The Scalia Test

The untimely death of Justice Antonin Scalia was a body blow to the cause of Constitutional preservation.

As conservatives we take a particular interest in the Supreme Court because of its tendency both as a safeguard against governmental overreach and because of its own capability for vast overreach. The Court has claimed for itself great power in interpreting the Constitution and other laws.

For conservatives the tragedy of the past three decades is that far too often, justices appointed by Republican presidents have strayed away from the narrow path of the Constitution.

Since Justice Scalia’s death there has been much debate on how to prevent President Obama from replacing him with yet another liberal judge. The main line of argument has been the argument that we have 80 years of tradition in the Senate that a Supreme Court nominee isn’t confirmed in the last year of a President’s term.

As Ben Shapiro argues this is somewhat misguided. There is a far simpler and better argument for conservatives to take into what will be an epic battle with the Democrats and the media.

Republican Senators and conservatives should commit to a simple premise. The Scalia Test.

As Justice Scalia described his judicial philosophy,

“The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring,” he said. “It means today not what current society, much less the courts, thinks it ought to mean, but what it meant when it was adopted.”

Each nominee should be confronted with a simple test:

2) Will you follow the philosophy of Originalism if your nomination is approved?

If a nominee cannot answer affirmatively to both questions then they are unfit to take their oath of office to “support and defend” the Constitution and cannot be confirmed.

The Scalia Test is a litmus test, but this litmus test is perfectly reasonable and valid because it rests solely on the Constitution.

Conservatives good do no greater tribute to Justice Scalia than to pick up his standard in defense of the Constitution and turn back the tide of unconstitutional judicial activism.

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