The important thing in Democracy is not to win, but to take part; the important thing in Life is not to have conquered but to have fought well.
–The Olympian
Socrates v. Scalia
About four years ago, I had an interesting group discussion about the trial and death of Socrates. Someone said that the Athenians were good at sophistry, not sound reasoning, whereas the judicial system in the US was more conducive to reasoned judgments. I said, “You’d be hard pressed to prove that the Athenians’ arguments are not well-reasoned. It takes the discernment of the wisest man to tear them apart. Who is to say that, if Socrates were alive today, he would not have a field day with the Supreme Court?” He replied, “I’d pay good money to hear Socrates v. Scalia”, referring to Antonin Scalia, a long-serving (now late) Associate Justice on the Supreme Court of the United States renowned for his acerbic wit.
Scalia and Socrates share many striking similarities in their philosophy. One might even say that Scalia is the Socrates of SCOTUS.
American Gadfly
In Scalia’s Court: A Legacy of Landmark Opinions and Dissents, Scalia’s gadfly spirit is in full display. Justice Ginsburg wrote that Scalia “nailed all of the weak spots” in the opinions and arguments of his fellow justices. In the colourful words of Scalia, all the legalistic argle-bargle, interpretive jiggery-pokery, and gobbledegook. As Justice Alito wrote in his touching tribute, Scalia’s opinions are “fun to read—unless you are the target of his criticism”.[1]
Sophistry is very much alive today as it was in Socrates’ time. People talk grandiloquently about rights, freedom and equality without the faintest idea what those words actually mean. Like Socrates, Scalia served to arouse us from slumber. They urge us to examine our explicit and implicit beliefs, whether they pass the muster of reason and logic.
Respect for Law
According to the sophist Protagoras, man is the measure of all things. In other words, man is the ultimate arbiter of what is good and just, and as such he is the lawgiver and there is none above him.
According to Plato, justice is objective and transcends man. Man has no authority to decree justice from himself, but to contemplate and participate in justice as objective truth. Because of his abiding respect for law, Socrates did not escape from prison when the Athenians condemned him to death through due process of law.
Scalia has the same abiding respect for law as Plato/Socrates. As a judge, he strives to interpret and apply the law, and rejects time and again the temptation to act as lawgiver, even when it is expedient and popular to do so. His judicial restraint is a mark of his honesty and humility.
The Nature and Structure of the Constitution
There are two schools of thought regarding the Constitution of the United States, which correspond to the doctrines of Protagoras and Plato. Justice Breyer represents the former, and Justice Scalia the latter.
Breyer argues that society has been evolving along with people’s understanding of justice, so the Court should make decisions and interpret the Constitution in ways that reflect the evolving standard of decency, thereby essentially making new laws. In short, the Constitution is “living”; Scalia rejoins, “The Constitution is not a living organism, it’s a legal text”. The job of the Court is not to legislate from the bench, but to interpret the Constitution faithfully as it was originally meant by the framers and understood by the people in its historical context. It should make valid legal decisions, without either favoring religion or bowing to secular pressure.
The beauty of the Constitution is the principle of check and balance, also known as separation of powers. It put checks not only on the power of the government, but also on the people. The U.S. is not a pure democracy, but a mixture of monarchy (President), oligarchy (Supreme Court) and democracy (Congress). The power to make laws is reserved for the people alone, who legislate through their representatives in Congress. The power to interpret the Constitution is reserved for the Supreme Court, the elite few who follow the dictates of law and logic, not personal desires and predilections. It is a necessary check against mob rule. In addition, by framing the Constitution in the historical context, in a way, Scalia makes the Constitution enduring, like Plato’s conception of Justice. No matter how the society evolves, there is always a fixed frame of reference, which is another application of the principle of check and balance.
Notes:
^1. A Tribute to Justice Scalia. Yale Law Journal. Accessed on June 29, 2022. https://www.yalelawjournal.org/tribute/a-tribute-to-justice-scalia-1
References:
- Scalia, Antonin. Scalia’s Court: a Legacy of Landmark Opinions and Dissents. Ed. Kevin A. Ring. Washington, DC: Regnery Publishing, 2016.