A proper understanding of the Fourth Amendment can accommodate modern technology, even though that technology was not known at the time.
On Faith: Lessons from an American Believer is more than a collection of Justice Antonin Scalia’s speeches on religion and American public life. Edited by son Christopher Scalia and former law clerk and long-time confidant Edward Whelan, this eleven-speech collection also includes nine personal reflections from friends and family, four extended excerpts from judicial opinions by Scalia, two prayers (one by St. Thomas More and another by St. Ignatius of Loyola), a funeral mass homily (by son Fr. Paul Scalia), and a letter by Justice Scalia to a Presbyterian minister about the funeral ceremony for Justice Lewis Powell.
There is no other book quite like On Faith about any other Supreme Court Justice or American Catholic. Then again, there has been no other Catholic Justice quite like Antonin Scalia—neither among the six who preceded him (Roger Brooke Taney, Edward Douglass White, Joseph McKenna, Pierce Butler, Frank Murphy, and William Brennan), nor among the six who have followed (Anthony Kennedy, Clarence Thomas, John Roberts, Samuel Alito, Sonia Sotomayor, and Brett Kavanaugh).
This is the second published collection of Scalia speeches edited by the same Scalia/Whelan duo. Their earlier book, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived, includes a wider range of speeches. With one exception, all of the On Faith speeches were previously published in Scalia Speaks. Although this second collection is narrower than the first, it is deeper. On Faith is a better starting point than Scalia Speaks for those who want to understand Justice Scalia from the inside. The book’s personal reflections by people who knew and loved him, together with a foreword by Clarence Thomas and an introduction and funeral homily by Fr. Paul Scalia, give On Faith a more intimate feel. Despite the powerful sense of his absence from our temporal world, the mortal Justice Scalia is very present in these pages.
So, too, are Catholic sacraments. The book begins with a reference to marriage, present in the dedication to Maureen Scalia and accompanying epitaph from A Man for All Seasons: “Why, it’s a lion I married! A lion! A lion!” The book ends with the Eucharist, present through the funeral mass homily.
The Eucharist is also central to the first personal reflection, “Really Present,” by Judge Patrick Schiltz. Schiltz’s title has a double meaning. The first meaning appears in his description of Justice Scalia’s intensely prayerful demeanor during the Eucharistic Prayer at Mass: “Kneeling, head bowed, eyes closed, hands tightly clasped, brow deeply furrowed, Justice Scalia was so focused that he almost seemed to be in pain. But at the moment of the consecration of the bread—and then again at the moment of the consecration of the wine—he would raise his head, open his eyes, and look intently at the newly consecrated bread or wine as the priest held it aloft.” Justice Scalia was really present. The second meaning refers to the Real Presence of Jesus Christ in the Eucharist: in the form of bread and wine, the Eucharist is really, in substance, the body and blood of Christ. Schiltz links these two meanings: “Kneeling next to [Justice Scalia], I realized that this was what it looked like when someone truly believed what I professed to believe…. After attending one Mass with Justice Scalia, I never worshipped—or thought about worship—the same way.”
The Real Presence is one of those Catholic doctrines that non-Catholics find hard to comprehend. Such beliefs are at the core of “Not to the Wise—the Christian as Cretin.” This was a speech Scalia would often deliver to groups of Catholic lawyers, many of whom had Thomas More as their patron saint. Scalia would sometimes call this his “Two Thomases” speech because of its contrast between the martyred More and the “enlightened” Jefferson. In it, Scalia describes “the attitude of the wise” toward “Christian fundamentalists” as “largely poor, uneducated and easy to command.” This was the same attitude the worldly wise had of “traditional Catholics,” Scalia would say—“those who do such positively peasant-like things as saying the rosary, kneeling in adoration before the Eucharist, going on pilgrimages to Lourdes or Fatima, and, worst of all, following indiscriminately (rather than in smorgasbord fashion) the teachings of the Church.” Scalia would exhort his audience to embrace the scorn of the Thomas Jeffersons of the world. His aim was “to impart, to those already wise in Christ, the courage to have their wisdom regarded as stupidity. Are we thought to be fools? No doubt. But, as St. Paul wrote to the Corinthians, ‘We are fools for Christ’s sake.’”
A Judge and a Catholic
On Faith has a trinitarian structure. The editors distribute Justice Scalia’s eleven speeches among three categories. These categories expand outward both in the kinds of lessons they offer and in the audience for each: Personal Lessons for Christians; Political Lessons for Believers; and Public Lessons for Americans. Each section contains the same number of personal reflections by others (three), but an uneven distribution of Justice Scalia’s speeches. “Personal Lessons for Christians” includes six Scalia speeches, occupying almost half the book’s pages. “Political Lessons for Believers” contains four Scalia speeches and an excerpt from his opinion for the Court in Employment Division v. Smith. “Public Lessons for Americans,” by contrast, contains just one Scalia speech, and three Scalia opinion excerpts.
It is no surprise that all three judicial opinions excerpted in “Public Lessons for Americans” are dissents. As the subtitle of the book indicates, Scalia was an American believer. But he did not look to opinions of the Supreme Court for the content of his constitutional faith. His understanding of American orthodoxy was rooted in the history and traditions of the United States, not an institutional magisterium. Scalia justified even his interpretive orthodoxy of originalism by reference to national tradition. In “Faith and Work—How Belief Affects Vocation,” Scalia professed a view of the Constitution as “a document containing a fixed and limited number of specific guarantees that do not expand and contract from age to age (though of course they must be applied to new phenomena). That is the traditional view.”
Justice Scalia also adhered to a traditional understanding of judicial office, such that he could say in good faith in the same speech that “Just as there is no Catholic way to cook a hamburger, so also there is no Catholic way to interpret a text, analyze a historical tradition, or discern the meaning and legitimacy of prior judicial decisions—except, of course, to do those things honestly and perfectly.” Scalia’s reference to doing the job honestly and perfectly comes from Christ’s admonition to “be perfect, as your heavenly Father is perfect.” His assertion that there is no “Catholic way” to be a federal judge has a more mixed pedigree. It is at least partially a function of ingrained defensiveness about the relationship between his Catholic faith and his stance toward the constitutional law of abortion.
To criticize the pedigree is not to condemn the position—not necessarily, anyway. “Catholic judges are not special” is true descriptively. Compare Scalia with Kennedy or Brennan. It is true prescriptively, too. With respect to the constitutional law of abortion, the relevant difference between Scalia and Kennedy or Brennan is not that Scalia was a better Catholic, but that he was a better judge.
Although accurate enough descriptively and prescriptively, there is nonetheless something both unsatisfying and un-Scalian in his disclaimer of a distinctively Catholic way of being a good judge. While Justice Scalia would describe his abortion jurisprudence as “simply the product of lawyerly analysis of constitutional text and tradition,” his dissents in abortion cases were more righteous than dispassionate. And that righteousness came from who he was and what he believed—both as a Catholic and as a federal judge.
In his speech, “On Being Different—the Christian as Pilgrim,” Justice Scalia criticized John F. Kennedy’s description of his Catholicism as a “religious affiliation.” “I have always hated that phrase,” said Scalia, “reducing the most profound commitment of a man’s life to a mere membership preference. Ah, yes, I am a Catholic. But I might be a Muslim or a Jew or even an Episcopalian tomorrow, if I should choose to change my ‘religious affiliation.’” Against JFK’s self-description, Scalia invoked an unlikely but altogether more Scalian hero: “Surely the man should have said, ‘I hope no one will vote against me because of what I am.’ That is what my hero Popeye would have said. ‘I yam what I yam.’”
Death and Life
The last words in On Faith go to Justice Scalia himself. They are in a letter he wrote to Presbyterian minister Dr. James C. Goodloe IV commending him for the manner in which he presided over Justice Lewis Powell’s funeral. “Even when the deceased was an admirable person—indeed, especially when the deceased was an admirable person—,” Scalia wrote, “praise for his virtues can cause us to forget that we are praying for, and giving thanks for, God’s inexplicable mercy to a sinner.” The resurrection of Christ, not the virtues of the deceased, should be at the center of a Christian funeral service.
Prayer for the dead is another one of those confounding pious practices that Justice Scalia held up for imitation, and it is a fitting end of On Faith. Quoting his father’s letter to Dr. Goodloe in his funeral mass homily, son Fr. Paul Scalia exhorted those present “to show affection for [Justice Scalia] and do good by praying for him: that all stain of sin be washed away, that all wounds be healed, that he be purified of all that is not Christ. That he rest in peace.”