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Edmund Burke said of one of his adversaries that his malice was "disappointed by [his] absurdity." The same might have been said of a band of 16 professors at Amherst College, striking a dramatic pose of resistance, and summoning their colleagues to find the inner strength not to attend a lecture, not to listen, not to engage the argument, not to endorse the presence on the campus of Antonin Scalia.
The Justice had been invited to the campus by the new, young president of the college, Anthony Marx. Marx's evident purpose was to show that Amherst was welcoming even to conservatives of standing. In his upbeat, liberal spirit, he assumed that an accomplished, conservative jurist would be treated with civility and make, altogether, for an engaging evening, with conversations stirred across the campus. The conversations were indeed stirred, but the reception was hardly welcoming or civil.
Anyone who knows the state of the colleges in our own time knows that the visit of a Scalia is likely to set off explosions on the campus, as high levels of posturing merge with low levels of reflection and self-control. For that reason, I had held back in the past from exposing my own friend to this embarrassment. I've known Scalia since he was one of the boat-persons leaving the Ford Administration, and in his years on the Court he has been generous enough to meet with my students in Washington. He even sent us, in Amherst, the last Scalia child at home (Meg, who graduated in 2002). But he had encountered nastiness when attending commencements at other colleges, and he was a target that his adversaries could not make themselves resist. And after all, if there is a lingering rage among the Democrats over George W. Bush, that rage flows over to one of the principal judges who delivered him to office through the vehicle of Bush v. Gore.
Scalia, in action, is winning. He was—and remains—an accomplished teacher. But before the students would hear Scalia the drumbeat of opposition grew steadily more intense, as the groups in opposition began to accumulate. The Feminist Alliance took the lead, because the preeminent issue here, as everywhere else in liberal politics, was abortion. Scalia insists, of course, that there is nothing in the Constitution conferring a right to abortion, and he has made clear his judgment that Roe v. Wade should be overturned. An organization of black students expressed its outrage because Scalia is opposed to racial preferences. Gays and lesbians signed on with their own indignation because Scalia is reserved about gay rights. Or rather, he finds nothing in the Constitution to bar legislatures from legislating on homosexuality, whether they are forbidding and restricting it, or protecting and promoting it.
For all of their above-average SAT scores, the students seemed to be operating in the same fog that grips other students in the country when it comes to the Supreme Court and abortion. The students seemed to believe that Scalia and his colleagues could take away that right to abortion. In fact, no one among the conservatives now on the Court seems to think that the Constitution can extend its protection of "persons" to those unborn persons in the womb. Scalia and the conservatives would merely return the matter of abortion to the states. And if the support for abortion is as widespread and intense as the students assume, it seems likely that legislatures in New York, New Jersey, Illinois, California will pass laws confirming a sweeping right to abortion. Most of the students seem blissfully unaware that Scalia, by his own avowals, would sustain those laws in the states, creating a wide license for abortion. That inclination is bound up with Scalia's legal "positivism" and his deep skepticism about natural rights and natural law. That is also a point that separates him from Clarence Thomas and some of his other conservative friends. But even when I have differed from my friend of many years, there is no gainsaying that he is one smart lawyer, as even his adversaries will concede.
In that case it became even harder to believe that professors on the campus, even those styling themselves teachers of law, would actually urge students and colleagues to shun Scalia's lecture. One of those professors attacking Scalia offered, as proof of his own tolerance, that he taught Scalia's cases in class and sought, indeed, to state Scalia's arguments. In that event, as one student asked, why is it legitimate to read Scalia's arguments or hear them restated, but not hear Scalia himself? The attack of 16 professors came in a form only thinly veiled as a so-called letter of "protest." The signatories insisted that there was no possibility of a serious exchange with Scalia. For Scalia was not a jurist who offered reasons for his positions; he was a man who engaged in "vitriolic name-calling." And so "those who disagree with his position on the sodomy laws are part of a 'homosexual agenda.'" Scalia has also suggested—gasp!—that these people "are on the wrong side of a 'Kulturkampf.'" As invective goes, this is rather tame. When the Lambda Defense Fund speaks about its strategies of litigation, that rather sounds like an agenda. Are "gay activists" active with no discernible purpose or ends? Are they "random activists"?
In this way was the indictment put together, and the urbane reader readily sensed that these snippets were being lifted out of their context, from a vast body of writing. In most instances, they would suspect, rightly, that Scalia did not exactly say the things attributed to him. Even if he had, they were hardly "vitriolic," and they hardly compared to the hateful things, bordering on libel, that were being served up routinely now about Scalia. When I returned this past fall from a year visiting at Princeton, I found a campus in which the main difference of opinion, among faculty and students, was whether President Bush should be compared to Hitler or to Himmler. First-year students beginning in the fall were faced with compulsory sessions on Queer Queries, to instruct them in the homosexual life and break their prejudices. One staffer in the dean's office explained that the program was meant to combat "homophobia." That is, people who had reservations about the homosexual life were not treated as persons with arguments to address, but as people affected with a psychological disorder. The hard fact of the matter is that name-calling has become the mode of discourse typical on the campus at Amherst.
The claim of name-calling on the part of Scalia was a facile move that fooled no one. Most of the signers of the letter had not spent their days immersed in the writings of Scalia. The real import of their letter was the refusal to offer an "endorsement" of his presence. To say that Scalia's presence was in need of endorsement was to suggest that there was something problematic or illegitimate about that presence. But if the presence of a Scalia, for one lecture, on one evening, was not legitimate, it did not require high powers of inference to draw out the implications: it would be quite as illegitimate for someone sharing Scalia's perspectives to be speaking day in and day out as a member of the faculty.
The allegation, in fact, made explicit by one of the signers, was that anyone who held Scalia's views could be charged with violating the code of the campus by shaping a climate "hostile" to gays and lesbians. But not merely professors came under this edict. Clearly, the charge was meant to warn students on campus that the club of the law, the censure of the community, could come down heavily on them as well.
The signers had taken it as a high offense—and the mark of Scalia's dark motives—that he saw in Christianity a ground of support for a regime of law. And so they took it as a high offense that Scalia could deliver himself of a sentence of this kind: "The reaction of people of faith to the tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible." That Scalia was reflecting here the understanding contained in the Declaration of Independence was a matter that either eluded the grasp of the signers—or confirmed their contempt. Their inclination already was to assume that anyone casting moral judgments on the homosexual life was probably animated by a religious passion, and the premise, built on clichés, brought forth the conclusion found on bumper stickers: that no one may impose his religious beliefs on another.
But if we put aside for a moment everything that is reductive and false in that account, it is even more telling to take the writers at their word: They had to be aware that the positions they hold so firmly on abortion and gay rights would not be accepted by students who hold to the traditional Jewish and Christian teaching here. The message then was unmistakable: Jewish, Christian, and yes, Muslim students who hold to this traditional teaching are either unwelcome on the campus, or are they are welcome here only with the recognition that they must decorously shut up. If they don't, they can expect to come under an attack as scathing as the attack visited on Scalia. And so the message between the lines, plain but unspoken, was that people of this kind should not come in the first place.
But then the surprise: The students showed up in droves for Scalia's talk, with many turned away for want of room. He discoursed on his main theme, "Constitutional Interpretation," with his critique of the "living Constitution" of the relativists, altering with the seasons. He was his usual, engaging self, and he mainly won the students over. That is not to say that he brought people to his side, but even those tilted against him found a thoughtful man, laying out a perspective on the vocation of a judge, and doing it in terms that were understandable even to people who knew little about the law.
The groups of students threatening to make a scene—to stand with their backs to the speakers, or wear arm bands—were enticed by the Republican students to come instead to a discussion the next evening. There they would hash out the arguments, rather than embarrassing the College and themselves with a gesture of disdain for an invited guest. But when the students showed up the next evening, the air, as they say, had gone out of the balloon. The passion was no longer there, the critics were no longer quite as sure, and the caricatures had been broken apart by Scalia's performance. And yet, with a show of art, the leading signer, or even drafter, of the letter could try one more flourish, to reassemble a caricature yet again.
The professor offered, as a prime example of Scalia's offensiveness, his dissenting opinion in Romer v. Evans (1996), a case involving gay rights in Colorado. According to the professor, Scalia's heresy in that case was that he denied that the principles of the Constitution could protect gays and lesbians from discriminations based on sexual orientation. It was, altogether, a strange rendering of that case, and a caricature of a caricature. Yes, Scalia, with his literal approach, would simply point out that nothing in the Constitution mentions homosexuality, and therefore the Constitution would offer no barrier to the freedom of the States to legislate on that matter, whether in refusing to lend approval to the homosexual life, or in mandating the most sweeping regimen of gay rights. In this case in Colorado, the legislature had repealed its criminal laws on sodomy. But the voters, in an amendment to the Constitution of the State ("Amendment 2"), had sought to remove from governments at all levels the club of the law: The voters sought to bar local governments from treating gays and lesbians on the same plane as groups that had suffered discriminations based on race, religion, or gender. The amendment would forbid governments at all levels from punishing people for making discriminations based on sexual orientation. In other words, people would be left free to honor their own moral judgments on the gay and lesbian life in their own private domains. If people wanted a gay bar, they could have it; and if a shopowner gave a pamphlet to a gay employee, to help him with his "problem," she would not be put under compulsory counseling.
Nothing in Scalia's opinion prescribed restrictions for gays or lesbians, or withheld from them the protections of the law. Critics charged that the absence of laws on discrimination would open gays and lesbians to gay-bashing. But the law, in forbidding assaults, forbade the bashing of everyone. Scalia was in dissent as the Amendment was struck down; but no judge in the majority had affirmed, or even articulated, the principle that the professor at Amherst was proclaiming. It was not that Scalia was especially retrograde, for no other justice on the Court, even today, would hold that the principles of the Constitution reject all discriminations based on sexual orientation. The Constitution will never be construed in that way because there can be no such coherent principle.
After all, even the gay activists will concede that they can judge certain sexual orientations to be illegitimate, and therefore not protected by the law. They have not been inclined to include, in the gay rights parades, representatives from the Man-Boy Love Association or the new zoophiles, actively arguing for bestiality, or sex with animals. Even sado-masochistic sex will pose problems. That style of sex may have the consent of the participating adults, and yet the law may plausibly cast moral judgments on this orientation, even when it takes place in private settings. There would be no surprise, then, if an agency of the State decided that a man, deeply involved in sado-masochistic sex, was not a suitable candidate to be an adoptive father. The agency would probably have doubts quite as plausible in regard to a member of the Man-Boy-Love Association, seeking custody of a child. When these cases arise—as they surely will—would we really suppose that a court would find, in the Equal Protection Clause of the Constitution, a ground for overriding these decisions? We may be living in implausible times, when no argument is so bizarre that it may not be advanced by lawyers or sustained by judges. But there is no judge on the Supreme Court right now who would sustain a claim of that kind. It is not that Scalia and his colleagues are wanting in moral imagination; it is that the claim itself—that no moral judgments may ever be cast on any kind of sexual orientation—is simply untenable and incoherent.
The news from Amherst has been bouncing around the internet, and by and large, the administration and many of the alumni are pleased: A Scalia was invited; the visit stirred arguments and conversations on the campus; and many students, to their surprise, found something appealing and instructive in a conservative jurist. But in the reactions it triggered, the visit also brought out everything that is unlovely in the colleges of our day. Most of the students were sensible, but many were credulous, and a distressing number, joined by their teachers, managed to debase themselves. The curtain was lifted just a bit, and even the good of the occasion cannot efface what was revealed that day. Shown, in a lingering flash, was something hateful and vicious in the souls of some people who style themselves professors, and take, as their vocation, the shaping of younger souls.
