Check Your Texts

The Gist:  Scalia argues that judges should interpret what the Constitution said, not what they want today.

A review of A Matter of Interpretation by Antonin Scalia.

In November of 2012, I made my annual trip to Washington D.C. to participate in the national convention of the Federalist Society. Once the leader of Vanderbilt law school’s student chapter, now the leader of Nashville’s lawyer chapter, always a supporter, my name tag is usually delightfully outfitted with enough ribbons to impress a Russian general – or at least a grand poobah of the local Moose Lodge.

But with the re-election of President Obama earlier that month, this was not a happy time for a group of conservative and libertarian attorneys “founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” 

Now this is a big conference – though the vast right-wing conspiracy is not quite as vast, right-wing, nor conspiratorial as ideal. But at one point I found myself in conversation with a small group that included the Federalist Society’s original faculty sponsor and the man most responsible for elevating its ideas to national significance: Antonin Scalia. Gloomier than anyone else, but always possessing his trademark humor, the legendary Supreme Court justice joked that the Constitution would survive, though his own retirement was delayed.

Scalia

Figure 1. Rest in peace, Nino.

 

Scalia never got the chance to retire, but his legacy endures. In his book A Matter of Interpretation, Scalia does something striking: the Justice lays out his case for how our republic can best live up to its values – and then invites four prominent experts to challenge him. To anyone who has read one of Scalia’s amusing and cutting judicial opinions, this should come as no surprise: the man loved a good debate. But to anyone who has not and never will, this book offers both a clear introduction to Scalia’s philosophy – and to some of its criticisms. 

Scalia believes that every law must be interpreted based only on what the text says, not what a judge wants. You are probably shocked that this is a controversial proposition, but it is. But how do you determine what a text says?  The most important concept, alluded to in the term “originalism,” is that the text must be interpreted according to the original public meaning of the words. In a republic, power is centered in the people who delegate legislators to make laws on their behalf. Those legislators only agreed to what the words meant at the time, not to whatever those words may mean in the future – so the only power laws have is in their original meaning. So judges must write opinions armed with contemporary dictionaries, not the latest op-eds and policy briefs. Without this constraint, if laws can be interpreted by anyone to mean anything, what is the point of having laws in the first place?

Humpty Dumpty

Figure 2. “When I use a word, it means just what I choose it to mean. Neither more or less.” – Humpty Dumpty, the most strident advocate of Living Constitutionalism in Wonderland, and a preferred legal authority for certain Americans looking abroad for standards.

 

Importantly, Scalia is NOT saying laws should never change – they should! But they must be changed through the democratic process – the regularly elected legislature rather than the unaccountable judiciary. Scalia insists on judicial restraint: “Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former.” No, the obligation of the courts is to determine whether the law is followed, not what the law should be. “To be a textualist in good standing, one need not be too dull to perceive the broader social purposes that a statute is designed, or could be designed, to serve; or too hidebound to realize that new times require new laws. One need only hold the belief that judges have no authority to pursue those broader purposes or write those new laws.” Scalia goes further in his observation that if he could change one thing about the Constitution, he would make it easier to change – so that people could litigate their ideas in elections rather than before the courts. Still, this is a relatively recent phenomenon: Scalia points out that we felt obligated to pass a constitutional amendment to give women the right to vote even though modern courts probably would have just ordered it to happen.

So you’re sold on original meaning, but why original public meaning? This is most relevant to the Constitution, which derives its authority from the consent freely given by Americans in 1787 when it was submitted to state conventions for ratification. But it also applies to modern statutes: Scalia stridently challenges the attempt to discover meaning by trying to divine what legislators intended to do, as opposed to what they actually wrote into the text and voted upon. To Scalia, this is an impossible task of soothsaying: How can one possibly know the intentions of 535 legislators and a president in crafting legislation? Is a speech – or worse, a private comment – by a single legislator perhaps listened to by no one really the indicator of anyone else’s intent – or even that legislator’s intent? Does a committee report drafted by unelected staff and never read, amended, or voted upon by Senators really reveal their intentions? Scalia maintains that the United States is “a government of laws, not of men. Men may intend what they will; but it is only the laws that they enact which bind us.” Furthermore, Scalia fervently believes in the separation of powers – and that the Constitution grants “all legislative powers” to the Congress as a whole, not to any committee, nor any individual legislator, and certainly not to the judiciary. The search for legislative intent, Scalia reveals, is really a “handy cover for judicial intent.” The more material that judges can draw upon to make a decision, the easier it is for them to justify a decision that comports with their policy preferences rather than a balanced, neutral perspective on what the law really means.

Ouija

Figure 3. Amazingly, whenever Living Constitutionalist judges consult the spirits of past legislators about whether what they really meant to say is that judges should just do whatever they think is right, the Ouija board always says “YES.”

 

Hogwash, replies Lawrence Tribe, a Harvard law professor and co-founder of a liberal counterpart to the Federalist Society. Tribe alleges that it is difficult, if not impossible, to “discover” the meaning of the Constitution or any law and that judges should “replace such pretense with a forthright account” of whatever they find most plausible and best, though he says “in light of the Constitution as a whole and the history of its interpretation” – a minor concession given how far the Constitution’s original meaning has been bent and bruised. But Tribe goes further and says “There is certainly nothing in the text itself that proclaims the Constitution’s text to be the sole or ultimate point of reference.” But what then should America’s 1000+ judges (and in particular, 5+ Supreme Court Justices) review? That, Scalia responds, is the fundamental weakness of Tribe’s position: 

Perhaps the most glaring defect of Living Constitutionalism… is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution. What is it that the judge must consult to determine when, and in what direction, evolution has occurred? Is it the will of the majority, discerned from newspapers, radio talk shows, public opinion polls, and chats at the country club? Is it the philosophy of Hume, or of John Rawls, or of John Stuart Mill, or of Aristotle? As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful.

Tribe concedes that he has no overall perspective because he is “doubtful that any defensible set of ultimate ‘rules’ exists.” If that’s the case, why not trust the democratic process? Scalia explains that’s the point: Living Constitutionalists want to subvert the system. First, they are frustrated with the fact that the Constitution was designed to limit evolution. That’s why we wrote something down, as opposed to allowing the law to just develop on its own as it does in the United Kingdom. And it’s why we created three branches, each with unique responsibilities, inside one of which are two distinctly elected houses of Congress, all designed to achieve ambition clashing against ambition – and limit big jumps in policy. Second, they are frustrated by voters and eager to restrict democracy: courts have taken away power from voters and ordered that God cannot be invoked at public school graduations, that welfare can’t be terminated (or public employees fired) without a hearing, or, perhaps sometime soon, that the right to bear arms will be gutted. But Scalia warns:

We value the right to bear arms less than did the Founders (who thought the right of self-defense to be absolutely fundamental), and there will be few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard. But this just shows that the Founders were right when they feared that some (in their view misguided) future generation might wish to abandon liberties that they considered essential, and so sought to protect those liberties in a Bill of Rights. We may like the abridgment of property rights and like the elimination of the right to bear arms; but let us not pretend that these are not reductions of rights… As things now stand, the state and federal governments may either apply capital punishment or abolish it, permit suicide or forbid it—all as the changing times and the changing sentiments of society may demand. But when capital punishment is held to violate the Eighth Amendment, and suicide is held to be protected by the Fourteenth Amendment, all flexibility with regard to those matters will be gone.

Gordon Wood, Pulitzer Prize-winning historian of early America, agrees with Scalia’s indictment of what happens when judges make law – but insists that it’s nothing new. The patriots of 1776 were outraged at “the extraordinary degree of discretion exercised by royal judges” and “sought to severely limit this judicial discretion” in favor of legislatures producing clean and comprehensive codes that would address any situation. Thomas Jefferson demanded an end to “‘the eccentric impulses of whimsical, capricious designing man’ and to make the judge a ‘mere machine.’” But it turns out that legislatures are full of eccentric, impulsive, whimsical, capricious, designing men and they proved incapable of the task, passing a muddle of conflicting laws driven by interests both partisan and corrupt. After fighting a revolution for freedom and to limit laws, James Madison complained “there were more laws enacted in the decade following the Declaration of Independence than had been enacted in the entire previous century of colonial history.” By the time of the Constitution’s framing, “more Americans began looking to the once-feared judiciary as a principal means of restraining these wild and rampaging popular legislatures.”

Vending Machine

Figure 4. Lifetime tenure will take on a whole new meaning when we can appoint Justice vending machines pre-programmed with the Constitution. A lot cheaper than conventional human judges, but they do require crisp bills of only those denominations that depict the Founding Fathers.

 

Wood notes that the judiciary has only historically recently become its own branch of government (having been in either legislative and executive before – including Tennessee’s original Constitution) and that early American judges were often not lawyers at all and “involved in politics and governing to an extent that we today find astonishing” – including simultaneously serving in executive positions like lieutenant governor, Secretary of State, or other diplomatic positions. In the 19th century, courts attempted to withdraw from the “most explosive and partisan political issues” but insisted on retaining power to define rights. Wood concludes that what Scalia indicts is not a modern phenomenon but “one deeply rooted in our history” and may only be “a change in degree, not one in kind.”  And Wood fears that Scalia’s remedy is “scarcely commensurate with the severity of the problem and may be no solution at all” – both because judges can abuse textualism but also because we must either only appoint textualists or convince judges to be textualists.

Scalia indicates that this is part of the give and take of the separation of powers, and that “there have always been, as there undoubtedly always will be, willful judges who bend the law to their wishes. But acknowledging evil is one thing, and embracing it is something else… There has been a change in kind, I think, not just in degree, when the willful judge no longer has to go about his business in the dark—when it is publicly proclaimed, and taught in the law schools, that judges ought to make the statutes and the Constitution say what they think best.” Indeed, when you go to law school, you don’t actually study the Constitution’s text, the Federalist Papers, dictionaries from 1789 – you read the opinions of judges, lots of opinions, and your professors engage you in Socratic dialogue, asking you how the judge reasoned her way to the result. Part of this is so the law student can see what happens when the Constitution meets a situation – but the bigger part is that opinions become the law by virtue of a doctrine called stare decisis, where the court is supposed to defer to what it has said in the past unless it can distinguish the current case. Scalia approvingly quotes the 19th century codifier Robert Rantoul: “The judge makes law, by extorting from precedents something which they do not contain. He extends his precedents, which were themselves the extension of others, till, by this accommodating principle, a whole system of law is built up without the authority or interference of the legislator” or, as Scalia points out, the people. But when is it okay to get rid of stare decisis in favor of the Constitution’s original meaning?

American Gothic

Figure 5. Thanks to judicial discretion, stare decisis, and what one Living Constitution advocate called the “non-textual amendments” to the Constitution, we get to build our case law upon Wickard v. Filburn, where the Supreme Court determined that the Constitution granting power to “regulate Commerce…among the several States” meant that Congress could fine a small farmer thousands of dollars for growing more wheat than the federal government mandated – even when he only consumed it himself, within a single state.

 

Mary Ann Glendon, conservative Harvard law professor and expert in continental European law where stare decisis doesn’t really exist, worries that without stare decisis, the court will be “lurching along in irrational and unpredictable fashion, like the monster in the old version of Frankenstein.” She echoes the concerns of the early Americans: if legislation is not “comprehensive, coherent, self-contained,” then you cannot expect judges to be constrained by it. Glendon doesn’t agree with particular decisions and warns that “as judicial lawmaking expands, the democratic elements in our republican experiment atrophy. American men and women not only are deprived of having a say on how we order our lives together, but we lose the skills of self-government.” But if the Justices don’t defer to previous decisions, Glendon fears, the court loses credibility and deteriorates to a legislature of majority votes. 

Here Scalia essentially retreats into his famous self-identification as a “faint-hearted originalist” and unfortunately empowers lesser originalists of even fainter heart, if they be originalists at all. But before we get to Scalia’s perspective, we might channel his colleague Clarence Thomas, who would ask: if we’re looking for predictability, why isn’t the rule that everyone just stick to the original meaning of the Constitution? If you choose to be extremely faithful to precedent, then you are obligated to respect every time the other side, in a majority vote, betrays the original meaning (and, incidentally, often stare decisis itself). What is this extreme fidelity but a slow bleed to pirates who don’t respect the system at all but are happy to take advantage of you?

Car

Figure 6. Imagine a family of three – mom, dad, and son –  that has a tradition of making a spring road trip from Nashville, Tennessee to Hilton Head, South Carolina – a family beach destination. Dad takes the wheel for the first leg and drives southeast from Nashville to Atlanta, Georgia before handing it off to his son. The son, however, really wants to check out the casinos in Biloxi, Mississippi, so he unilaterally drives west to Montgomery, Alabama. Now mom takes the wheel. Does she honor the direction of the car and proceed to Biloxi? Does she try to slightly correct and split the difference, perhaps winding up in Panama City Beach, the “spring break capital of the world”? Or does she turn the car around and head to the original destination of Hilton Head?

 

Tribe reports that,

“During his confirmation hearings, Justice Scalia revealed that his decision whether to overrule precedent he viewed as wrong would be based in part on how woven the ‘mistake’ was into the fabric of the law. A key factor in making this determination would be how long the precedent has existed. For example, he noted that almost no revelation could induce him to overrule Marbury v. Madison, but he would be more willing to overrule a less established case, such as Roe v. Wade” 

This is a pretty sensible attempt by Scalia to reconcile his philosophy with the operation of the court – but Tribe understandably attacks him for an ambiguous set of rules for when to overturn precedent, totally untied to anything actually present in the text of the Constitution which is supposed to be Scalia’s lodestar. Scalia accepts the critique, saying, regarding the First Amendment for example, “the Court has developed long-standing and well-accepted principles (not out of accord with the general practices of our people, whether or not they were constitutionally required as an original matter) that are effectively irreversible” and admits that choosing when to respect stare decisis leaves plenty of opportunity for judicial discretion. Scalia says following originalism totally would be “so disruptive of the established state of things that it will be useful only as an academic exercise and not as a workable prescription for judicial governance.” Ultimately, Scalia admits “stare decisis is not part of [his] originalist philosophy; it is a pragmatic exception to it.” To which Yale law professor Akhil Amar responds, “If pragmatism ultimately determines when we do originalism, this is in the end pragmatism not originalism.”

Scalia’s final challenger is Ronald Dworkin, the second-most cited American legal scholar of the 20th century. Dworkin accepts Scalia’s plea that we look to the text of the Constitution – but suggests that the Founders gave us abstract principles to aspire to that were specifically intended to be redefined with each new generation as opposed to be frozen at the time of enactment. It is through this reading that the historian Wood fears the abuse of originalism or that Obama’s Supreme Court nominee Elena Kagan could claim “We are all originalists now.” When the Founders’ forbade “cruel and unusual punishment,” Dworkin asks, did they not mean for the definition to shift? When the post-Civil War Congress insisted that citizens’ “privileges or immunities” could not be abridged, Dworkin queries, were those supposed only to be as then-imagined? Tribe piles on: why would the Founders only codify those limited liberties enjoyed by the British, where it was a crime to imagine the King’s death? Dworkin notes that the limits of the First Amendment were vigorously debated by the Founding Fathers shortly after its passage – so how can we know what it protected then? Tribe goes further: is there not a subtext – a penumbra, if you will – in the Constitution that says “the right not to have the government put its regiments in one’s home might make little sense without some presupposed right not to have the government regiment every detail of what one does in one’s home.”

Sunshine

Figure 7. It will be easier to enforce the Court’s finding that the 8 hour workday is cruel and unusual than its determination that sunshine is a protected Constitutional privilege and cancer immunity must be enjoyed by all Americans. 

 

Scalia powerfully responds that abstraction is not aspiration:

“To guarantee that the freedom of speech will be no less than it is today is to guarantee something permanent; to guarantee that it will be no less than the aspirations of the future is to guarantee nothing in particular at all…. It makes a lot of sense to guarantee to a society that ‘the freedom of speech you now enjoy (whatever that consists of) will never be diminished by the federal government’; it makes very little sense to guarantee that ‘the federal government will respect the moral principle of freedom of speech, which may entitle you to more, or less, freedom of speech than you now legally enjoy.’

Scalia returns to his core principles: where do you stop the madness? What other hidden, unstated rights exist in the Constitution heretofore undiscovered but now convenient? If you can’t rely on the original public meaning of what these things meant, then where do you draw the line? More importantly: how do you draw the line? And why is it that certain areas of the Constitution get this expansive treatment – cruel and unusual can mean only cruel, but not unusual, in the guesstimation of a judge that only ever evolves in one direction  – but others, like the right to bear arms is “limited to musketry in the National Guard.”

Magnfying Glass

Figure 8. Not very well known, but if you put on night vision goggles and take a magnifying glass and look closely between the Third and Fourth Amendments of the original document the Constitution is written on, you find nothing.

 

If the Constitution is aspirational, “Judges are not… naturally appropriate expositors of the aspirations of a particular age; that task can be better done by legislature or by plebiscite.” Dworkin et al simply want a philosophy of “if it is good, it is so. Never mind the text that we are supposedly construing; we will smuggle these new rights in, if all else fails, under the Due Process Clause (which…  is textually incapable of containing them” because “it guarantees only process. Property can be taken by the state; liberty can be taken; even life can be taken; but not without the process that our traditions require — notably, a validly enacted law and a fair trial.”) Scalia concludes: “There is no such philosophizing in our Constitution, which, unlike the Declaration of Independence and the Declaration of the Rights of Man, is a practical and pragmatic charter of government.”

Ultimately, this is a terrific book, with each challenge elucidating more of Scalia’s view. But the one challenge that is missing, already implied, is from a dedicated textualist unconcerned with stare decisis. When Scalia was challenged about his inconsistencies or asked about this alternative view, he would reply that he was “an originalist, not a nut.” But even if his explanations seem reasonable, did he go far enough in living out his philosophy? Scalia says that “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means” – but is that enough practical guidance for judges to come to the same conclusion? We may like how he winds up on certain issues (though he often said he ruled against his own policy interests when the Constitution required), but when he says –  “In this constitutional context, speech and press, the two most common forms of communication, stand as a sort of synecdoche for the whole. That is not strict construction, but it is reasonable construction” – does “synecdoche” seem a little too close to “penumbra” to to you? While Scalia lambasts anyone who brings in legislative intent, Scalia disciple Steven Calabresi says, 

“In constitutional cases, Justice Scalia gave weight to “original expected applications,” which he never did in deciding statutory cases. The reason for this difference is that the people’s representatives can always repeal or amend a misinterpreted statute, but they cannot do so with an erroneous opinion on a question of constitutional law. As a result, and believing that the Constitution gave all three branches coequal power to enforce the Constitution, Justice Scalia generally decided constitutional cases in a way that presumed the political branches had acted constitutionally.”

Astronaut

Figure 9. The Constitution has a series of age requirements – Congressmen must be 25, Senators 30, Presidents 35. But when we colonize Mars, which has a 687 Earth-day year, will Americans of that distant colony be required to be 50% older?

Regardless of how true Scalia was to originalism, he deserves immense credit for bringing it to the forefront- and allowing judges to credibly pursue his ideas further than he did. Scalia is the giant of conservative judicial philosophy – and one of the most significant conservatives of any field in modern American history.

A matter of interpretation

Figure 10. Click here to buy A Matter of Interpretation (8/10), an excellent introduction to Scalia’s philosophy and its critics. You can also get a good dosage of originalist interpretation itself, such as this look at the Second Amendment:

[The alternative] reading of the text has several flaws: It assumes that “Militia” refers to “a select group of citizen-soldiers,” … rather than, as the Virginia Bill of Rights of June 1776 defined it, “the body of the people, trained to arms,” … (This was also the conception of “militia” entertained by James Madison, who, in arguing that it would provide a ready defense of liberty against the standing army that the proposed Constitution allowed, described the militia as “amounting to near half a million of citizens with arms in their hands.” The Federalist No. 46… The latter meaning makes the prologue of the Second Amendment commensurate with the categorical guarantee that follows (“the right of the people to keep and bear Arms, shall not be infringed”); the former produces a guarantee that goes far beyond its stated purpose—rather like saying “police officers being necessary to law and order, the right of the people to carry handguns shall not be infringed.” It would also be strange to find in the midst of a catalog of the rights of individuals a provision securing to the states the right to maintain a designated “Militia.”

Thanks for reading! If you’ve enjoyed this article, share it with a friend: know any law students or lawyers who should would be interested in this dominant Supreme Court Justice? How about any Americans concerned about keeping their Republic? Or do you know any Supreme Court Justices who should be more textualist?

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Santa

Figure 11. One final comment on the meaning of words. You’re of course familiar with Santa’s search for who is naughty or nice. Well, the original meaning of “naughty” was “needy,” which, when you think about it, unfortunately better reflects Santa’s gift-giving practices.

    You Can’t Choose Your Family

    The Gist:  Nearly all dictators’ children take advantage of their status, often in defiance of the stated motivating ideology of the regime, sometimes in defiance of basic human decency.

    A review of Children of Monsters by Jay Nordlinger.

    Winston Churchill was no fan of his son-in-law, Vic Oliver. Oliver had fought for Britain’s enemy Austria in World War I, was a mediocre entertainer, and had already been divorced (maybe twice) before becoming secretly engaged to Churchill’s daughter. At one point, “trying to make innocent conversation, Oliver asked [Churchill] what figure [of World War II] he admired most. Churchill answered, ‘Mussolini.’ Astonished, Oliver asked why. Said Churchill… ‘Because he had the courage to have his son-in-law shot.’”

    You, like Churchill, may have fantasized about exercising certain powers in your family beyond those permitted in a democracy. Jay Nordlinger writes for the National Review where he often finds just the right anecdotes to illustrate both points and people in stories both of national and human interest. In his book Children of Monsters, Nordlinger relates inhuman interest stories as he sketches the fates of the sons and daughters of dictators, the “more drenched in blood” the more interesting how their progeny might have turned out. How far does the apple fall from the rotten tree? What if what father knows best – what your family values – is evil? The result is entertaining, ironic, and strange. But mostly chilling.

    Luke

    Figure 1. “Children of Monsters” was an alternative working title for the Star Wars saga which, given the latest sequels, works even for the revisionists who properly understand the series.

     

    One immediate example: Hideki Tojo was the strident nationalist leader of Japan during World War II and perhaps the primary advocate for the preemptive attack on Pearl Harbor: his daughter married an American and lived most of her life in Honolulu!

    Though Nordlinger provides some background on each gruesome father, some are more notorious than others, so you might want to consult Wikipedia for a fuller account of their crimes. Albania, for example, was disastrously led for over 40 years by Elver Hoxha, a totalitarian Communist so extreme that he broke with the Soviet Union when it condemned Stalin and the People’s Republic of China when it abandoned Mao. Without mass-murdering allies, Hoxha insisted on total self-reliance (i.e. total isolation) and, with the very limited national resources of the poorest country in Europe, amidst housing shortages and any number of other pressing policy problems, he directed the construction of over 750,000 concrete bunkers. For context, Albania is a little smaller than the state of Maryland and never had more than 3,000,000 people. So Hoxha built more than 60 bunkers per square mile, 1 bunker for every four people, all costing more than three times as much concrete as France’s Maginot Line. Nordlinger reports on this as well as his principal subject: Hoxha’s son, despite his father’s ban on private cars, generously permitted himself a Mercedes, and, as the Cold War came to a conclusion (and with it, Hoxha’s slave labor camps, murders, and all-around repression), the Hoxha heir insisted, “The worst evils of the capitalist society are coming to Albania: unemployment, prostitution, corruption, high prices, and inflation.”

    No Inflation

    Figure 2. “Oh no,” he thought. “Not inflation!”

     

    You may wonder how many scions chose to honor their father. Practically, if a child had the opportunity – that is to say, that they were not, as so many were, abandoned by their father – every child took advantage of the privileges of being the dictator’s offspring. At the very least, that meant enjoying a standard of living well above the normal citizen. Francisco Franco ruled Spain for four decades after winning its civil war: his only child married into Spanish royalty which, given the incestuousness of European monarchies means that Franco’s great-grandson, Louis de Bourbon, is considered by Legitimists (but not Bonapartists) to be France’s rightful king. 

    Sometimes the dictator doesn’t even have to be in power anymore: A Mussolini son became a jazz pianist, first playing after World War II under an assumed name before “discover[ing] his real name was a draw, not a repellent… He played with many of the greats of the day, including Ella Fitzgerald, Duke Ellington, and Dizzy Gillespie. He married Maria Scicolone, the sister of Sophia Loren.” Their daughter became a Playboy covergirl – and then a neo-fascist Italian legislator, though Nordlinger notes “it’s sometimes hard to tell the ‘neo’ from the old-fashioned variety.”

    Of course, the very act of better living often defies the stated motivating ideology of the regime. The first two children of the Romanian Communist dictator Ceaucescu chose careers in science over politics (though no doubt helped by selective state patronage). When the regime collapsed, Ceaucescu daughter Zoia was arrested in a house filled with jewels, cash, and art – and infamously asked “Do you have room in the police truck for my poodles?” In a similar vein, a granddaughter of Chairman Mao was listed in 2013 as one of the richest women in China and had three children – in violation of the one-child policy.

    Poodle

    Figure 3. “All animals are equal, but some animals are more equal than others.” – George Orwell

     

    Libya’s Muammar Gaddafi was an Arab Islamic socialist who deported Jews, introduced sharia law (whose Libyan version featured flogging as a punishment for homosexuality), and financed a murderous campaign of terrorism against Western “imperialists” and Israeli Zionists. Almost predictably, all of his sons spent significant time in the West. One was a drug addict who pursued a multitude of bisexual affairs. Another told his Playboy model girlfriend that he spent about $2 million a month, including arranging for private concerts for him and his friends by American pop stars. A third son partied across Europe, including a high speed police chase through Paris. Constantly feuding with police, he always claimed diplomatic immunity until he was finally arrested in Switzerland for physically assaulting servants. Libya retaliated by arresting innocent Swiss businessmen and banning Swiss companies. A fourth son, Saif al-Islam (“Sword of Islam”), got a PhD from the London School of Economics (global imperialism headquarters?), claimed a friendship with (imperialist?) British Prime Minister Tony Blair, had a long-time (Zionist?) Israeli girlfriend, and insisted, repeatedly, that he would not serve in his father’s regime “until Libya had a constitution and a ‘more democratic and transparent’ environment.” Which, understandably, made him the great Western hope for Libya as his life clashed with practically all of his father’s regime’s stated principles. And yet when his father’s regime was finally threatened by a rebellion, Saif returned home and vowed, “We will fight until the last man, until the last woman, until the last bullet.” The International Criminal Court has an outstanding warrant for his arrest for crimes against humanity during the Libyan Civil War. But today he’s a free man – and running for President of Libya.

    Flag2

    Figure 4. Sadly, many children of democratic leaders defy the motivating ideology of liberty by becoming Communists. Meanwhile, pop stars play their hearts out for the cash of dictators while boycotting American states whose democratically elected leaders express mild disagreements.

     

    Some children became strident proponents of tyranny much faster, almost always as part of a plan to take over after dad. Papa Doc changed the constitution of Haiti to make sure his son Baby Doc could become the youngest leader in the world at 19 (and continue the family business of corruption). Syria’s Bashar Assad was practicing medicine in the West when he had to come home after his brother’s death to take over as heir apparent. But no totalitarian dynasty has been as successful (in terms of sustaining familial power) as the Kims of North Korea.

    Kim K

    Figure 5. Even Kim Kardashian would be a better alternative for North Koreans – and Dennis Rodman could still visit anytime he wanted.

     

    As often as not, dictators don’t really care about their kids. While Mussolini had some cause to execute his son-in-law, who had launched a coup and put Mussolini under house arrest, he had no cause to confine his first son to an asylum and then murder him. Mao appears to have not really cared for his 10+ children, needlessly abandoning a couple to die in the Chinese Civil War, offering others as hostages. Which is to say, he cared about as much about his own kids as he did the Chinese people. Ultimately, dictators care most for their own power: Iran’s ayatollah Khomeini forbade his son from becoming Prime Minister so his family could appear to be above the fray of politics – and responsibility – while maintaining power. 

    The child who is an outright dissident is extremely rare. Zoia Ceaucescu, who had mouthed off when she was younger, and Saif al-Islam Gaddafi were considered some of the most vocal critics until their ignoble exposures. A daughter of Fidel Castro became a dissident – but she only met her father a couple of times. Perhaps the most interesting example is a grandson of ayatollah Khomeini who made numerous comments endorsing not only democracy but America’s invasion of Iraq. Predictably, as of the book’s publication, he is under house arrest.

    Teenager

    Figure 6. That children of dictators are not generally dissidents will shock parents of teenagers 

     

    All of which leads us to Stalin, whose offspring Nordlinger spends the most time with. He begins with a deadly insightful line about the Soviet regime: “It is said that Lenin liked children… There must have been limits to his liking, however: He sent children to concentration camps.”

    Stalin’s first couple children were illegitimate, one the product of his rape of a teenage girl when he was in his late 30s. He denied them, along with his third child Yakov who was legitimate, the honor of using his adopted name – “Stalin” means “Man of Steel.” Yakov was so distressed over his father’s disapproval that he attempted to kill himself with a gun but only suffered a non-fatal wound. “His father snorted, ‘He can’t even shoot straight.’” Yakov recovered and joined the Red Army to please his dad. He was promptly captured by the Germans, who hoped to trade the heir for a captured General. Stalin not only denied that he had such a son but also that “there was really such a thing as a Russian POW.” Insisting that anyone captured by the Germans was a traitor, he arrested his daughter-in-law. Eventually, Yakov’s second attempt at suicide succeeded: “he threw himself on an electric fence, in April 1943.” The tragedy of Stalin’s kids would not end there.

    Super Stalin

    Figure 7. If only that Man of Steel had thrown himself in front of a locomotive… 

     

    Stalin’s final two children were from his last wife who “was the Bolshevik type: devoted to Party and work, not to ‘bourgeois’ interests such as family. Svetlana could not remember that her mother had ever hugged, praised, or kissed her… We might pause to imagine a household in which Stalin is the more loving parent.” She apparently committed suicide while her kids were pre-teens, though Nordlinger says that she may have been murdered, and “serious people take this suspicion seriously.” As a result, “Svetlana was raised by a nanny and other generally civilized women; Vasily was given over to brutish bodyguards.” 

    Svetlana initially had the better bargain. Her father treated her tenderly, nicknaming her “the boss,” and inisting senior Politburo members address her as such. But,

    “With some regularity, her schoolmates would simply disappear. They would be there one day, and not the next. Their fathers had fallen from favor, being arrested, imprisoned, or killed. Sometimes, a schoolmate would give Svetlana a note to pass to her father. It had been written by the schoolmate’s desperate mother, whose husband had been dragged away in the night. Could Comrade Stalin do something? The dictator got sick of these notes, telling his daughter not to serve as a ‘post-office box.’” 

    When she was 16, two seminal events occurred that irrevocably changed her relationship with her dad: She fell in love with a married 40-year old playboy – and she discovered the fate of her mother through her special access to Western media. Stalin dispatched his daughter’s paramour to the Gulag for a decade and would hardly ever speak to her again. After failing to get with another married man, she accepted a proposal from a fellow student. Seeking permission from her father to marry, Stalin was silent for some time before saying “‘To hell with you. Do as you like.’ He set one condition on the marriage: that the groom and husband never set foot in his house. Indeed, Stalin never met his son-in-law.” They were divorced within two years, and then she was set up for another two short-lived marriages with Kremlin-approved husbands.

    In 1963, well after her father’s death, Svetlana fell in love with a visiting Indian Communist whom she was not allowed to marry. But when he died 3 years later, she successfully requested permission to scatter his ashes in India. Once there, Sveltana walked into the US embassy and defected (abandoning two kids to remain in the USSR). “Svetlana became a U.S. citizen and registered with the Republican Party. Her favorite magazine was National Review, she said—the conservative, anti-Communist journal founded by William F. Buckley Jr. in 1955. She donated $500 to the magazine.” Svetlana’s strange story would not end there: the widow of the famous American architect Frank Lloyd Wright had had a daughter named Svetlana by another marriage who had died in a car crash. She felt a strange connection to Svetlana and invited her to visit the Wright estate, where she lived with her former son-in-law. Within 3 weeks of visiting, Stalin’s Svetlana was married to Wright’s stepdaughter’s widower. But that marriage would also fail, as her new family drained the finances she earned from writing books and operated, in her words, in ways reminiscent of the Kremlin. Incredibly, in 1984, Svetlana returned to the Soviet Union, stating she wanted to care for her alcoholic son and that she had “never enjoyed ‘one single day’ of freedom in the West.” Her daughter, “a die-hard Communist,” refused to even meet her. Svetlana was only there 18 months, returning to the United States: “‘I had to leave for a while to realize, ‘Oh, my God, how wonderful it is’’—the ‘it’ being America. All the things she had said against the West after her arrival in Moscow? She had been misquoted or mistranslated.” She died in Wisconsin in 2011 and I’ll leave it to you whether she fits the description of a proper dissident.

    The absolute worst children of dictators, however, were those who used their positions of privilege to wreak rape, torture, and murder without consequence.  As Nordlinger himself relates, “To study the children of dictators is to spend a lot of time with unpleasantness.” Whether by nature or nurture, “Vasily [Stalin] was a classic type of dictator’s son: the little tyrant of a tyrant, the little monster of a monster… Vasily used his privileged position to get everything he wanted: sex, power, riches, thrills. And, as frequently happens, it all ended very badly for him.” Totally unqualified, Vasily was rapidly promoted in the Red Army despite being “drunken, bullying, physically abusive, incompetent, and reckless.” Imprisoned after his father’s death, he died of alcoholism at 40. Similarly, Ceaucescu’s third child “preferred to rape his way through Romania.” After his parents compelled him to marry, he told his new wife “‘Now go live with my mother. She should f*** you because she chose you.’” This was the man Ceaucescu hoped to succeed him – and who the United Nations honored with a medal as chairman of International Youth Year.

    Nobel Prize

    Figure 8. Speaking of esteemed international organizations, Nordlinger’s other book is about the Nobel Peace Prize. 

     

    The worst of the lot, though, was Saddam Hussein’s son Uday. If you are at all squeamish, skip this paragraph

    “Uday was worse—probably much worse—than the others. Looking on, Vasily Stalin might have shuddered… About Nicu Ceauşescu, I wrote, ‘I could fill pages with appalling details.’ One could fill more with details about Uday. One obituary described him as ‘Caligula-like’—which may be unfair to Caligula. … He raped constantly. His goons would kidnap girls and women for him. He would simply point them out. He kidnapped and raped the daughters of ordinary men, of course. But he kidnapped and raped the daughters—including the underage daughters—of powerful men, too… One time, a girl had the audacity to complain about being raped and beaten. Uday ‘had her covered with honey and torn apart by hungry dogs,’ in the words of one news report. I mention these things—which maybe I should not—not because they are extraordinary or sensational, but because they were routine.” 

    And this is only from the public record. Since domestic critics of dictators (and their families) have a nasty habit of disappearing without a trace, researching such a book can be a challenge. But Nordlinger, who sought interviews with as many living and available children as he could, does not intend a comprehensive encyclopedia. Instead, he provides a series of insightful vignettes, opening with a chapter about a Frenchman who claimed to be Hitler’s long lost love-child (and who grew a matching mustache to enhance resemblance). Moreover, Nordlinger offers something rare among writers: a thorough command of the English language that makes his voice recognizably unique, conversational in tone, and a pleasure to read. Though he is personally passionate about human rights, Nordlinger regularly displays a discerning sensibility, acknowledging, for example: “You and I would not have wanted to live under the shah. But we most likely would have been screaming for him to come back, after experiencing Khomeini and his gang.” Which, incidentally, is precisely the experience of one of my teachers of Iranian history in college, who fought the Shah in the streets, served in prison with the ayatollahs, and then had to flee the country when he realized how much worse they were.

    One final story about a dictator I had never heard of until reading this book: Bokassa the First proclaimed himself, in a $90 million inauguration paid for by the French but the equivalent of a year’s national budget, the Emperor of Central Africa. Which was pretty grand until he bucked for a promotion and self-declared a new title: 13th Apostle of Christ. Which was all the more remarkable because he once converted to Islam in exchange for a bribe from none other than Moammar Gaddafi. Bokassa’s apostledom was hard to reconcile with his polygamy – and his practice simply to refer to each wife by her nationality, i.e. the Belgian, the Korean, etc. All of which would be amusing but for his requirement that all school children wear – and pay for – a uniform bearing his image. His impoverished population rebelled and were put down via massacre.

    With leaders like these, it’s no wonder that “over the years, the toppled dictator, Ceauşescu, had figured in Romanian advertisements. This was only natural. Free Romanians could hardly help themselves. One of the ads was for condoms. It showed Hitler, Stalin, and Ceauşescu, and suggested that the world would have been better off if their fathers had used condoms.”

    Children of Monsters

    Figure 9. Click here to acquire Jay Nordlinger’s Children of Monsters, which tells stories entertaining, ironic, strange, and chilling about the offspring of some of the 20th century’s worst dictators. I should mention, incidentally, that in addition to having a gift for the English language, Nordlinger has a gift for friendship and I am honored not only to have been interviewed on his podcast but to call him friend. 

     

    Thanks for reading! If you’ve enjoyed this article, share it with a friend: know any dictators who are concerned about how their kids might turn out? How about expatriates from former tyrannies who might want to know more about their former tyrants’ corruption? Or do you know anyone who would be fascinated by the family dynamics of some of the most notorious leaders of the 20th century?

    Also, feel free to sign up with the box below to receive my email. I read over 100 non-fiction books a year (history, business, self-management) and share a review (and terrible cartoons) every couple weeks with my friends. Really, it’s all about how to be a better American and how America can be better. Look forward to having you aboard.