Just weeks after the sudden death of Justice Antonin Scalia, Fr. Anthony Giambrone, O.P. published an article in America Magazine warning that Catholics inclined to celebrate the life and service of the late Supreme Court justice should not be so inclined to celebrate his judicial philosophy. Fr. Giambrone then proceeds to advance an argument that Justice Scalia’s judicial thought is incompatible with that of St. Thomas Aquinas.
Fr. Giambrone heaps scorn upon Scalia’s originalist approach to the Constitution, which he says:
might be compared with the hermeneutic of Reformation theologians, who appealed to the “plain sense” of Scripture. This confidence in the perspicuous insight of common sense may indeed allow for more sophistication than various fundamentalist follies, but it is hardly an adequate approach.
But nowhere did Justice Scalia ever advance the argument that the plain meaning of the law was always apparent. This is precisely why he argued that judges often need, through careful historical analysis, to consult the original meaning of the words in the legal text. This, Scalia repeatedly insisted, often required difficult and painstaking work. Scalia’s argument was never that originalism guaranteed accuracy, but simply that it was superior to all the alternatives.
But Fr. Giambrone’s misrepresentation of Justice Scalia is much more egregious than an oversimplification of his originalism. As he states,
However attentive [Scalia’s] theory is to a reasonable, contextual construal of the written law, his position, nevertheless, is rather clearly an expression of legal positivism. Law, in this positivist view, gains its force from contingent social factors, not from its moral merits or participation in right reason.
In this statement, Fr. Giambrone confuses Scalia’s theory of judicial interpretation with a theory of law itself known as legal positivism. Legal positivists believe that the laws handed down in political society are not derived from any higher moral law and receive their binding force strictly from the polity that created them. Believing, however, that the positive law should be interpreted by judges according to the original meaning of the lawgiver does not make one a legal positivist! It is a perfectly consistent position to hold that lawmakers have a moral obligation to legislate in accordance with the natural law and to hold that judges possess only the limited authority to interpret those laws according to the lawmakers’ original meaning. In fact, this perfectly consistent position was precisely the position of Justice Scalia, who, on more than one occasion, expressly stated his belief in the Catholic doctrine of natural law even while warning that such a doctrine does not provide a good basis for interpreting laws. One need only understand this simple point to see how preposterous are Fr. Giambrone’s claims that “Justice Scalia’s legal theory has no ultimate framework for holding the government accountable before God” and that he sees natural law as merely a “rhetorical cover for the preferred moral agenda of any given judge.”
What about the claim that Scalia’s originalism contradicts the legal thought of Thomas Aquinas? Fr. Giambrone opens his article by recalling a lecture in which Justice Scalia became “uncomfortable” while considering Thomas’ statement that a judge may set aside the letter of the law in order to promote the lawgiver’s original purpose. (Summa Theologiae, 60.5, ad 2) Granted, Thomas and Justice Scalia may disagree on this point. But one must be careful to consider just how limited the point is that Thomas is making. As he explains, the nature of law is to be general, and because it is general it will sometimes fail to achieve the intended result, in which case a judge may exercise a certain prerogative. As Russell Hittinger has shown in his book The First Grace: Rediscovering the Natural Law in a Post-Christian Society (see chapter four), St. Thomas’s point is not that the judge corrects a flawed human law in favor of the natural law. Nor does the judge imply by his actions that the law was poorly worded or “not well made” (ST, II-II, 120.1, ad 2). He is simply upholding the intention of the lawmaker, which, in this case, would be undermined by following the letter of the law. What’s important is that Thomas’s entire argument hinges on the notion that the act of judgment presupposes a prior act of legislation. This legislation, moreover, is not something Thomas allows the judge to overrule for moral reasons or by appeal to the natural law. As he explains, “it is necessary to judge according to the written law, else judgment wold fall short of either of natural or of the positive right.” (ST, II-II, 60.5).
Again, even when it comes to laws that are manifestly unjust, St. Thomas argues flatly that “judgment should not be delivered according to them.” (ST, II-II, 60.5, ad 1) But he never implies that that judge possesses the authority to overrule such laws or to interpret them in a way that is contrary to the intention of the lawgiver. To do so would be to speak from an authority he does not possess.
Contrast this with Fr. Giambrone’s astonishing claims about Thomas:
For Aquinas, the judge was also the legislator—a plenipotentiary, like a king—not simply the hand-bound interpreter of some legislature’s promulgated text. The modern issue of ‘judicial activism’ is, accordingly, tied up with a very different set of historical and legal assumptions, specific to the American context. There is something to be learned, however, from the older viewpoint.
That, for Thomas, the judge is “also the legislator” or “like a king” are just two of the many false claims in Fr. Giambrone’s article. Again, no one is claiming that Thomas’s position is identical with Scalia’s, but, given what the great Catholic theologian had to say about the limits of judicial authority in reference to the written law, his position is far closer to that of the late justice than to the idea of a “living” or “evolving” Constitution so ubiquitous today.
Peter Karl Koritansky is Associate Professor of Philosophy and Religious Studies at The University of Prince Edward Island in Charlottetown, Canada and the author of Thomas Aquinas and the Philosophy of Punishment.