Professorial dogmas and the future of civic discourse
Adam J. MacLeod | February 18, 2016
The passing of Justice Scalia has prompted fitting encomia from the usual courageous stalwarts, predictable political squabbling from the usual squabblers, and cynical posturing from the usual cynics. All very appropriate to the role each of those people plays. But it has also exposed something that strikes me as dark and disconcerting.
Words I have seen associated with Antonin Scalia in the last three days: “bigot,” “bigotry,” “oppression,” “hate,” “hateful,” “evil,” “unjust,” and “intolerance.” Those all came from professors, scholars of law and subjects related to law whose job it is to seek knowledge of law and legal institutions. And they were written in open letters, blogs, op-eds, and social media postings for their students and the rest of the world to see.
What circulated on social media among non-academics was even more vile.
Contrast those words with the remarks of Justice Scalia’s colleagues, including Justice Ginsburg, who called Scalia her “treasured friend” and credited him with improving her own opinions. Scalia and Ginsburg disagreed about much that matters, but she recognized in him a man of good faith and a principled jurist who shared her “reverence for the Constitution” (though he differed in what that reverence required of a judge).
So, why the nastiness from the professoriate? One scholar with whom I interacted briefly on social media went so far as to compare Scalia (favorably) to Stalin. The evil perpetrated by the two men differs only in degree in some respects (though in kind in other respects, such as the legitimacy of their offices). This person could not discern a qualitative difference between the injustice of a man who slaughtered 60 million of his own people, executed political opponents, and impoverished halves of two continents, on one hand, and on the other a man who believed as a matter of principle that, in the words of the society of lawyers which Scalia regularly graced with his insights, “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”
Scalia was evil in the eyes of academics because he skillfully, colorfully, and joyfully opposed “progress,” defined as the results that left-liberals think should pertain in decisions of the Supreme Court of the United States. That he opposed judicial innovation because he was firmly committed to the rule of law, and therefore opposed to rule by judges — in other words, his actual motivations — has no bearing on his moral culpability.
This is moral progress? If so, then the future of our civic discourse, particularly among scholars of law, is very bleak.
Adam J. MacLeod
Adam J. MacLeod is a member of the Maine and Massachusetts (inactive) bars and an Associate Professor at Faulkner University, Jones School of Law. He is the author of “Property and Practical Reason” (Cambridge University Press) and dozens of articles in journals in the United States, United Kingdom, and Australia, many of which can be accessed at his website.
