I sometimes hold it half a sin
To put in words the grief I feel;
For words, like Nature, half reveal
And half conceal the Soul within.

But, for the unquiet heart and brain,
A use in measured language lies;
The sad mechanic exercise,
Like dull narcotics, numbing pain.

In words, like weeds, I’ll wrap me o’er,
Like coarsest clothes against the cold:
But that large grief which these enfold
Is given in outline and no more.

Alfred Lord Tennyson, In Memoriam A.H.H.

Few things highlight the range and depth of human expression quite like death. In death’s icy visage we see both our irreversible loss and our own inevitable demise. It provokes a wide and confusing array of emotions. And our grief and social conventions compel us to provide some public display our feelings. Some will stoically bear the pain. Others will weep openly at their loss. Still more will hide behind empty platitudes, concealing much more than half of the soul within.

It is in this context that we build our remembrances. Their heroic fight against an unbeatable foe is glorified. We romanticize our most tender moments. Petty disagreements and ancient grievances are forgotten. In our vanity, we imagine that the dead are neither gone or forgotten. They will live on– as we hope we will one day– in the memories of others. 

This is as false as it is comforting. The dead are indeed gone. And the complexity of who they were is lost to us for all of time. All we can capture are snapshots; brief glimpses into the man or woman they were. That random act of kindness that represents their sweet and giving nature. The grace they showed in forgiving you. The humor and dignity they showed in staring down death. These are the pieces of the puzzle we like to think about. This is who we want to remember them as.

But it is not who they were. People are impossibly complicated. And it is not their memory that is served by forgetting this. These memories are of and for the living. When we wash away those less seemly moments of their lives we heap another pile of dirt on their grave. Far from being preserved, the dead become more lost in these memories, replaced forever by some grotesque caricature.

The passing of large public figures, like that of Justice Antonin Scalia this weekend, illustrates this process in grand scale. Friend and foe alike called for respectful remembrance of the grand jurist as an important historical figure, for his fine legal mind, and his bold personality. He was most certainly these things. But does this make for a sufficient or just portrait of the man? 

I would argue that it does not.

To praise his commitment to a dead-Constitution while ignoring the overt-politicization he brought to the bench is revisionist history. It puts forward Scalia as an example of an objective defender of Constitutional originalism, ignoring that this ideology is politically motivated. It glosses over the inconsistency of his thought and decisions– for example, his commitment to the idea that the preamble of a statute is a key to understanding the context and phrases used in creating the law is squarely at odds with his treatment of the 2nd Amendment, where he mocked the notion that the phrase regarding a well-regulated militia had any impact on the right to bear arms. Scalia was a complicated man. He was a champion of defendants’ rights and defender of free speech. He was charming and disarming. He was a bully and a jerk. He criticized the use of legislative history in providing context for the law, reminding all who would listen that “the law was the law.” But he also felt perfectly comfortable projecting dire consequences for what he thought were incorrect readings of the law. These are not the behaviors of some objective and pure monolith. They were the inconsistent actions of a man who served many masters.

Oh, and he was deeply homophobic.

What is won by pretending that he never made bizarre leaps of logic, such as comparing committed homosexual couples to “the long time roommate of a nonhomosexual employee.” What is the purpose of pretending he never wrote this:

There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable “alternate life style.” The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM, have high disposable income, see ibid.; App. 254 (affidavit of Prof. James Hunter), and of course care about homosexual rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. See, e.g., Jacobs, The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969-1991, 72 Neb. L. Rev. 723, 724 (1993) (“[T]he task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation”).

Romer, Governor of Colorado, et al. v. Evans et al. (94-1039), 517 U.S. 620 (1996).

In this same dissent, Scalia defends hostility to homosexuality, writing “I had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even ‘animus’ toward such conduct.” While whining about the court taking sides in the culture wars, Scalia was perfectly content to draw his own battle lines.

These were not the words of a dispassionate jurist, divorced of opinion, and cloaked in the robes of objectivity. They were a defense of one worldview against another. A desire to maintain the position of the dominant culture against ingress from another point-of-view. And unlike a myriad of other Americans, Scalia’s opinion and views had real world effects. This dissent, and many of his other opinions, was filled with hate, bias, and a desire to control how full and equal access to citizenship were defined. His vitriol and defiance were a display of his open contempt for any force that would suggest changing the status quo. This too is part of the legacy and memory of Antonin Scalia. And it is quite natural that not everyone celebrates it.

The overwhelming reaction to seeing some LGBTQ members and their allies rejoicing in his death was to loudly lament their lack of taste and decorum. “Now is not the time.” Few people are comfortable in seeing the celebration of death. Unsurprisingly, this trend transcended the left/right divide, largely along lines of privilege. Calls for respectability always do. If you found these posts distasteful, you almost certainly were never on the receiving end of Scalia denying you rights and vilifying your very identity. Not every death deserves universal lamentations. Should we expect the Jewish community to send respectful condolences upon the eventual passing of noted Holocaust denier David Irving? Who among you will suggest to the black community that they remain respectful of Trent Lott’s open racism upon his death? Our lives are full of contradiction and complexity. It follows that reactions to our passing will be too.

Statue of Ramesses II, the inspiration for Ozymandias, in the British Museum.

I met a traveller from an antique land
Who said: “Two vast and trunkless legs of stone
Stand in the desert. Near them, on the sand,
Half sunk, a shattered visage lies, whose frown,
And wrinkled lip, and sneer of cold command,
Tell that its sculptor well those passions read
Which yet survive, stamped on these lifeless things,
The hand that mocked them and the heart that fed:
And on the pedestal these words appear:
‘My name is Ozymandias, king of kings:
Look on my works, ye Mighty, and despair!’
Nothing beside remains. Round the decay
Of that colossal wreck, boundless and bare
The lone and level sands stretch far away.

Percy Bysshe Shelley, Ozymandias

How we remember people and events of the past is important. Memorials that present a one-sided, shallow, and thoughtless narrative are monuments to our own glory. They strip meaning away from the life they represent, replacing it with a sanitized, ideal version. These monuments, be they something as grandiose as Ozymandias ‘works’ or our more modest social media posts regarding the surprising death of a Supreme Court justice, are false and fragile things that will crumble and quickly fade into oblivion. More durable and useful are the memories formed by thoughtful reflection. Remember Scalia as he was, not as you wished he were. He would have wanted it that way.