EDITORIAL

What Do You Think Is The Reason That America Is Such A Free Country? 

The late Antonin Gregory Scalia, American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016, was described as the intellectual anchor for the originalist and textualist position in the U.S. Supreme Court’s conservative wing.

In one of his appearances before the committee on the judiciary of the United States Senate, he sought to set the record straight on what makes the U.S. unique and different from most of the other countries in the world.

He lamented the fact that a lot of people who claimed scholarships, especially in the field of law were bereft of what was obtained in the constitution because of the lack of reading.

“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,” said Justice Scalia.

He said that in his speaking engagements at learning institutions, he posed questions such as “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?”

The responses he argued that he received without exception were, “freedom of speech, freedom of the press, no unreasonable searches and seizures, no quartering of troops in homes, etc.”

The Justice, however, was appalled at these types of feedback and posited thus:

“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.”

He further argued that those were just mere words on a 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.” 

Justice Scalia also noted that “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.”

He further explained that America’s mark of distinction is the structure of its 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,” said Scalia.

Furthermore, he stated that there are few countries in the world that have a separately elected chief executive.

In Europe, he stated the discussion for the most part was centered on independence of the judiciary, given that the “Europeans do not even try to divide the two political powers, the two political branches–the legislature and the chief executive.” 

He argued further, “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 [the senate] 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.”

Moreover, he said, the Europeans criticize the U.S. system for its bill procedure, the veto power of the president, and the adverse effect of the gridlock.

 He noted that Americans, too, now talked about a dysfunctional government because of disagreement between the parties but this was something that should be welcomed.

According to Scalia, 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 inconvenience of a separate Senate, is an excess of legislation.” 

“This is 1787. They did not know what an excess of legislation was,” he posited.

The erstwhile jurist concluded back then that “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 gridlock. It is there for a reason: so that the legislation that gets out will be good legislation.”

Now, as another general election draws nigh amid what could be described as turbulent times, Justice Scalia insights, may, on reflection, warrant Americans cherishing the system they have inherited and which have served them well over the years.

Readers Bureau, Contributor

Edited by Jesus Chan

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