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Context From The Talk

Peter Berkowitz On The Prevention Of Abuses Of Power

Protecting Personal Liberty 

I’m going to pause for a moment to tell a true story. Justice Scalia who, as you know, passed away last year, served on the United States Supreme Court for almost 30 years. He's famous for judicial theory called originalism. Originalism is connected to a certain understanding of the Constitution. That understanding of the Constitution is embodied in the following statement that Justice Scalia gave about 10 years ago as it happened. I happened to be there at the American ambassador's residence in Israel. Justice Scalia was visiting, and Justice Scalia began his remarks about the American Constitution in this way.

He said, this is from 2006 or so, “Do you know the previous summer,” he's telling this Israeli audience. “The previous summer, I visited the land of my ancestors, Italy, and I marveled once again that the amazing outpouring of artistic genius that was the Renaissance, statues, paintings, frescoes of incredible beauty.” He said, “I can't explain where that explosion of artistic talent came from. I can only say that neither before nor since have we seen such an outpouring of artistic genius.” Scalia was a rough tough guy, but it seemed he had to wipe away a tear, sentimental tear, from his eye. Then he said, “When I contemplate that sweltering summer of 1787, when representatives from 13 states gathered in Philadelphia to draft a new and all but unprecedented form of government,” a charter for new and all but unprecedented form of government, he said, “I have a similar sort of reaction: Never before or since had there been such an outpouring of political genius.”

Justice Scalia paused. To explain to us what he meant, he said, “You know before I was a judge, I was a professor of constitutional law, and I studied comparative constitutional law. That is, I not only studied the American Constitution but other constitutions. I want to tell you something. If I should suffer a terrible misfortune and be exiled from my beloved United States of America, and I had to search for a country that protected my freedom, I would not in the first place look for a Bill of Rights to protect my freedom.” Why is that? He said, “I have read the Bill of Rights provided by the Soviet Union. This Bill of Rights went on for page after page after page.” He said, “Beautiful and elaborate protections of individual rights, and these beautiful and elaborate protections were worth exactly nothing, nothing; scratches on parchment.”

Justice Scalia went on to say if he were exiled by some terrible misfortune what he would look for in the first place is a well-designed Constitution. He’d looked for the structure of the Constitution, the relationship between the various offices, the branches of government. He would look for separation of powers and checks and balances, and the bicameral legislature, and the unitary executive, and an independent judiciary, and federalism, and an extended republic. This is not to say that he would look for an exact image of the American Constitution. It is to say here Justice Scalia, as you probably realize, is echoing Alexander Hamilton's observations in Federalist No. 84. The real protection of our freedoms is the prevention of abuses of power through the wise structure of the legislature, the executive, and the judiciary.

If you want to understand how we protect freedom, study the structure of the Constitution. Of course, what I’ve just said suggests that a high purpose, if not the highest purpose of politics, at least, for Justice Scalia was the protection of individual freedom. Today, not everybody believes that that's so.


Peter Berkowitz, 2017 Hoover Institution Summer Policy Boot Camp