September 18, 2024 • 7 mins
On this episode of Our American Stories, a bill of rights depends on a government that actually manifests restraint. Otherwise, Justice Scalia suggests, it is just a bill of goods.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
So this is Lee Habib.
Speaker 2 (00:13):
Most of our American stories, the show where America is
the star and the American people, and all show long,
we're celebrating our Constitution, signed on this day in history
by thirty nine delegates in seventeen eighty seven.
Speaker 1 (00:28):
Up next in.
Speaker 2 (00:29):
Old speech from the late Supreme Court Justice Antonin Scalia.
In twenty eleven, Scalia delivered this opening statement to the
Senate Judiciary Committee on a subject he cared about American
exceptionalism and how the Constitution plays such a vital part
in why we're so exceptional.
Speaker 1 (00:48):
Let's take a listen.
Speaker 3 (00:49):
Thank you, mister Chairman, members of the Committee. I'm happy
to be back in front of the Judiciary Committee where
I started this pilgrimage. I am going to get even
more fundamental than my good friend and colleague like him.
I speak to students, especially law students, but also college
students and even high school students quite frequently about the Constitution,
(01:12):
because I feel that we're not teaching it very well.
I speak to law students from the best law schools,
people presumably especially interested in the law, and I ask them,
how many of you have read the Federalist papers?
Speaker 1 (01:26):
Well?
Speaker 3 (01:26):
A lot of handsl No, not just number forty eight
and the big ones. How many of you have read
the Federalist papers cover to cover, Never more than about
five percent. And that is very sad, I mean, especially
if you're interested in the Constitution. Here's a document that
says what the framers of it thought they were doing.
It's such a profound exposition of political science that it
(01:51):
is studied in political science courses in Europe.
Speaker 1 (01:55):
So when I speak to these groups, the.
Speaker 3 (01:57):
First point I make I asked them, what do you
think is the reason that America is such a free country?
What is it in our constitution that.
Speaker 1 (02:08):
Makes us what we are?
Speaker 3 (02:10):
And I guarantee you that the response I will get,
and you will get this from almost any American, the
answer 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
(02:34):
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.
Speaker 1 (02:52):
Big deal.
Speaker 3 (02:53):
They guaranteed freedom of the speech, of the press, of
street demonstrations and protests, and anyone who is caught trying
to supper 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
(03:13):
the reason is that the real constitution of the Soviet Union.
You think of the word constitution, it doesn't mean a bill,
it means structure. Say a person has a sound constitution.
Here's a sound structure, the real constitution of the Soviet Union,
which is what our framers debated that whole summer in
Philadelphia in seventeen eighty seven.
Speaker 1 (03:35):
They didn't talk about the Bill of Rights. That was
an afterthought, wasn't it.
Speaker 3 (03:40):
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. The Bill
of Rights is just what our framers would call a
parchment guarantee.
Speaker 1 (03:56):
So the real key to The.
Speaker 3 (03:59):
Distinctiveness of America is the structure of our government. One
part of it, of course, is the independence of the judiciary.
Speaker 1 (04:06):
But there's a lot more.
Speaker 3 (04:08):
There are very few countries in the world, for example,
that have a bicameral legislature. Oh 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.
Speaker 1 (04:25):
It's honorific.
Speaker 3 (04:26):
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
(04:46):
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 b the legislature and the chief executive. In all
of the parliamentary countries, the chief executive is the creature
(05:07):
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 them 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 the system and
they say, well, it passes one house, it doesn't pass
(05:30):
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, vetos it and
they look at this and they say it is gridlock.
And I hear Americans saying this nowadays, and there's a
lot of it going around. They talk about a dysfunctional
(05:50):
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 the main ill
that beset us, as Hamilton said in The Federalist, when
he talked about a separate Senate, he said, yes, it
seems inconvenient, but inasmuch as the main ill that besets
(06:12):
us is an excess of legislation, it won't be so bad.
This is seventeen eighty seven. He didn't know what an
excess of legislation was. So unless Americans can appreciate that
and learn to love the separation of powers, which means
learning to love the gridlock, which the Framers believed would
(06:33):
be the main protection of minorities, the main protection.
Speaker 1 (06:37):
If a bill is about to pass.
Speaker 3 (06:38):
That really comes down hard on some minority, they think
it's terribly unfair. 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.
Speaker 1 (07:00):
Us conclude my opening.
Speaker 2 (07:02):
Remarks, Bine, and my goodness, there's nothing left to say.
When you hear someone like Scalia talk about something like
our constitution, it's the structure, it's the separation of power.
All those countries as horrible countries that have Bill of Rights,
but there are words on paper. The story of our
(07:23):
Constitution as told by Anton and Scalia. Here on Our
American Stories, Lia bib here host of our American Stories,
where you'll hear stories about everything from the arts to sports,
from business to history, and We're proud. Our show can
now be heard on Virginia Beach's Talk Radio ninety six
point five and eight fifty WTAR weekdays ten pm to
(07:48):
one am. Our American Stories with me Leah Bibe now
on weekdays on Talk Radio ninety six five and eight
to fifty WTAR in Virginia Beach, Virginia,
So this is Lee Habib.
Speaker 2 (00:13):
Most of our American stories, the show where America is
the star and the American people, and all show long,
we're celebrating our Constitution, signed on this day in history
by thirty nine delegates in seventeen eighty seven.
Speaker 1 (00:28):
Up next in.
Speaker 2 (00:29):
Old speech from the late Supreme Court Justice Antonin Scalia.
In twenty eleven, Scalia delivered this opening statement to the
Senate Judiciary Committee on a subject he cared about American
exceptionalism and how the Constitution plays such a vital part
in why we're so exceptional.
Speaker 1 (00:48):
Let's take a listen.
Speaker 3 (00:49):
Thank you, mister Chairman, members of the Committee. I'm happy
to be back in front of the Judiciary Committee where
I started this pilgrimage. I am going to get even
more fundamental than my good friend and colleague like him.
I speak to students, especially law students, but also college
students and even high school students quite frequently about the Constitution,
(01:12):
because I feel that we're not teaching it very well.
I speak to law students from the best law schools,
people presumably especially interested in the law, and I ask them,
how many of you have read the Federalist papers?
Speaker 1 (01:26):
Well?
Speaker 3 (01:26):
A lot of handsl No, not just number forty eight
and the big ones. How many of you have read
the Federalist papers cover to cover, Never more than about
five percent. And that is very sad, I mean, especially
if you're interested in the Constitution. Here's a document that
says what the framers of it thought they were doing.
It's such a profound exposition of political science that it
(01:51):
is studied in political science courses in Europe.
Speaker 1 (01:55):
So when I speak to these groups, the.
Speaker 3 (01:57):
First point I make I asked them, what do you
think is the reason that America is such a free country?
What is it in our constitution that.
Speaker 1 (02:08):
Makes us what we are?
Speaker 3 (02:10):
And I guarantee you that the response I will get,
and you will get this from almost any American, the
answer 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
(02:34):
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.
Speaker 1 (02:52):
Big deal.
Speaker 3 (02:53):
They guaranteed freedom of the speech, of the press, of
street demonstrations and protests, and anyone who is caught trying
to supper 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
(03:13):
the reason is that the real constitution of the Soviet Union.
You think of the word constitution, it doesn't mean a bill,
it means structure. Say a person has a sound constitution.
Here's a sound structure, the real constitution of the Soviet Union,
which is what our framers debated that whole summer in
Philadelphia in seventeen eighty seven.
Speaker 1 (03:35):
They didn't talk about the Bill of Rights. That was
an afterthought, wasn't it.
Speaker 3 (03:40):
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. The Bill
of Rights is just what our framers would call a
parchment guarantee.
Speaker 1 (03:56):
So the real key to The.
Speaker 3 (03:59):
Distinctiveness of America is the structure of our government. One
part of it, of course, is the independence of the judiciary.
Speaker 1 (04:06):
But there's a lot more.
Speaker 3 (04:08):
There are very few countries in the world, for example,
that have a bicameral legislature. Oh 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.
Speaker 1 (04:25):
It's honorific.
Speaker 3 (04:26):
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
(04:46):
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 b the legislature and the chief executive. In all
of the parliamentary countries, the chief executive is the creature
(05:07):
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 them 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 the system and
they say, well, it passes one house, it doesn't pass
(05:30):
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, vetos it and
they look at this and they say it is gridlock.
And I hear Americans saying this nowadays, and there's a
lot of it going around. They talk about a dysfunctional
(05:50):
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 the main ill
that beset us, as Hamilton said in The Federalist, when
he talked about a separate Senate, he said, yes, it
seems inconvenient, but inasmuch as the main ill that besets
(06:12):
us is an excess of legislation, it won't be so bad.
This is seventeen eighty seven. He didn't know what an
excess of legislation was. So unless Americans can appreciate that
and learn to love the separation of powers, which means
learning to love the gridlock, which the Framers believed would
(06:33):
be the main protection of minorities, the main protection.
Speaker 1 (06:37):
If a bill is about to pass.
Speaker 3 (06:38):
That really comes down hard on some minority, they think
it's terribly unfair. 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.
Speaker 1 (07:00):
Us conclude my opening.
Speaker 2 (07:02):
Remarks, Bine, and my goodness, there's nothing left to say.
When you hear someone like Scalia talk about something like
our constitution, it's the structure, it's the separation of power.
All those countries as horrible countries that have Bill of Rights,
but there are words on paper. The story of our
(07:23):
Constitution as told by Anton and Scalia. Here on Our
American Stories, Lia bib here host of our American Stories,
where you'll hear stories about everything from the arts to sports,
from business to history, and We're proud. Our show can
now be heard on Virginia Beach's Talk Radio ninety six
point five and eight fifty WTAR weekdays ten pm to
(07:48):
one am. Our American Stories with me Leah Bibe now
on weekdays on Talk Radio ninety six five and eight
to fifty WTAR in Virginia Beach, Virginia,
Host
Lee Habeeb
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