Extract from: https://www.gpo.gov/fdsys/pkg/CHRG-112shrg70991/html/CHRG-112shrg70991.htm
STATEMENT OF HON. ANTONIN SCALIA, ASSOCIATE JUSTICE, THE
SUPREME COURT OF THE UNITED STATES, WASHINGTON, DC
Justice Scalia. Thank you, Mr. Chairman, members of the
committee. I am happy to be back in front of the Judiciary
Committee where I started this pilgrimage.
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 are 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? Well, a lot of hands will
go up. No, not just No. 48 and the big ones. How many of you
have read the Federalist Papers cover to cover? Never more than
about 5 percent. And that is very sad, especially if you are
interested in the Constitution.
Here is a document that says what the Framers of the
Constitution thought they were doing. It is 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 is even a little more fundamental than the one
that Stephen 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 the
response I get--and you will get this from almost any American,
including the woman that Stephen was talking to at the
supermarket--is freedom of speech, freedom of the press, no
unreasonable searches and seizures, no quartering of troops in
homes, etc.--the marvelous provisions of the Bill of Rights.
But then I tell them, if you think that the Bill of Rights
is what sets us apart, you are crazy. Every banana republic 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 that 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, they were 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--think of the
word ``constitution;'' it does not mean a bill of rights, it
means structure. When you say a person has a sound
constitution, you mean he has a sound structure. Structure is
what our Framers debated that whole summer in Philadelphia, in
1787. They did not talk about a Bill of Rights; that was an
afterthought, wasn't it? The real 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 becomes 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 is 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. It
can just make the 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 separate bodies in the legislature
equally powerful. It 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 to speak in a seminar
on separation of powers, and when I get there, I find that all
we are talking about is independence of the judiciary. Because
the Europeans do not 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 is
never any disagreement between the majority in the legislature
and the prime minister, as there is sometimes between you and
the President. When there is 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.
You know, the Europeans look at our system and they say,
well, the bill passes one House, it does not pass the other
House (sometimes the other House is in the control of a
different party). It passes both Houses, and then this
President, who has a veto power, vetoes it. They look at this
and they say, ``It is gridlock.''
And I hear Americans saying this nowadays, and there is a
lot of that going around. They talk about a dysfunctional
Government because there is disagreement. And the Framers would
have said, ``Yes, that is exactly the way we set it up. We
wanted this to be power contradicting power because the main
ill that besets us,'' as Hamilton said in the Federalist paper
when he justified the inconvenice of a separate Senate, is an
excess of legislation.'' This is 1787. They did not know what
an excess of legislation was.
So unless Americans should appreciate that and learn to
love the separation of powers, which means learning to love the
gridlock that it sometimes produces. The Framers believed that
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, so that they think it terribly unfair,
it does not 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 is there for a reason: so that the
legislation that gets out will be good legislation.
And thus I conclude my opening remarks.
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