Strengthening Constitutional Self-Government

No Left Turns

Scalia and the Declaration

In answer to Dr. Pestritto’s question, I don’t think that Scalia is avoiding endorsing the Declaration. It appears more likely that Scalia is bowing out of joining Justice Thomas’s comments which precede Section I. It is here that Thomas quotes extensively from Frederick Douglas, and speaks with passion about how he "believe[s] blacks can achieve in every avenue of American life without the meddling of university administrators." My sense is that Scalia thought that these words were uniquely Justice Thomas’s, and that they stand on their own.

It is also worth noting that Thomas’s last paragraph, in which he mentions without quoting the Declaration and quotes from Justice Harlan’s ringing dissent in Plessy v. Ferguson, bears striking resemblance to Scalia’s concurrence in Adarand v. Pena, in which he states, "[i]n the eyes of government, we are just one race here. It is American." Given this similarity, I don’t think it is out of disagreement that Scalia joins only I-VII, but out of respect for Thomas’s desire to speak about the capacity for black achievement.

Discussions - 3 Comments

OK, that makes more sense. I thought that Thomas’s dissent was very well done, by the way. And of course, I join your earlier plea to the author of the majority opinion.

Not sure I agree with this more charitable take. Justice Scalia penned a pretty strong opposition to reliance on the Declaration of Indepedence in Troxel v. Granville two years ago: The Declaration "is not a legal prescription conferring powers upon the courts." And he did not join Justice Thomas’s opinion in Adarand, in which Justice Thomas argued that racial set asides violate the equality principle that infuses the Constition, a proposition for which he cited the Declaration of Independence. I think it very likely that the asteriks were added to make a concluding section separate from Part VII, so neither it nor the introduction were joined by Justice Scalia.

I agree with Mr. Eastman. I think the asteriks are there, one for aesthetic reasons, but also because Justice Scalia will not rely upon the Declaration as a source for hisss judicial opinions. He has made it clear throughout his tenure and in his book A MAtter of Interpretation that he believes the Constitution, as it was originally meant to be understood by the founders, is the sole source of authority. The Constitution says what it says and means what it means. The Constitutional framework is what is important to Scalia, not the underlying infusions, of which the Declaration is surely one. Justice Scalia’s argument can stand alone on its positivist ground in this case even better than others, and the Constitution seems pretty clear on racial discrimination, whether benign or malignant, so I think he sees no need to accept the Declaration as a source of authority when he has spent many years saying that the Constitution itself (and Scalia believes that the Articles, not the Amendments themselves are the most important part) is the sole source of constitutional legitimacy in our republic.

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