Steven G. Calabresi is Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law, visiting professor of law at Yale University and chairman of the board of directors of the Federalist Society.
With “Scalia Speaks: Reflections on Law, Faith, and Life Well Lived,” Christopher J. Scalia and Edward Whelan have given us a treasure that captures Justice Antonin Scalia’s brilliance, wit, faith, humility and wide range of knowledge. When I read this collection of his speeches, edited by the justice’s son and one of his law clerks, I feel like Scalia is in the room with me. Taken together, the speeches are a book-length argument for constitutional originalism and for Scalia’s understanding of the role of judges in the United States. Anyone who wants to understand Scalia as a person and as a judicial philosopher should start by reading this book.
Scalia, in my view, is the best justice who has ever served on the Supreme Court in its 227-year history. He and Justice Joseph Story are the only two justices to have published books on constitutional and statutory interpretation. Scalia articulated a clear philosophy of a judge’s role, to which he always adhered. He was one of the two best writers ever to serve on the court and was equal on this score to Justice Robert Jackson, known for his fine literary style. No other justice traveled so much and spoke to so many audiences in the United States and abroad. Finally, he was to originalism what Saint Paul was to Christianity — a tireless and widely traveled evangelist of the gospel. Understanding Scalia is thus imperative for all law students, lawyers and educated lay people. Because the book is a collection of speeches, many of which were given to lay people, it is very readable, understandable and fun for most age groups.
The speeches are organized into six primary sections: “On the American People and Ethnicity,” “On Living and Learning,” “On Faith,” “On Law,” “On Virtue and the Public Good” and “On Heroes and Friends.” You’ll find discussions of games and sports, being different, church and state, freedom of speech, George Washington, and many other subjects.
Addressing the difference between American and European values, Scalia notes that “the United States was settled primarily by people seeking, in one way or another, refuge from the ways of Europe. The men who founded our Republic did not aspire to emulating Europeans at all — to the contrary, the project of drafting the American Constitution was largely about ensuring that the American people would never languish under the yoke of a European-style government.”
This is a critically important point that many fail to appreciate. The legal academics and public intellectuals who love European socialism overlook the fact that the United States, under its unique Constitution, is the third-most-populous country in the world, covering the fourth-largest territory, and has by far the highest gross domestic product per capita of any of the Group of 20 nations, a strength that allows us to do more to help the poor around the world while offering military defense to a range of countries. Few people choose to move from the United States to other countries, but millions of people want to live here. Scalia appreciated that the reason for this is that the U.S. Constitution is an engine of power and economic growth that sustains “life, liberty and the pursuit of happiness.”
As an excellent writer, Scalia offers advice on the craft. “Time and sweat,” he says, are the keys to good writing, and a well-written document emerges only after many drafts. “I think there is writing genius,”he says, just as there is musical genius, “which consists primarily, I think, of the ability to place oneself in the shoes of one’s audience; to assume only what they assume; to anticipate what they anticipate, to explain what they need explained, to think what they must be thinking; to feel what they must be feeling.”
Scalia regrets that most American college and law students never read the Federalist Papers and therefore do not understand our Constitution or the American founding very well. He tirelessly urges us to learn from the wisdom of the framers of our Constitution, which so few Americans tend to do.
The justice was both a man of action and ideas and an experienced hunter. But he had his mishaps. In a chapter titled “Turkey Hunting,” he explains that “one of my most humbling moments came while turkey hunting. I took a shot at a gobbler and he went right down — flapped a little and went right down. I was so excited, I jumped out of the box stand and hurried to him. I got about five feet away and he lifted his head, looked at me, and ran away. And I had left my gun back in the box stand.”
In a chapter called “Religious Retreats,” Scalia recounts how he was humbled again during his oral comprehensive final exam in history at Georgetown. He was asked: “Of all the historical events you have studied . . . which one in your opinion had the most impact on the world?” Scalia pondered whether it was the American or French Revolution or a famous battle, and in the end, he gave the wrong answer. The right answer, he learned, was the birth of Jesus, and Scalia immediately realized how foolish he had been.
In a chapter on “Original Meaning,” Scalia reveals that at a conference, he challenged Attorney General Edwin Meese III on how to assess the Constitution’s original intent. Meese argued in favor of a judicial philosophy that searched for the original intentions of the framers. Scalia said he favored searching for the original meaning of the words of the Constitution instead. In his speech at the conference, he strongly set out the case for original public meaning, persuading Meese’s chief of staff, Ken Cribb, by the force of his argument. After Scalia finished speaking, Cribb scrawled the word “Stipulated” on a piece of paper and taped it to the podium. Two days later, President Ronald Reagan informed Scalia that he was going to be nominated to the Supreme Court.
Scalia speaks in his own words in this magnificent volume that should be on the bookshelf of every educated American.
By Antonin Scalia, edited by Christopher J. Scalia and Edward Whelan
Crown Forum. 420 pp. $30