You’ve heard the old maxim that ignorance of the law (ignorantia juris) is no excuse. Be that as it may, U.S. Supreme Court Justice Antonin Scalia apparently believes that the ignorance of a jurist is sufficient to excuse the U.S. Supreme Court from its duty to support and defend the Constitution, especially when it involves judicial oversight of alleged Executive abuses in cases involving national security. The justice’s extraordinary plea of incompetence has deadly implications for the constitutional self-government of the American people. For starters, where national security cases are concerned, the Constitution’s much vaunted “separation of powers” is pronounced dead on this plea’s arrival. As I say in my most recent blog post:
“… when it comes to possible abuses of the Executive’s security powers, the Executive can always withhold information from the Judiciary, effectively precluding constitutional oversight. By pleading ignorance to excuse the Supreme Court’s dereliction of duty, Justice Scalia simply surrenders to this abusive evasion, effectively erasing the separation of powers on the national security front. Instead, the Court should demand, under penalty of law, the information it requires to do its duty.”
Scalia says, “I don’t know how serious the danger is in this NSA stuff. …” But the concerns over the NSA’s blanket surveillance of all Americans isn’t about the danger “in this NSA stuff.” It’s about the presumptive lack of danger (in the national security sense) of the communications of Americans who are, and are presumed to be, innocent of any conspiracy to attack the United States. It’s about the danger posed to their well-being by the government instituted to secure their unalienable rights. It’s about the threat to their economic and political liberty from a government licensed by judicial dereliction to collect and sift through every scrap of information they move along the highways and byways of electronic media in various forms.
Presumably, Scalia was nominated and confirmed as a justice on the Supreme Court because he does know about those kinds of dangers. More importantly, he knows, or ought to know, that the Constitution was devised in order to prevent the necessary functions of government from degenerating into tools and devices for lawless tyranny. When he took his oath he swore to support and defend the Constitution. He’s not supposed to stand idly by while the Executive branch pretends to fight the terrorist threat to life by becoming the greatest possible threat to the liberty whose blessings the Constitution aims to secure.
I’ve often had occasion in this space to speak of the other old maxim, “Inter armes, silent leges,” in the midst of arms, the laws fall silent. Justice Scalia apparently has an update in mind for the 20th century: “Under threat, the people’s rights fall dead.” But respect for God-endowed unalienable rights is the first premise of America’s identity as a nation. So Scalia’s pre-emptive capitulation to Executive abuses amounts to saying that, in order to avoid being murder by terrorists, America must kill itself.
This would be less inexcusable if there were no convincing evidence for the conclusion that America’s self-extinction is exactly what the present occupant of the White House has in mind. But I suspect that Scalia absented himself from the most recent State of the Union Address precisely because he knows better. He knows better because of Obama’s issuance of executive orders with no warrant in the laws or Constitution of the United States. He knows better because of Obama’s relentless assault on the strategic and conventional military strength of America’s armed forces. He knows better because of Obama’s abuse of the IRS to seek out and destroy his faction’s political opponents.
Beyond what Justice Scalia knows or ought to know about Obama’s actions, there is what he knows or has no excuse for not knowing about America’s situation. The greatest threat prolonged warfare poses to constitutional self-government doesn’t necessarily come from external enemies. It comes from the systematic disregard for rights, due process and legal civility that the excuse of danger renders inevitable. In times of peril, the question isn’t whether liberty will be damaged. It’s whether the damage will be so deep, systematic and prolonged that it destroys liberty in principle, and in the character, memory and expectations of the people.
Some think it to be a judgment from God that America now confronts a world of peril at a time when someone occupies the White House who has dreamt his whole life of using just such a moment to establish the dictatorship his ideology predicts and demands. Is it on account of the fear of God that Justice Scalia thinks it best to bow to His judgment? Or is it some other concern that leads him to abdicate the duty he swore, in the sight of that Supreme Judge, to give judgment without fear or favor. However that may be, the justice’s proposed abdication of duty serves Americans in at least one respect: It sends clear notice that among those who now occupy high positions in our constitutional government, not even someone with the reputation Justice Scalia has built up can be counted upon courageously to see, think through and rouse America’s conscience against the tyranny now being prepared for us.
If we wish to remain a free and self-governing nation, we the people of the United States will have to find the wisdom, clarity and courage to do it for ourselves.
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