Antonin Scalia

Opening Statement on American Exceptionalism to a Senate Judiciary Committee

delivered 5 October 2011, Washington, D.C.

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[AUTHENTICITY CERTIFIED: Text version below transcribed directly from audio and edited for continuity]

Thank you, Mr. Chairman, Members of the Committee:

I'm happy to be back in front of the Judiciary Committee, where I started this pilgrimage.1

I am going to get even more fundamental than my good friend and colleague. Like him, I speak to students, especially law students but also college students and even high school students, quite frequently about the Constitution because I feel that we're not teaching it very well.

I speak to law students from the best law schools -- people, presumably, especially interested in the law and I ask them, "How many of you have read the Federalist Papers?" And a lot of hands will go up. [And I say], "No, not just Number 48 and the big ones. How many of you have read the Federalist Papers cover to cover?" Never more than about 5%.

And that is very sad, especially if you're interested in the Constitution. Here's a document that says what the Framers of it thought they were doing. It's such a profound exposition of political science that it is studied in political science courses in Europe. And yet, we have raised a generation of Americans who are not familiar with it.

So, when I speak to these groups the first point I make -- and I think it's even a little more fundamental then the one that Stephen [Breyer] has just put forward. I ask them, "What do you think is the reason that America is such a free country?" "What is it in our Constitution that makes us what we are?" 

And I guarantee you that the response I will get -- and you will get this from almost any American, including the woman that he [Justice Breyer] was talking to at the supermarket.  The answer would be: freedom of speech, freedom of the press, no unreasonable searches and seizures, no quartering of troops in homes -- those marvelous provisions of the Bill of Rights.

But then I tell them, if you think that a bill of rights is what sets us apart, you're crazy. Every banana republic in the world has a bill of rights. Every President for life has a bill of rights. The bill of rights of the former "Evil Empire," the Union of Soviet Socialist Republics, was much better than ours. I mean it, literally. It was much better. We guarantee freedom of speech and of the press -- big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests; and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!

Of course -- just words on paper, what our Framers would have called a parchment guarantee.2 And the reason is, that the real Constitution of the Soviet Union -- you think of the word "constitution," it doesn't mean a "bill"; it means "structure"; [when] you say a person has a sound "constitution," [he] has a sound "structure." The real Constitution of the Soviet Union, which is what our Framers debated that whole summer in Philadelphia in 1787 -- they didn't talk about the Bill of Rights; that was an afterthought, wasn't it? -- that Constitution of the Soviet Union did not prevent the centralization of power, in one person or in one party. And when that happens the game is over; the Bill of Rights is just what our Framers would call a parchment guarantee.

So, the real key to the distinctiveness of America is the structure of our government.

One part of it, of course, is the independence of the judiciary; but there's a lot more. There are very few countries in the world, for example, that have a bicameral legislature.3 Oh, England has a House of Lords, for the time being, but the House of Lords has no substantial power; they can just make the [House of] Commons pass a bill a second time. France has a senate -- it's honorific. Italy has a senate -- it's honorific. Very few countries have two separate bodies in the legislature equally powerful. That's 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 to talk about separation of powers, and when I get there I find that all I'm talking about is independence of the judiciary, because the Europeans don't even try to divide the two political powers, the two political branches -- the legislature and the chief executive. In all of the parliamentary countries the chief executive is the creature of the legislature. There's never any disagreement between them and the prime minister, as there is sometimes between you and the president. When there's a disagreement, they just kick them out. They have a no confidence vote, a new election, and they get a prime minister who agrees with the legislature.

And the Europeans look at this system and they say, well, it passes one house [and] it doesn't pass the other house; sometimes the other house is in the control of a different party; it passes both, and then this president, who has a veto power, vetoes it. And they look at this and they say [in faux foreign accent of indistinct origin] "Ah, it is gridlock."

And I hear Americans saying this nowadays, and there's a lot of it going around. They talk about a "dysfunctional government" because there's disagreement. And the Framers would have said, yes, that's exactly the way we set it up. We wanted this to be power 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 inasmuch as the main ill that besets us is an excess of legislation, it won't be so bad. This is 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 pass that really comes down hard on some minority [and] they think it's terribly unfair, it doesn't take much to throw a monkey wrench into this complex system.

So, Americans should appreciate that and they should learn to love the gridlock. It's there for a reason -- so that the legislation that gets out will be good legislation.

And thus conclude my opening remarks.

Book/CDs by Michael E. Eidenmuller, Published by McGraw-Hill (2008)

1 See complete transcript of hearings.pdf

2 Strictly considered, "parchment barriers" was the termed used by Madison (e.g., as quoted and interpreted in Federalist Paper #48) in reference to the questionable notion that a Bill of Rights, or something approaching it, is in itself a sufficient barrier against the steady encroachment of centralized government power upon individual liberty.

3 Figures vary considerably. According to the  Inter-Parliamentary Union 77 (40.1%) of countries have a bicameral legislature (retrieved 2/26/16). But see this analysis.pdf by the National Democratic Institute for International Affairs for a more thoroughgoing, nuanced treatment.

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