Bench Memos

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Response to Hit Pieces on Scalia—Part 1


Given the competing demands on my time and the remarkable length (nearly 3000 words) of Adam Cohen’s recent hit piece on Scalia” (TimesSelect subscription required), I’m going to respond in several parts to Cohen. I’ll respond likewise to Kenneth Jost’s similar attack in CQ Weekly last week.

Cohen leads with the recent episode (in Cohen’s ridiculously hyperbolic account, a “major blow-up”) in which Scalia, leaving a Red Mass in Boston, was asked by a reporter what he would say to those people who objected to his taking part in public religious ceremonies like the Red Mass. Scalia responded with a Sicilian gesture that Cohen says was either obscene or, at the very least, “coarse and undignified.” Jost likewise contends that the gesture was “at the least insulting and arguably obscene.” Both Cohen and Jost somehow exclude the playful alternative meaning that Scalia offered (and documented): that the gesture, which Scalia says he made “jocularly”, means “I couldn’t care less.” Cohen’s failure to acknowledge this alternative is particularly puzzling, as he refers to a newspaper article in which “[s]ome Italian-Americans said the gesture simply meant ‘fuggedaboutit,’ while others said it was vulgar.”

In short, it is undisputed that the gesture is regarded by some Italian-Americans as merely meaning “I couldn’t care less” or “fuggedaboutit,” and Scalia, hardly a man prone to vulgar expressions, says that’s what he meant by it. What reason is there not to credit his account? None that I can see—other than the anti-Scalia bias prevalent among the media. Indeed, it’s telling that most of the early accounts falsely claimed that Scalia had given the finger to the reporter.

So much for Cohen’s Exhibit A.

Cohen’s Exhibit B is his assertion that Scalia “recently called those who disagree with his unconventional views of the Constitution ‘idiots’.” (Jost makes a similar assertion.) Let’s set aside Cohen’s silly dismissal of the constitutional orthodoxy of originalism as “unconventional.” According to an AP account, here is what Scalia actually said about belief in the “living Constitution”:

“That’s the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says some things and doesn’t say other things.”

Taken very literally, Scalia would be describing as idiotic the notion that the Constitution will actually “become brittle and break” if it isn’t continually reinterpreted to “change with society.” A less literal interpretation, which is consistent with other Scalia comments, is that one would have to be an idiot to believe that entrenching one’s existing preferences in the Constitution—and thereby restricting the flexibility of future generations to adapt policies to changing conditions—is somehow necessary to preserve flexibility.

To illustrate the second meaning more concretely: Prior to Roe v. Wade, Americans had full flexibility to adopt and revise abortion policies in the 50 States. The maintenance of Roe deprives Americans of that ability. One would therefore have to be an idiot to believe that Roe is necessary to enable the law on abortion to change with society.

Under this second meaning, Scalia is simply highlighting the gross mismatch between one piece of rhetoric used in support of the “living Constitution” and the reality. Cohen and Jost seem to think that Scalia is labeling all supporters of the “living Constitution” idiots. But Scalia is well aware that the real argument of supporters of the “living Constitution” is that that approach best advances their views of a just society. Scalia clearly believes that that argument is constitutionally illegitimate, but he has not said that he would regard those who hold it as idiots.


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