Justice Antonin Scalia was the only Supreme Court Justice with whom I had a personal conversation. For a number of years I was upset with the Justice after he candidly said that the Declaration of Independence had absolutely no bearing in his Constitutional analysis. What?! Didn’t he appreciate the significance of the Declaration? Didn’t he believe in the Natural Law? He calls himself a good Catholic, I reasoned to myself, and yet it seemed he would relegate us to whims of the positive law. So, when I was able to speak to Justice Scalia directly at a Federalist Society function, I was ready :
“Justice, Scalia, is it true — that you don’t consider the principles of the Declaration in your jurisprudence?” I asked the Justice.
His answer: “No.”
“What if there was a properly adopted Constitutional amendment,” I persisted, “three-quarters of the states and two-thirds of the Congress adopted clear text that all Catholics and Jews were to be imprisoned and executed, you would enforce such a Constitutional provision?”
He responded, “I would either enforce a properly adopted amendment or resign and join the opposition on the ramparts.”
WOW!
Hmm, enforce the positive law or if sufficiently repugnant to conscience, resign and exercise the God-given right to resist evil.
In other words, Justice Scalia knew that the raw application of Natural Law by human judges had the same potential for abuse and subjective interpretation as proponents of the “living Constitution” that the Constitution should be interpreted in light of ever-changing circumstances.
Justice Scalia was a Catholic jurist who appreciated the limits of human judging and his oath of office, yet at the same time reserved the right to resist unjust law in light of individual conscience—principles right out of the Catechism of the Catholic Church and the Declaration of Independence.
Like St. Thomas More, Justice Scalia was loathe to lose the protections of the law against the caprice and avarice of mankind. The strength of their reasoning is expressed well in the exchange between St. Thomas More and his son-in-law, William Roper, in Bolten’s play A Man For All Seasons, and it goes like this:
Roper: So now you give the Devil the benefit of the law?
St. Thomas More: Yes, what would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I’d cut down every law in England to do that!
St. Thomas More: Oh? And when the last law was down and the Devil turned ’round on you, where would you hide?
Roper: The laws all being flat?
St. Thomas More: This country is planted thick with laws, from coast to coast, man’s laws not God’s! And if you cut them down—and you’re just the man to do it—do you really think that you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of the law, from my own safety’s sake!”
Hence, Justice Scalia remained on a court which issued holdings repugnant to our Faith. Casey (Roe), Romer, Laurence and Obergefell because I believe he felt that our imperfect system held back a greater evil. That was proven in 1776, and certainly in the great terror in France. Revolutions are messy affairs with unpredictable results. Their victims are more often than not innocents.
It is comforting to know that one of the most brilliant men to ever sit on the U.S. Supreme Court could humble himself before the Tabernacle of the Blessed Sacrament… could humble himself before the teachings of the Church—a faithful husband and father of nine children, steadfast Mass attendance, and for brilliant exposition of the dignity of every person. And lastly, he humbled himself to refrain from the intellectual hubris of those who impose their will, untethered by constitutional text or context, by whim, presumed clairvoyance or intellectual arrogance, on us the people.*
Justice Scalia, Requiescat In Pace.
*It is interesting to speculate on the historical legacy of two other Catholic Justices: Roger Taney, author of Dredd Scott, and Anthony Kennedy, author of Casey and Obergefell?
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Gregory N. Weiler is a founding member of the St. Thomas More Society in Orange County, CA, and partner at Palmieri, Tyler, Wiener, Wilhelm & Waldron, LLP