Justice Scalia: Gridlock is Good

That's the way the founders designed it (from his appearance at the Senate Judiciary Committee - h/t Hot Air):

I ask them, “Why do you think America is such a free country? What is it in out Constitution that makes us what we are?” 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 homes… those marvelous provisions of the Bill of Rights.

But then I tell them, “If you think a bill of rights is what sets us apart, you’re crazy.” Every banana 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 freesom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!

Of course, it’s just words on paper, what our Framers would have called a “parchment guarantee.” And the reason is that the real constitution of the Soviet Union — you think of the word “constitution” — it doesn’t mean “bill” it means “structure”: [when] you say a person has a good constitution you mean a sound structure. The real constitution of the Soviet Union *** that constitution 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.”

So, the real key to the distinctiveness of America is the structure of our govenment. One part of it, of course, is the independence of the judiciary, but there’s a lot more. There are very few countries in the world, for example, that have a bicameral legislature. England has a House of Lords, for the time being, but the House of Lords has no substantial power; they can just make the [House of] Commons pass a bill a second time. France has a senate; it’s honorific. Italy has a senate; it’s honorific. 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 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 branches, the legislature and the chief executive. In all of the parliamentary countries the chief executive is the creature 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 him out! They have a no confidence vote, a new election, and they get a prime minister who agrees with the legislature.

The Europeans look at this system and say “It passes one house, it doesn’t pass the other house, sometimes the other house is in the control of a different party. it passes both, and this president, who has a veto power, vetoes it, and they look at this, and they say (adopting an accent) “Ach, it is gridlock.” I hear Americans saying this nowadays, and there’s a lot of it going around. They talk about a disfunctional 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 besetting us — as Hamilton said in The Federalist when he talked about a separate Senate: “Yes, it seems inconvenient, inasmuch as the main ill that besets us is an excess of legislation, it won’t be so bad.” This is 1787; he didn’t know what an excess of legislation was.

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 be the main protector of minorities, [we lose] the main protection. If a bill is about to pass that really comes down hard on some minority [and] they think it’s terribly unfair, it doesn’t take much to throw a monkey wrench into this complex system. Americans should appreciate that; they should learn to love the gridlock. It’s there so the legislation that does get out is good legislation.

Gridlock keeps a lot of stupid things from being passed. Here in California they've ended the gridlock by giving Dems control of both House of the legislature as well as the governor's office, and every day it's one new stupid law after another. I long for the good old days of gridlock.