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St. Thomas More Society of Orange County

Justice Scalia Remembered - by Gregory N. Weiler

02/24/2016 9:23 AM | James Doan

     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 and 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?” Answer: “No.” “What if there was a properly adopted Constitutional amendment, 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, he knew that the raw application of the Natural Law by human judges had the same potential for abuse and subjective interpretation as the view espoused by 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 on human judging and his oath of office, while at the same time reserving the right to resist unjust law in light of individual conscience—things right out of the Catechism and the Declaration.

     Like St. Thomas More, Justice Scalia was loathe to lose the protections of the law against the caprice and avarice of mankind, 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:

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. As was proven in 1776, and certainly in the great terror in France, revolutions are messy affairs with unpredictable results, whose victims are more often than not innocents.

     It is comforting to know that one of the most brilliant men to ever sit on our Supreme Court could humble himself before the Tabernacle, could humble himself before the teachings of the Church (nine children, steadfast Mass attendance and brilliant exposition of the dignity of every person) and lastly, humble 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.

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