We must read any thinker as he understands himself.
The first thing to remember when reading Justice Scalia is that 99% of the time, he's talking about law and specifically the role of a judge, not of morality or philosophy.
To understand Dr. DeLong as he understands himself, any mention of the Bible by a Supreme Court justice tends to set any self-described "reality-based" teeth on edge [read: left-leaning teeth], especially if uttered by anyone with right-leaning teeth as Justice Scalia surely are.
Now that we've identified the players and their teeth, to business:
Romans 13 sayeth:
For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good.
So when Scalia writes:
All this, as I say, is most un-European, and helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as "the minister of God," to "execute wrath" upon the evildoer.
that's arguably "scary" to any gentleperson of the New Left. Even "Mega Scary." Theocracy! But theocracy isn't necessarily agreeable to the right either, Old or New, as we shall see.
For John Adams, no orthodox Christian he, wrote in 1799 in a call to prayer and thanksgiving:
...that He would bless all magistrates, from the highest to the lowest, give them the true spirit of their station, make them a terror to evil doers and a praise to them that do well...
Justice Scalia is clearly on very solid ground per the political theology of the American Founding. Some might find that theology---or any political theology---scary in the 21st century. But we can't help that. It's historical fact, and Scalia's merely noting it.
Now, Scalia's reason for bringing up Romans 13 isn't to argue that the Bible is true or even to argue God actually exists, but to consider the issue of capital punishment in terms of jurisprudence and America's Founding political theology.
It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies-including, for example, horse- thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today. There is plenty of room within this system for "evolving standards of decency," but the instrument of evolution (or, if you are more tolerant of the Court's approach, the herald that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.
Scalia argues here not for his own view of what is decent or moral or religious, and contra some of his critics, not undemocratically---he argues for democracy, and against the Divine Right of the Supreme Court, which is no more legitimate than the Divine Right of Kings. It's a clear argument.
Because if there's one thing that Scalia says over and over [and over!] again, including in this article, is that Scalia does not think it's his right or duty as a Supreme Court Justice to dictate how things should be, only to reasonably interpret the law as written by its rightful authors, the elected representatives of the people. Sovereignty rests with the people, not the government, another Founding ideal, and part of the Founding theology.
To accuse Justice Scalia of being undemocratic is to skip past half of everything he writes.
Back to Dr. DeLong for a necessary second: As is almost inevitable in the 21st century, he plays his trump, America's unfortunate and frequently evil history on race. It's all grist for the mill.
The Martin Luther King Card is the opposite face of the Hitler Card: If MLK did it, it must be right, and anything that doesn't accommodate MLK's actions must be evil.
But Scalia doesn't mention MLK atall in the essay. When he writes
The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects in other areas as well. It fosters civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law - even if it does not compel him to act unjustly - need not be obeyed.
"civil disobedience" does NOT mean Martin Luther King here---that's unfair and simplistic; it refers to a general subjectivity towards law, that we may pick and choose which laws to obey, depending on whether they agree with the individual's conscience.
Romans 13 says, and what every civilization that wishes to survive must say, is that the individual isn't free to disobey every law he thinks is unjust. Oy, that's anarchy. If all men were angels [or at least reasonable devils], we wouldn't need any laws atall.
So let's get past Civilization 101 and to the tougher stuff:
Of civil disobedience as philosophy, theology or morality, we have to read Scalia as he understands himself: He speaks as a judge, with a duty [and an oath!] to uphold the law. A judge cannot "let you slide" because he agrees with the moral reasons you disobeyed the law. That would defeat the whole purpose of civil disobedience--- to disobey the law and heroically suffer the consequences, so that the unjust law might be changed!
For as Dr. King himself wrote:
In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.
Justice Scalia could scarcely disagree, in fact, it's implicit in his writings. To pit Scalia against Martin Luther King is a brutality to the truth. And Scalia is not exactly silent afterall on what the individual conscience is obliged to do in the face of injustice:
I pause here to emphasize the point that in my view the choice for the judge
who believes the death penalty to be immoral is resignation, rather than simply
ignoring duly enacted, constitutional laws and sabotaging death penalty cases.
He has, after all, taken an oath to apply the laws and has been given no power
to supplant them with rules of his own. Of course if he feels strongly enough
he can go beyond mere resignation and lead a political campaign to abolish the
death penalty—and if that fails, lead a revolution. But rewrite the laws he
And this is Scalia's judicial philosophy, which he speaks of 99% of the time, because that's his job, his expertise and his oath.
If you want to see Scalia the human being, not the jurist, the philosophical aside is there, the missing 1%. The judge just gave a wink to whoever was reading him carefully...if you brought a magnifying glass to his essay instead of a flamethrower.
There must be a threshold for when civil disobedience is necessary and proper---you just don't disobey the law routinely. No society, no nation, no hamlet or village, can survive with a "cafeteria" approach to observing the law. [Not even a cafeteria can.] That's not a real scary proposition atall, it's common sense.
But if the individual and his conscience hit that threshold when it comes to capital punishment, well OK, then---resign your judgeship and become a political activist, run for Congress, chain yourself to the gates of the prison the night of an execution and accept the consequences. Or lead a revolution if necessary.
"A nation of laws, not men" is an interesting concept. But the door must swing both ways: We cannot be a nation of the "evolving standards of decency" of only 9 men [& women] on the Supreme Court; nor can we be a nation of men who disobey laws without consequences whenever they offend us. This is Scalia's argument, not as a political philosopher, but only as a judge.
As a human being like the rest of us, Nino winked. You just had to be ready to catch it. If absolutely necessary, start a revolution, another Founding ideal.