SCALIA’S ORIGINALIST THEORY OF PIZZA

Below is my column today in The Chicago Tribune (including the original last paragraph and a couple lines that were cut in editing). I commented on this controversy yesterday but had to run something back home in Chicago. As someone who believes in pluralism in society and pizza, I am willing to accept both thin and deep pizza as equally worthy members of the pizza family. In this sense, pizza is part of a living culinary kitchen that changes in its scope and meaning. On closer examination, Scalia’s definitional approach is as thin as the crust of his New York style pizza.

The appearance of Associate Justice Antonin Scalia this week at the Union Club in Chicago was greeted with the usual enthusiasm and expectations. Not only is Scalia a former University of Chicago professor, but also he never disappoints in making headline-grabbing comments. Indeed, through the years, I have been a critic of Scalia for his public comments on issues pending before the Court and his courting of a type of constituency of conservative groups and fans. However, I have always tempered my criticism with an acknowledgment that Scalia is one of the few consistent jurists on the Court who follows a clear judicial philosophy. No more. Scalia has finally crossed the line with comments made at the Union Club. In addition to his usual controversial commentary about the interaction of religion and the government, Scalia took time to declare that Chicago-style pizza is not real pizza but little more than a “tomato pie.” It was a statement that was not just injudicious but downright sacrilegious. It is time for Scalia to go.

Scalia appears to view that pathetic tomato dipped wafer known as New York pizza as the only true version of circular cuisine. He appears to apply a type of originalism to the culinary arts that parallels his constitutional interpretations. Pizza in his view was originally thin and flat. Just as privacy in the modern sense did not exist at the founding, apparently neither did deep-pan. (Indeed, since modern pizza is often traced to Naples in the nineteenth century, Scalia may have to declare that pizza like privacy does not legally exist since it was not around at the founding. Of course, one could argue that the “penumbra” of pizza was around at the founding in the form of flatbread dishes like those common with the Romans, Greeks, Turks, and other cultures).

As with his judicial philosophy, Scalia is far too narrow in both his assumptions and the scope of what he considers acceptable interpretive license for cooks. (By the way, New Yorkers often call pizza “pies” which they fold like Wonder bread. By a strict definitional approach, all forms of pizza could be defined as pies and vice versa since both involve dough casings that with savory ingredients).

Now, make no mistake, I am half Italian and a native Chicagoan and I am fully aware of the traditional thin crust pizza found in Italy. However, pizza is a category of food, not a single exclusive term for one style. For example, Gelato is a wonderful ice cream that truly makes all other ice cream pale in comparison but it is not the only ice cream. Ice cream is a category of frozen dessert usually made from dairy products. Likewise, pasta comes in a variety of forms. One would not call fried dough the only “true” pasta, even though it was first referenced in this form in the First Century.

Scalia shows the same approach to contemporary culinary questions as he does contemporary constitutional questions. Like marriage, for example, pizza can have more inclusive meanings. Two men or two women can marry in a growing number of states and most people have moved well beyond the one topping rule for pizza. When it comes to marriage and pizza, Mr. Scalia, it is about love. Deep love.

Scalia’s views may appeal to many of his supporters who still reject the concept of evolution. However, history and the stratigraphic dough record is against them. Chicago pizza is the highest form of evolution of pizza — a majestic combination of cheese, sauce, and dough that resulted from years of experimentation and consumer demand. Like the evolution of the horse from the tiny Eohippus in the early Eocene period, pizza evolved with stronger crust and brilliant engineering advances. It is to New York pizza what the John Hancock is to a lean-to. It is what Arnold Swartzenegger is to Don Knotts.

Now, I believe that pizza like free speech has broadened with time in the scope of its protections, including protections given the Internet. I would never demand that someone “shut their pie hole” simply because they call Chicago-style pizza “tomato pie.” Scalia is entitled to his own culinary views regardless of how grotesque they may be.

Despite a brilliant career as a jurist, Scalia is a wash out as a food critic. However, there remains the question his competence to continue to serve on our highest court when he cannot apparently tell the difference between a Chicago pizza and a rhubarb pie. Years ago, I testified on the impeachment of Bill Clinton in Congress and recognized that the definition of a high crime or misdemeanor was a tough question. This is not. Declaring Chicago pizza a non-pizza should be an impeachable offense.

However, given the large New York and New Jersey delegations in Congress (and their fear of more Rubensque pizza), impeachment might not be an option. Perhaps the Chicago city council should declare Scalia persona non grata given his declaration of our signature dish as pizza non grata. He can then go eat those tomato-dipped crackers in Dallas (where his favorite football team, the Cowboys, play) with the rest of his originalist flat-bread society. This is the city of Big Shoulders and Deep pizza, Mr. Justice, and you will have to pry our greasy, cold-dead fingers off our pizza before you label it tomato pie.

Jonathan Turley is the Shapiro Professor of Public Interest law at George Washington University.