October 5, 2011
Antonin Scalia – On American Exceptionalism
- I speak to law students, college students and even high school students about the Constitution because I feel we aren’t teaching it very well. I speak to students from the best law schools – people presumably especially interested in the law and I ask how many of you have read the Federalist Papers. Hands will go up – and I say, no, not just number 48 or the big ones, but cover to cover. Never more than about 5%.
- That is very sad. Especially if you are interested in the Constitution. Here is a document that says what the Framers of it thought they were doing. It is such a profound exposition of political science that it is studied in political science courses in Europe. Yet we have raised a generation of Americans that are not familiar with it.. [Just one generation? It is more than that. Even less so the anti-federalist papers, which were responses published at the same time, but even fewer people have heard of those.]
- What do you think is the reason America is such a free country? What is it in our Constitution that makes us what we are?
- The answer most would say is Freedom of Speech, Freedom of press, etc from the Bill of Rights.
- But every Banana Republic has a bill of rights. Every “president for life” has a bill of rights. The USSR had a bill of rights that was [written] much better than ours.
- But these are just words on paper… what our Framers would call a “parchment guarantee. Our own Bill of Rights was a type of “after-thought.”
- The point is – that the Soviet’s real constitution – the structure of the entity – did not prevent the centralization of power in one person or in one party. When that happens – the game is over.
- The real key to the distinctiveness of America is the Structure of our government
- One part of it is the independence of our judiciary.
- Very few countries in the world that have a bicameral legislature. England has a house of Lords, but the House of Lords has very little power. They can make the House of Commons pass a bill a second time. France has a senate: it is honorific. Italy has a senate: it is honorific. Very few countries have two bodies in the legislature that are equally powerful. That is a lot of trouble, as you gentlemen doubtless know – to get the same language through two different bodies elected in a different fashion.
- Very few countries in the world have a separately elected Chief Executive. Sometimes I go to Europe and talk about separation of powers – and I find that all I am really talking about is independence of the judiciary because the Europeans don’t even try to divide the two political powers – the legislature and the Chief Executive. In all the parliamentary countries – the Chief Executive is a creature of the legislature – the ‘Prime’ minister of all the ministers. There is never any disagreement between them (the majority party) and the Prime Minister. When there is a disagreement – the parliament just kicks the Prime Minister out. They have a ‘no confidence vote,’ a new election, and they get a Prime Minister who agrees with the legislature.
- The Europeans look at our system and think – “Well – sometimes it passes one house but not the other house, sometimes the other house is in the control of another party, or it passes both and then there is this president who has veto power… and they look at this and say “it is gridlock.”
- And I hear Americans saying this now-a-days – and there is a lot of it going around. They talk about a ‘dysfunctional” government because there is disagreement – and the Framers would have said, “YES! That’s exactly the way we set it up. We WANTED this to be contradicting power.” because the main ill that beset us – as Hamilton said in the federalist, when he talked about a separate senate, he said, “Yes, it seems inconvenient, but in as much as the main ill that besets us is an excess of legislation, it won’t be so bad.” This was 1787 – he didn’t KNOW what an excess of legislation was.
- So unless Americans can appreciate that – and learn to love the separation of powers – which means learning to love the gridlock – which the Framers believed would be the main protection of minorities – the MAIN protection. If a bill is about to be passed that really comes down hard on some minority, they think it is terribly unfair, it doesn’t take much to throw a monkey wrench into this complex system.
- So Americans should learn to appreciate that – and they should learn to love the gridlock. It is there for a reason – so that the legislation that gets out will be good legislation. [hopefully. It was the hoped purpose, anyway].
Scalia, Antonin. “On American Exceptionalism.” Presentation to the Senate Judiciary Committee, Washington DC, 2011.