Strengthening Constitutional Self-Government

No Left Turns

More on Scalia and the Declaration

Eastman makes a strong argument regarding Scalia and the Declaration, but there is still room for discussion. First, John mentions the fact that Scalia did not join Thomas’s opinion in Adarand. But Thomas’s fine concurrence in Adarand looks suspiciously like the portion of Thomas’s Grutter opinion in question. That is, while Thomas once again speaks in Adarand of the Declaration, he also speaks about black achievement. Specifically, Thomas in Adarand disputes what he refers to as the racial paternalism exception to Equal Protection. Without saying that you have to be a particular race to offer the arguments made by Thomas in quoting Frederick Douglas in Grutter, or speaking of racial paternalism in Adarand, it is nonetheless understandable why Scalia would choose not to join those sections on the basis of melanin deficiency, and to allow Thomas to speak powerfully on his own.

The Troxel example offered by John does not fit into this pattern however, and raises a more formidable question. As John noted, in Troxel, Scalia argues that "[t]he Declaration of Independence, however, is not a legal prescription conferring powers upon the courts." By doing so, however, Scalia makes the rather unremarkable statement that, absent Constitutional authority, a judge does not have the authority to strike down a law for violating the principles of the Declaration. Scalia’s statement here does not suggest that a judge may not appeal to the principles of the Declaration in interpreting or applying the Constitution--which is what Thomas does in Grutter. As I read Troxel, Scalia appears to be taking aim at those who would seek to appeal to the Declaration not to inform their understanding of the Constitution, but to supercede or add to the Constitution. Accordingly, Scalia could have written and meant what he said in Troxel, and yet have had no problem in joining Thomas’s Declaration statement in Grutter.

My defense is half-hearted, for I don’t believe that Scalia has demonstrated an understanding of the relationship between the Declaration, the Natural Law and the Constitution which compares to Thomas, but at the same point, I don’t think that his failure to sign on to Grutter or Adarand, or his statement in Troxel are sufficient to suggest that he is openly hostile to the Declaration.

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