The important thing in the Democracy is not to win, but to take part; the important thing in Life is not to have conquered but to have fought well.
Socrates v. Scalia
About four years ago, I had an interesting group discussion about the trial and death of Socrates, and how the democracy of Athens that put him to death differed from that of America. Someone said that the Athenians were good at rhetoric and sophistry, not sound reasoning, whereas the judicial system in the US was more conducive to reasoned judgments. I said, “I think you’d be hard pressed to prove that the Athenians’ arguments are not well-reasoned. It takes the discernment of the wisest man to tear them apart. Who is to say that, if Socrates were alive today, he would not have a field day with the U.S. courts, even the Supreme Court?” He replied, “I’d pay good money to hear Socrates v. Scalia”, referring to Antonin Scalia, a long-serving Associate Justice on the Supreme Court of the United States renowned for his acerbic wit.
Scalia and Socrates share many striking similarities in their philosophy. One might even say that Scalia is the Socrates of SCOTUS.
In Scalia’s Court: A Legacy of Landmark Opinions and Dissents, Scalia’s gadfly spirit is in full display. As Justice Ginsburg put it, Scalia “nailed all of the weak spots” in the opinions and arguments of his fellow justices, all the legalistic argle-bargle, interpretive jiggery-pokery, and downright gobbledegook.
Sophistry is very much alive today as it was in Socrates’ time, when people talk grandiloquently about rights, freedom and equality without the faintest idea what those words actually mean. Like Socrates, Scalia served to arouse us from slumber, urging and reproaching each one of us, to examine our explicit and implicit beliefs, whether they pass the muster of reason and logic.
Respect for Law
According to the sophist Protagoras, man is the measure of all things. In other words, man is the ultimate arbiter of what is good and just, and as such he is the lawgiver and there is none above him.
According to Plato, justice is objective and transcends man. Man is not in a position to decree justice from himself, but to contemplate justice as objective truth and participate in it. Because of his abiding respect for law, Socrates did not escape from prison when he was condemned to death by the Athenians through due process of law.
Scalia has the same abiding respect for law as Plato/Socrates. As a judge, he strives to interpret and apply the law faithfully, and rejects time and again the temptation to act as lawgiver himself, even when it is expedient and popular to do so. His judicial restraint is a mark of his honesty and humility.
The Nature and Structure of the Constitution
There are two schools of thought regarding the Constitution of the United States, which seem to correspond to the doctrines of Protagoras and Plato. One school is represented by Justice Breyer, and the other Justice Scalia.
Breyer argues that society has been evolving along with people’s understanding of justice, so the Court should make decisions and interpret the Constitution in ways that reflect the evolving standard of decency, thereby essentially making new laws. In short, the Constitution is “living”; Scalia replies, “The Constitution is not a living organism, it’s a legal text.” The job of the Court is not to legislate from the bench, but to interpret the Constitution faithfully as it was originally meant by the framers and understood by the people in its historical context. It should make valid legal decisions, without either favoring religion or bowing to secular pressure.
In pure democracy, people both legislate and interpret laws. It was true in ancient Greece, it is true in the U.K, and increasingly so in the U.S. However, the beauty of the U.S. Constitution is the principle of check and balance, also known as separation of powers. It put checks not only on the power of the government, but also on the people. The U.S. is not a pure democracy, but a mixture of monarchy (President), oligarchy (Supreme Court) and democracy (Congress). The power to make laws is reserved for the people alone, who legislate through their representatives in Congress. The power to interpret the Constitution is reserved for the Supreme Court, not the people, as a necessary check to prevent mob rule. It is a work for lawyers, viz. those who follow the dictates of law and logic, not personal desires and predilections. On this point, Plato would definitely side with Scalia. In addition, by framing the Constitution in the historical context, in a way, Scalia makes the Constitution enduring and unchanging, like Plato’s conception of Justice. No matter how the society evolves, there is always a fixed frame of reference, which is another application of the principle of check and balance.