YUL: Man, shut down that hot plate, fool. Those bananas are stinkin' like a dead dog.
SANKA: Back off, back off, you eight ball! This is my mama's secret recipe. And I hope you don't mind keepin' quiet while I catch up on my reading. (opens Incredible Hulk comic book) YUL: What are you talkin' about, readin'? This is a children's book. SANKA: Oh, is that so?
YUL: Yes, that's so. SANKA: If that's a children's book, that mean's it's too advanced for the likes of you. YUL: What are you trying to say? That I'm not smarter than a little child? SANKA: No. What I am saying to you is that you are the kind of club-totin,' raw meat-eatin', me-Tarzan-you-Janein', big, bald bubblehead that can only count to ten if he's barefoot or wearing sandals. YUL: Say whatever it is that you want. Because you're just like every other fool on the island. You're going nowhere, Sanka, and you're thrilled to death about it. But you see me? You see me? I'm different 'cause I know exactly...where I'm going. And after I, Yul Brenner, win the Olympics and become famous, I'm gonna leave the island and live <opens photograph, points to to picture> right down there.
SANKA: (laughs) YUL: What are you laughing about? SANKA: (laughing continues) YUL: What are you laughing about? SANKA: That's Buckingham Palace.
YUL: (surprised)
SANKA: You plan on livin' there, you're gonna have to marry the Queen. JUNIOR: Yul, that's where the Queen of England lives. YUL: (Disappointed, angry, slowly crumples the photograph) SANKA: Face it, Yul Brenner. You can start callin' yourself Madonna, but you're still gonna end up in an outhouse shanty like every other dockworking nobody. JUNIOR: Says who? SANKA: Says me, rich boy. What you know about it? JUNIOR: Well, I know my father started off in a one-room hut. Now, he lives in one of the biggest homes in Kingston. SANKA: Well, he ain't your father. JUNIOR: He doesn't have to be. All he has to do is know what he wants and work hard for it. And if he wants it bad enough, he'll get it. Look, believe me, Sanka, the more Yul Brenners we got makin' it in this world, the better off this world would be. Especially for Jamaicans. <Junior picks up the photograph, uncrumples it, and places it back in front of Yul> Go ahead, Yul Brenner. You go get your palace.
DERISE: Hey, coach. IRV: Yeah. DERISE: I have to ask you a question. IRV: Sure.
DERISE: But you don't have to answer if you don't want to. I mean, I want you to, but...if you can't, I understand. IRV: You want to know why I cheated, right?
DERISE: Yes, I do. IRV: That's a fair question. It's quite simple, really: I had to win. You see, Derice, I'd made winning my whole life. And when you make winning your whole life, you have to keep on winning. No matter what. You understand that? DERISE: No, I don't understand, coach. You had two gold medals. You had it all. IRV: Derice... a gold medal is a wonderful thing. But if you're not enough without it, you'll never be enough with it. DERISE: Hey, coach...how will I know if I'm enough? IRV: When you cross that finish line, you'll know.
"WE have this day been honored with the counsels of a complete gradation of lawyers. We have received the opinion of a Judge, of an Attorney-General, of an Ex-Attorney-General, and of a practising Barrister. I agree with the learned gentleman in his admiration of the abilities of my honorable friend, Mr. Fox. What he has said of his quickness and of his profoundness, of his boldness and his candor, is literally just and true, which the mental accomplishment of my honorable friend is, on every occasion, calculated to extort even from his adversaries.
The learned gentleman has, however, in this insidious eulogium, connected such qualities of mind with those he has praised and venerated, as to convert his encomiums into reproach, and his tributes of praise into censure and invective. The boldness he has described is only craft, and his candor, hypocrisy. Upon what ground• does the learned gentleman connect those assemblages of great qualities and of cardinal defects? Upon what principles either of justice or of equity does he exult with one hand, whilst he insidiously reprobates and destroys with the other?
If the wolf is to be feared, the learned gentleman may rest assured, it will be the wolf in sheep's clothing, the masked pretender to patriotism. It is not from the fang of the lion, but from the tooth of the serpent, that reptile which insidiously steals upon the vitals of the constitution, and gnaws it to the heart ere the mischief is suspected, that destruction is to be feared."
Against Mr. Taylor, speech to the House of Commons, Richard Brinsley Sheridan, date undiscovered at time of posting
"I have taken a wide circuit, and trespassed, I fear, too long upon your patient. Yet I cannot conclude without endeavoring to bring home your thoughts to an object more immediately interesting to us, than any I have yet considered: I mean the internal condition of this country. We may look abroad for wealth or triumphs, or luxury; but England, my lords, is the main stay, the last resort of the whole empire. To this point, every scheme of policy, whether foreign or domestic, should ultimately refer.
Have any measures been taken to satisfy, or to unite the people? Are the grievances they have so long complained of removed? or do they stand not only redressed, but aggravated? Is the right of free election restored to the elective body! My lords, I myself am one of the people. I esteem that security
and independence, which is the original birthright of
an Englishman, far beyond the privileges, however splendid, which are annexed to the peerage. I myself am by birth an English elector, and join with
the freeholders of England as in a common cause.
Believe me, my lords , we mistake our real interest as
much as our duty, when we separate ourselves from
the mass of the people.
Can it be expected that Englishmen will unite heartily in defense of a government, by which they feel themselves insulted and oppressed? Restore them to their rights;
that is the true way to make them unanimous .
It is not a ceremonious recommendation from the throne,
that can bring back peace and harmony to a discontented people. That insipid annual opiate has been administered so long,
that it has lost its effect. Something substantial,
something effectual must be done.
The public credit of the nation stands next in degree
to the rights of the constitution;
it calls loudly for the
interposition of Parliament . There is a set of men,
my lords,
in the city of London, who are known to
live in riot and luxury, upon the plunder of the ignorant ,
the innocent,
the helpless; upon that part of the
community, which stands most in need of, and best de
serves the care and protection of the legislature. To
me, my lords, whether they be miserable jobbers
of Exchange Alley, or the lofty Asiatic plunderers of
Leadenhall
-street,
they are all equally detestable. I
care but little whether a man walks on foot, or drawn by eight or six horses . If is luxury be supported by the plunder of his country, I despise and
detest him.
[...] I hope, my lords, that nothing I have said will be understood to extend to the honest, industrious tradesman, who holds the middle rank, and has given repeated proofs, that he prefers law and liberty to gold. I love that class of men. [...]
I know that I will be accused of attempting to revive distinctions. My lords, if it were possible, I would abolish all distinctions. I would not wish the favours of the crown to flow invariably in one channel. But there are some distinctions which are inherent in the nature of things. There is a distinction between right and wrong; between whig and tory."
Conclusion of a Celebrated Speech of Mr. Pitt, in 1770, in Support of a Motion made in Parliament, to Request the King to Lay Before that Body All the Papers, Relative to Certain Depredations of the Spaniards, and Likewise, to a Treaty Which He was Then Negociating with Spain, William Pitt
"We all know, that the very soul and essence of trade are regular payments: and sad experience teaches us, that there are men, who will not make their regular payments without the compulsive power of the laws. The law then ought to be equally open to all. Any exemption to particular men, or particular ranks of men, is, in a free and commercial country, a solecism of the grossest nature. [...] Another noble peer said [by way of opposition], That, by this bill, one might lost his most valuable and honest servants. This I hold to be a contradiction in terms: for he can neither by a valuable servant, nor an honest man, who gets into debt which he is neither able nor willing to pay, till compelled by the law. If my servant, by unforseen accidents, has got into debt, and I still wish to retain him, I certainly would pay the demand. But upon no principle of liberal legislation whatever, can my servant have a title to set his creditors at defiance, while for forty shillings only, the honest tradesman may be torn from his family, and locked up in a jail. It is a monstrous injustice!" Lord Mansfield (William Murray, 1st Earl of Mansfield), Speech to the House of Lords, On Preventing the Delays of Justice by Privilege of Parliament, 1770
"It has been said by a noble lord on my left hand, that I likewise am running the race of popularity. If the noble lord means by popularity, that applause bestowed by after-ages on good and virtuous actions, I have long been struggling in that race: to what purposes, all-trying Time can alone determine. But if the noble lord means that mushroom popularity, which is raised without merit, and lost without a crime, he is much mistaken in his opinion. I defy the noble lord to point out a single action in my life in which the popularity of the times ever had the smallest influence on my determinations. I thank God I have a more permanent and steady rule for my conduct, -- the dictates of my own breast. They who have forgone that pleasing adviser, and given up their mind to be the slaves of every popular impulse, I sincerely pity. I pity them still more, if their vanity leads them to mistake the shouts of a mob for the trumpet of fame. Experience might inform them, that many, who have been saluted with the huzzas of a crowd one day, have received their execrations the next; and many, who, by the popularity of their times, have been held up as spotless patriots, have, nevertheless, appeared upon the historian's page, when truth has triumphed over delusion, the assassins of liberty." Lord Mansfield (William Murray, 1st Earl of Mansfield), Speech to the House of Lords, On Preventing the Delays of Justice by Privilege of Parliament, 1770
"From motives of peace, instead of issuing my paper in Boston, among New England friends, I went to Rochester, N.Y., among strangers, where the local circulation of my paper—“The North Star”—would not interfere with that of the Liberator, or the Anti-Slave Standard; for I was then a faithful disciple of Wm. Lloyd Garrison, and fully committed to his doctrine touching the pro-slavery character of the Constitution of the United States, also the non-voting principle, of which he was the known and distinguished advocate. With him, I held it to be the first duty of the non-slaveholding States to dissolve the union with the slaveholding States, and hence my cry, like his, was “No union with slaveholders.” With these views I came into western New York, and during the first four years of my labours there, I advocated them with pen and tongue, to the best of my ability. After a time, a careful reconsideration of the subject convinced me that there was no necessity for dissolving the “union between the Northern and Southern States;” that to seek this dissolution was no part of my duty as an abolitionist; that to abstain from voting was to refuse to exercise a legitimate and powerful means for abolishing slavery; and that the Constitution of the United States not only contained no guarantees in favour of slavery, but on the contrary, was in its letter and spirit an anti-slavery instrument, demanding the abolition of slavery as a condition of its own existence, as the supreme law of the land.
This radical change in my opinions produced a corresponding change in my action. To those with whom I had been in agreement and in sympathy, I came to be in opposition. What they held to be a great and important truth, I now looked upon as a dangerous error. A very natural, but to me a very painful thing, now happened. Those who could not see any honest reasons for changing their views, as I had done, could not easily see any such reasons for my change, and the common punishment of apostates was mine.
My first opinions were naturally derived and honestly entertained. Brought directly, when I escaped from slavery, into contact with abolitionists who regarded the Constitution as a slaveholding instrument, and finding their views supported by the united and entire history of every department of the Government, it is not strange that I assumed the Constitution to be just what these friends made it seem to be. I was bound not only by their superior knowledge to take their opinions in respect to this subject, as the true ones, but also because I had no means of showing their unsoundness. But for the responsibility of conducting a public journal, and the necessity imposed upon me of meeting opposite views from abolitionists outside of New England, I should in all probability have remained firm in my disunion views. My new circumstances compelled me to re-think the whole subject, and study with some care not only the just and proper rules of legal interpretation, but the origin, design, nature, rights, powers, and duties of civil governments, and also the relations which human beings sustain to it. By such a course of thought and reading I was conducted to the conclusion that the Constitution of the United States—inaugurated “to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty”—could not well have been designed at the same time to maintain and perpetuate a system of rapine and murder, like slavery, especially as not one word can be found in the Constitution to authorize such a belief. Then, again, if the declared purposes of an instrument are to govern the meaning of all its parts and details, as they clearly should, the Constitution of our country is our warrant for the abolition of slavery in every State of the Union. It would require much time and space to set forth the arguments which demonstrated to my mind the unconstitutionality of slavery; but being convinced of the fact, my duty was plain upon this point in the further conduct of my paper."
Frederick Douglass, The Life and Times of Frederick Douglass, Part 2, Ch.7, 1881
"[...] I have often spoken before you, Fathers [that is, Patricians, or Senators], with some extent, to complain of luxury and the greediness for money, the twin vices of our corrupt citizens; and have thereby drawn upon myself abundance of enemies. As I never spared any fault in myself, I was not easily inclined to favour the criminal excesses of others. But though you paid little regard to my remonstrances, the Commonwealth has still subsisted by its own strength; has borne itself up, notwithstanding your neglect. It is not now the same. Our manners, good or bad, are not the question, nor to preserve the greatness and lustre of the Roman empire; but to resolve whether all we possess and govern, well or ill, shall continue ours, or be transferred with ourselves to enemies. At such a time, in such a state, some talk to us of lenity and compassion. It is long that we have lost the right names of things. The Commonwealth is in this deplorable situation, only because we call bestowing other people's estates, liberality, and audaciousness in perpetuating crimes, courage. Let such men, since they will have it so, and it is become the established mode, value themselves upon their liberality at the expense of the allies of the empire, and of their lenity to the robbers of the treasury: but let them not make a largess of our blood; and, to spare a small number of vile wretches, expose all good men to destruction. [...]" Cato the Younger, Speech before the Roman Senate, On the Punishment of the Cataline Conspirators, 63 BC, translation as appears in The Columbian Orator, 1817
ALSO Translated:
"Often, conscript fathers, have I spoken at great length in this assembly; often have I complained of the luxury and avarice of our citizens, and, by that very means, have incurred the displeasure of many. I, who never excused to myself, or to my own conscience, the commission of any fault, could not easily pardon the misconduct, or indulge the licentiousness, of others. But tho you little regarded my remonstrances, yet the republic remained secure; its own strength was proof against your remissness. The question, however, at present under discussion, is not whether we live in a good or bad state of morals: nor how great, nor how splendid, the empire of the Roman people is; but whether these things around us, of whatever value they are, are to continue our own, or to fall, with ourselves, into the hands of the enemy. In such a case, does any one talk to me of gentleness and compassion? For some time past, it is true, we have lost the real names of things; for to lavish the property of others is called generosity, and audacity in wickedness is called heroism; and hence the State is reduced to the brink of ruin. But let those who thus misname things be liberal, since such is the practise, out of the property of our allies; let them be merciful to the robbers of the treasury; but let them not lavish our blood, and, while they spare a few criminals, bring destruction on all the guiltless."
LEE HAMILTON (Director, Woodrow Wilson International Center for Scholars): Good afternoon to all of you, thank you very much for coming to the Woodrow Wilson International Center for Scholars. My pleasure of welcome you here for the Director's Forum with Antonin Scalia, the Associate Justice of the Supreme Court of the United States. As an institution of advanced research, the Wilson Center seeks to enhance the public dialogue by bridging the worlds of scholarship and policy. Today, we are pleased to welcome a man whose work consistently informs and enlivens the dialogue on the critical issues that confront the country.
Justice Scalia is one of the most prominent legal thinkers of our times. He was appointed to the Supreme Court in 1986 by President Reagan, confirmed by a vote of 98-0. On the court, he has become well-known for his strict interpretation of the Constitution, and his thoughtful, engaging opinions. Before his appointment, Justice Scalia enjoyed a distinguished career in private practice, academia, and public service. He was first in his class at Georgetown Univeristy, went on to graduate from Harvard Law School. From 1961-1967 he worked for Jones, Day, Cockley & Reavis in Cleveland. Justice Scalia entered public service in 1971 as general council for the Office of Telecommunications Policy under President Nixon, where he formulated policy for the growth of cable television. He was then Assistant Attorney General for the Office of Legal Counsel in the Ford Administration. He has remained in touch with academia, serving as a professor of law at the University of Virginia from 1967-1971, as well the University of Chicago from 1977-1982. In 1982, President Reagan appointed him judge of the United States Court of Appeals for the District of Columbia. His talk today is entitled "Constitutional Interpretation." Justice Scalia, we welcome you to the Center.
JUSTICE ANTONIN SCALIA (Associate Justice of the U.S. Supreme Court, 1986-2016): Thank you very much, Mr. Hamilton.
It’s a pizzazzy topic: Constitutional Interpretation. It is however an important one.
I was vividly reminded how important it was last week when the Court came out with a controversial decision in the Roper case. And I watched one television commentary on the case in which the host had one person defending the opinion on the ground that people should not be subjected to capital punishment for crimes they commit when they are younger than eighteen, and the other person attacked the opinion on the ground that a jury should be able to decide that a person, despite the fact he was under eighteen, given the crime, given the person involved, should be subjected to capital punishment. And it struck me how irrelevant it was, how much the point had been missed. The question wasn’t whether the call was right or wrong. The important question was who should make the call. And that is essentially what I am addressing today.
I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I’m not a “strict constructionist,” despite the introduction. I don’t like the term “strict construction.” I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when it was adopted.
This is such a minority position in modern academia and in modern legal circles that on occasion I’m asked when I’ve given a talk like this a question from the back of the room — “Justice Scalia, when did you first become an originalist?” — as though it is some kind of weird affliction that seizes some people — “When did you first start eating human flesh?”
Although it is a minority view now, the reality is that, not very long ago, originalism was orthodoxy. Everybody, at least purported to be an originalist. If you go back and read the Commentaries on the Constitution by Joseph Story, he didn’t think the Constitution evolved or changed. He said it means and will always mean what it meant when it was adopted. Or consider the opinions of John Marshall in the Federal Bank case, where he says, we must not, we must always remember it is a constitution we are expounding. And since it’s a constitution, he says, you have to give its provisions expansive meaning so that they will accommodate events that you do not know of which will happen in the future. Well, if it is a constitution that changes, you wouldn’t have to give it an expansive meaning. You can give it whatever meaning you want and, when future necessity arises, you simply change the meaning. But anyway, that is no longer the orthodoxy.
Oh, one other example about how not just the judges and scholars believed in originalism, but even the American people. Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise — not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old fashioned way and adopted an amendment.
Now, in asserting that originalism used to be orthodoxy, I do not mean to imply that judges did not distort the Constitution now and then, of course they did. We had willful judges then, and we will have willful judges until the end of time. But the difference is that prior to the last 50 years or so, prior to the advent of the “Living Constitution,” judges did their distortions the good old fashioned way, the honest way — they lied about it. They said the Constitution means such and such, when it never meant such and such.
It’s a big difference that you now no longer have to lie about it, because we are in the era of the evolving Constitution. And the judge can simply say, “Oh yes, the Constitution didn’t used to mean that, but it does now.” We are in the age in which not only judges, not only lawyers, but even school children have come to learn the Constitution changes. I have grammar school students come into the Court now and then, and they recite very proudly what they have been taught: “The Constitution is a living document.” You know, it morphs.
Well, let me first tell you how we got to the “Living Constitution.” You don’t have to be a lawyer to understand it. The road is not that complicated.
Initially, the Court began giving terms in the text of the Constitution a meaning they didn’t have when they were adopted.
For example, the First Amendment, which forbids Congress to abridge the freedom of speech. What does the freedom of speech mean? Well, it clearly did not mean that Congress or government could not impose any restrictions upon speech. Libel laws, for example, were clearly constitutional. Nobody thought the First Amendment was carte blanche to libel someone. But in the famous case of New York Times v. Sullivan, the Supreme Court said, “But the First Amendment does prevent you from suing for libel if you are a public figure and if the libel was not malicious” — that is, the person, a member of the press or otherwise, thought that what the person said was true. Well, that had never been the law. I mean, it might be a good law. And some states could amend their libel law. It’s one thing for a state to amend it’s libel law and say, “We think that public figures shouldn’t be able to sue.” That’s fine. But the courts have said that the First Amendment, which never meant this before, now means that if you are a public figure, that you can’t sue for libel unless it’s intentional, malicious. So that’s one way to do it.
Another example is the Constitution guarantees the right to be represented by counsel. That never meant the state had to pay for your counsel. But you can reinterpret it to mean that.
That was step one. Step two, I mean, that will only get you so far. There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.
What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.
Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.
Then we come to step three. Step three: that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.
What are the arguments usually made in favor of the Living Constitution? As the name of it suggests, it is a very attractive philosophy, and it’s hard to talk people out of it — the notion that the Constitution grows. The major argument is the Constitution is a living organism, it has to grow with the society that it governs or it will become brittle and snap. This is the equivalent of, an anthropomorphism equivalent to what you hear from your stockbroker, when he tells you that the stock market is resting for an assault on the 11,000 level. The stock market panting at some base camp. The stock market is not a mountain climber and the Constitution is not a living organism for Pete’s sake; it’s a legal document, and like all legal documents, it says some things, and it doesn’t say other things. And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again.
My Constitution is a very flexible Constitution. You think the death penalty is a good idea — persuade your fellow citizens and adopt it. You think it’s a bad idea — persuade them the other way and eliminate it. You want a right to abortion — create it the way most rights are created in a democratic society, persuade your fellow citizens it’s a good idea and enact it. You want the opposite — persuade them the other way. That’s flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what a constitution is designed to produce — rigidity. Abortion, for example, is offstage, it is off the democratic stage, it is no use debating it, it is unconstitutional. I mean prohibiting it is unconstitutional; I mean it’s no use debating it anymore — now and forever, coast to coast, I guess until we amend the Constitution, which is a difficult thing. So, for whatever reason you might like the Living Constitution, don’t like it because it provides flexibility. That’s not the name of the game.
Some people also seem to like it because they think it’s a good liberal thing — that somehow this is a conservative/liberal battle, and conservatives like the old fashioned originalist Constitution and liberals ought to like the Living Constitution. That’s not true either. The dividing line between those who believe in the Living Constitution and those who don’t is not the dividing line between conservatives and liberals. Conservatives are willing to grow the Constitution to cover their favorite causes just as liberals are, and the best example of that is two cases we announced some years ago on the same day, the same morning.
One case wasRomer v. Evans, in which the people of Colorado had enacted an amendment to the state constitution by plebiscite, which said that neither the state nor any subdivision of the state would add to the protected statuses against which private individuals cannot discriminate. The usual ones are race, religion, age, sex, disability and so forth. Would not add sexual preference — somebody thought that was a terrible idea, and, since it was a terrible idea, it must be unconstitutional. Brought a lawsuit, it came to the Supreme Court. And the Supreme Court said, “Yes, it is unconstitutional.” On the basis of ... I don’t know ... the Sexual Preference Clause of the Bill of Rights, presumably. And the liberals loved it, and the conservatives gnashed their teeth.
The very next case we announced is a case called BMW v. [Gore]. Not the [Gore] you think; this is another [Gore]. Mr. [Gore] had bought a BMW, which is a car supposedly advertised at least as having a superb finish, baked seven times in ovens deep in the Alps, by dwarfs. And his BMW apparently had gotten scratched on the way over. They did not send it back to the Alps, they took a can of spray-paint and fixed it. And he found out about this and was furious, and he brought a lawsuit. He got his compensatory damages, a couple of hundred dollars — the difference between a car with a better paint job and a worse paint job — plus $2 million against BMW for punitive damages for being a bad actor, which is absurd of course, so it must be unconstitutional. BMW appealed to my Court, and my Court said, “Yes, it’s unconstitutional,” in violation of, I assume, the Excessive Damages Clause of the Bill of Rights. (And if excessive punitive damages are unconstitutional, why aren’t excessive compensatory damages unconstitutional? So you have a federal question whenever you get a judgment in a civil case.) Well, that one the conservatives liked, because conservatives don’t like punitive damages, and the liberals gnashed their teeth.
I dissented in both cases because I say, “A pox on both their houses.” It has nothing to do with what your policy preferences are; it has to do with what you think the Constitution is.
Some people are in favor of the Living Constitution because they think it always leads to greater freedom — there’s just nothing to lose, the evolving Constitution will always provide greater and greater freedom, more and more rights. Why would you think that? It’s a two-way street. And indeed, under the aegis of the Living Constitution, some freedoms have been taken away.
Recently, last term, we reversed a 15-year-old decision of the Court, which had held that the Confrontation Clause — which couldn’t be clearer, it says, “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witness against him.” But a Living Constitution Court held that all that was necessary to comply with the Confrontation Clause was that the hearsay evidence which is introduced — hearsay evidence means you can’t cross-examine the person who said it because he’s not in the court — the hearsay evidence has to bear indicia of reliability. I’m happy to say that we reversed it last term with the votes of the two originalists on the Court. And the opinion said that the only indicium of reliability that the Confrontation Clause acknowledges is confrontation. You bring the witness in to testify and to be cross-examined. That’s just one example, there are others, of eliminating liberties.
So, I think another example is the right to jury trial. In a series of cases, the Court had seemingly acknowledged that you didn’t have to have trial by jury of the facts that increase your sentence. You can make the increased sentence a “sentencing factor” — you get 30 years for burglary, but if the burglary is committed with a gun, as a sentencing factor the judge can give you another 10 years. And the judge will decide whether you used a gun. And he will decide it, not beyond a reasonable doubt, but whether it’s more likely than not. Well, we held recently, I’m happy to say, that this violates the right to a trial by jury. The Living Constitution would not have produced that result. The Living Constitution, like the legislatures that enacted these laws would have allowed sentencing factors to be determined by the judge because all the Living Constitution assures you is that what will happen is what the majority wants to happen. And that’s not the purpose of constitutional guarantees.
Well, I’ve talked about some of the false virtues of the Living Constitution, let me tell you what I consider its principle vices are. Surely the greatest — you should always begin with principle — its greatest vice is its illegitimacy. The only reason federal courts sit in judgment of the constitutionality of federal legislation is not because they are explicitly authorized to do so in the Constitution. Some modern constitutions give the constitutional court explicit authority to review German legislation or French legislation for its constitutionality, our Constitution doesn’t say anything like that. But John Marshall says in Marbury v. Madison: Look, this is lawyers’ work. What you have here is an apparent conflict between the Constitution and the statute. And, all the time, lawyers and judges have to reconcile these conflicts — they try to read the two to comport with each other. If they can’t, it’s judges’ work to decide which ones prevail. When there are two statutes, the more recent one prevails. It implicitly repeals the older one. But when the Constitution is at issue, the Constitution prevails because it is a “superstatute.” I mean, that’s what Marshall says: It’s judges’ work.
If you believe, however, that the Constitution is not a legal text, like the texts involved when judges reconcile or decide which of two statutes prevail; if you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year; if you think that it is meant to reflect, as some of the Supreme Court cases say, particularly those involving the Eighth Amendment, if you think it is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society — if that is what you think it is, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I’m afraid to ask. If that is what you think the Constitution is, thenMarbury v. Madisonis wrong. It shouldn’t be up to the judges, it should be up to the legislature. We should have a system like the English — whatever the legislature thinks is constitutional is constitutional. They know the evolving standards of American society, I don’t. So in principle, it’s incompatible with the legal regime that America has established.
Secondly, and this is the killer argument — I mean, it’s the best debaters argument — they say in politics you can’t beat somebody with nobody, it’s the same thing with principles of legal interpretation. If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it — the original meaning of the Constitution — I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact must depend upon a fact found by a jury — once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society. You got me. Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don’t we? The philosophy of John Rawls? That’s easy. There really is nothing else. You either tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was adopted.” Or, you tell your judges, “Govern us. You tell us whether people under 18, who committed their crimes when they were under 18, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.” I have put this question — you know I speak at law schools with some frequency just to make trouble — and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other.
And finally, this is what I will conclude with although it is not on a happy note. The worst thing about the Living Constitution is that it will destroy the Constitution. You heard in the introduction that I was confirmed, close to 19 years ago now, by a vote of 98 to nothing. The two missing were Barry Goldwater and Jake Garnes, so make it 100. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man — somebody who could read a text and give it its fair meaning — had judicial impartiality and so forth. And so I was unanimously confirmed. Today, barely 20 years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience a new constitution with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right and the other right. We want to pick people that would write the new constitution that we would want.
And that is why you hear in the discourse on this subject, people talking about moderate, we want moderate judges. What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of. So, for example, we had a suicide case some terms ago, and the Court refused to hold that there is a constitutional right to assisted suicide. We said, “We’re not yet ready to say that. Stay tuned, in a few years, the time may come, but we’re not yet ready.” And that was a moderate decision, because I think most people would not want — if we had gone, looked into that and created a national right to assisted suicide, that would have been an immoderate and extremist decision.
I think the very terminology suggests where we have arrived — at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts — you know, “Judge so-and-so, do you think there is a right to this in the Constitution? You don’t? Well, my constituents think there ought to be, and I’m not going to appoint to the court someone who is not going to find that” — when we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority, and they will be selecting justices who will devise a constitution that the majority wants. And that, of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.
To come back to the beginning, this is new—50 years old or so—the Living Constitution stuff. We have not yet seen what the end of the road is. I think we are beginning to see. And what it is should really be troublesome to Americans who care about a Constitution that can provide protections against majoritarian rule. Thank you.
"The first task of those customs that constitute the moral code of a group is to regulate the relations of the sexes, for these are a perennial source of discord, violence, and possible degeneration. The basic form of this sexual regulation is marriage, which may be defined as the association of mates for the care of offspring. It is a variable and fluctuating institution, which has passed through almost every conceivable form and experiment in the course of its history, from the primitive care or offspring without the association of mates to the modern association of mates without the care of offspring."
Will Durant, Story of Civilization, Vol.1: Our Oriental Heritage, Ch.4, Section I, 1935
"[Charles Jean Marie Letourbeau, French anthropologist] said of marriage that 'every possible experiment compatible with the duration of savage or barbarian societies has been tried, or is still practiced, among various races, without the least thought of the moral ideas generally prevailing in Europe.' In addition to experiments in permanence there were experiments in relationship. In a few cases we find 'group marriage,' by which a number of men belonging to one group married collectively a number of women belonging to another group. In Tibet, for example, it was the custom for a group of brothers to marry a group of sisters, and for the two groups to practice sexual communism between them, each of the men cohabiting with each of the women. Caesar reported a similar custom in ancient Britain. Survivals of it appear in the 'levirate,' custom existing among the early Jews and other ancient peoples, by which a man was obligated to marry his brother's widow; this was the rule that so irked Onan." Will Durant, Story of Civilization, Vol.1: Our Oriental Heritage, Ch.4, Section I, 1935
"What was it that led men to replace the semi-promiscuity of primitive society with individual marriage? Since, in a great majority of nature peoples, there are few, if any, restraints on premarital relations, it is obvious that physical desire does not give rise to the institution of marriage. For marriage, with its restrictions and psychological irritations, could not possibly compete with sexual communism as a mode of satisfying the erotic propensities of men. Nor could the individual establishment offer at the outset any mode of rearing children that would be obviously superior to their rearing by the mother, her family, and the clan. Some powerful economic motives must have favored the evolution of marriage. In all probability (for again we must remind ourselves how little we really know of origins) these motives were connected with the rising institution of property.
Individual marriage came through the desire of the male to have cheap slaves, and to avoid bequeathing his property to other men's children. [...] But monogamy, like letters and the state, is artificial, and belongs to the history, not to the origins, of civilization."
Will Durant, Story of Civilization, Vol.1: Our Oriental Heritage, Ch.4, Section I, 1935
"Whatever form the union might take, marriage was obligatory among nearly all primitive people. The unmarried male had no standing in the community, or was considered only half a man. Exogamy, too, was compulsory: that is to say, a man was expected to secure a wife from another clan than his own. Whether this custom arose because the primitive mind suspected the evil effects of close inbreeding, or because such intergroup marriages created or cemented useful political alliances, promoted social organization, and lessened the danger of war, or because the capture of a wife from another tribe had become the fashionable mark of male maturity, or because familiarity breeds contempt and distance lends enchantment to the view -- we do not know. In any case the restriction was well-nigh universal in early society; and though it was successfully violated by the Pharaohs, the Ptolemies, and the Incas, who all favored the marriage of brother and sister, it survived into Roman and modern aw and consciously or unconsciously moulds our behavior to this day."
Will Durant, Story of Civilization, Vol.1: Our Oriental Heritage, Ch.4, Section I, 1935
"In all these forms and varieties of marriage there is hardly a trace of romantic love. We find a few cases of love-marriages among the Papuans of New Guinea; among other primitive peoples we come upon instances of love (in the sense of mutual devotion rather than mutual need), but usually these attachments have nothing to do with marriage. In simple days men married for cheap labor, profitable parentage, and regular meals. "In Yariba," says Lander, "marriage is celebrated by the natives as unconcernedly as possible; a man thinks as little of taking a wife as of cutting an ear of corn -- affection is altogether out of the question." Since premarital relations are abundant in primitive society, passion is not damned up by denial, and seldom affects the choice of a wife. For the same reason -- the absence of delay between desire and fulfillment -- no time is given for the brooding introversion of frustrated, and therefore idealizing, passion which is usually the source of youthful romantic love. Such love is reserved for developed civilizations, in which morals have raised barriers against desire, and the growth of wealth has enabled some men to afford, and some women to provide, the luxuries and delicacies of romance; primitive people are too poor to be romantic. [...]"
Will Durant, Story of Civilization, Vol.1: Our Oriental Heritage, Ch.4, Section I, 1935
"[...] The primitive male looked upon marriage in terms not of sexual license but of economic cooperation. He expected the woman -- and the woman expected herself -- to be not so much gracious and beautiful (though he appreciated these qualities in her) as useful and industrious; she was to be an economic asset rather than a total loss; otherwise the matter-of-fact "savage" would never have thought of marriage at all. Marriage was a profitable partnership, not a private debauch; it was a way whereby a man and a woman, working together, might be more prosperous than if each worked alone. Wherever, in the history of civilization, woman has ceased to be an economic asset in marriage, marriage has decayed; and sometimes civilization has decayed with it." Will Durant, Story of Civilization, Vol.1: Our Oriental Heritage, Ch.4, Section I, 1935
"The nonjuring clergyman was a pensive and interesting old man, with much of the air of a sufferer for conscience' sake. He was one of those
Who, undeprived, their benefice forsook. For this whim, when the Baron was out of hearing, the Bailie used sometimes gently to rally Mr. Rubrick, upbraiding him with the nicety of his scruples. Indeed, it must be owned, that he himself, though at heart a keen partisan of the exiled family, had kept pretty fair with all the different turns of state in his time; so that Davie Gellatley once described him as a particularly good man, who had a very quiet and peaceful conscience, THAT NEVER DID HIM ANY HARM."
Waverley, Sir Walter Scott, Vol.1, Ch.11, 1814
"When the dinner was removed, the Baron announced the health of the King, politely leaving to the consciences of his guests to drink to the sovereign de facto or de jure, as their politics inclined. [...]
Waverley, Sir Walter Scott, Vol.1, Ch.11, 1814
"It was soon plain that what crumbs of reason the Bear had not devoured were to be picked up by the Hen; but the confusion which appeared to prevail favoured Edward's resolution to evade the gaily circling glass. The others began to talk thick and at once, each performing his own part in the conversation without the least respect to his neighbour. The Baron of Bradwardine sung French chansons-a-boire, and spouted pieces of Latin; Killancureit talked, in a steady unalterable dull key, of top-dressing and bottom-dressing, [Footnote: This has been censured as an anachronism; and it must be confessed that agriculture of this kind was unknown to the Scotch Sixty Years Since.] and year-olds, and gimmers, and dinmonts, and stots, and runts, and kyloes, and a proposed turnpike-act; while Balmawhapple, in notes exalted above both, extolled his horse, his hawks, and a greyhound called Whistler. In the middle of this din, the Baron repeatedly implored silence; and when at length the instinct of polite discipline so far prevailed that for a moment he obtained it, he hastened to beseech their attention 'unto a military ariette, which was a particular favourite of the Marechal Duc de Berwick'; then, imitating, as well as he could, the manner and tone of a French musquetaire, he immediately commenced,—
Mon coeur volage, dit elle,
N'est pas pour vous, garcon;
Est pour un homme de guerre,
Qui a barbe au menton.
Lon, Lon, Laridon.
Qui port chapeau a plume,
Soulier a rouge talon,
Qui joue de la flute,
Aussi du violon.
Lon, Lon, Laridon.
Balmawhapple could hold no longer, but broke in with what he called a d—d good song, composed by Gibby Gaethroughwi't, the piper of Cupar; and, without wasting more time, struck up,—
It's up Glenbarchan's braes I gaed,
And o'er the bent of Killiebraid,
And mony a weary cast I made,
To cuittle the moor-fowl's tail.
[Footnote: Suum cuique. This snatch of a ballad was composed by Andrew MacDonald, the ingenious and unfortunate author of Vimonda.]
The Baron, whose voice was drowned in the louder and more obstreperous strains of Balmawhapple, now dropped the competition, but continued to hum 'Lon, Lon, Laridon,' and to regard the successful candidate for the attention of the company with an eye of disdain, while Balmawhapple proceeded,—
If up a bonny black-cock should spring,
To whistle him down wi' a slug in his wing,
And strap him on to my lunzie string,
Right seldom would I fail.
After an ineffectual attempt to recover the second verse, he sung the first over again; and, in prosecution of his triumph, declared there was 'more sense in that than in all the derry-dongs of France, and Fifeshire to the boot of it.' The Baron only answered with a long pinch of snuff and a glance of infinite contempt. But those noble allies, the Bear and the Hen, had emancipated the young laird from the habitual reverence in which he held Bradwardine at other times. He pronounced the claret shilpit, and demanded brandy with great vociferation. It was brought; and now the Demon of Politics envied even the harmony arising from this Dutch concert, merely because there was not a wrathful note in the strange compound of sounds which it produced. Inspired by her, the Laird of Balmawhapple, now superior to the nods and winks with which the Baron of Bradwardine, in delicacy to Edward, had hitherto checked his entering upon political discussion, demanded a bumper, with the lungs of a Stentor, 'to the little gentleman in black velvet who did such service in 1702, and may the white horse break his neck over a mound of his making!'
Edward was not at that moment clear-headed enough to remember that King William's fall, which occasioned his death, was said to be owing to his horse stumbling at a mole-hill; yet felt inclined to take umbrage at a toast which seemed, from the glance of Balmawhapple's eye, to have a peculiar and uncivil reference to the Government which he served. But, ere he could interfere, the Baron of Bradwardine had taken up the quarrel. 'Sir,' he said, 'whatever my sentiments tanquam privatus may be in such matters, I shall not tamely endure your saying anything that may impinge upon the honourable feelings of a gentleman under my roof. Sir, if you have no respect for the laws of urbanity, do ye not respect the military oath, the sacramentum militare, by which every officer is bound to the standards under which he is enrolled? Look at Titus Livius, what he says of those Roman soldiers who were so unhappy as exuere sacramentum, to renounce their legionary oath; but you are ignorant, sir, alike of ancient history and modern courtesy.'
'Not so ignorant as ye would pronounce me,' roared Balmawhapple. 'I ken weel that you mean the Solemn League and Covenant; but if a' the Whigs in hell had taken the—'
Here the Baron and Waverley both spoke at once, the former calling out, 'Be silent, sir! ye not only show your ignorance, but disgrace your native country before a stranger and an Englishman'; and Waverley, at the same moment, entreating Mr. Bradwardine to permit him to reply to an affront which seemed levelled at him personally. But the Baron was exalted by wine, wrath, and scorn above all sublunary considerations.
'I crave you to be hushed, Captain Waverley; you are elsewhere, peradventure, sui juris,—foris-familiated, that is, and entitled, it may be, to think and resent for yourself; but in my domain, in this poor Barony of Bradwardine, and under this roof, which is quasi mine, being held by tacit relocation by a tenant at will, I am in loco parentis to you, and bound to see you scathless. And for you, Mr. Falconer of Balmawhapple, I warn ye, let me see no more aberrations from the paths of good manners.'
'And I tell you, Mr. Cosmo Comyne Bradwardine of Bradwardine and Tully-Veolan,' retorted the sportsman in huge disdain, 'that I'll make a moor-cock of the man that refuses my toast, whether it be a crop-eared English Whig wi' a black ribband at his lug, or ane wha deserts his ain friends to claw favour wi' the rats of Hanover.'
In an instant both rapiers were brandished, and some desperate passes exchanged. Balmawhapple was young, stout, and active; but the Baron, infinitely more master of his weapon, would, like Sir Toby Belch, have tickled his opponent other gates than he did had he not been under the influence of Ursa Major.
Edward rushed forward to interfere between the combatants, but the prostrate bulk of the Laird of Killancureit, over which he stumbled, intercepted his passage. How Killancureit happened to be in this recumbent posture at so interesting a moment was never accurately known. Some thought he was about to insconce himself under the table; he himself alleged that he stumbled in the act of lifting a joint-stool, to prevent mischief, by knocking down Balmawhapple. Be that as it may, if readier aid than either his or Waverley's had not interposed, there would certainly have been bloodshed. But the well-known clash of swords, which was no stranger to her dwelling, aroused Luckie Macleary as she sat quietly beyond the hallan, or earthen partition of the cottage, with eyes employed on Boston's 'Crook the Lot,' while her ideas were engaged in summing up the reckoning. She boldly rushed in, with the shrill expostulation, 'Wad their honours slay ane another there, and bring discredit on an honest widow-woman's house, when there was a' the lee-land in the country to fight upon?' a remonstrance which she seconded by flinging her plaid with great dexterity over the weapons of the combatants. The servants by this time rushed in, and being, by great chance, tolerably sober, separated the incensed opponents, with the assistance of Edward and Killancureit. The latter led off Balmawhapple, cursing, swearing, and vowing revenge against every Whig, Presbyterian, and fanatic in England and Scotland, from John-o'-Groat's to the Land's End, and with difficulty got him to horse. Our hero, with the assistance of Saunders Saunderson, escorted the Baron of Bradwardine to his own dwelling, but could not prevail upon him to retire to bed until he had made a long and learned apology for the events of the evening, of which, however, there was not a word intelligible, except something about the Centaurs and the Lapithae."
Waverley, Sir Walter Scott, Vol.1, Ch.11, 1814 (italics added)
"[...] the appearance of the Baron of Bradwardine in person, who, summoned by David Gellatley, now appeared, 'on hospitable thoughts intent,' clearing the ground at a prodigious rate with swift and long strides, which reminded Waverley of the seven-league boots of the nursery fable. He was a tall, thin, athletic figure, old indeed and grey-haired, but with every muscle rendered as tough as whip-cord by constant exercise. He was dressed carelessly, and more like a Frenchman than an Englishman of the period, while, from his hard features and perpendicular rigidity of stature, he bore some resemblance to a Swiss officer of the guards, who had resided some time at Paris, and caught the costume, but not the ease or manner, of its inhabitants. The truth was, that his language and habits were as heterogeneous as his external appearance.
Owing to his natural disposition to study, or perhaps to a very general Scottish fashion of giving young men of rank a legal education, he had been bred with a view to the bar. But the politics of his family precluding the hope of his rising in that profession, Mr. Bradwardine travelled with high reputation for several years, and made some campaigns in foreign service. After his demele with the law of high treason in 1715, he had lived in retirement, conversing almost entirely with those of his own principles in the vicinage. The pedantry of the lawyer, superinduced upon the military pride of the soldier, might remind a modern of the days of the zealous volunteer service, when the bar-gown of our pleaders was often flung over a blazing uniform. To this must be added the prejudices of ancient birth and Jacobite politics, greatly strengthened by habits of solitary and secluded authority, which, though exercised only within the bounds of his half-cultivated estate, was there indisputable and undisputed. For, as he used to observe, 'the lands of Bradwardine, Tully-Veolan, and others, had been erected into a free barony by a charter from David the First, cum liberali potest. habendi curias et justicias, cum fossa et furca (LIE, pit and gallows) et saka et soka, et thol et theam, et infang-thief et outfang-thief, sive hand-habend, sive bak-barand.' The peculiar meaning of all these cabalistical words few or none could explain; but they implied, upon the whole, that the Baron of Bradwardine might, in case of delinquency, imprison, try, and execute his vassals at his pleasure. Like James the First, however, the present possessor of this authority was more pleased in talking about prerogative than in exercising it; and excepting that he imprisoned two poachers in the dungeon of the old tower of Tully-Veolan, where they were sorely frightened by ghosts, and almost eaten by rats, and that he set an old woman in the jougs (or Scottish pillory) for saying' there were mair fules in the laird's ha' house than Davie Gellatley,' I do not learn that he was accused of abusing his high powers. Still, however, the conscious pride of possessing them gave additional importance to his language and deportment."
Waverley, Sir Walter Scott, Vol.1, Ch.10, 1814
"[...] Rank and ancestry, sir, should be the last words in the mouths of us of unblemished race[.]" Spoken by Baron of Bradwardine, Waverley, Sir Walter Scott, Vol.1, Ch.10, 1814
In this post, in order to hopefully fortify my own understanding, I have organized the quotes which I copied into categories, rather than preserving the order in which they are read in the original book. Please bear with me.
THE NATURE OF REVOLUTION
"When men of rank sacrifice all ideas of dignity to an ambition without a distinct object, and work with low instruments and for low ends, the whole composition becomes low and base. Does not something like this now appear in France? Does it not produce something ignoble and inglorious: a kind of meanness in all the prevalent policy; a tendency in all that is done to lower along with individuals all the dignity and importance of the state? Other revolutions have been conducted by persons who, whilst they attempted or affected changes in the commonwealth, sanctified their ambition by advancing the dignity of the people whose peace they troubled. They had long views. They aimed at the rule, not at the destruction of their country. They were men of great civil and great military talents, and if the terror, the ornament of their age. They were not like Jew brokers contending with each other who could best remedy with fraudulent circulation and depreciated paper the wretchedness and ruin brought on their country by their degenerate councils.[...]
These disturbers were not so much like men usurping power as asserting their natural place in society. Their rising was to illuminate and beautify the world. Their conquest over their competitors was by outshining them. The hand, that, like a destroying angel, smote the country, communicated to it the force and energy under which it suffered. I do not say, (God forbid!) I do not say that the virtues of such men were to be taken as a balance to their crimes; but they were some corrective to their effects. [...]
[...] It is a thing to be wondered at, to see how very soon France, when she had a moment to respire, recovered and emerged from the longest and most dreadful civil war [I think called today the French Wars of Religion, 1562-1598] that ever was known in any nation. Why? Because, among all their massacres, they had not slain the mind in their country. A conscious dignity, a noble pride, a generous sense of glory and emulation, was not extinguished. On the contrary, it was kindled and inflamed. The organs also of the state, however shattered, existed. All the prizes of honor and virtue, all the rewards, all the distinctions, remained.
But your present confusion, like a palsy, has attacked the fountain of life itself. Every person in your country, in a situation to be actuated by a principle of honor, is disgraced and degraded, and can entertain no sensation of life, except in a mortified and humiliated indignation. But this generation will quickly pass away. The next generation of the nobility will resemble the artificers and clowns, and money-jobbers, usurers, [...], who will be always their fellows, sometimes their masters. Believe me, Sir, those who attempt to level never equalize.[...]"
Edmund Burke, Reflections on the Revolution in France, 1790 (formatting added)
[The great and spacious building standing in the air]
MAN AGAINST NATURE
"Believe me, Sir, those who attempt to level never equalize. In all societies consisting of various descriptions of citizens, some description must be uppermost. The levellers, therefore, only change and pervert the natural order of things: they load the edifice of society by setting up in the air what the solidity of the structure requires to be on the ground. The associations of tailors and carpenters, of which the republic (of Paris, for instance) is composed, cannot be equal to the situation into which, by the worst of usurpations, an usurpation on the prerogatives of Nature, you attempt to force them."
Edmund Burke, Reflections on the Revolution in France, 1790 (formatting added)
EQUALITY
"The Chancellor of France, at the opening of the States, said, in a tone of oratorial flourish, that all occupations were honorable. If he meant only that no honest employment was disgraceful, he would not have gone beyond the truth. But in asserting that anything is honorable, we imply some distinction in its favor. The occupation of a hair-dresser, or of a working tallow-chandler, cannot be a matter of honor to any person,—to say nothing of a number of other more servile employments. Such descriptions of men ought not to suffer oppression from the state; but the state suffers oppression, if such as they, either individually or collectively, are permitted to rule. In this you think you are combating prejudice, but you are at war with Nature. I do not, my dear Sir, conceive you to be of that sophistical, captious spirit, or of that uncandid dullness, as to require, for every general observation or sentiment, an explicit detail of the correctives and exceptions which reason will presume to be included in all the general propositions which come from reasonable men. You do not imagine that I wish to confine power, authority, and distinction to blood and names and titles. No, Sir. There is no qualification for government but virtue and wisdom, actual or presumptive. Wherever they are actually found, they have, in whatever state, condition, profession, or trade, the passport of Heaven to human place and honor. Woe to the country which would madly and impiously reject the service of the talents and virtues, civil, military, or religious, that are given to grace and to serve it; and would condemn to obscurity everything formed to diffuse lustre and glory around a state! Woe to that country, too, that, passing into the opposite extreme, considers a low education, a mean, contracted view of things, a sordid, mercenary occupation, as a preferable title to command! Everything ought to be open,—but not indifferently to every man. No rotation, no appointment by lot, no mode of election operating in the spirit of sortition or rotation, can be generally good in a government conversant in extensive objects; because they have no tendency, direct or indirect, to select the man with a view to the duty, or to accommodate the one to the other. I do not hesitate to say that the road to eminence and power, from obscure condition, ought not to be made too easy, nor a thing too much of course. If rare merit be the rarest of all rare things, it ought to pass through some sort of probation. The temple of honor ought to be seated on an eminence. If it be opened through virtue, let it be remembered, too, that virtue is never tried but by some difficulty and some struggle."
Edmund Burke, Reflections on the Revolution in France, 1790
"It is said that twenty-four millions ought to prevail over two hundred thousand. True; if the constitution of a kingdom be a problem of arithmetic. This sort of discourse does well enough with the lamp-post for its second: to men who may reason calmly it is ridiculous The will of the many, and their interest, must very often differ; and great will be the difference when they make an evil choice. A government of five hundred country attorneys and obscure curates is not good for twenty-four millions of men, though it were chosen by eight-and-forty millions; nor is it the better for being guided by a dozen of persons of quality who have betrayed their trust in order to obtain that power. [...]"
REPRESENTATION OF ABILITY AS WELL AS PROPERTY, TWO SEPARATE INTERESTS
"Nothing is a due and adequate representation of a state, that does not represent its ability, as well as its property. But as ability is a vigorous and active principle, and as property is sluggish, inert, and timid, it never can be safe from the invasions of ability, unless it be, out of all proportion, predominant in the representation. It must be represented, too, in great masses of accumulation, or it is not rightly protected. The characteristic essence of property, formed out of the combined principles of its acquisition and conservation, is to be unequal. The great masses, therefore, which excite envy, and tempt rapacity, must be put out of the possibility of danger. Then they form a natural rampart about the lesser properties in all their gradations. The same quantity of property which is by the natural course of things divided among many has not the same operation. Its defensive power is weakened as it is diffused. In this diffusion each man's portion is less than what, in the eagerness of his desires, he may flatter himself to obtain by dissipating the accumulations of others. The plunder of the few would, indeed, give but a share inconceivably small in the distribution to the many. But the many are not capable of making this calculation; and those who lead them to rapine never intend this distribution."
Edmund Burke, Reflections on the Revolution in France, 1790
"[...] Of course property is destroyed, and rational liberty has no existence. [...]"
Edmund Burke, Reflections on the Revolution in France, 1790
INHERITANCE
"The power of perpetuating our property in our families is one of the most valuable and interesting circumstances belonging to it, and that which tends the most to the perpetuation of society itself. It makes our weakness subservient to our virtue; it grafts benevolence even upon avarice. The possessors of family wealth, and of the distinction which attends hereditary possession, (as most concerned in it,) are the natural securities for this transmission. [...] Let those large proprietors be what they will, (and they have their chance of being amongst the best,) they are, at the very worst, the ballast in the vessel of the commonwealth. For though hereditary wealth, and the rank which goes with it, are too much idolized by creeping sycophants, and the blind, abject admirers of power, they are too rashly slighted in shallow speculations of the petulant, assuming, short-sighted coxcombs of philosophy. Some decent, regulated preëminence, some preference (not exclusive appropriation) given to birth, is neither unnatural, nor unjust, nor impolitic."
Edmund Burke, Reflections on the Revolution in France, 1790
CONSOLIDATION OF POWER, TYRANNY OF THE MAJORITY, MOBOCRACY
"[...] as to the future, do you seriously think that the territory of France, upon the republican system of eighty-three independent municipalities, (to say nothing of the parts that compose them,) can ever be governed as one body, or can ever be set in motion by the impulse of one mind? When the National Assembly has completed its work, it will have accomplished its ruin. These commonwealths will not long bear a state of subjection to the republic of Paris. They will not bear that this one body should monopolize the captivity of the king, and the dominion over the assembly calling itself national. Each will keep its own portion of the spoil of the Church to itself; and it will not suffer either that spoil, or the more just fruits of their industry, or the natural produce of their soil, to be sent to swell the insolence or pamper the luxury of the mechanics of Paris. In this they will see none of the equality, under the pretence of which they have been tempted to throw off their allegiance to their sovereign, as well as the ancient constitution of their country.
There can be no capital city in such a constitution as they have lately made. They have forgot, that, when they framed democratic governments, they had virtually dismembered their country. The person whom they persevere in calling king has not power left to him by the hundredth part sufficient to hold together this collection of republics. The republic of Paris will endeavor, indeed, to complete the debauchery of the army, and illegally to perpetuate the Assembly, without resort to its constituents, as the means of continuing its despotism. It will make efforts, by becoming the heart of a boundless paper circulation, to draw everything to itself: but in vain. All this policy in the end will appear as feeble as it is now violent."
Edmund Burke, Reflections on the Revolution in France, 1790
Remember that [you were told], that, in calling the states together, [you] had nothing to fear but the prodigal excess of their zeal in providing for the support of the throne. It is right that these men should hide their heads. It is right that they should bear their part in the ruin which their counsel has brought on their sovereign and their country. Such sanguine declarations tend to lull authority asleep,—to encourage it rashly to engage in perilous adventures of untried policy,—to neglect those provisions, preparations, and precautions which distinguish benevolence from imbecility, and without which no man can answer for the salutary effect of any abstract plan of government or of freedom.
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"Society is indeed a contract. Subordinate contracts for objects of mere occasional interest may be dissolved at pleasure—but the state ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, calico or tobacco, or some other such low concern, to be taken up for a little temporary interest, and to be dissolved by the fancy of the parties. It is to be looked on with other reverence; because it is not a partnership in things subservient only to the gross animal existence of a temporary and perishable nature. It is a partnership in all science; a partnership in all art; a partnership in every virtue, and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born. Each contract of each particular state is but a clause in the great primæval contract of eternal society, linking the lower with the higher natures, connecting the visible and invisible world, according to a fixed compact sanctioned by the inviolable oath which holds all physical and all moral natures, each in their appointed place. This law is not subject to the will of those, who by an obligation above them, and infinitely superior, are bound to submit their will to that law. The municipal corporations of that universal kingdom are not morally at liberty at their pleasure, and on their speculations of a contingent improvement, wholly to separate and tear asunder the bands of their subordinate community, and to dissolve it into an unsocial, uncivil, unconnected chaos of elementary principles. It is the first and supreme necessity only, a necessity that is not chosen, but chooses, a necessity paramount to deliberation, that admits no discussion, and demands no evidence, which alone can justify a resort to anarchy. This necessity is no exception to the rule; because this necessity itself is a part too of that moral and physical disposition of things, to which man must be obedient by consent or force; but if that which is only submission to necessity should be made the object of choice, the law is broken, nature is disobeyed, and the rebellious are outlawed, cast forth, and exiled, from this world of reason, and order, and peace, and virtue, and fruitful penitence, into the antagonist world of madness, discord, vice, confusion, and unavailing sorrow."
