What Christians can learn from Justice Scalia’s life (COMMENTARY)

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Supreme Court Justice Antonin Scalia testifies before a House Judiciary Commercial and Administrative Law Subcommittee hearing on ?The Administrative Conference of the United States? on Capitol Hill in Washington May 20, 2010. REUTERS/Kevin Lamarque (UNITED STATES - Tags: POLITICS HEADSHOT) - RTR2E5RK

The late Supreme Court Justice Antonin Scalia can teach Christians a great deal about a principled life, says Russell Moore of the Ethics & Religious Liberty Commission. REUTERS/Kevin Lamarque

When I learned that legendary Supreme Court Justice Antonin Scalia had died, my first thought was that his loss, a tragedy under any circumstances, is even more so because of the moment’s cultural and political chaos. My second thought, though, was about what Christians can learn from the way Scalia did his work.

That doesn’t mean I agreed with Scalia on everything. I didn’t. His Employment Division of Oregon v. Smith decision, for example, was catastrophic for religious liberty, a situation remedied only by the passage of the Religious Freedom Restoration Act. Still, Scalia stood up persistently for the permanent things. Moreover, there are aspects of his life that even those who completely disagree with him legally or politically could do well to emulate. Most of us will not serve as justices or judges or attorneys, but we can still glean some lessons from this life. Here are a few of them:

1. He stood by his principles.

Scalia held to a particular view of constitutional interpretation, that the meaning of the text is found in the words of the text, defined by their understood meaning at the time of their writing, not in the evolving standards of the country’s moral and legal progress. One can agree or disagree with Scalia on these principles, and one can argue that he occasionally seemed to contradict them. One cannot argue, though, that his work wasn’t informed from start to finish by what he believed about the Constitution and how to interpret it.

The way one can see whether these principles are held genuinely is when the principles conflict with one’s own “side” winning an argument. Scalia was solidly pro-life, but while he disagreed with Roe v. Wade, he didn’t believe the federal government could prohibit states from allowing abortion, since abortion isn’t mentioned in the Constitution. I disagree with him on that, but that’s what he believed and he stood by it. He wrote that he hated flag burning and would outlaw it immediately if he were king, but the First Amendment allowed it. He wasn’t willing to sacrifice his view of the Bill of Rights just to get to an outcome he liked. To do so would mean that he would become the very thing he often criticized: an unelected wielder of a “living” Constitution.

In our context, Christians can tell the principled from the hacks by a similar metric. If your principles change based on whether it helps your “tribe,” then it’s your tribe you believe in, not your principles. Christians who talk about religious liberty, for example, but are silent (or worse) when religious freedom is compromised for unpopular religious minorities, don’t really believe in religious freedom. They believe, at best, in a majoritarian kind of special pleading. They believe, at worst, in the identity politics of victimhood. Principles stand regardless of the politics of the moment. If we stand up for the First Amendment when our side is harmed (and we should), then we should stand up for the First Amendment even when our side will be angry with us for doing so.


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2. He could think with the future in view.

Scalia is famous (or infamous, depending on one’s view) for his dissent. They were always punchy, often sarcastic, and very often they predicted the future. He could see how decisions made now would have implications for other decisions later on. He argued, for instance, that the Lawrence v. Texas decision could, as handed down, be used to find a constitutional right to same-sex marriage. Twelve years later, it was. The same scenario played out repeatedly, because he applied his intellect to the logical consistency inherent in decisions made.

This applies to far more than the legal arena. Why were evangelicals so slow to advance the pro-life witness? It’s because we didn’t see ahead of time how cultural moves, including some within the church, could advance an abortion culture. We weren’t ready. Why were evangelicals caught so unawares by the shifting family structures in the United States? It was partly because we didn’t see the price we paid in accommodating the divorce revolution. Will Christians be ready for the challenges we will face from speed-rocketing technology in the years to come? We should see that the most dangerous trends facing us are not the questions being debated on Facebook right now. They are instead the questions we are not debating at all.

3. He could be friends with his opponents.

Scalia was, arguably, the most conservative justice on the high court. He was certainly one of the most combative in print and in argument in history. Even so, he had a strong friendship with liberal Justice Ruth Bader Ginsburg. He famously took Justice Elena Kagan hunting with him. Was this inconsistency? No. This was confidence. He knew that his ideas could prevail, so he didn’t see the persons who opposed him as those to be avoided or shunned. He knew that his convictions were clear, so he didn’t have to play tribal politics by isolating himself within an ideological cocoon.

As the church, we have much more reason to befriend those who disagree with us. After all, we’re not called merely to civility but to active kindness (2 Tim. 2:24-26), including to those who hate us (Rom. 12:14-21). If our friends and acquaintances are all those who agree with us on our politics, then it could be that politics is our god. And if our friends and acquaintances are all those who agree with our theology, then maybe our talk about mission is just talk.

With the death of Scalia, the Supreme Court will be at the epicenter of American culture wars, again, even more than before. The issues at stake are critically important. But as we think and pray about those things, let’s remember too the life of Scalia, and see what we can learn. That’s especially important in a culture where, as in every culture, the church must often dissent.

(This column originally appeared at the website for Russell Moore, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention)

  • Margaret Sjoholm-Franks

    4.He made every possible effort to impose his moral views and religious agenda on an entire nation, even if many of the citizens of the nation did not share his belief system and moral views.

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  • yoh

    5. Was intellectually dishonest to the core in his efforts to create preordained reactionary outcomes. “Constitutional originalism” is a crock. An attempt to pretend years of legal reasoning and interpretation was irrelevant because one makes phony statements pretending “the founders wanted it that way”.

    It speaks badly of the author when he stated. “His Employment Division of Oregon v. Smith decision, for example, was catastrophic for religious liberty”

    Smith stood for he idea that religious beliefs are not an excuse around laws of general application. An idea Moore and many theocrats despise since they constantly seek special privileges on the basis of their faith. Most notably they seek a right to engage in all encompassing forms of discrimination in public areas using religion as a pretext. Hence the emphasis on “Mini-RFRA” laws which are nothing more than a new iteration of Jim Crow.

  • Shawnie5

    “He wasn’t willing to sacrifice his view of the Bill of Rights just to get to an outcome he liked. To do so would mean that he would become the very thing he often criticized: an unelected wielder of a “living” Constitution.”

    The very epitome of how Hamilton, in explaining the new constitutional system to those intended to ratify it, described the intended members of the judiciary:

    “Until the people have, by some solemn and authoritative act, annulled or changed the established form [of the Constitution], it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.”

  • Shawnie5

    “Even so, he had a strong friendship with liberal Justice Ruth Bader Ginsburg. He famously took Justice Elena Kagan hunting with him. Was this inconsistency? No. This was confidence. He knew that his ideas could prevail, so he didn’t see the persons who opposed him as those to be avoided or shunned” Well, it’s also an aspect of the professionalism that exists among attorneys that laypeople often do not understand. From the first year of their legal educations they are all required to argue both sides of legal situations, which they readily do and then go for beers afterward. The judges on the SCOTUS are no different in that.

  • yoh

    Actually Hamilton was the inspiration for what you are railing against

    To justify striking down a section of a federal statute, Marshall drew heavily on Hamilton’s reasoning in No. 78 of The Federalist Papers. The chief justice wrote:

    The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it”
    http://www.cqpress.com/incontext/constitution/docs/judicial_review.html

  • yoh

    It is, emphatically, the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operations of each. So, if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case, conformable to the law, disregarding the constitution; or conformable to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case: this is of the very essence of judicial duty. If then the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
    -John Marshall
    http://www.cqpress.com/incontext/constitution/docs/judicial_review.html#fn183.14

  • Ben inoakland

    His concerns about Kulturkampf (cultural struggle) in Romer, an irony funnier in the original German, and far truer than he could appreciate, was strictly extra-Constitutional. His support in Lawrence for using secular law to punish religious “sins” elevated his personal, moral disapproval to a civil right. His unrelenting attacks on gay people and our free participation in society, essentially declaring that might makes right and religious ideology trumps secular freedom, are also nowhere to be found in the Constitution. In fact, they are inimical to it, and to the bulk of two centuries of legal thought protecting the individual citizen from the coercive power of the state.

    It is a shame to our country and an affront to the Constitution he claimed to revere that he viewed baseless prejudice, religious intolerance, and private “morality” as legitimate reasons to legislate against gay people. He was never one to be deterred by fairness, compassion, manners, or decency.

  • Shawnie5

    OF COURSE. But the judiciary can not go BEYOND the limits of the Constitution in invalidating the actions of the legislature. The Constitution as intended by its drafters, and ratified by the people, is superior to both. That is what you invariably fail to grasp.

    BTW, why do you hate the Constitution?

  • Paula

    “He could be friends with his opponents.” Did he have any friends who had children on death row, as teenagers, or with there with mental disabilities? Did he have friends who were gay who longed to have decades-long relationships with their partner recognized by the state?

    I’m glad he and Ginsberg shared a taste in fine wine and opera. But I am not impressed that they could put away their concern about those on death row to enjoy a few laughs.

  • yoh

    Funny. But I don’t see anything about going beyond the constitution in the acts of our Supreme Court for the last 200+ years.

    The Constitution as “intended by its drafters” is a fiction by modern legal thinkers. Pretending to know such intentions here and now is an exercise in dishonest psuedonecromancy. To pretend quote mining and thought experimentation supplants legal reasoning. You don’t really know what the drafters really intended, but pretend you do. Its complete nonsense.

    We know what they wrote and how it can be interpreted. People use “original intent” in order to pretend plain language and sensible interpretation of text should be ignored. As you do. You want the words of the constitution to mean something far different and more limited than reality should suggest.

    I don’t hate the Constitution. I love how much of it can transcend the transitory nature and conditions of its origins. How its written towards looking forward.

  • Eric

    “One cannot argue, though, that his work wasn’t informed from start to finish by what he believed about the Constitution and how to interpret it.”

    Listen, I want to like Russell Moore, I really do. I want to believe he represents a more honest and compassionate voice of evangelicalism. But when he says absurd stuff like this, I just can’t. He’s either lying or ignorant. That is, he either knows Scalia was not a consistent “originalist” at all and doesn’t care, or he has zero knowledge of Scalia’s record and the commentary it has received. In either case, this is a superficial opportunist piece, at best.

    Perhaps, though, Mr. Moore could explain the originalist hermeneutics behind Bush v. Gore?

  • Shawnie5

    “The Constitution as “intended by its drafters” is a fiction by modern legal thinkers ”

    Um, no.

    “On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” – Thomas Jefferson

    “To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers; is to repeat what has been already said more at large, and is all that can be necessary.” — Chief Justice John Marshall

  • Shawnie5

    “Funny. But I don’t see anything about going beyond the constitution in the acts of our Supreme Court for the last 200+ years.” That’s because you are largely ignorant of it, of course — and, I suspect, deliberately so.

    “People use “original intent” in order to pretend plain language and sensible interpretation of text should be ignored.” Precisely the opposite.

    ‘You want the words of the constitution to mean something far different and more limited than reality should suggest.” Funny that you should use the word “limited.” That is EXACTLY how the founders and framers described both the Constitution and the federal government. Why do you hate that so much?

  • Fran

    We can benefit more by following Jesus’ example, since he left us the best model to follow (1 Peter 2:21).

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  • Shawnie5

    “But I am not impressed that they could put away their concern about those on death row to enjoy a few laughs.” They are not appointed to be concerned, Paula. They are appointed to work with the laws as written. It is the legislature which is to listen to cthe concerns of the people and create laws to address them within the limits of the social compact.

  • yoh

    So you are quotemining in response to a criticism of quotemining. Cute, but still dishonest nonsense.

    You are no more capable of divining the intent of the founders as you are in having them as dinner guests. It’s a ridiculous concept.

  • yoh

    Flinging insuits doesn’t make your premise any more honest or factually accurate. I can’t help it if generations of interpretation of the constitution doesn’t jive with the reality you want.

    Law is not Bible study we do not claim it was written by infallible divinely inspired figures nor worship founders as perfect saints. Founder intent was relevant at the time of founding but that time is long past. It is intrinsically dishonest to claim constitutional interpretation must be held to the ideas of the 18th century.

    Constitutional originalism is just reactionary wankery .

  • Shawnie5

    If any part of the Constitution no longer meets our needs then the framers provided for a very clear and straightforward means of amending it. Until that occurs, any departure from it is improper and (lol) dishonest.

    Original intent is an indispensable tool of Constitutional jurisprudence, mandated by the framers and the people, and acknowledged by every scotus since our nation’s birth. The only real problem with it is not determining what it IS but figuring out how to square it with what popular opinion wants it to be — which is not a legitimate objective.

    Your opinion on it is irrelevant, and the only reason you hate it is because it doesn’t always yield the results you like. Tough tooties.

  • yoh

    Bring it up with John Marshall the next time you divine with the spirits of the founders and ask their opinions. 🙂

  • Shawnie5

    Well, being able to read proficiently (unlike some) that is not terribly diificult, since the founders and framers were some of the most prolific writers and speakers who ever lived, and since voluminous debate and discussion surrounding the framing of the constitution and all its amendments has been preserved for posterity — assuming posterity has the reading comprehension skills to make use of it.

    But as for you, keep waiting for the movie… ?

  • Scalia was a bad man who aggressively opposed women’s rights and opposed women having control over their own bodies. He really mainly excelled at hobnobbing with and getting favors and appointments from his powerful cronies. I remember thinking on hearing of Scalia’s passing, of the words from the Wizard of Oz song, “Ding Dong! The Witch is dead!”.

    Glad he’s gone from the Supreme Court. Now I hope Obama can follow through with appointing someone far less religious to replace him -the less religious, the better.

  • Shawnie5, there you are at long last! Long time no see! Will you come to our Bake Sale? We know you’ll love to!

  • wendel

    “Antonin Scalia,” writes Jeffrey Toobin in the New Yorker, “who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed. Belligerent with his colleagues, dismissive of his critics, nostalgic for a world where outsiders knew their place and stayed there, Scalia represents a perfect model for everything that President Obama should avoid in a successor. The great Justices of the Supreme Court have always looked forward; their words both anticipated and helped shape the nation that the United States was becoming. Chief Justice John Marshall read the new Constitution to allow for a vibrant and progressive federal government. Louis Brandeis understood the need for that government to regulate an industrializing economy. Earl Warren saw that segregation was poison in the modern world. Scalia, in contrast, looked backward.”

  • shawnie5

    The forward-thinkers were the men who wrote and signed the Constitution. They saw foresaw exactly how the people — perennially ignorant and welcoming of tyranny — would approve the short-circuiting of the social compact for their own agendas:

    “If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.” — George Washington

    “The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. — James Madison

  • yoh

    And yet you believe all political thought ends at the 18th Century.

    Never mind that the people who originally wrote and drafted the Constitution already foresaw problems from the outset and expected changes to it. Hence the Bill of Rights was made as an addendum and amendments subsequent thereafter. Hence the notion of judicial review has survived for so long. Judicial review, always documented for the public, done in light of the Constitiution (despite your yattering to the contrary) is an important check on the power of the legislature from voting away the freedom of others. (not that you have problems with that)

    You continue to pretend quote mining is an honest and legitimate form of discourse on the subject. The idea that you can just handwave 200+ years of constitutional interpretation by the Judiciary is laughable. Even Scalia never pretended that was the case.

    Scalia was intellectually dishonest and made efforts to attack civil liberties. Wendel described him…

  • David Lloyd-Jones

    It is a simple lie to say that any of the five “Justices” who elected Bush President was a person of principle.

    -dlj.

  • Shawnie5

    Why do you continue to blather that I am attacking judicial review? Is it possible that you still do not understand that I am NOT? Review is not the same thing as usurpation.

    Of course the framers expected changes, which is why they designed a process for amendment. Have you ever looked up that word, Lare? It means “change.”

    As for hand-waving…better to “hand-wave” flawed opinions than to hand-wave the social compact that the PEOPLE agreed upon and which is superior to the judiciary. I assume you were good with “hand-waving” Plessy? Perhaps you’d also be good with “hand-waving” Hobby Lobby? Or Yoder? Or Citizens United? If so, well…that is just laughable. Not to mention intellectually dishonest. ?

  • yoh

    Why do you continue to make junk up about the power of the Supreme Court? Because you want to support reactionary, civil liberties restricting decisions and the system as it has operated for over 2 centuries doesn’t really lend itself to such things.

    Your pointless and dishonest veneration of the founders overlooks many of their blind spots. The Founders expected their ideas to be revised, changed and evolving with their successors. In your effort to invoke them for creative quote-mining, you missed that very nature of the Constitution.

    Unlike yourself, I have never said SCOTUS was improperly using its power when it made bad decisions or that they should never have such power from the outset. Plessy, Hobby Lobby, Citizens United were all terrible decisions. But they were all within the confines of legitimate Constitutional power and interpretations. Using power granted does not guarantee it is used wisely. So you are dead wrong on that as well.

  • Shawnie5

    “The Founders expected their ideas to be revised, changed and evolving with their successors”

    Repeat: Have you ever looked up the word “amendment?” It means “change.” They spelled out a process for that in the Constitution itself, simply enough that even you could understand it if you were to read it. And that process does not involve the judiciary but the PEOPLE.

    “But they were all within the confines of legitimate Constitutional power and interpretations” If they were all legitimate interpretations, then what was “dishonest” about them?

    “Using power granted does not guarantee it is used wisely.” That is one thing. It’s quite another to unwisely exercise power NOT granted by the people via the Constitution–such as the power to act OUTSIDE the Constitution, which is superior to the judiciary.

  • Shawnie5, there you! Long time no see! Will you come to our Bake Sale? We know you want to!

  • Shawnie5, there you are at last! Long time no see! Will you come to our Bake Sale? We know you’ll love to!