TCS Daily


Mullah Nino?

By Kevin Cherry - December 18, 2001 12:00 AM

When Julian Bond of the NAACP accused President Bush of appointing Cabinet officials from "the Taliban wing of American politics," no one much noticed this petty and inaccurate slur. After all, this sort of cheap shot is the stuff Bond is known for.

But one of the things that the terrorist attacks by disciples of radical Islam on September 11 was supposed to have changed -- since, after all, "everything has changed after 9/11" -- is that Bond and his compatriots would need to come up with new ad hominem swipes at their opponents. Insults that liken American conservatives to the Taliban were suddenly deemed, at a minimum, in poor taste.

But someone apparently forgot to tell the folks at the prestigious American Lawyer -- which bills itself as "the nation`s leading legal monthly." The December issue features an interview with UCLA Law Professor Khaled Abou el Fadl on the assorted fatwas of Osama bin Laden. Much of the article is quite informative as it dissects the theological underpinnings -- or lack thereof -- of bin Laden's teachings.

But while discussing Osama`s limited training in law, el Fadl states that bin Laden "was instructed only in positive law" and that he missed "the courses that deal with the purposes or objects of law, all the courses about equity in law." The end result, according to el Fadl, is that "Anything not in the text is illegitimate. Of course, in a literalist paradigm all you end up doing is projecting your own prejudice on to the text."

That statement prompted Douglas McCollam, who conducted the interview for American Lawyer, to remark excitedly, "Kind of like when you read [Supreme Court Justice] Scalia!" And el Fadl, laughing, agreed: "Exactly! In fact, if you look at Scalia his jurisprudence is remarkably myopic. It`s very much like the jurisprudence that comes out of this literalist Islamic school."

So there you have it. According to the nation`s "leading legal monthly," Justice Scalia is to the U.S. Constitution what Osama bin Laden is to the Koran.

Osama bin Dworkin?

Except, of course, Justice Scalia is far from the only person - and certainly not the only conservative - who pledges fealty to the text of the Constitution. In his book, A Matter of Interpretation, Justice Scalia invited critics such as Laurence Tribe and Ronald Dworkin - both committed men of the left - to respond to him. Tribe rushes to take up the textualist mantle, claiming to believe that "the Constitution`s written text has primacy and must be deemed the ultimate point of departure" for any legal analysis. Dworkin, too, laughs at the idea of a nontextualist jurisprudence, calling it "hardly even intelligible." One could certainly quibble with the sincerity of Dworkin and Tribe in their statements, but that they made them certainly indicates that textualism is not the fringe theory el Fadl and McCollam make it out to be.

Of course, Scalia`s position is far more sensible than el Fadl or McCollum would like to admit. He recognizes that a text cannot be construed "strictly," but it must be construed fairly. And Scalia concedes that judges can, and must, judge the text when deciding cases. But as long as the text remains central, there is at least a common ground by which we can assess judicial opinions.

Scalia even recognizes a legitimate field for judicial interpretation that takes into account circumstances and outcomes. That is the proper way of adjudicating common law cases, where the chief responsibility is to find "the most desirable resolution." But when constitutional questions are resolved in this "common law" fashion, judges place their conception of the common good where the Constitution ought to be. And that, as Scalia reminds us, is something to be avoided.

More obviously, and importantly, the suggestion that the "jurisprudence that comes out of [bin Laden's] literalist Islamic school" is "very much like" the genuine textualism of Scalia is utter nonsense. For instance Scalia opposes repeal of the death penalty on the grounds that it is cruel and unusual punishment. He simply points to those places in the Constitution where it is expressly contemplated. That is his brand of textualism. He also cites the importance of considering the "original meaning" of the Constitution -- what it meant to the general population of the United States at the time of enactment - since, absent the context of original intent, we have no objective basis for assessing what the text means.

Osama bin Laden, however, has a different sort of "textualism." He ignores the plain text of the Koran, which forbids taking the lives of women and children. El Fadl argues that bin Laden would get around this by appealing to "a tradition that says necessity makes the forbidden allowed." Scalia would have none of this; what is forbidden, on his reading of the Constitution, is forbidden. He would hold that Roe v. Wade was wrongly decided -- but he would not ban abortion. It is not the place of the Supreme Court to make that decision.

And that is perhaps the sharpest difference with Osama bin Laden. Bin Laden holds himself up as the final arbiter of what Islam is and ought to be. Scalia, by contrast, recognizes the limits of judicial intervention perhaps more than any other justice and is content to be one justice of nine, in one branch of three, in the national government of a federal system.

Likening Scalia to bin Laden is extraordinarily irresponsible -- but, sadly, not entirely surprising. Slurs like this are in keeping with the assorted academics, columnists, journalists, and Democratic operatives who have over the years called conservative GOPers "the Hezbollah wing of the Republican party." So it's nothing novel and certainly not clever, despite el Fadl and McCollum's self-congratulatory enthusiasm for their smear.

When you can`t argue the facts, argue the law. When you can`t argue the law, argue the facts. And when you can`t argue the facts or the law, well . . . call someone a name.

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