“If you’re going to be a good and faithful judge,” said Supreme Court Justice Antonin Scalia in a 2005 speech, “you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
Justice Scalia, who died February 13, 2016, was a champion of “textualism,” a judicial approach which attempts to interpret law according to the text as it was intended by the legislators who wrote it. Scalia’s “originalist” defenses of the U.S. Constitution during his thirty years on America’s highest court will influence legal scholarship for generations.
One of Justice Scalia’s heroes was Sir Thomas More, England’s chancellor under Henry VIII and a champion of the rule of law as a check on royal power. (Scalia has even been photographed wearing a replica of More’s hat, as seen in the famous Hans Holbein portrait.)
Given Scalia’s own passion for the rule of law, and his admiration for More, wouldn’t it be easy to imagine him delivering some of the best lines in Robert Bolt’s timeless play, A Man for All Seasons—a classic that deserves revisiting as Scalia’s own legacy is discussed since his passing….
“So now you’d give the Devil benefit of law!” declares Thomas More’s son-in-law Roper in one famous scene.
“Yes,” More replies. “What would you do? Cut a great road through the law to get after the Devil?”
“I’d cut down every law in England to do that!”
“Oh? And when the last law was down, and the Devil turned round on you―where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast―man’s laws, not God’s―and if you cut them down―and you’re just the man to do it―d’you think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”
Sir Thomas More is remembered as a great statesman, humanist, and hero of conscience. Bolt’s play shows him to be all three, but particularly focuses on More’s defense of the rule of law against its disintegration and a culture of “political correctness.”
Henry VIII’s decision to make himself head of the Church of England to divorce Catherine of Aragon is famous. Considered less today is how Henry’s actions changed the balance of power in English government and civic life. Having dispensed with his opponents, the king became nearly an absolute monarch, formally limited by the English Constitution and Parliament, but only to the extent that the people’s representatives were willing and able to oppose his wishes. The fewer the checks on the power of the king, the harder it became for any individual to hold a different position from that favored by the monarch.
And all the shiftier became the political sands.
At the core of the drama is the dangerous rise of Early Modern autocratic government and how individuals react to it. More neither desires nor seeks a public conflict with Henry, who is also his personal friend. As Lord Chancellor, he tries scrupulously to follow the law and refuses to take positions he believes are not justifiable according to legal precedent or logic. He will not swear a false oath. In that he differs from most other officeholders, some of whom adopt the king’s domestic and diplomatic agendas for substantial material gain. Others concur publicly with the king because they would rather not rock the boat. As More’s friend the Duke of Norfolk says:
“You’re behaving like a fool. You’re behaving like a crank. You’re not behaving like a gentleman….We’re [the nobility] supposed to be the arrogant ones, the proud, splenetic ones―and we’ve all given in! Why must you stand out?”
More’s response shows how sincerely he values integrity, the expression of one’s personhood, over political expedience:
“I will not give in because I oppose it―I do―not my pride, not my spleen, nor any other of my appetites but I do―I! Is there no single sinew in the midst of this [grabbing his shoulder] that serves no appetite of Norfolk’s but is just Norfolk? There is! Give that some exercise, my lord!”
A nation’s rule of law depends on certain basic things, such as equal justice, clearly defined statutes, enforcement of contracts, respect for property rights, and the sanctity of the oath. Dispensing with these tips the scales toward factionalism and autocracy, against the rights of individuals and citizens. A Man for All Seasons reminds us how delicate is the fabric of freedom.
(Paul Scofield won Best Actor for his role as Thomas More in the 1966 film version of A Man for All Seasons, which won six Oscars, including Best Picture. Scofield also won the 1962 Tony Award for Best Actor for the original Broadway production. Charleton Heston both directed and starred in a 1988 television movie, also based on Bolt’s play.)
Kathryn Hickok is Publications Director at Cascade Policy Institute, Oregon’s free market public policy research organization.
