember, having read it yesterday, "Lex iniusta
non est lex."


Moderator: Can I offer an observation? This is only an
observation, it is not a criticism. Some of the discussion is
demonstrating why we have begun a specialization in political
philosophy. The problem of what constitutes constitutional
government is not a simple problem. And historically it took a long
time, in certain cultures, to get to a system that avoided a civil
war at the death of the king's son. Also it is perhaps worth noting
that, contrary to current belief, Aristotle favored democracy
because it was the least bad of all the others. There's an insight
to human nature in that.


Q. I think that I will be ill at ease in this discussion,
because I am in the presence, from what I understand, of a
professor of law and a Supreme Court judge, and I would rather
engage in the theory of law rather than in the theory of
Christianity. I perfectly agree with you that, in speaking about
law in a pluralistic society, I don't have to bring in either
Christianity or, I would say, natural law. I feel ill at ease
speaking about natural law because somebody would have to stand up
and say, "I speak in the name of natural law." So I don't know
whether it is the case to enter into questions of natural law. But
I would advance only one question: I remember when I was in the
United States studying, there was a professor of mine, of political
philosophy, who said, "Well, the Constitution of the United States
is not the first document, because the Constitution is changeable.
But there is a document which stands behind the Constitution, and
it is the Declaration of Independence." If you stand up against
the Declaration of Independence you are un-American, out. And the
Declaration of Independence strangely enough sets out the ground
which has nothing to do with majority, but with self-evidence, when
it says, "We hold these truths self-evident." Does that not mean
that the Constitution of the United States rests on the
self-evidence of something which for Thomas Jefferson, at least,
was natural law, if somebody likes to put it this way?
Scalia: Well, unfortunately, or to my mind fortunately, the
Supreme Court of the United States, no federal court to my
knowledge, in 220 years has ever decided a case on the basis of the
Declaration of Independence. It is not part of our law. It
expresses the underlying sentiment which gave rise to the creation
of this Constitution. But it is the Constitution that is the
document that governs us.


I am glad that you pointed out that you feel ill at ease
talking to a lawyer. I feel ill at ease talking to philosophers.
Maybe my very stingy view, my very parsimonious view, of the role
of natural law and Christianity in the governance of the state
comes from the fact that I am a judge and it is my duty to apply
the law. And I do not feel empowered to revoke those laws that I
do not consider good laws. If they are stupid laws, I apply them
anyway, unless they go so contrary to my conscience that I must
resign.

But the alternative is not to do what is good or apply the law.
The alternatives are: apply the law or resign. Because the law is
what the people have decided. And if it is bad, the whole theory
of a democratic system is you must persuade the people that it is
bad. I cannot go around and -- with respect to the Nuremberg laws,
I would have resigned. But I would certainly not have the power to
invalidate them because they are contrary to the natural law. I
have been appointed to apply the Constitution and positive law. God
applies the natural law.

Q: Yes, but behind your insistence that you have to persuade
the people, there is, of course, something higher then the
Constitution, because I'm asking for some evidence on which I want
to persuade.

Scalia: Yes, of course. I couldn't agree more with that. That
is something to be done by private individuals and religious
associations.

Q. And by teachers of law?
Scalia: By teachers of law? Teachers of law, in my country at
least, bring too many of their own prejudices to the enterprise
already.

Q. Why is there in the title a "Christian" commonwealth. I
don't understand the use of the term "Christian."
Scalia: I don't want to repeat it; I said that in the beginning
of my speech.

Q. Do you think -- I do think -- that it is possible to have
some kind of Christian inspiration with both of the systems --
socialism and the other one (democracy) -- without any Christian
theological diktat? At least do you think it is possible some
Christian inspiration in the second question, at least the second
question? You don't like the natural law --
Scalia: No, I love the natural law.

Q. But is it possible that some common, fundamental ethics can
give something to the positive law?
Scalia: Yes, of course. And it must. But that process is
achieved not within the context of government but outside the
context of government, with free men and women persuading one
another and then adopting a governmental system that embodies those
Christian precepts. I am not saying that the American Constitution
did not embody moral values that were central to Christianity. Of
course. My court has said that. But once the Constitution was put
in place, it is the Constitution that governs my actions. And it
is that that must be amended, and it is amended to conform more
closely to natural law, if you wish. But do it by not persuading
me, I'm a worldly judge. I just do what the Constitution tells me
to do.

Q. As I was trying to follow all of this debate, it seems
there's been a change in emphasis in the ways questions have been
posed and they've been answered. I believe that's a terminological
problem. You began, Judge Scalia, by talking about the natural and
the supernatural. People automatically went into a philosophical
or theological mode of thinking. Then you have come around at the
end more to defending your own way of handling law within a
determined historical and constitutional context, that of the
United States, what you are allowed to do as a judge. But your
basic issue here, the way you approached it at the beginning, was
to say that Christianity as such is not concerned with the
political constitution of any state, because Jesus didn't do it,
and give to Caesar the things that are Caesar's, and to God the
things that are God's. Though I can understand your position very
well and I appreciate it, I would have trouble with some of the
theological and philosophical conclusions of the very strong
distinction you made at the beginning between the temporal things
being assigned to the world and the spiritual things being assigned
to God -- spiritual, the supernatural. That's a very Protestant way
of understanding it, whereby the world is a place of will without
reason, the world is a place of sin because it has no reason to do
anything. While to the church, revelation belongs, morality and
God's will. But that has not been the normal Catholic way of
understanding. We have generally talked about man's knowledge of
God, man's knowledge of the natural law, which is built into man
himself. Any political constitution would have to be within the
structures of that natural law, despite what you say about the
American Constitution. But we as Catholics who are living within
this tradition would then have to make a judgment upon the validity
or non-validity of any political system, and the means of working
within it. Now if we as Catholics maintain that there is a
distinction between natural and supernatural, and the supernatural
presupposes the natural, and the natural order is based in reason
which teaches us of God's will and of the moral law, it would seem
that therefore a natural political constitution which did not make
any place for religion or the worship of God would be going against
reason, because God is known by reason. And a constitution which
did not allow for moral values or could allow to go against moral
values because of the popular will should therefore be rejected
not only by Catholic Christians but also by anyone who claims to
be reasonable. In the concrete instances one must always
distinguish between the norm and what is possible, because we are
always touched by original sin and, therefore, the most efficient
government need not be the best government. In fact sometimes
democracy is the best because it is the most inefficient. Can you
prohibit --

Scalia: I think I see where we begin to part company. I have
no quarrel with the fact that man is a creature that has both a
natural and a supernatural life and that both natural and
supernatural life is important in this world. But I part company
when you believe that it is the function of the state to foster the
supernatural life, which is apparently what you do believe, that
you cannot select a system of government unless you select one --.
I just think it is foolish to think that the state is going to do
that when the state is meant for this world. And I'm afraid that
a lot of theologians waste a lot of their time becoming political
scientists, because of that notion that somehow the ends of
Christianity will be achieved through the state. It has probably
never happened and I don't think will happen. Should the state
adopt "bonos mores"? Of course. Every state has always fostered
"bonos mores," but in a democracy, at least, those "bonos
mores" are going to be the mores of the society, and it is up to
the Christian to change the society if indeed the majority wants
bad things.
(End of question-and-answer session.)

END


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