Justice Scalia and First Things

[Sanford Levinson]

Re Matthew's message below:  Would Matt be less surprised (or even, possibly, alarmed) if Scalia had never heard of, say, Ted Lowi, Robert Dahl, David Mayhew, or other leading political scientists?  (I suppose another way of asking this question is why we consider it tolerable for justices to cite Madison and DeTocqueville as if they have the slightest relevance to American society and government in 2006.)  Ditto if Scalia, the self-professed originalist (at least on Mondays, Wednesdays, and Fridays, were ignorant of, say, Gordon Wood, Jack Rakove (on the Founding period) or Eric McKitrick or Eric Foner on Reconstruction?  How parochial do we allow judges (and, for that matter, law professors) to be and still take them seriously when they make assertions about theories of language, the operation of American political institutions, or the historical context of the Founding or Reconstruction?
 
Matt, of course, is a distinguished political scientist who is decidedly non-parochial himself.  So the question is whether his seeming embrace of Scalia's proud ignorance of John Searle is related simply to the perception of the likely contribution that philosophers of linguistics have to make to debates about textualism and original meaning.  
 
On the point about legal positivism, I requote from Scalia himself:  "the positive law adopted by the American people and entrusted to the enforcement of their courts...."  The most basic divided between legal positivism and natural lawyers, as I understand it, is whether morality is a necessary defining condition for regarding something as "law."  Legal positivists, whatever their differences, all say no.  Scalia says no.  Therefore I put him in the camp of legal positivists.  I'm not sure why Matt disbelieves in my own self-description as a legal positivist.  I believe, for example, that slavery was an entrenched part of American constitutional law.  I think that Lincoln probably went too far when he said that a legislator was under a duty to vote for the Fugitive Slave Law (yes, he really did say that), but I think we are whistling past the cemetary to regard Dred Scott as an obvious overreach with regard to what the Constitution "really meant" circa 1857.  For me that is good reason to support disdaining the Constitution and even, for some, trying to overthrow it (as we overthrew the British Constitution in 1776-83).  But at no point do I argue that because slavery was horrendously immoral, it was not constitutional and subject to wide varitieties of legal protection.  Does Matt disagree.
 
I recognize that there is a strain even within natural law thinking, ably developed by Robbie George in Making Men Moral, of what might be labeled "prudentialism," whereby one tolerates immoral laws on the grounds that the society isn't yet "ready" for the full transition to a full-scale moral order.  But I see nothing in Scalia's analysis that links him to this tradition (as by saying, e.g., that "the time isn't right to declare that fetuses are affirmatively protected by the Fourteenth Amendment, but perhaps the Court will be able to move to the (theoretically correct) understanding of the Constitution in 25 years or so").
 
sandy
 
nck, Matthew J [mailto:mfranck at RADFORD.EDU]
Sent: Wed 3/8/2006 4:25 PM
To: Sanford Levinson; conlawprof at lists.ucla.edu
Subject: RE: RE: Justice Scalia and First Things



I'll bite.  First, I am neither surprised nor the least bit alarmed that Scalia has never heard of John Searle.  I have heard of Searle, but "heard of him" is about all I can say, and I speak as the spouse of a communication scholar.  I know I have never read a book by him, and if I have read an article, it was not memorable.  This is perhaps a confession of a terrible intellectual deficiency on my part, but I cannot even now, after reading Sandy's tribute to him, speak of a felt need to go out and read John Searle.  I am sure he would say the same of me.

 

More generally, I think the admission Sandy finds so shocking in Scalia was actually kind of refreshing.  Maybe Scalia now intends to read John Searle, but somehow I doubt it.  And if he thinks that the last century or so of academic philosophy has not had a healthy effect on the study and practice of the law, I would have to say that I have much the same sense of things.  Perhaps John Searle could persuade me otherwise; perhaps Sandy could persuade me that he could.  But while I am open to the possibility, I am skeptical.

 

As for Scalia's crack that Searle probably hasn't heard of him either, this is no doubt a joke on several levels.  A little ironic (pretense at) self-deprecation, with a dash of a hint that academic philosophers have their heads too much in some other place to notice someone so "ordinary" yet so important as a Supreme Court justice.  Ha!  It got a chuckle out of me, anyway.

 

But a final point brings me to something I think I can claim to know a little something about.  Why, Sandy, do you think that because Scalia refuses to bring any beliefs he might hold about natural law to bear on his constitutional decision-making, he must therefore be a legal positivist?  Isn't that a fairly evident non sequitur?

 

Why, for that matter, do you think you are yourself a positivist?  I have heard and seen a great many people talk the talk of being legal positivists, but, to adapt an old saying, there aren't any in foxholes.  I will do you the honor of saying that I do not believe you are a positivist.  Why do you think you are?

 

Matt

***************************
Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail mfranck at radford.edu <mailto:mfranck at radford.edu> 
www.radford.edu/~mfranck
***************************

 

________________________________

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Wednesday, March 08, 2006 2:42 PM
To: conlawprof at lists.ucla.edu
Subject: RE: RE: Justice Scalia and First Things

 

I strongly recommend an exchange in the letters-to-the-editor column in Feb. 2006 First Things, by three respondents to a review that Justice Scalia had written of Steve Smith's recent book.  John B. Allen offers an extremely sophisticated philosophical critique of Scalia's theory of language (even though he is generally sympathetic to Scalia's judicial politics), which draws the following comment from Scalia:  "I . . . have never even heard of John Searle (as he has not, I suppose, of me)."  I confess to being surprised that Scalia, who professes to be a "textualist," would never even have heard of the leading American philosopher of speech acts, given that he publishes widely in such fora as the New York Review of Books.  Or, if it is just too silly to imagine that a conservative would read the NYRB, I would have thought that some philosopher friend of Scalia, knowing that he is interested in the properties of textualism and original meaning, might have told him, "There's this philosopher at Berkeley who is the leading writer on such subjects, and you might read him before, say, you give the Tanner lectures at Princeton, where audiences might expect a certain level of intellectual sophistication when opining on the nature of speech."  I could understand Scalia's professing ignorance about, say, Saul Kripke or Donald Davidson, but his ignorance of Searle says something interesting, at least to me, about the huge chasm between even those judges who come out of the legal academy and the rest of the university.  

 

Incidentally, Scalia's parenthetical itself raises interesting interpretive questions, since it is inconceivable that Professor Searle "has not [heard] of [Scalia]."  Scalia sharply rejects any notions of "utterer's intent" as against the "public meaning" available to an audience.  But Scalia can't really believe that Searle has not heard of him.  Even if Scalia were unusually modest, it would still be foolish beyond belief (literally) if Scalia thought that Searle was so ignorant (especially after being informed that Searle is extremely interested in theories of language).  So what, exactly, is he intending to convey by the parenthetical, and how, exactly, would we figure that out?

 

The other two respondents take Scalia to task for not reading "persons" to protect fetuses (and therefore, as a constitutional matter, to prohibit states from allowing abortion).  Although he indicates that he believes that states have a constitutional right to do so, he reveals himself, once more, to be a legal positivist, distinguishing very sharply between natural law and "the positive law adopted by the American people and entrusted to the enforcement of their courts...."  I do not mean this as a criticism of Justice Scalia, being a positivist myself.  But it raises once again what is the operational importance of being a "Catholic justice."  Though, recall, Scalia has written, in First Things, that he would feel compelled to resign if the Church ever comes out four-square against capital punishment and requires absolute non-collaboration with the practice.  (Presumably, upholding a state's right, arguendo, to tolerate the murder of an innocent does not count as sufficient collaboration.)

 

sandy

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