Image via The Blaze.
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A famous misquote of Ralph Waldo Emerson argues that “consistency is the hobgoblin of little minds” (it’s a misquote because he modified “consistency” with “foolish”). In an age that prizes idiosyncratic self-expression and ideological pragmatism, this modified saying certainly has its adherents. Whatever its value as a guide to choosing restaurants, it is a very poor, indeed dangerous, view of the law.
Consistency is essential to the rule of law, which guarantees to citizens a uniform and predictable system of government and prevents arbitrary and willful actions that allow individual leaders and factions to impose their preferences at the expense of established rules and procedure.
It is as a defender of this principle, that Justice Antonin Scalia made his most important contribution as a justice of the U.S. Supreme Court.
Opinions written by Justice Scalia stand out among judicial decisions for their clarity. His firm commitment to the rule of law and to a modest role for the judiciary was refreshing and sometimes bracing.
Take this passage, dissenting from the Supreme Court’s infamous decision to continue subjecting state abortion laws to federal oversight under a vague rule that the court could overturn laws creating an “undue burden” on the decision to abort:
By foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.
His decisions were also very often funny. One that stands out is a concurring opinion in a case allowing a church group access to public school facilities after school hours. The majority had premised its opinion on the application of a subjective and unwieldy court-created test, the Lemon test, from a 1971 decision.
Justice Scalia agreed that there was nothing in the Constitution that mandated the church’s exclusion from a space available to all others but he rejected the convoluted Lemon test as the appropriate measure of a law’s constitutionality.
His concurring opinion begins:
As to the Court’s invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: our decision in Lee v. Weisman, conspicuously avoided using the supposed “test” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so.
The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts.” Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him. [citations omitted]
This witty analysis highlights Justice Scalia’s essential commitment to the rule of law. That consistency is the bulwark of ordered liberty.
In a 1996 commencement address at William and Mary, Justice Scalia said:
Bear in mind that brains and learning, like muscle and physical skill, are articles of commerce. They are bought and sold. You can hire them by the year or by the hour. The only thing in the world not for sale is character. And if that does not govern and direct your brains and learning, they will do you and the world more harm than good.
We have been fortunate indeed to have the example of integrity set by Justice Antonin Scalia whose excellent character guided his learning, and thus did much good.
William C. Duncan, J.D., is director of Sutherland Institute’s Center for Family and Society.