Sunday, May 1, 2016

Growing, Learning, Thinking: The Value of Religious Pluralism

I suggest that the most significant basis for meeting men of different religious traditions is the level of fear and trembling, of humility, of contrition, where our individual moments of faith are mere waves in the endless ocean of mankind’s reaching out for God . . . – Abraham Joshua Heschel
In The Book of Lights, Chaim Potok writes about a Jewish army chaplain in Korea and Japan in the 1950s who confronts challenging questions about the meaning of his faith. In one scene, the chaplain and a Jewish soldier watch an old Japanese man praying at a Shinto shrine. “Do you think our God is listening to him?” the rabbi asks his companion.

“I don’t know . . . I never thought of it,” replies the soldier.

“Neither did I until now,” says the rabbi. “If [God]’s not listening, why not? If [God] is listening, then-well, what are we all about?”

The rabbi’s questions are profoundly important ones for people of every faith. Does God listen only to the prayers of one particular faith? Do we all worship different Gods or the same God in different ways? What kind of God would refuse to listen to the prayers of this Buddhist man?

“If prayer is a human response to God,” asks Lutheran theologian J. Paul Rajashekar in Engaging Others Knowing Ourselves: A Lutheran Calling in a Multi-Religious World (Lutheran University Press, 2016), “then aren’t all prayers offered by people irrespective of their faith convictions legitimate responses to God? Are their responses to God whether in prayer or in their articulation of religious beliefs any less legitimate than our own?”

Despite two centuries of Christian mission and evangelization, nearly two-thirds of the world’s population continues to adhere to other beliefs or no belief. Christians are taught to believe that Christ died for all people, and yet, some Christians continue to struggle with whether God is accessible to those who choose a different path. Does God hear only the prayers of those who accept Jesus as savior? Christians often talk of reaching the unreached. But unreached by whom? Do we assume God is absent in the lives of others?

In December 2015, Lacrycia Hawkins, a political science professor at Wheaton College in Illinois, posted a photo of herself on Facebook wearing a hijab, or traditional Muslim head scarf. “I stand in religious solidarity with Muslims,” she wrote, “because they, like me, a Christian, are people of the book. And as Pope Francis stated last week, we worship the same God.” Although a seemingly innocuous statement – after all, Judaism, Christianity, and Islam each espouse monotheism and trace their common lineage to Abraham – Hawkins was immediately suspended from her tenured professorship and later terminated by confidential agreement. According to a Wheaton College press release on December 16, 2015, the professor’s “expressed views, including that Muslims and Christians worship the same God,” conflicted with the college’s Statement of Faith because Muslims do not accept God’s revelation in Christ.

The Wheaton College controversy reflects a long history of Christian hostility toward other religions. That there exist competing belief systems is disturbing to some. But the more we learn of other religions, and the more we engage with and understand people of other faith traditions, the harder it becomes to justify claims of absolute truth. Pluralism implicitly questions the legitimacy of religious claims that there exists only one true way to achieve salvation or enlightenment.

Many religious people are threatened by theological and doctrinal differences and view other faith traditions as in opposition to one’s own faith. This insecurity results in an inward focus that shies away from difficult questions and ambiguous answers. However well we think we know our own religious traditions, we are often wrong in what we assume about others. Religious illiteracy breeds misunderstanding and a tendency to notice only the bad traits of other religions – acts of religiously-inspired terrorism, for example – and the good points of one’s own faith.

Contrary to what the administrators of Wheaton College may think, it violates our monotheistic concept to think there is a Muslim God, a Jewish God, and a Christian God. As Professor Hawkins understood, to accept that God hears the prayers of all people regardless of one’s religious tradition is not to suggest that theological differences are meaningless or insignificant. But differences do not necessarily imply right or wrong. The goal of religious pluralism is mutual understanding, not conversion.

I have suggested in past writings that one’s religious affiliation is mostly determined in the first instance by the happenstance of birth. We typically adopt the religion of our parents. In light of this, how do some confidently claim exclusive possession of God’s truth? Most often, claims of exclusivity are based on Scripture, such as the Christian Gospel John at 14:6 (“I am the way, and the truth, and the life. No one comes to the Father except through me.”). Theologians have long debated the contextual meaning of this and similar passages and there is good reason to think the text is less clear than most Bible-quoting Christians acknowledge. Of course, other faiths make their own claims of absolute truth based on their holy books. Because we live not only in a multi-religious society, we also live in a multi-scriptural society. There is not one scripture, but many. How does one properly navigate conflicting claims of scripture? Is one Holy Book necessarily more authoritative than another?

I recently attended a course on religious pluralism at the Lutheran Theological Seminary of Philadelphia. During one class, we watched a film entitled, The Asian and Abrahamic Religions: A Divine Encounter in America, which explores the surprising similarities among the Asian religions (Hinduism, Buddhism, Jainism, and Sikhism) and the Abrahamic faiths (Judaism, Christianity, and Islam). The film contains scenes of prayer, of worship, of wedding celebrations and funerals in places of worship across the country – in churches, synagogues, mosques, Buddhist and Hindu temples, Sikh gurdwaras, and many others. In watching the film, it occurred to me that the various religions are simply different human interpretations and manifestations of the divine. Although each faith has adopted different symbols and styles of worship, different words to describe God or the search for enlightenment, all provide a communal experience, a sense of order, an attempt to more deeply understand the world and find meaning in life.

As noted by our professor, J. Paul Rajashekar, a Lutheran theologian originally from India, the specific faith claims of different religions are often based on cultural, linguistic, and social distinctions. Christians often speak in terms of salvation, but this is specifically a Christian term and there is no singular understanding of what salvation means in the Bible. Other faiths use terms such as enlightenment, atonement, harmony and rebirth. Hindus seek spiritual oneness. Sikhs speak of moving from darkness to light. Buddhists strive for wholeness and nirvana. Each religion offers a view of life and a guide to living. In reality, it matters less what one believes, than how one’s faith is practiced in relation to others.

If we allow ourselves to grow and be challenged, there is much to learn from persons of other faiths. To engage in dialogue, to listen and understand what others believe, is to acknowledge our shared humanity. Pluralism invites dialogue and engagement with others. To take seriously the faith of others allows us to explore the richness of our own faith. To ignore or refuse to learn about other faiths is to deprive us of the opportunity to grow, think, and learn. Is this what God desires?

Sometimes we confuse faith with ideology. Pluralism challenges all claims to absoluteness and exclusive truth. It is perhaps why exposure to pluralism, to multi-religious societies, breeds fundamentalism – particularly Christian and Islamic fundamentalism. Indeed, Christian fundamentalism is a 20th Century American phenomenon that coincided with increasing religious diversity in American society.

Christian fundamentalists and some conservative evangelical Christians love to cite the Bible in support of their beliefs. But what many refuse to acknowledge is that our understanding of scripture is influenced by 2,000 years of history and how it has been interpreted. The Bible has been translated in nearly 2,500 languages and there are over 900 different English translations of the Bible. Each version contains linguistic differences that deviate further from the original sources. Similarly, religious creeds and doctrines are merely human attempts to comprehend a mystery that transcends human understanding. In the words of Professor Rajashekar, “Some theological questions will always remain unanswered on this side of humanity.”

Perhaps all we can do is search for God’s presence, in whatever form, whatever language, in light of our human predicament. To engage in inter-religious dialogue requires courage and a commitment to more deeply understand our own faith. It requires a willingness to listen to what others believe and profess. Doing so may allow us to better understand who we are and what we believe. As the late Rabbi Heschel advised, “The world is too small for anything but mutual care and deep respect; the world is too great for anything but responsibility for one another.”

Saturday, April 9, 2016

Why Time Begins on Opening Day

Born to an age where horror has become commonplace . . . we need to fence off a few parks where humans try to be fair, when skill has some hope of reward, where absurdity has a harder time than usual getting a ticket. – Thomas Boswell, Why Time Begins on Opening Day (Penguin Books, 1984)
The annual rite of spring has arrived, winter’s frost having given way to the April sun. After four months of darkness, a new baseball season is upon us, marked these first two weeks with opening day ceremonies in big league parks across North America. All 30 major league teams have ascended from Florida and Arizona after preparing for another long season. Six weeks of wind sprints and fielding drills, of shagging flies and picking grounders, of hitters dropping down bunts and slicing balls to the opposite field. Baseball players at work, perfecting their trade; hitters working on timing, outfielders on hitting the cut-off man, pitchers on commanding their fastballs; middle infielders perfecting their footwork, pivoting and slide-stepping the bag to turn a double play, catchers blocking pitches in the dirt, first basemen scooping errant throws. The field work of spring ball finally completed, it is time for the season to start.

Although the Cardinals won a major-league-leading 100 games last season, I feel uneasy about this team. It could be me, but they look flat and uninspired as season play begins (losing the first three games to the Pirates did nothing to alleviate my concerns). Injuries have already claimed their starting shortstop and an assortment of other players.

And yet . . . I hope. It is why the start of a new season is like opening a new book, the pages promising an intriguing story with a happy ending. On good days, I see what could be the best starting rotation in baseball, anchored by the crafty veterans Wainwright and Leake, the hard-throwing youngsters Wacha and Martinez, and the soft-tossing southpaw Garcia. And I see a lineup filled with the bright lights of Piscotty and Grichuk in the outfield, Wong and Carpenter in the infield, and I hope some more.

Most fans at this time of year are filled with hope, ignoring the gloomy predictions of the baseball prognosticators on ESPN and MLB TV. Like shifting trade winds on the high seas, much can happen over the marathon of a baseball season that alters the course of a pennant race. Injuries and luck – bad and good (though mostly bad) – are part of the game. How a team resolves adversity is the best predictor of how well its season ends.

In Why Time Begins on Opening Day, Thomas Boswell writes that baseball is “merely one of our many refuges within the real where we try to create a sense of order on our own terms.” Baseball offers us continuity and new beginnings, symmetry and timelessness. The ballpark itself is “living theater and physical poetry.” It possesses a pastoral beauty rooted in American history, memory, grass and dirt, wind and sun.

For the baseball fan, opening day is the start of a new year. Our calendar begins in April and ends in October. For me personally, the next seven months demands that all social plans be cleared through the Cardinals’ schedule. Tickets to the play on Sunday afternoon? Uh, I’m afraid not, the Cards have a day game against the Cubs. Saturday night at the movies? I don’t think so – but if we see an afternoon show, we can have dinner and make it back for the 8:15 start. I know, don’t say it. But that’s how it would go in a perfect world.

Whenever Andrea complains about my obsessive baseball watching, I remind her of when I binge-watched re-runs of The Sopranos through the winter of 2015. More recently, it was five full seasons of Breaking Bad. She quickly relents. When confronted with the alternative of murder, blood, vile crime, and petty corruption, the sweet innocence of our national pastime looks pretty good. Andrea now sighs in relief when the Cardinals come on the tube. She freely acknowledges the subtle beauty and elegance of the sport. And she appreciates, though she remains somewhat perplexed, by my life-long loyalty to the Cardinals. It is a loyalty grounded in childhood, in years of box scores and baseball cards, Strat-O-Matic games and the imagination of a ten-year-old boy throwing a ball against a pitching net in his back yard. It is why, as Boswell suggests, my “affection for the game has held steady for decades, maybe even grown with age.”

“The game begins in the spring, when everything else begins again,” wrote the late A. Bartlett Giamatti before he became Commissioner of Major League Baseball, when he was still President of Yale University. It is a common theme in baseball literature, this linking of baseball to time, to history, to seasons past and present. The game “blossoms in the summer, filling the afternoons and evenings, and then as soon as the chill rains come, it stops and leaves you to face the fall alone.”

Like Giamatti, I rely on the games “to buffer the passage of time, to keep the memory of sunshine and high skies alive,” and through its transparent simplicity, “to set the order of the day and to organize the daylight.” In quiet moments of reflection, I understand it is possible that I put too much emphasis on baseball’s importance in my life. To this day, when the Cardinals lose, I sometimes enter the darker, brooding, depressed impulses of my soul. But I understand how difficult the game is, and I feel for players in a slump. Although I often dreamed of playing professional baseball, deep down I always knew I lacked the mental toughness and skill required to succeed at higher levels.

When I attend games in person, whether at the grand cathedrals of major league baseball or at the local high school fields and parks near my home, I love to watch the action between innings, when the pitcher takes his warm-up throws, the first baseman lofts ground balls to the infielders, and the outfielders play a relaxed game of catch from 200 feet apart. The graceful rhythms of the ballplayers create a symphony of movement, baseballs flowing in multiple directions, all with a sense of linear purpose. At these moments, the game encompasses my imagination, allows me to remember the feelings and love I had for the game as a player, and reminds me of the dreams I held onto until reality and life set me straight. It is then I realize, as did Giamatti in his brilliant essay on baseball, that some
. . . were born with the wisdom to know that nothing lasts. These are the truly tough among us, the ones who can live without illusion, or without even the hope of illusion. I am not that grown-up or up-to-date. I am a simpler creature, tied to more primitive patterns and cycles. I need to think something lasts forever, and it might as well be that state of being that is a game; it might as well be that, in a green field, in the sun.

Amen. Opening day has arrived. Let the season begin.

Wednesday, March 16, 2016

Missing the Conversations

Only that day dawns to which we are awake. There is more day to dawn. The sun is but a morning star. – Henry David Thoreau
Earlier this week I drove to Lehigh University in Bethlehem, Pennsylvania, for work-related business. An unseasonably warm and sunny March day, I cracked opened the car windows and let the early spring air brush against my forehead and refresh my senses. The hour plus drive up the Northeast Extension of the Pennsylvania Turnpike, a scenic and peaceful stretch of hills and farms, allowed me to reflect on life, longing, and the passage of time.

Upon arriving, I took a moment to walk around the beautifully wooded hillside campus spread across 2,300 acres of Pennsylvania’s Lehigh Valley. Situated fifty miles north of Philadelphia and 75 miles west of New York City, the campus contains a vibrancy that belies its quiet location. Although I was born a few miles away in Easton, my only previous visit to Lehigh’s campus was in the early 1970s when I accompanied my family to a Wittenberg-Lehigh football game. The air had a familiar feel and scent.

As I walked along the campus commons and watched students lounge, talk, walk hurriedly to class, and toss Frisbees, I felt the years melt away. I thought back to a time 35 years earlier when I walked across Wittenberg’s campus between classes, books in hand and thoughts filling my head as I stopped to talk with a classmate or to sit on a tree-sheltered bench in front of the library.

When my meetings at Lehigh concluded and it was time to leave, I took a final look around and felt a slight pang in my heart. A few minutes later I realized what it was, this sense of loss as I left campus, for I wanted to call home and talk with my Dad about work and life and my morning at Lehigh. He would have liked that. He had spent nearly a decade in this part of the country when he was a young Lutheran minister in Phillipsburg, New Jersey, just across the river. Like me, Dad enjoyed exploring college campuses. When I was younger, we occasionally found ourselves walking along the campuses of Princeton and Harvard, Holy Cross and Dartmouth, and many smaller and lesser known schools near places my Dad visited when we lived in New Jersey and later Massachusetts.

I think now I know why Dad liked college campuses so much. They remind us of when we were young, when life seemed full of possibility, the world and everything about it a place of creative exploration and learning; when opportunities awaited our advancing progress and many paths seemed open to us. College was a time of hopeful uncertainty, when it was safe to dream of being and doing anything; of being “a free man in Paris . . . unfettered and alive” as Joni Mitchell sang on Court and Spark.

There is a reason young people are on the whole more idealistic than the rest of us, and that cynicism and despair increase as we grow old. For Dad and me, college campuses were a brief respite from all of that. They reminded him, as they continue to remind me, of a time years ago when we possessed grander visions.

When he was a pastor in northern Virginia in the 1980’s and early 1990’s, one of Dad’s favorite activities was his annual visits to nearby colleges attended by the sons and daughters of congregants, the same kids he confirmed five or six years before and counseled in youth group rap sessions. From his church in Maclean, Virginia, he visited schools like Washington and Lee, Virginia, and VMI. Dad always had a sense of hope and optimism when he talked of such visits. He enjoyed speaking to young people, learning about their studies and college experiences, and discussing with them their future plans, anxieties, and dreams. I love that too, and I am certain I have annoyed more than a few college and graduate students with questions about their studies, their plans, their hopes for the future. And yet, I have had some of my best conversations with my daughters and their friends when focused on their goals, their concerns, and the many options and obstacles that lie ahead.

In the final decade of his life, my Dad loved hearing about what schools Jen and Hannah had applied to and, after leaving for college, what classes they were taking, their activities and internships, and their experiences abroad. He did not always have advice relevant to the 21st century economy (nor do I), but the girls and I enjoyed his interest in their lives and futures.

These are the conversations I miss the most since my Dad died nearly a year ago. It hits me only occasionally now, but there are some days, like my visit to the Lehigh campus, that leave me with a momentary sense of remorse, when I am reminded that death is forever and there is no turning back; and when I am forced to acknowledge that loss is permanent.

But then again, maybe the immutability of loss is but an illusion. I am reminded of a scene in one of my favorite movies – a cute, inspiring film I used to watch with my daughters when they were young about a 13 year-old girl named Amy who moves back with her Dad after her mother dies in a car accident. Her Dad, played by Jeff Daniels, is an eccentric, free-spirited inventor, who lives on a farm in rural Canada. Early on, Amy finds a nest of abandoned goose eggs, which she nurtures and watches over until they hatch. The baby geese immediately associate Amy as their mother, and she raises and cares for the goslings as if they were her children. The goslings follow Amy everywhere. But with the approach of winter, she and her Dad realize they must find a way to lead them south. Based on a true story, Fly Away Home contains beautiful scenes of the Canadian countryside and of the geese in flight after Amy’s Dad builds two small engine-assisted gliders, one painted to resemble a large goose. Ultimately, Amy learns to fly the goose-like contraption and, together, she and her Dad fly along the east coast of the United States from Canada, with all of the young geese in tow, before landing safely in a nature preserve in North Carolina.

In one memorable scene, the Dad’s glider malfunctions and he crash lands, dislocating his shoulder. He insists Amy continue on without him. But Amy doubts herself.

“I can't find my way without you,” she says.

 “Yes, you can,” insists the Dad. “Because you're like your mother. . . . She was brave, you know. . . . She went off, followed her dream. Nobody helped her. . . . You have that strength in you too.”

“I wish she was here now.”

“She is. . . . She's right next to you. She's in the geese. She's in the sky. She's all around you.”

There is wisdom and simplicity to this notion of spirit, of the ineffable presence of loved ones no longer with us. I would like to believe there is truth to the notion that those who precede us in death remain with us in life, present in the sun, the sky, the trees, and the geese. And why not? What is this life all about if not to fulfill some larger circle of existence?

“It’s not what you look at that matters, it’s what you see,” wrote Henry David Thoreau. “This world is but a canvas to our imagination.” To find inspiration in the clouds, the grass beneath our feet, and the mane of a wild horse, is to transcend the limits of time and mind. I can no longer talk with my Dad about the things which most excited him, and from which he had much to say. But I will continue to have those same conversations with my children. And I will know that, in some inexplicable way, Dad’s voice continues to be heard. For as the author Henry Stanley Haskins wisely said, “What lies behind us and what lies before us are tiny matters compared to what lies within us.”

Give me the splendid, silent sun with all his beams full-dazzling. 
– Walt Whitman

Thursday, February 18, 2016

The Origins of an Argument: My Lunch with Antonin Scalia

The sudden and unexpected death of Justice Antonin Scalia heightens the importance of the 2016 presidential election. Whoever replaces Scalia will undoubtedly alter the balance of the Supreme Court. He was a conservative firebrand who, depending on your perspective, became one of the most revered or reviled justices in history. With three remaining justices over the age of 77, the direction of the Court, and the law of the land, could radically change in the coming years. But there will be time to address the political, legal, and social implications of these inevitable nomination battles. For now, I wish only to recount the day more than thirty years ago, armed with a bag of chips and a tuna sandwich, I debated constitutional law with then Judge Scalia.

In the fall of 1985, fresh from George Washington Law School, I was a judicial law clerk to Judge John Terry of the District of Columbia Court of Appeals. Judicial clerkships are highly sought after appointments for recent law school graduates and I was honored and privileged for having been selected. The D.C. Court of Appeals was the equivalent of a state supreme court, the highest appellate court in the District of Columbia for all criminal and civil cases originating in the city’s court system and before administrative agencies of the D.C. Government. The men and women who clerked on the Court of Appeals hailed from some of the nation’s best law schools. Intelligent and opinionated, we had many spirited debates about law and politics, individual rights, and notions of liberty and justice. It was an exciting year and remains one of the most satisfying experiences of my legal career.

Among the highlights of that year were the monthly brown-bag lunches hosted by the court librarian, who invited distinguished guests to join the appellate clerks for lunch in the judge’s conference room. Of all the guests we entertained that year, the most memorable was none other than Antonin Scalia, then an Associate Judge on the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit was the federal equivalent of the D.C. Court of Appeals, though more prestigious and influential. Because Congress, the White House, and most federal regulatory agencies are located in Washington, D.C., the D.C. Circuit is often the court of last resort for controversies of national import. Judges on the D.C. Circuit frequently make the short list of potential Supreme Court nominees whenever a vacancy arises. In fact, until Justice Scalia’s passing, four of the nine Supreme Court Justices originated from the D.C. Circuit (Antonin Scalia, John Roberts, Ruth Bader Ginsburg, and Clarence Thomas).

On a cool, sunny October day, dressed in a dark suit and red tie, Judge Scalia walked across the street from the federal courthouse to the sixth floor of the D.C. Courthouse, where he was met by 20 appellate clerks well aware of his confrontational and outspoken style. Although seven months would pass before President Reagan nominated Judge Scalia to the Supreme Court, he was widely regarded in legal circles as a brash and outspoken advocate of the Constitutional doctrine known as “originalism,” the idea that judges should interpret the Constitution consistent with the original meaning of its language. As a sitting judge and former law professor, Scalia mocked the notion of a “living” Constitution, one that evolved with the changing times, as simply an excuse for unelected judges to invoke their personal preferences and ideologies. He insisted his approach was value neutral and not necessarily a reflection of his personal views. If you don’t like what the Constitution says, he contended, amend the Constitution. But don’t read into the plain words of the text what is not there. No jurist or legal scholar in my lifetime has been as influential and effective in pressing his or her notion of constitutional scholarship as then Judge, and later Justice, Antonin Scalia.

As it happened, Judge Scalia sat to my immediate left the day he joined us for lunch. He had an intimidating, if slightly disarming, manner; part-Shakespeare, part Sicilian street fighter from Queens. He combined intellectual rigor and sarcasm with a caustic sense of humor. He was as irreverent and arrogant as advertised, even a bit rude, though he was open to dialogue and debate.

After introductions, Scalia offered his view of the Constitution and the role of a sitting judge. In discussing originalism, and by way of example, Scalia asserted that the Eighth Amendment prohibition against “cruel and unusual punishments” by definition did not outlaw the death penalty. This was so, explained Judge Scalia, because executions were widely practiced when the Constitution was ratified and thus the original meaning of the phrase “cruel and unusual” did not encompass death sentences for the most serious crimes. At this, I raised my hand, momentarily interrupting the judge’s train of thought. His glance impressed me as more Queens street fighter than Shakespeare.

“Yes, Judge Scalia, but does not society have the right to advance?” I asked with some hesitation. “I mean, two hundred years later, is it not the proper role of the courts to apply and interpret ‘cruel and unusual’ in a manner consistent with the standards of the 20th Century?”

“To what standards are you referring? Yours? Who decides? Why should it be up to nine unelected lawyers? By what right do they have to change the clear and unambiguous meaning of the words as written?” The judge waited impatiently for my response.

“It is the job of judges to interpret the Constitution in the context of changing times,” I replied. “It is not a static document.”

“Says who? And by what authority?”

“Um, well…”

“Look, stop trying to impose your values on the original meaning of the Constitution. If you are opposed to the death penalty, fine, then pass a law that abolishes it. Or amend the Constitution to explicitly prohibit the death penalty. But don’t suggest that the words of the Constitution, which meant one thing at the time they were written, now suddenly have a different meaning.”

Although there is more to this debate than can be resolved over a lunch box, I understood his argument. Up to a point, I agree with him. On the surface, it is a hands-off attitude, a nod to the separation of powers that gives the democratically elected branches of government the unfettered authority to make the laws. The Constitution should only intervene when Congress or the President clearly run afoul of their constitutional authority. Judge Scalia was not insisting on the existence of the death penalty. He was only stating that the Constitution, in his view, does not prohibit the death penalty. It is a distinction important to understand regardless of one’s opinion on the appropriateness or morality of state sanctioned executions.

But though I did not press the argument at the time, Scalia’s is not the only or even correct view of the Constitution and its proper interpretation. In 1922, Justice Louis Brandeis wrote that “our Constitution is not a strait-jacket” but “a living organism . . . capable of growth.” It requires judges to take account of the realities of American life. In 1791, public flogging was standard punishment in some communities and not widely considered a “cruel and unusual” punishment for certain crimes. And yet, is there really any question that fifty lashes on a public square for a convicted horse thief would today be considered by the courts, with near unanimity, a “cruel and unusual” measure? What changed, or evolved, if not the Constitution and our present-day understanding of it? As Justice Oliver Wendell Holmes wrote in 1920, the cases before the Court “must be considered in light of our whole experience and not merely of what was said a hundred years ago.”

Later, the conversation turned to the right of privacy, the foundation of Roe v. Wade and other decisions protecting the rights of individuals to abortion, contraception, and reproductive freedom.

“Where in the Constitution,” asked Judge Scalia, “is there a right to privacy?”

“In the concept of liberty under the Fourteenth Amendment,” I suggested.

“How so?” asked the judge.

“Well, what is liberty without the right to privacy? Especially from governmental interference in the most intimate and private decisions affecting one's body?” I replied.

“So, you would read into the Constitution a right not stated anywhere in its text, and then apply that right to prohibit democratically elected representatives from imposing the presumed will of the people in outlawing abortions?”

“Yes, because the concept of liberty, which includes privacy, has expanded over time,” I said.

“Are you applying the Constitution, or are you simply imposing your sense of morality and values into the law? And what gives you that authority?”

“But aren’t you doing the same thing?” I asked, evading the judge’s glare as I wiped the sweat from my forehead. The room had become intensely silent.

“No,” Judge Scalia insisted. “It makes no difference what my personal views are on the death penalty, abortion, any of these issues. What matters is what the Constitution does and does not prohibit. The document does not mean one thing in 1791 and something else in 1985. If Congress or a state legislature wants to legalize abortion, they can do so. But if the democratic process wants to outlaw abortion, unless and until the Constitution changes, they can do that as well. This is about upholding the democratic process. Judges are umpires, not law makers.”

For a solid hour, Scalia skirmished with a number of law clerks, most of whom were decidedly liberal and unpersuaded by Scalia’s reliance on originalism. I suggested at some point that certain constitutional principles have been expanded appropriately by the Warren and Burger Courts, especially in the areas of criminal procedure and civil rights, because “the courts' primary role is to protect the minority from the tyranny of the majority.” And though I cannot recall precisely Judge Scalia’s response – something like, “So does the Constitution change when today’s minority becomes tomorrow’s majority?” – I sensed, without any evidence, he was thinking, “Look, you little shit, you don’t know anything.” But I believe he enjoyed the intellectual exercise. He even may have found it invigorating. On that, we were in agreement.

By summer’s end, Judge Scalia was sworn in as an Associate Justice of the Supreme Court, where he would serve for the next 30 years. He will be remembered as one of the most influential conservative jurists in American history and a defining figure in American constitutional law. Although I did not agree with most of Scalia’s views on the Constitution or the role of the judiciary, I respected his intelligence and ability to articulate persuasively his overriding judicial philosophy. At a public appearance in 2015, Scalia said what he easily could have said during our lunch together 30 years earlier: “Don’t paint me as antigay or antiabortion or anything else. All I’m doing on the Supreme Court is opining about who should decide. Is it a matter left to the people, or is it a matter of my responsibility as a justice of the Supreme Court?” To him, at least in these public pronouncements, it was simply about the democratic process, the rule of law, and the separation of powers. Whatever one may think of the political and social impact of Justice Scalia, it is important to understand his point of view and confront honestly his questions, which go to the heart of American constitutional law and the essence of a democracy.

My problem with Scalia was that, despite a clearly articulated judicial philosophy, his rulings frequently were less value-neutral than he insisted. Scalia was a conservative through-and-through, and he exerted his power in ways that advanced a conservative political agenda. His doctrine of originalism served to set in stone the Constitution as it existed 225 years ago. But intentionally vague concepts such as “liberty,” “equal protection,” and “due process” do not remain fixed in time. Equal Protection and Due Process as understood in 1791 or 1868 did not preclude “Whites only” water fountains, racial and gender discrimination, slavery, or Jim Crow. Only with time and social progress did that change. The same is true for many other constitutional concepts.

In many politically-charged cases, Justice Scalia seemingly applied judicial restraint to laws he agreed with, and became a judicial activist for statutes he disagreed with. Thus, he consistently ruled against constitutional protections for gays and lesbians in voting to uphold laws that discriminated against same-sex couples. Dissenting in Obergefell v. Hodges, Justice Scalia wrote: “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” But in District of Columbia v. Heller, he effectively disregarded 200 years of judicial precedent in overturning the District of Columbia’s gun registration law. Ruling that the statute violated an “individual’s” right to bear arms, he applied a view of the Second Amendment disconnected from its history and original meaning of a “well-regulated Militia.”

In Citizens United, Scalia joined the majority in ruling that a bipartisan campaign finance law limiting how much money corporations spend on political advertising violates the First Amendment’s “free speech” clause. According to Scalia, “to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy.” Really? What was the basis of his authority? Did not Justice Scalia impose his own unelected view over that of the nation’s elected representatives through a concept of speech not previously recognized in 200 years of constitutional jurisprudence? What gives? Indeed, Scalia’s writings and opinions in these and many other cases betrayed the philosophical consistency so confidently asserted over tuna on rye more than three decades ago.

And yet, Justice Scalia was a persuasive and formidable proponent of passionately held views. I am grateful to have had the opportunity to “debate” Justice Scalia as a young law clerk. I did not change his mind, and he did not change mine. He was cantankerous and rude, arrogant and opinionated. But in one hour of interaction, he had an impact on me, and my fellow law clerks. I did not adopt Justice Scalia’s worldview or judicial philosophy, but I continue to share his professed respect for the law, the Constitution, and the democratic process. For better or worse, his judicial philosophy, if not his forceful personality, will remain a constant presence in legal and constitutional circles for years to come.