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Mercy, Justice Scalia, and the Price of Self-Government

The passing of Justice Antonin Scalia has set off a flurry of political debate and public controversy over the judicial titan’s legacy. While most media attention has breathlessly fixated on the congressional gamesmanship to come, critical consideration has also been paid to Scalia’s approach to judicial life. Some have glibly crowed over perceived inconsistencies in Scalia’s opinions, but more courageous critics have turned instead to a simple frontal attack: rigid application of an archaic document, with no professed leeway for discretion or leniency, cannot be just.

In the views of his ideological opponents, Scalia’s rigidly consistent application of the law–equity of outcomes be damned–must lead to a fundamentally cruel and immoral world. One cannot help but be reminded of the dilemma at the heart of Victor Hugo’s Les Misérables: Valjean, the convict, versus Javert, the relentlessly consistent bringer of “justice.” In juxtaposing “justice” and mercy, Hugo clearly comes out on the side of mercy: Javert eventually kills himself upon realizing the inherent wrongness of his position.

Where, morally speaking, does this leave the consistent constitutionalist?

Suppose, purely for the sake of argument, that “originalism”–a philosophy of constitutional interpretation that attempts to discern the original public meaning of words at the time they were written, in an attempt to attach an objective meaning to the constitutional text–is wholly consistent and workable (it bears mention that this premise is highly controversial within the legal academy). This leaves unanswered, however, a question with implications far beyond the judicial cloister: within the Christian tradition, is originalism moral?

It can be very easy to look exclusively at outcomes and say that an injustice has been committed. In such a case, however, and assuming that people choose the law that governs them, I suggest that one ought to blame the law itself, not the judge who serves the people by applying it.

The missing premise in many discussions of this type is that individuals ought not be subjected to a civil government’s law to which they did not consent–a moral argument developed at length by early Enlightenment-era political thinkers. In a common-law system built around precedent, judges’ decisions do not occur in vacuums: a judicial interpretation binds those within the judge’s jurisdiction. Accordingly, the public may properly change the tools with which the judge does his function, but for the judge to independently do so is to betray those multitudes who have not agitated for change.

Just as individual persons ought not necessarily “bear the sword” of state vengeance against wrongdoers (Romans 13:4), but understand this function as reserved to civil government, individual judges do not properly exercise the function to uproot the popular law. That said, a given law may indeed be unjust (I can envision many); the proper recourse in such a case, assuming that consent-of-the-governed is an underlying moral axiom we accept, is to change that law through the prescribed channels. Insofar as one does not view democracy and Christianity as necessarily oppositional–an important qualifier–strict adherence to law and precedent can be coherently justified. This is the crucial difference between the ideology of Javert and properly conceived originalism: whereas Javert’s source of law is the unchangeable diktat of the monarch, impervious to change, in the contemporary constitutional landscape, laws can indeed be altered. How this is done, however, matters: if self-government is consistent with the Christian tradition, and across-the-board preferable to some sort of imperial hegemony, the judge may be said to act morally in refusing to change the law they apply.

I firmly believe that arguing for criminal justice reform is a Christian duty, that restorative justice is consistent with the Christian tradition, and that our penal institutions should do more to recognize the intrinsic dignity of incarcerated persons. But were a judge to unilaterally implement my vision, in defiance of the “law on the books,” would be to subject countless citizens to a scheme of law to which they have not consented. Unlike Valjean, I have the opportunity to work to change the law itself; a judge who properly implements a defective law should not, therefore, be condemned as a Javert-type agent of injustice.

This discussion by no means sets out a comprehensive moral case for constitutional originalism or strict constructionism in statutory interpretation; it merely strives to unpack certain assumptions beneath our instinctive reactions. Oftentimes in daily life we find it easy to outsource the lawmaking project to the judiciary–taking notice only when an egregious injustice erupts. Perhaps the fact of our own civic responsibility frightens us: if we indeed choose our laws, we must have the courage to push for good ones.

Rest in peace, Justice Scalia. May we, as we are able, have the courage to labor for justice in our law.

John Ehrett

John Ehrett

John currently resides in Arlington, Virginia, where he works as an attorney and writer. He holds a J.D. degree from Yale Law School, and is pursuing his Master of Arts in Religion at the Institute of Lutheran Theology.

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