“When I was in law teaching,” recalled Antonin Scalia in a speech just days before his 1986 nomination to the Supreme Court, “I was fond of doing what is called ‘teaching against the class’—that is, taking positions that the students were almost certain to disagree with, in order to generate some discussion, if not productive thought.” He admitted to doing something similar when addressing public audiences: “It is neither any fun nor any use preaching to the choir.”
In decades of public speeches at home and abroad, Scalia educated, challenged, and entertained countless audiences. Now anyone who wants to benefit from the late justice’s wit and wisdom can do so with Scalia Speaks, a collection of speeches edited by Christopher J. Scalia and Edward Whelan (that is, the justice’s youngest son and his former clerk). The book offers Scalia’s reflections on a vast array of subjects.
Lawyers and law students may gravitate toward the speeches on legal subjects, some of which Scalia previously touched upon in A Matter of Interpretation (1997) and Reading Law (2012)—and of course in his hundreds of judicial opinions and law review articles. But as son Christopher observes in his touching and eloquent introduction, Scalia’s speeches framed the constitutional doctrines even more crisply: “He spoke to legal organizations, of course, and those speeches include some of the sharpest and most concise articulations of his legal philosophy. . . . But my father didn’t speak only to lawyers. And even when his subject was the law, his language was tailored to lay audiences in a way that his court opinions, as readable as they are, simply could not be.”
That style allowed Justice Scalia to begin with first principles and build a case for the fundamental constitutional concepts to which he had devoted his career. For example, in a 1991 speech on the nature of the U.S. Constitution, Scalia argues that its most important feature is not the Bill of Rights, but rather its structure: “A bill of rights has value only if the other part of the constitution—the part that really ‘constitutes’ the organs of government—establishes a structure that is likely to preserve, against the ineradicable human lust for power, the liberties that the bill of rights expresses.”
As for how judges should interpret the Constitution’s terms, Scalia’s explanation of originalism makes the historical case that judges formerly interpreted the document in accordance with its original meaning, until the post-World War II era, when they unabashedly began to make new constitutional law unmoored from actual constitutional text. (True, there had always been judges willing to “bend a text to their wishes,” Scalia concedes, “but in earlier times they at least had the decency to lie about it, to pretend that they were saying what the unchanging Constitution required.”)
One speech in the book is of special historical importance: a June 14, 1986, address to a Justice Department conference organized by Attorney General Edwin Meese. Two days after that speech, Scalia would meet privately with President Ronald Reagan to interview for a Supreme Court seat that (unbeknownst to the public) was about to be opened by the retirement of Chief Justice Warren Burger. The interview evidently went well: Reagan offered the job to Scalia on the spot and announced it the next day.
But the June 14 speech was more than an audition before the Justice Department. It offered an argument in favor of fundamentally refocusing originalism, to deemphasize the “intent” of individual Founders and to emphasize instead the objective meaning of constitutional terms as they would have been best understood by the American people at the time that the particular constitutional provision became law. As the editors observe, the latter approach “soon became the dominant school of originalism—thanks in large part to Scalia’s indefatigable advocacy and to the powerful example of his opinions as a justice.”
Throughout his career, Scalia stressed that judges’ proper role in our constitutional system is crucial but limited: Courts should interpret the meaning of laws but the vast bulk of governance should be left to the people’s elected representatives. “The American republic is a democracy,” Scalia says in a 2012 address, “and the background rule of democracy is that the majority rules.”
And in the long run, the people will decide not just what legislation they want, but also what kind of constitution they want. “No part of the Constitution—neither its structural portions nor the individual guarantees [of rights]—can be preserved for the people by the Supreme Court alone,” Scalia warns in a 1991 speech. “A Supreme Court fiercely dedicated to preserving that document cannot exist in the midst of a society that does not understand it.” The Court can take a countermajoritarian stand against momentary excesses, but in the long run the effects of a changing society will inevitably be felt in the Court. “In the last analysis, in other words, the court cannot save the society from itself—because in the last analysis the court is no more than the society itself. . . . The Constitution will endure, in other words, only to the extent that it endures in your understanding and affection.”
For that very reason, the biggest contribution of Scalia Speaks to our American constitutionalism may prove to be not Scalia’s explanation of constitutional law, for which he is already famous, but the repeated examples of Scalia exhorting audiences to understand the crucial role that education—especially civic and moral education—must play in sustaining republican government.
One 2014 speech is dedicated entirely to this point. Focusing on “a subject that [George] Washington would have approved of”—namely, “the education of the citizenry to render it capable of democratic self-governance”—Scalia argued that “the Founders were as interested in teaching virtue as in teaching civics.” And they saw this as necessarily including the teaching of religious values—not to convert all Americans to Christianity, but rather to inculcate the virtues required to sustain republican government. Scalia quotes Benjamin Rush: Without moral education, “there can be no virtue, and without virtue, there can be no liberty, and liberty is the object and life of all republican governments.” As Scalia further notes, John Adams agreed, as did Tocqueville later. So did Washington, whose farewell address stressed that “of all the dispositions and habits which lead to political prosperity, Religion and Morality are indispensable supports.”
Scalia returns to this theme over and over; it becomes the book’s most prominent refrain. His 1999 talk on college education quotes Washington’s farewell address again. His 2011 speech at Xavier High School in New York City, his alma mater, celebrates West Point as the American institution that “took most seriously . . . the task of moral formation.” In a 1994 address, he pauses to reflect that, “not long ago, all colleges, even nondenominational ones, used to consider [moral formation] their task.” Speaking at his son Paul’s high school graduating class in 1988, he said that “freedom is a luxury that can be afforded only by the good society. When civic virtue diminishes, freedom will inevitably diminish as well.”
Scalia’s critics often accused him of letting religion dictate his judicial decisions. He rebutted that charge repeatedly throughout his time on the public stage, as exemplified by some of the speeches contained in Scalia Speaks. Still, the book reminds us how Scalia’s appreciation of the Constitution, and of the republican government that it created, was rooted in his Christian faith. In a 1989 speech, he quotes St. Paul’s Letter to the Romans, to remind his audience that “the Christian bears a moral obligation toward the just state,” including the American state, the laws of which “have a moral claim to our obedience.” Two years later, he observes that “the wondrous durability of the Constitution is attributable to a whole series of irreplicable circumstances—incredibly lucky, if you will, or, as many of the Founders thought, providential.” His son Paul, a Catholic priest, recalled this point at Scalia’s funeral mass: “God blessed Dad, as is well known, with a love for his country. He knew well what a close-run thing the founding of our nation was. And he saw in that founding, as did the Founders themselves, a blessing.”
The Founders’ project remains a close-run thing. The work of sustaining the republican government that they originally framed is aided immensely by Justice Scalia’s legacy, which now includes the speeches contained in this indispensable book. We find in that legacy, too, a blessing.
Adam J. White is a research fellow at the Hoover Institution and director of the Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School.
