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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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-- Mark Tushnet
(I agree, and commented here.)

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    :: Sunday, September 26, 2004 ::
    Scalia and Frankfurter

    Over at Balkinization, guest poster Prof. Mark Tushnet speculates that, had Justice Frankfurter lived in the digital age, he would have inspired a blog much the equivalent of this one. I thank Professors Tushnet and Balkin for the link.

    And now, my opinion. Frankfurter and Scalia, despite major differences which I will mention, were alike in that they clung to Anglo-American Common Law reasoning, and the legal ideals behind it, with a fervor that is perhaps only possible in those who, by family background, are outsiders to that tradition, and thus in some sense, converts to it, rather than being (to stretch the metaphor) "cradle Common Lawyers."

    Both were “New Deal” Justices. If that label sits oddly on Scalia, consider that he, like Frankfurter, stands for broad legislative power and a sharply restrained, though still independent, role for the Court. Scalia appears to accept without remainder the Reagan administration view (which I more than once articulated on the word-processor screen as a DOJ speechwriter -- whether I fully adhere to it now is a separate question) that there's not a dime's worth of difference between the judicial activism of the Lochner era and that of the Warren and early Burger Courts.

    Frankfurter and Scalia are most noticeably similar in Free Exercise cases. Both stand for the privileges and dignity of self-government over against the self-defining, self-expressing individual. One and the same strain of republicanism can be seen in Gobitis ("Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."), the Barnette dissent ("[T]he history out of which grew constitutional provisions for religious equality and the writings of the great exponents of religious freedom -- Jefferson, Madison, John Adams, Benjamin Franklin -- are totally wanting in justification for a claim by dissidents of exceptional immunity from civic measures of general applicability, measures not in fact disguised assaults upon such dissident views."), Smith ("The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind...."), and the Boerne concurrence ("Who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice? Unfortunately, however, that abstract proposition must ultimately be reduced to concrete cases. The issue presented by Smith is, quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of those concrete cases.").

    But the resemblance starts to fade after that. It does not even extend to the other side of the Religion Clause, as Frankfurter took the religion-as-troublemaker view (see McCollum: "Designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously free from entanglement in the strife of sects" etc. etc.), which is self-evidently far from Scalia’s view (see the Weisman dissent: "The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated").

    They were also rather different cultural characters. Though both in a sense “ethnic,” Frankfurter’s personal merger into Harvard-based WASP culture was fairly complete, while Scalia – himself not lacking in Harvard credentials -- retains just enough Italian-American truculence to be willing to call American law to account for how it lives up to its Common Law roots, and to do so with a convert’s fervor. He doesn’t care whether he’s invited to give the graduation speech as long as he can loudly remind the college of its mission. He’s not trying to get into the Club; he’s trying to revive the principles that built the society that made the Club possible.

    Behind many of the opinions in which Justice Scalia extols the “Anglo-American” legal tradition, and the dissents in which he warns against the statist seductions of Continental law, I hear a voice that says (and please understand that these are my words, not Justice Scalia's):

    “I know about a tradition older than yours. My people discovered legal science in the lecture-halls of Bologna while yours were discovering novel disseisin at the Sussex Assizes. Mine were giving the most advanced law the world had ever known to the entire Mediterranean world while yours were marauding their way across the wastes of northern Europe. I have given my tradition up because I was raised instead in yours, and because yours protects freedom better than mine did. Do not let it go. For once it is gone, others will be waiting to take its place that you know not of. Do not let it go.”

    :: David M. Wagner 8:16 PM [+] ::

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