Ashes to ashes: reflections on law, mortality and words

By   /   February 13, 2013  /   No Comments

By Patrick B. McGuigan | CapitolBeatOK

OKLAHOMA CITY – It’s Ash Wednesday, and words associated with it are as meaningful as all words in Scripture.

On Ash Wednesday, when the Catholic faithful gather to receive the remains of burnt palms, we are reminded, “Remember that you are dust, and unto dust you shall return.” These are solemn words, and worth hearing.

In the earthly arena, I still have this idea that both words and ideas matter, and common ground can be found in matters of legislation and judicial interpretation. Humans come and go, but ideas like “Congress shall make no law” should be buttressed, every generation.

Whether in legal interpretation or Scriptural exegesis, in literary analysis or daily discourse, words have meaning. American conservatism is rooted in respect for those who fashioned a limited government, separated powers and federalist diffusion of authority.

Pondering the U.S. Constitution and its relevance leads to critical scrutiny of the Supreme Court and its role — good and bad, progressive and retrograde, conservative and non-interpretive.

In the modern era, such reflections lead to memories of the late Justice William Brennan and to the current senior justice Antonin Scalia. Their conflicts distill the current debate over the future of constitutional jurisprudence.

Generally a “conservative,” Scalia nonetheless has been on the wrong side of a few cases over the years. The flag burning case of 1989 — in which he joined the majority finding flag burning a form of protected speech — was one of his rare errors.

Generally a “liberal,” Brennan’s ardent belief in free speech led him to favor Massachusetts Citizens for Life in one of the important political speech cases of the late 1980s. And his reasoning for freedom of association led him to write the Beck decision that defended the rights of conservative dissenters in labor unions.

They fought like brothers, and their personal relationship might hint at a way forward for a deeply divided nation, including in the polarized arena of constitutional jurisprudence.

On an Ash Wednesday in the late 1980s, shortly bfore noon, I was trotting toward St. Joseph’s on Second Street, N.E., on the Senate side of Capitol Hill in the nation’s capitol.

Like many others who resided in Virginia or Maryland but worked on the Hill, we were, for the start of Lent, honorary parishioners there or at St. Peter’s, on the House side.

After years of Holy Day Mass-going at St. Joe’s I expected a reverent, proper yet expedited liturgy, leaving attendees time to grab something to eat within the noon hour, and, a plea from the pastor. Ash Wednesday services were his highest attendance of the year – and, not incidentally, the highest cash collection at any Mass.

As I neared the old church, I saw moving slowly up the front steps two men I knew. Walking tentatively — his right hand on the middle rail, and his left hand extended to his companion — was William Brennan, the liberal legend whose judicial philosophy I’d spent the last few years opposing.  He was getting feeble and moved carefully.

Standing to the left, on the elder justice’s left as Brennan clutched his cane, was Antonin Scalia, walking patiently and solicitously. When they got to the top step, Brennan switched the cane to his right hand. Scalia — “Nino,” as his friends call him — clasped the old man’s left hand, placing his right hand gently around Brennan’s lower back.

The pair walked into the church, then three-quarters full. They moved slowly past the priest and servers, down the center aisle to a pew at the front left, where they sat. The priest then nodded to his servers and looked to the organist, and Holy Mass began.

After the Gospel, the pastor gave his annual plea, and offering baskets filled with bills. At distribution of ashes, and then for Communion, Scalia took the old man’s hand, put his right hand under Brennan’s arm, to rise and move toward the altar.

After Mass, they prayed for a bit, then rose to make their way out the door and down the street for the brief walk to the Supreme Court.

Brennan was the only justice who always replied with a personal note when he received copies of my legal books. He assured me he would consult my words as he grappled with cases. I knew he would often disagree with me – and with Scalia, who had joined the Court in 1986. Still, words mean a lot.

Now, I’m the guy who needs help on stairs. I often think of Bill and of Nino – the justice I most admired in the late 1980s (now, he is narrowly behind Clarence Thomas, who joined the Court in 1991).

Guys like Scalia and me honor the Constitution as a rulebook – not as “lodestar of our aspirations,” as Brennan memorably said. That’s still a necessary fight – with rules  of respect, civility and decency to each other along the way.

The late Supreme Court Justice William Brennan, one of the most liberal justices in history, nonetheless ruled for “conservative” outcomes in a few cases.

You may contact Patrick B. McGuigan at [email protected] and follow us on Twitter: @capitolbeatok.



Patrick formerly served as staff reporter for