Scalia’s Genius and His Curse

ScaliaWhen our sensibilities were fed from different sources, it used to be said that, with spring, “the voice of the turtledove has been heard in the land.” But in these recent weeks the landscape has been filled with the sounds of “disinvitations” to speak and receive degrees at what used to be called our “better” colleges and universities. Colleges of the second rank may now be seeking to lift their standings by seeking out prestigious speakers to “disinvite.” The shock of this year has been that the protests have forced from the podium even figures of impeccable liberal stamp such as Christine Lagarde, the managing director of the International Monetary Fund (at Smith College) or Robert Birgeneau, the former chancellor of Berkeley (at Haverford). What is apparently not worth noticing any longer—or any longer subject to indignation—is that these colleges have long since screened from their parade of honorees any notable figures on the conservative side.

I heard once the president of an Ivy League college remark that his school couldn’t invite Clarence Thomas to campus without providing a “food taster.” One President of Amherst did invite Justice Antonin Scalia to offer a lecture, but 16 members of the faculty announced that they would not themselves attend his lecture, lest they legitimize his presence on the campus. Scalia did come, and as usual he won the hearts of many and impressed all. But there had been a threat on the part of students to stand with their backs to the speaker to show their disrespect. That spectacle was averted when conservative students invited the dissidents to hold a meeting, days later, where they could debate the propriety of inviting to the campus a sitting member of the Supreme Court.

For conservatives the Commencements have become the occasion in which we sit, in courteous silence, as honors are bestowed on people we would be far from commending to the students or the public, to put the matter gently. To put it less gently we are asked to pay homage to people whose policies and teaching we would regard as morally destructive. And yet, we preserve a decorous silence. In the current state of affairs, that is not a restraint that has to be observed by people on the Left. When it comes to religion and prayers at public schools, the Supreme Court years ago conferred a virtual lever for students, and perhaps even faculty, to purge from the platform words and speakers they find repellent. One of the ironies of the season is that the recognition has not broken through that there may be a “right” here that could be invoked by conservatives as well.

In Lee v. Weisman (1992) Justice Kennedy wrote for the Court in sustaining a young woman, graduating from a high school in Providence, Rhode Island, who felt put upon, coerced, by an invocation offered by a local rabbi. The “prayer” was as generic, non-sectarian, as one could devise, in acknowledging the God recognized by Christians and Jews, the same Creator mentioned in the Declaration of Independence. Apparently it was beyond Deborah Weisman and her family that they would show a certain religious tolerance themselves by sitting in silent respect, much as they might sit with a family saying grace. Justice Kennedy, writing for the Court, saw a critical coercion here as the ritual came to bear on a young person, for she could not apparently be expected to show her objection by declining to attend her own graduation. That was not a license that Kennedy was willing to accord, most recently, to the people who objected to prayers or invocations before the meeting of the local board in Town of Greece, New York. The non-believers, said Kennedy, were free to leave the room, and yet, “ should they remain, their quiet acquiescence will not, in light of our traditions, be interpreted as an agreement with the words or ideas expressed. Neither choice represents an unconstitutional imposition as to mature adults.”

But as Justice Scalia pointed out in dissent in the Weisman case, the telling comparison, in coercing students, was marked by the cases in which the children of Jehovah’s Witnesses were compelled to salute to the American flag. In West Virginia School Board v. Barnette, there was real coercion: for failing to render the salute, the students could be expelled, and their parents put in jail for failing to have their children in school. And yet, with the Weisman case, “coercion” could now be “psychological coercion”: a student could suffer embarrassment if she remained sitting or left the hall to avoid “complicity” in the prayer. She was “coerced” if she were simply compelled by convention to stand or sit in silent acquiescence.

What Scalia had the wit to see was that the combining of these cases—Weisman and Barnette—produced a result that was devastating if anyone bothered to put the pieces together and recognize the weapon being forged now. For the “right” articulated by the Court in the Barnette case was not confined to religion and prayers. Justice Robert Jackson framed the argument in a sweeping way: “If there is any fixed star in our constitutional constellation,” wrote Jackson, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” The “right” here was a right not to suffer the imposition of a “political orthodoxy,” not merely the imposition of a creed that runs counter to religious convictions. If we take these decisions seriously, conservative students need not have to sit in acquiescence at a public university as the institution confers honors on people who seek, say, to defend the “right” to kill unborn children. The students might have a right now to purge from the program this imposition of a political orthodoxy they find deeply objectionable.

The Court had fashioned one of those rare “rights,” so exquisite that it extinguishes itself: The move to bar speakers from the podium is itself the imposition of a political orthodoxy, and those who oppose it would have ample grounds then for closing it down.

But why do we suspect that this lever will not be available to the conservatives? It has been Scalia’s genius and his curse that he sees, more clearly than some of his colleagues, just how the logic of their decisions will unfold. His consolation, in many cases, is that most of his colleagues and the public do not.

Hadley Arkes

Mr. Arkes is the Ney Professor of American Institutions at Amherst College and Director of the James Wilson Institute on Natural Rights & the American Founding.

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Comments

  1. says

    Hadley, I think the problem with the argument is that a) liberalism does not understand itself as a religion with a mandatory orthodoxy, even though it often is one, and b) it doesn’t have the high ritual moment that a prayer or even a pledge does. That means any attempts by conservatives to reshape commencement-speech-invitee policy, or honorary degree policy, by means of their own protests, will be defined and understood as speech issues. The connection to these cases will never be admitted by liberals, and we should pause before inviting conservatives to insist upon the connection. I agree with the spirit of the argument, however.

    • JQA says

      Carl, those are sound observations in response to the essay. Myself, I wasn’t quite sure whether its argument was:
      1) that a supposed First Amendment right not to be publicly offended by official dogma was incoherent in theory and a mess in practice, and therefore the Court should fundamentally reexamine its dicta and doctrines; OR
      2) that such a right is both flexible and strong enough to prove a practically effective “lever” for conservatives to pull in order to prevent being offended by liberal orthodoxy in a public ceremony.

      If 1) is the conclusion, I agree. If 2) is the conclusion, I disagree. Conservatives who oppose liberal dogma and positions being given the sheen of nonpartisan, official proclamations should act politically, not litigiously. If a university invites an offensive speaker to assume some dignified position or speak under the auspices of the institution, then principled opponents should make their arguments and take their stand in public, by letters to responsible officials, by marches, even by a boycott of the ceremony. To try to “constitutionalize” or “absolutize” the right not to be offended (or to be “psychologically coerced”) by proclamations is to play a game that liberal litigants (and liberal justices) invented and control. They are well practiced in policymaking-by-lever-pulling, especially at the highest, most absolute level — by invoking the Constitution (i.e., “what the Court says” the Constitution “is”).

      As Lincoln sagely said, for the sake of popular government, let’s not try to settle disputed issues of broad public importance by lawsuits to “that eminent tribunal.”

    • JQA says

      Carl, those are sound observations in response to the essay. Myself, I wasn’t quite sure whether its argument was:
      1) that a supposed First Amendment right not to be publicly offended by official dogma was incoherent in theory and a mess in practice, and therefore the Court should fundamentally reexamine its dicta and doctrines; OR
      2) that such a right is both flexible and strong enough to prove a practically effective “lever” for conservatives to pull in order to prevent being offended by liberal orthodoxy in a public ceremony.

      If 1) is the conclusion, I agree. If 2) is the conclusion, I disagree. Conservatives who oppose liberal dogma and positions being given the sheen of nonpartisan, official proclamations should act politically, not litigiously. If a university invites an offensive speaker to assume some dignified position or speak under the auspices of the institution, then principled opponents should make their arguments and take their stand in public, by letters to responsible officials, by marches, even by a boycott of the ceremony. To try to “constitutionalize” or “absolutize” the right not to be offended (or to be “psychologically coerced”) by proclamations is to play a game that liberal litigants (and liberal justices) invented and control. They are well practiced in policymaking-by-lever-pulling, especially at the highest, most absolute level — by invoking the Constitution (i.e., “what the Court says” the Constitution “is”).

      As Lincoln sagely said, for the sake of popular government, let’s not try to settle disputed issues of broad public importance by lawsuits to “that eminent tribunal.”

  2. Charles DiGiovanna says

    I see true Progressives as “disturbed” individuals reacting to complex subconscious feelings of victim-hood and, at the same time, guilt. They compensate for these uncomfortable feelings by seeking power and by creating within themselves the belief that they are intellectually and morally superior to “ordinary” individuals. Being unique in their own minds they tend to bond closely with those with similar character traits forming a collective that reinforces their reality. They expiate their guilt and manifest their superiority by designating victim populations and striving to reduce or eliminate what is holding the members of those populations victim. The defining characteristic of such “disturbed” individuals is their need for strong reinforcement of their beliefs and superiority. Any situation that creates an atmosphere that does not reinforce their bonding or collective must be met with seemingly excessive opposition because it poses a danger to the defensive wall they’ve created to shield themselves from feelings of victimhood and guilt.
    In sum, Progressives, wwww

  3. gabe says

    Carl:

    ” it doesn’t have the high ritual moment that a prayer or even a pledge does.”

    Then what was the whole Greek column thing in Chicago, if not a high ritual – OK, it must have been a coronation!

  4. says

    Gabe, heh. One could make an interesting list of liberalism’s various “high ritual” moments.

    More generally, liberals can’t understand the anguish and awkwardness we regularly go through when we stand in respectful silence before and thus in apparent agreement with someone who is spouting off one of their pet points as if it were a truth accepted by one and all, nor that this is no so unlike, as Hadley notes, what they say “violated” “dignity-robbed” and “constitutional right-deprived” non-believers go through when God’s named is invoked in a public ceremony.

    And everyone at LLL, while there is no trackback above, I did link to this on the new stand-alone Postmodern Conservative, which now is up and running. http://www.nationalreview.com/postmodern-conservative

    I’ll be trying to link every now and then to your great site here, but do come visit!

    • gabe says

      Carl:

      Thanks for the link. Ken M. had told me about new P-Con – but I did not realize it was fully up and running.
      BTW: do we have to use facebook or disqus? I hate ‘em!

  5. Matt Stillerman says

    Justice Scalia infamously wrote this:

    This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

    He is writing to oppose giving Troy Davis a hearing on new evidence that he is innocent. Basically, Scalia is asserting the primacy of a very formal version of due process over “actual” justice — it is OK to execute Troy Davis regardless of whether he comitted murder. Justice Scalia is free to say these kinds of things, and we (and various universities) are free to express our disapproval.

    • Sam H. says

      “Justice Scalia is free to say these kinds of things, and we (and various universities) are free to express our disapproval.”

      Is anyone arguing otherwise?

  6. says

    In his studentdays, Eric Holder and friends previewed the “occupy” stratagem as they took over space on the Columbia campus. There remains the question of whether he and other members of the Black Students’ Organization were armed at the time, but no question whatever about their bullying tactics that led Columbia’s craven administration to allow the commandeered space to become “Malcolm X Lounge”, so christened, “in honor of a man who recognized the importance of territory as a basis for nationhood”. Thus did we witness the formula that would be fed to our academic leaders and that now serves as the official nostrum of the current administration.

    Hadley Arkes again reliably has hit the nail on the head. A confused and awkward nation of decent and industrial people cast about to see where their once unquestioned rights have gone, pathetically hoping that Washington might do something to restore them. The rights, of course, were never the gift of government here; government was the gift we gave ourselves, but with strings attached. The strings knit together a system of checks and balances designed expressly to maintain good behavior in the servants’ quarters.

    What to do? Alas, we have been well served by the Principal of Missouri’s Lebanon High School. Kevin Lowery, duly obedient to the strictures of political correctness, asked the Commencement audience to reserve a minute for silent meditation. The minute now spent, Mr. Lowery proceeded to related to the assembly how he personally made use of the minute: “Just in case you’re interested, during my moment of silence, I gave thanks to God for these great students, their parents, their teachers and for this community.”

    Here, then, is the means by which radically to transform America back to what it was designed to be. The bureaucracy is simply to be ignored, but by such huge and consistent numbers that render legal or police remedies simply nonsensical. Mr. Lowery knows – as we all know – that the public servants, unlike children, are to be neither seen nor heard. We value their behind-the-scenes efforts rendering life, liberty and property secure and doing so without getting between us and what we are pleased to call our life. Every now and then, they get some new-fangled idea in their collective head and begin to run the place as if they owned it. The current gaggle is perhaps the worst we’ve ever suffered. Hadley Arkes and Mr. Lowery help us understand the importance of informing the staff that the Lords of the Manor are soon to return, whereupon the game is over.

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