Green Room

Justice Scalia: “Learn to love the gridlock.”

posted at 1:04 pm on October 8, 2011 by

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.

Recently in the Green Room:

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Good article Karl. It seems that bho wants to go around congress to do whatever he wants and it seems that congress can not do anything about it or doesn’t want to? bho does not believe in our constitution or in our Republic by what he says and does daily, IMO.
L

letget on October 8, 2011 at 1:15 PM

It’s there so the legislation that does get out is good legislation.

Yes, and it’s working so well lately. Just look at Obamacare, the Dodd-Frank financial laws, etc.

I think Scalia needs to go back and take a second look at his theory.

AZCoyote on October 8, 2011 at 2:31 PM

Good on Scalia for giving a much-needed civics lesson. Gridlock is good, for the most part. Every now and then it’s necessary to overcome it long enough to do things like get rid of Obamacare. But in general, the less movement and action on the part of government, the better.

J.E. Dyer on October 8, 2011 at 2:38 PM

Good on Scalia for giving a much-needed civics lesson. Gridlock is good, for the most part. Every now and then it’s necessary to overcome it long enough to do things like get rid of Obamacare. But in general, the less movement and action on the part of government, the better.

J.E. Dyer on October 8, 2011 at 2:38 PM

If gridlock only has to be overcome for government to undo its screwups, I wouldn’t even use the “for the most part” qualification.

gryphon202 on October 8, 2011 at 2:56 PM

Yes, and it’s working so well lately. Just look at Obamacare, the Dodd-Frank financial laws, etc.

I think Scalia needs to go back and take a second look at his theory.

AZCoyote on October 8, 2011 at 2:31 PM

Scalia’s thesis is not that gridlock is working. He is saying that we shouldn’t worry about it when it does occur. Personally, I think popular election of senators was a HUGE mistake that contributed to the current problem. Regardless, odious legislation isn’t a failure of gridlock. It results from an absence of gridlock.

gryphon202 on October 8, 2011 at 3:01 PM

Yes, and it’s working so well lately. Just look at Obamacare, the Dodd-Frank financial laws, etc.

I think Scalia needs to go back and take a second look at his theory.

AZCoyote on October 8, 2011 at 2:31 PM

Scalia’s thesis is not that gridlock is working. He is saying that we shouldn’t worry about it when it does occur. Personally, I think popular election of senators was a HUGE mistake that contributed to the current problem. Regardless, odious legislation isn’t a failure of gridlock. It results from an absence of gridlock.

gryphon202 on October 8, 2011 at 3:01 PM

Yes, and it’s working so well lately. Just look at Obamacare, the Dodd-Frank financial laws, etc.

I think Scalia needs to go back and take a second look at his theory.

Actually, no, he doesn’t; you may want to rethink your comment, though.

Obamacare’s passage took the willful abuse of the rules & procedures to pass. As for Dodd-Frank, separation of powers can’t prevent “Parlimentary-type” results when one party controls House, Senate and Presidency.

BD57 on October 8, 2011 at 4:36 PM

BD57 on October 8, 2011 at 4:36 PM

Furthermore their passage was possible because we elected single party rule for both houses of Congress and the POTUS. A very unusual state for the composition of our Fed government. But it does illustrate the need for checks and balances and why divided government is superior to the preservation of liberty.

MJBrutus on October 9, 2011 at 4:27 AM

This post has been promoted to HotAir.com.

Comments have been closed on this post but the discussion continues here.

Allahpundit on October 9, 2011 at 10:14 PM

Yes, we have to houses of Congress that are equally powerful but the Senate has lost its meaning. The idea was that the Senate represented the State governments and the House represented the people. We now have a system where the House represents the people and the Senate represents the people in the largest metro areas of a state. The Senate, no longer being elected by the state legislatures, is for all practical purposes elected by the largest cities of the state which swamp everyone else out in a “popular vote” at large election. Pittsburgh and Philadelphia control Pennsylvania’s Senate delegation. Los Angeles and the San Francisco Bay area cities control California’s, Wilmington controls Delaware’s, Chicago control’s Illinois’, etc.

crosspatch on October 9, 2011 at 8:29 PM