Justice Scalia: “Learn to love the gridlock”

posted at 6:51 pm on October 9, 2011 by Karl

It is a shame that Reuters was about the only media outlet to report on this part of this week’s Senate Judiciary Committee hearing:

Supreme Court Justice Antonin Scalia on Wednesday rejected concerns by Americans of a dysfunctional government because of disagreements and difficulty in getting legislation through Congress.

Such complaints escalated earlier this year when Congress squabbled over the debt ceiling while President Barack Obama and his fellow Democrats in the Senate battled with Republican lawmakers, especially in the House of Representatives.

Scalia’s remarks, which you can watch (for the time being) at roughly the 37-minute mark of the Senate’s archived webcast, are worth reading in full. Scalia begins by noting how little Americans know of their Constitution, even when he speaks to law students who presumably have an interest in it:

I ask them, “Why do you think America is such a free country? What is it in out 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 *** 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 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, it’s just words on paper, what our Framers would have called a “parchment guarantee.” And the reason is that the real constitution of the Soviet Union — you think of the word “constitution” — it doesn’t mean “bill” it means “structure”: [when] you say a person has a good constitution you mean a sound structure. The real constitution of the Soviet Union *** that constitution 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 govenment. 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. 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 him 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 this system and say “It passes one house, it doesn’t pass the other house, sometimes the other house is in the control of a different party. it passes both, and this president, who has a veto power, vetoes it,” and they look at this, and they say (adopting an accent) “Ach, it is gridlock.” I hear Americans saying this nowadays, and there’s a lot of it going around. They talk about a disfunctional 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 besetting us — as Hamilton said in The Federalist when he talked about a separate Senate: “Yes, it seems inconvenient, 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.

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 protector of minorities, [we lose] 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. Americans should appreciate that; they should learn to love the gridlock. It’s there so the legislation that does get out is good legislation.

These days, the complaints come mostly from progressive elitists in the ruling and chattering classes — Gov. Bev Purdue, fmr Obama budget director Peter Orszag, Jeffrey Sachs, Ezra Klein, Fareed Zakaria, and so on. When they don’t get their way (usually some version of Euro-socialism), their solution is to radically alter our system of government, rather than to make better arguments or listen to their fellow citizens. Even Alexander Hamilton would shudder.

Update (Allahpundit): Here’s video via C-SPAN. I could have clipped the part excerpted by Karl — that begins at around 17:30 — but if you’re a Court-watcher or constitutional junkie, the entire hearing is pure sugar. Skip to any point in the course of its two and a half hours and you’ll find something to hold your interest. Perfect viewing for a slow Sunday night.

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“Learn to love the gridlock”

Way ahead of you.

mad saint jack on October 9, 2011 at 6:57 PM

I do trust Justice Scalia’s health is good.

toenail on October 9, 2011 at 7:00 PM

So,Scalia is saying that Law students,or some,haven’t read the Federalists Papers!!

Me thinks,maybe Liberal Indoctrination by Lefty Professors!

canopfor on October 9, 2011 at 7:02 PM

Substitute “Congress” with “law students”…

SouthernGent on October 9, 2011 at 7:04 PM

I love the smell of gridlock in the afternoon.

JimK on October 9, 2011 at 7:08 PM

as Hamilton said in The Federalist when he talked about a separate Senate: “Yes, it seems inconvenient, 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.

Amen.

miConsevative on October 9, 2011 at 7:14 PM

I love the current gridlock… looking forward to breaking the logjam in January 2013…

Khun Joe on October 9, 2011 at 7:16 PM

by Karl

I was hoping this story would make it to Hot Air….Great post Karl. Watched the vid yesterday. Scalia is just brilliant.

Rovin on October 9, 2011 at 7:17 PM

In all of the parliamentary countries the chief executive is the creature of the legislature.

And yet we hear how often their structure is better than ours.

cozmo on October 9, 2011 at 7:19 PM

I love to listen to Scalia. What a brilliant man.

ptcamn on October 9, 2011 at 7:28 PM

Update (Allahpundit): Here’s video via C-SPAN.

Thanks Allah…

… and KARL.

Seven Percent Solution on October 9, 2011 at 7:32 PM

Hallelujah! Love to hear him talking sense.

So many people are so ill-educated about this country (not a coincidence given who rules the schools).

I remember an argument with crr6 where I said something about how the Constitution was a grant of power from the people to the government. She said I was making stuff up.

In Europe, when the party in power wants to do something, they just do it. This sounds good to a lot of Americans, but it shouldn’t.

Missy on October 9, 2011 at 7:34 PM

The republican system of government is made so as to divide the sovereign powers of the Nation so that they cannot be easily concentrated. The Framers went further to ensure that there were checks and balances for the powers via the other branches of government: they are not ‘co-equal’ but separate powers with checks and balances. There is no ‘equal’, as an example, to writing legislation and passing it – the Executive can’t do that nor the Judicial.

The bicameral legislature was meant to have a popularly elected House and a Senate that was a gathering place of the interests of the States which would be like ambassadors sent by the States to determine items of common interest. The Progressives pushed through changes to that as the States were actually using their Senators to stymie legislation that they disagreed with by not assigning Senators. That put the government into ‘gridlock’ just like it should, but the Progressives complained that ‘nothing was getting done’ (ie. their agenda items weren’t even being brought up).

Within each House there are divisions so as to allow the minority to put stumbling blocks in the way of the majority. Going into the 1850′s the House and Senate had the exact same way of working, and in the House of Representatives there was a filibuster. Can you imagine that, today? Of course that got in the way of ‘things getting done’ and was finally negotiated out of the rules… but nothing stops those rules from being reinstated save political expediency.

The problem is that political expediency pushes against the roadblocks, checks and balances, and seeks to make unitary a bicameral legislative branch… thus making the popular will the only guiding path for both houses. Which means that politics and pay-offs become a lure to getting corruption into the system for votes… what was a minor problem for some petty nepotism in the early 19th century turned into full-swing political machines at the end of it. And the excuse for ‘streamlining’ government is always, and ever, that it is expedient and ‘things need to get done’.

No, actually, for the most part they don’t. Outside of a very few items for the federal government given to it to do by the States, there isn’t much in the way of pressing business until politicians want more power over the population so as to secure their hold on elections. Up until the Progressive era there was a 70% turnover in the House and Senate during elections. After that only in a few instances did the rate go over 30%. Once the power got put in place in DC it tended to stay there.

Now the objective must be to yank it back and out of the hands of politicians and political machines. And watch those used to this sucking chest wound in our Nation cry out that it will HURT to heal it. You betchya. And we will be dead as a Nation if we don’t. What we are seeing is the death of representative democracy to run a republic. To end that the power must be restored to the rightful hands of the States and the people for all those things grabbed in the 20th century.

If you vote for a swell ‘manager’ type who wants to keep our current and decaying system intact, then your vote is for this system to decay further, our liberties to be eroded further and the Nation to die a slow, horribly and costly death due to the authoritarian system we currently have. If you want a better way to do things, then look at the way they were done when the system worked and realize that ‘getting things done’ by a large federal government may just be contrary to you staying free and keeping your liberty. We the people can handle our liberty without the ‘help’ of government. With its help we will assuredly lose it all not just for ourselves but possibly for all mankind.

ajacksonian on October 9, 2011 at 7:41 PM

The last century witnessed a dramatic increase in executive power via administrative edicts, largely unconstrained by the legislature, and an equally if not even more spectacular self-aggrandizement by Justice Scalia’s own branch. Basically the Congress – divided as ever against itself – has conducted a lengthy retreat, occasionally collapsing into a rout – on two fronts. Not quite Poland 1939 – gridlock while being strafed and dive-bombed by Stukas and encircled by panzers and Red Army formations was doubtless worse – but probably not something the bi-national patriot Kosciusko would have welcomed either.

Seth Halpern on October 9, 2011 at 7:41 PM

Scalia, an American Patriot! He understands our government, now if only American citizens can.

IowaWoman on October 9, 2011 at 7:41 PM

This is why progressives resent the constitution. How can they advance America to their ultimate ideal utopia if they can’t pass the laws required to get us there? The very idea of “progress” requires laws to be enacted to change the status quo. Thus their frustration with gridlock. The founding fathers, on the other hand, were not interested in this idea of progress by new laws. They created a system to discourage it if it was not the will of the overwhelming majority, and it usually isn’t.

Ergo liberal socialists like Tom Friedman who praise the efficiency of a centralized power system like communist China. Ironic as it is, for it was always the left who warned about the slippery slope of a powerful state. Now, however, that their ideals have become mainstream, they rue the very system they once were so thankful existed for now being unable to turn those ideals into law.

Gridlock is a feature not a bug, and it should be a feature appreciated by the left.

keep the change on October 9, 2011 at 7:42 PM

This is why what Reid did to change the Senate rules was so damaging. When a minority’s rights to be heard are trounced then you are heading down a path towards majoritarian/mob rule. The minority doesn’t have to win (obviously they don’t have the numbers to win) but in our system of government, they have a right to be heard and that is a good thing, if not an efficient thing.

txmomof6 on October 9, 2011 at 7:46 PM

Gee, someone oughta teach this stuff in schools.

Rational Thought on October 9, 2011 at 7:48 PM

Sen. Leahy sounds like he’s about to drop over dead. Good Lord that man needs to retire.

spec_ops_mateo on October 9, 2011 at 7:51 PM

Rational Thought,

Gee, someone oughta teach this stuff in schools.

Nah, Transgender Latino studies is far more important.

Mike Honcho on October 9, 2011 at 7:56 PM

In Europe, when the party in power wants to do something, they just do it. This sounds good to a lot of Americans, but it shouldn’t.

Missy on October 9, 2011 at 7:34 PM

A lot of Americans are ignorant morons. But that is a given.

What I don’t get though, as conservatives we all (or all should) understand this concept yet many of us oppose enlarging the House. Enlarging the House is a no-brainer for more gridlock and protection of our rights. And our Founders never envisioned so many represented by so few.

NotCoach on October 9, 2011 at 7:58 PM

Seth Halpern on October 9, 2011 at 7:41 PM

I think a larger issue is the congress unconstitutionally delegating their power to legislate to large government bureaucracies such as the EPA.

NotCoach on October 9, 2011 at 8:01 PM

Spathi on October 9, 2011 at 8:23 PM

Everything you post is misleading or deliberately obtuse, but this is your best link yet:

“Not Found
Sorry, but you are looking for something that isn’t here.”

NotCoach on October 9, 2011 at 8:29 PM

Test

CW on October 9, 2011 at 8:30 PM

Justice Scalia totally owns Feinstein at about 1:09:00.

KSgop on October 9, 2011 at 8:33 PM

Gridlock is good. The curbing of centralized power was what animated our founding fathers’ philosophy of governance.

Justice Scalia is a jewel of a jurist. I am sure that he has plenty of wisdom to offer re the usurpation of power by the Executive branch via unelected agencies and czars. Equally, he probably has solid advice to give to the Legislative branch for its ceding of responsibility (out of political cowardice?) to the Executive.

ajacksonian: What presidential candidates of our current crop offer the closest to the ideal you describe? Your contributions to HA are always welcome, for they are lucid explanations.

onlineanalyst on October 9, 2011 at 8:36 PM

““Yes! That’s exactly the way we set it up. We wanted this to be power contradicting power because the main ill besetting us — as Hamilton said in The Federalist when he talked about a separate Senate: “Yes, it seems inconvenient, 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.”

Pass this bill…!

… Oh, wait!

Seven Percent Solution on October 9, 2011 at 8:48 PM

Sen. Leahy sounds like he’s about to drop over dead. Good Lord that man needs to retire.

spec_ops_mateo on October 9, 2011 at 7:51 PM

If only! Maybe something could happen with Fast and Furious then. But would the chair go to Grassley or someone else? How does that work?

Eren on October 9, 2011 at 8:55 PM

I’ve known since about the 7th grade that the american system was set up for more gridlock than consensus, and I had a smart enough teacher to teach me that gridlock in Washington is a good thing. Teachers today just spout liberal ideology. “I’m just a bill up on capitol hill, but I’m gonna be a law someday!” That little cartoon should be required viewing for liberals.

Mini-14 on October 9, 2011 at 9:10 PM

Spathi on October 9, 2011 at 8:46 PM

Like I said, misleading and deliberately obtuse. That case and Alwaki have nothing in common. Besides those who think tin foil is high fashion, do you really believe you convince anyone with such dishonest drivel?

NotCoach on October 9, 2011 at 9:36 PM

Scalia demonstrates once again why he is my favorite of the Chief Justices.

Chaz706 on October 9, 2011 at 9:42 PM

Thanks for posting this. I watched the whole thing. Very interesting “conversations”.

MrX on October 9, 2011 at 9:49 PM

I HEART GRIDLOCK. But not on the 405.

leftnomore on October 9, 2011 at 10:55 PM

I hate to disagree with the esteemed justice, but the real difference in our government is the 2d Amendment.

None of the other governments cited have any other appropriate potential solution.

Special Forces Grunt on October 9, 2011 at 10:57 PM

This is excellent! Scalia is great! Feinstein just got educated by Scalia. It was glorious!

JellyToast on October 9, 2011 at 11:05 PM

I submit that almost very law passed since 1800 has hurt more than it has help.

esnap on October 9, 2011 at 11:08 PM

Once in a while, the leftists actually come and and speak the truth. “If only we could be like (Red) China for a day! The things we could accomplish!”

Yep. Re-education camps, suppression of free speech, forced labor camps.

GarandFan on October 9, 2011 at 11:14 PM

Durbin and that other Dem (can’t think if his name) tried to get the justices to agree to recuse themselves where there are perceived conflicts and allow a former Superme Court Justice to fill their seat…. in other words. we want Judge Thomas out and some lib take his place when ObamaCare comes up. That didn’t go over well with either of the justices but the chairman said he was going to pursue this (chat about it later).

Some of this is hilarious.

JellyToast on October 9, 2011 at 11:24 PM

Scalia demonstrates once again why he is my favorite of the Chief Justices.

Chaz706 on October 9, 2011 at 9:42 PM

I like Scalia too-but he’s never been Chief Justice. Current Chief Justice is John Roberts.

annoyinglittletwerp on October 9, 2011 at 11:52 PM

Scalia is spot on: the system is designed for it to be difficult to impose new laws. As it turns out, perhaps not difficult enough!

Much can be blamed on the change entailed by the 17th Amendment for one thing, and the change in Senate rules on the filibuster some years ago for another thing.

Senators were supposed to represent the interests of the several States in the Congress. The House was “the people’s house” in which their direct voting carried the day. With short terms and biennial election, the will of the people was to be reflected in the House, insofar as it is possible in a representative democratic republic.

The Senate was to be elected by the State Legislatures for longer terms, and to bring the interests of the States to the Congress. The 17th Amendment perverted that goal in one of the first “progressive” assaults on the Constitution.

The other destructive change was by Democrats, lowering the requirement for cloture in the Senate to 60 votes from the previous 2/3 or 67. This made it much easier to pass controversial legislation – it had only taken 34 Senators willing to block a bill to stop it before the change.

Gridlock is a good thing. It might have stopped much of what must now be undone at great pain and cost.

Adjoran on October 10, 2011 at 12:57 AM

Since this site is choosing to ignore Sarah Palin now….
I submit a video you have to watch. It is Sarah Palin’s speech on Friday night. This is what I consider to be one of, if not the best, speech that Sarah Palin has ever given… especially after her saying no to running for the Presidency.

Question… after you watch it, do you really think any of the Republican candidates could or would be able to make a similar speech. That is why she is not running. She has a bigger mission…. to attack the entire corrupt system and to promote her Conservative principles.

Sarah Palin Unshackled – Defending the Republic – http://tinyurl.com/6bdpfvz

PhilipJames on October 10, 2011 at 1:45 AM

I’ve met Scalia. I know I’m stating the obvious but he’s a really brilliant man but its quite amazing when you see it in person.

Anyways, when Scalia cays that even law students have little knowledge of the Constitution, he isn’t kidding. Constitutional law classes do not teach about the Constitution.

They teach about Constitutional case law which is very, very, very different from learning about the document itself. Most Law schools barely focus on the Constitution in their classes.

Conservative Samizdat on October 10, 2011 at 1:54 AM

Sarah Palin Unshackled – Defending the Republic – http://tinyurl.com/6bdpfvz

PhilipJames on October 10, 2011 at 1:45 AM

Sarah Palin Irrelevant. She ain’t running.

annoyinglittletwerp on October 10, 2011 at 2:16 AM

I agree with Justice Scalia, though the 2nd Amendment is rather… unique.

Having said that, if gridlock is built into our system, what’s the problem with more political parties? Do you think that more parties would increase or decrease gridlock?

Scott H on October 10, 2011 at 5:42 AM

Conservative Samizdat on October 10, 2011 at 1:54 AM

It’s not being taught on purpose.
This is why I would support mandatory constitutional training for anyone and everyone who enters any kind of police fore in America. From small town sheriff to FBI.

How that would work out in the practical arena, I’m not so sure. Because whoever did the training would have influence. But I think the safest route would be that the training would have to occur and be provided by the locality where they worked and by those outside of the dept. they work for.

JellyToast on October 10, 2011 at 6:17 AM

Scott H on October 10, 2011 at 5:42 AM

There is no prohibition to 3rd parties, but winner take all politics makes them difficult to maintain. Parliamentary systems have as many parties as there are people because they practice proportional representation.

NotCoach on October 10, 2011 at 8:42 AM

Gridlock is the natural condition which was designed into our system. As much as possible, the founders tried to prevent national legislation from succeeding, so that only the most important items would ever achieve passage and signing. The system was designed to slow the process, so that emotions could cool from whatever heat had brought the item to the forefront, and passage would be obtained in a cold logical manner, not responsive to the mob’s passions.

MTinMN on October 10, 2011 at 10:37 AM

Justice Scalia is brilliant. I got to have dinner with the Justice when he came to UCM a couple of years ago (it pays to be the tech who keeps the data safe for the Political Science department :D) and got to pick his brain on a few subjects that were important to me and learned a lot.

Wolftech on October 10, 2011 at 12:17 PM