Justice Scalia and First Things

[Scott Gerber]

I am much less concerned about Justice Scalia's failure to notice an 
academic elite than I am in Sandy Levinson's willingness to cite only 
academic elites.  There are many interpretations of the founding and 
reconstruction eras, for example, than those by the elites Sandy cites.

This is a real problem in the legal academy.  As I've mentioned before, 
the "law porn" conference ads that fill my faculty mailbox everyday 
list almost the same con law folks over and over.  I frankly find it 
difficult to believe that any legal scholar, no matter how hardworking 
and bright, has enough new things to say to justify being invited to, 
let accept the invitations from, the two dozen or more of these 
conferences that they opine at every year.  It's time for some new 
voices.  I realize the system won't change, b/c the people with the 
power to change it are rewarded in the current system, but Sandy's post 
gave me an opportunity to at least express my concern.

Cheers,
Scott


Sanford Levinson wrote:


>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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--------------------------------------

Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/