Nominal Distinctions: An Essay On The Death Of Antonin Scalia

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“Get over it.”
-Antonin Scalia, responding to questions about Bush v. Gore

In the future, if you’re wondering: “Crime. Boy, I don’t know,” is when I decided to kick your ass.
-The West Wing

Three deaths: Margaret Thatcher, Osama bin Laden, Antonin Scalia.

For some people, those were three occasions for celebration. When Thatcher died, I saw lots of people posting “Ding, Dong, The Witch Is Dead” on Facebook. When bin Laden was shot and killed, there were a lot of sober, short comments affirming Barack Obama’s effectiveness as commander-in-chief. When Scalia died, “Ding, Dong, The Witch Is Dead” came back into vogue (sort of), even though there is no proof that Scalia was, in fact, a witch. Other people mocked Scalia’s pro-life politics, by saying “we” should decide what to do with his body. Still others suggested that Clarence Thomas should do “what he always does”: imitate Scalia (and die).

A conservative friend of mine was horrified. He commented:

Steady folks. The corpse is hardly cold…An excellent illustration of the liberal ideologue’s hypocrisy: ‘we’re tolerant and compassionate, and we believe that all lives matter, but if you’re a conservative, or if you disagree with our righteous agenda, we’ll dance on your warm corpse.’ Poor form.

Another friend, a liberal, got similarly fed up. He shared a blog post entitled “I Can Tolerate Anything But The Outgroup.” It’s a well-intentioned, thought-provoking piece by some guy named Alex Leonard (who self-identifies as a liberal, Jewish psychiatrist). It’s worth your time. It raises important ethical questions. OK, yes, Leonard gets the answers to those questions wrong — see below — but it would be wonderful if his post sparked a better national conversation about ideological tolerance.

How does one respond, ethically, to the news of these deaths? How does Leonard’s blog post change that conversation?

Let’s begin with the death of Margaret Thatcher. By the time she died, in 2013, Thatcher had been out of office for 23 years. Since 1990, when she left office, many of her political reforms and decisions have either been reversed or become obsolete.

The problem with celebrating her death is that her death wasn’t an achievement. It was, in essence, pure accident.

People and ideas lead separate lives. They commingle, sometimes briefly, sometimes until death, but they always end up separate again. People are more than mere political animals. We transcend our ideas, and we are transcended by them. Thatcher’s death did not extinguish Thatcherism, so what was there, really, to be so happy about?

bin Laden’s death was a military victory: there is such a thing as a just assassination. He was a difficult target: George W. Bush’s administration tried and failed to take him down. Giving Obama some credit made sense, especially given the right-wing attempts to paint him as weak.

Scalia’s death…well, it isn’t a casualty of war, and it isn’t a private matter either. There are practical consequences. Obama’s nominee will be confirmed — the political price of a Republican stonewall will prove to be too high — and the new justice will shift the balance of power on the Court.

The ethical thing to do, if you hated Scalia, is (at first) to say nothing at all. There’s no sense in pretending to mourn him, and there’s no doubt about what Obama will do. Why celebrate? Why yield to a petty impulse?

This moment of respectful silence lasts about ten seconds, and then the tributes to Scalia start raining down.

Inevitably, most of the politicians who agreed with Scalia will use his death to advance their views. Somebody has to respond. Somebody, actually many people, should be on hand to set the record straight.

Should we forgive Scalia? Alexander seems to yearn for it:

The fake forgiveness the townspeople use to forgive the people they like is really easy…Since forgiveness is generally considered a virtue, and one that many want credit for having, I think it’s fair to say you only earn the right to call yourself ‘forgiving’ if you forgive things that genuinely hurt you.

I think he’s just doing a bad job paraphrasing Matthew:

For if ye love them which love you, what reward have ye? do not even the publicans the same? And if ye salute your brethren only, what do ye more than others? do not even the publicans so? (5:46-47)

I love forgiveness, but it is impossible to forgive an idea. Ironically, you can only forgive a man for being wrong after he changes his mind.

See, ideas don’t cause harm, actions do — so, in a sense, there is nothing to forgive. Furthermore, it is presumptuous to forgive people for being wrong. It demeans them. One ends up making excuses for their ignorance, instead of curing it or brushing it aside. Even now, after his death, I owe Scalia my enmity; that shows respect. It credits his desire to be right, even though he wasn’t.

****

We may pay our respects to Antonin Scalia, therefore, without respecting his ideas. His textualist theory of Constitutional law is not his own. It does not belong to him, and it did not originate with him.

A figure who is truly alive, in the American mind, is one who feels alive to us now, and whose works we read in present tense. Alexander Hamilton once wrote:

[A Bill of Rights] would furnish, to men disposed to usurp, a plausible pretense for claiming [undemocratic] power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given….It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing.

The Federalist, No. 82

Those words damned Scalia’s originalism before it was ever invented, and they still ring out, clear and true, almost 250 years later. Hamilton’s words, like those of his revolutionary compatriots, continue to shape the unfinished task before us, that of creating an American democracy. There is something appealing about the idea of taunting Scalia with the current anachronism he would have hated most: a musical combining opera, his favorite style of classical music, with American pop, an art form he feared and disparaged. Hamilton uses the music of the 21st Century because hip-hop did not exist during Alexander Hamilton’s lifetime. That is precisely the point, that is the substance of the thing.

For the letter killeth, but the spirit giveth life.

Requiescat in pace.

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