Piers Morgan’s Wednesday night interview with Justice Antonin Scalia is a great illustration of our current struggle over the Constitution. Watch this clip on Roe v. Wade:
Why are you so opposed to Roe, asks Morgan?
Because the legal theory on which it’s based is nonsensical, says Scalia. And he starts to explain. Notice that his answer has to do, not with abortion directly, but with the language of the Constitution.
But Morgan, with the attention span of a hyperactive hummingbird, can’t wait. He wants to cut to the chase. To get to what he thinks of as the real issue. So he interrupts Scalia:
Should abortion be illegal, in your eyes?
Scalia seems nonplussed.
Scalia: Should it be illegal?
Scalia: I don’t have public views on what should be illegal and what shouldn’t. I have public views on what the Constitution prohibits and what it doesn’t.
It must seem a fine bit of theater to a progressive. Morgan, after all, is getting to the heart of the matter. Scalia was just dancing around in arcane jargon, avoiding giving a straight answer, concealing his real views. The real issue after all is surely whether or not abortion should be legal.
No. Not to Scalia. To him, the issue truly is, What does the Constitution say, and what does it mean? And then, given that, what should we do on this issue, or any other?
The Constitution, of course, says nothing about abortion, as Scalia points out later. To Scalia, that means that it’s left up to the states, and, as he says, “to democratic choice.” To Morgan, that means that the Constitution is archaic, so the federal government needs to step in and make laws where the Constitution failed to.
So which is it? Is the text of the Constitution–the actual words and their meanings–still key to our rule of law? Or is the Constitution a “living document” that we need to reimagine to fit situations the Founders never considered?
We have always aspired to be “a government of laws and not of men.” It’s an old idea. Aristotle argued in his Politics that:
[I]t is more proper that the law should govern than any of the citizens.
John Adams brought the phrase it into our discussion in a newspaper article in 1774. He reiterated it in the Massachusetts Constitution in 1780.
A government of laws. In this country, that has always meant, not just any laws, but, ultimately, the Constitution. But what sets the views of the Founders above our own current perceptions of What Should Be Done about the issue du jour?
The Constitution’s emphasis on unalienable rights and limited government. That’s what.
The Constitution was designed to protect us from governmental overreaching. It deliberately promulgated a slow, messy republican government to protect the minority from the majority, and to protect us all from totalitarianism. When we, like Piers Morgan, get bored with the tedious discussion of what the text says and what it means, when we decide to worry simply about results rather than process–should abortion be illegal, in your eyes?–we’re ditching a government of laws as Adams understood it.
But power still corrupts, absolute power still corrupts absolutely, and the Constitution is the only barrier between us and the federal government’s absolute power.
Notice that Scalia distinguishes between his public and his private views–and isn’t going to legislate his private views. The myth is that it’s conservatives who want to impose their views on everyone else. This clip shows just the reverse.
A devout Catholic, Scalia is almost certainly intensely opposed to abortion. But, because he buys into a government of laws, in his position as a Supreme Court justice, he’s not trying to outlaw it. He would simply return the decision about legality to the states.
Morgan, however, doesn’t want to hear about the Constitution. He shuts Scalia down when he tries to talk about it, and later makes an impassioned plea for abortion:
Women began to take charge in the last century of their lives and their rights and so on and began to fight for these. Everybody believed that was the right thing to do didn’t they? I mean, why would you be against that?
Scalia makes it clear that, whatever his personal views on abortion, in his role as associate justice, that’s not the issue. He’s for a government of laws, not of men.
But Morgan either can’t grasp that, or doesn’t care.
And there in a three-minute clip, ladies and gentlemen, is our choice about what to do with our Constitution.