At a recent hearing, U.S. Supreme Court Justice Antonin Scalia said that too many people believe the Bill of Rights is what keeps America free. He said our liberty really is protected by the complex and clever structure of our government, as described in the main body of the U.S. Constitution.
The Constitution prevents the concentration of power in any part of the government, Scalia said, and we are kept free by the constitutional checks and balances that limit how far any one government branch can go.
Here’s some of his fascinating comments Oct. 5 before the Senate Judiciary Committee. He refers first to his frequent talks with student groups and others about The Federalist Papers:
[The Federalist Papers 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. So when I speak to these groups … I ask them, “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?”
And I guarantee you that the response I will get, and you will get this from almost any American ... would be: “Freedom of speech, freedom of the press, no unreasonable searches and seizures, no quartering of troops in” -- those marvelous provisions of the Bill of Rights.
But then I tell them if you think that a bill of rights is what sets us apart, you’re crazy. Every banana republic in the world 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 it literally. It was much better.
We guarantee freedom of speech and of the press. Big deal. They guarantee 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.
Of course, just words on paper. What our framers would have called “a parchment guarantee.” And the reason is that the real constitution -- think of the word “constitution.” It doesn’t mean a bill of rights. It means structure. Say, a person has a sound constitution. It’s a sound structure.
The real constitution ... which is what our framers debated that whole summer in Philadelphia in 1787, they didn’t talk about the Bill of Rights. That was an after-thought, wasn’t it? That 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.
So the real key to the distinctiveness of America is the structure of our government. One part of it, of course, is the independence of the judiciary, but there’s a lot more. There are very few countries in the world, for example, that have a bicameral legislature. So England has a House of Lords for the time being, but the House of Lords has no substantial power. They can just make the Commons pass a bill a second time.
France has a Senate. It’s honorific. Italy has a Senate, it's honorific. Very few countries have two separate bodies in the legislature equally powerful. That’s a lot of trouble, as you gentlemen doubtless know, to get the same language through two different bodies elected in a different fashion.
Very few countries in the world have a separately elected chief executive. Sometimes, I go to Europe to talk about separation of powers, and when I get there, I find that all I’m talking about is independence of the judiciary because the Europeans don't even try to divide the two political powers -- the two political branches, the legislature and the chief executive.
In all of the parliamentary countries, the chief executive is the creature of the legislature. There’s never any disagreement between them and the prime minister as there is sometimes between you and the president. When there’s 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.
And, you know, the Europeans look at this system and they say, “Whoa, it passes one house; it doesn’t pass the other house; sometimes the other house is in the control of a different party. It passes both, and then this president who has a veto power vetoes it.” And they look at this and they say, “Ah, it is -- it is gridlock.”
And I hear Americans saying this nowadays and there's a lot of it going around. They -- they talk about a dysfunctional government because there’s disagreement. And the framers would have said, “Yes, that’s exactly the way we set it up. We wanted this to be power contradicting power.” Because … as Hamilton said in The Federalist when he talked about a separate Senate … “Yes, it seems inconvenient, but in as much as the main ill that besets us is an excess of legislation, it won’t be so bad.” This is 1787. He didn’t know what an excess of legislation was. …
The framers believed [the separation of powers] would be the main protection of minorities. If a bill is about to pass that really comes down hard on some minority, it doesn't take much to throw a monkey wrench into this complex system.
So Americans should appreciate that, and they should learn to love the gridlock. It’s there for a reason so that the legislation that gets out will be good legislation.
Scalia makes a strong case. He insists a full reading of The Federalist Papers would help explain how the Constitution protects our democracy, our freedoms and our Bill of Rights.