We think of Scalia as engaging in jeremiad or call to jihad because we
assume he's a cultural conservative appalled by what he sees as moral
degeneration , a la Bill Bennett. But aren't the actual structure of his
references to "culture war" the same as Holmes's to "economic struggle" in
his many opinions in the vein of the Lochner dissent? As in: There's a
battle going on, the Constitution doesn't take sides in it, it's natural
for judges (given their class and education) to side with one of the
competing factions and see the other as irrational and benighted, but in
their capacity as judges they should stop and reflect on the fact that it's
a struggle in which sympathies and associations rather than reason
determines views, and stop taking sides.
Of course Holmes had the distinct rhetorical advantage over Scalia that his
sympathies ran against the outcomes he was advocating.
It's also worth noting that Bismarck's original Kulturkampf was against
Catholicism -- I suspect that's what attracts Scalia to the English
translation of the phrase. But as a skilled rhetorician, he should
recognize that it does open itself up to other unattractive associations,
the ones Molly Ivins was exploiting when she said Pat Buchanan's
Republican Convention "culture war" speech "probably sounded better in the
original German."
Tom Grey
Stanford Law School
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Sanford Levinson
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Mark Graber writes:
Scalia's seem a call for a jeremiad. Once a term perhaps. But not two a
week.
Scalia's opinion IS a "jeremiad," a sermon about the decline (and
potentially baleful future) awaiting the community that has strayed from
its foundations (usually divine, given that the classic jeremiads were
delivered by such as Cotton Mather). So does Mark actually mean to use the
word "jihad"? This would, after all, be appropriate for those who believe
they are involved in a kulturkampf.
sandy
