Why Scalia Was Right

On Saturday morning, Justice Antonin Scalia, the longest-serving Justice on the Supreme Court, was found dead. This is a loss not only for his wife Maureen or his nine children and dozens of grandchildren, but a loss for our Republic. And a loss for the Republic is a loss for each of us Americans.

Justice Scalia chose to spend his life in public service. A brilliant student, he came out of Harvard Law to a lucrative private sector job at one of the biggest law firms in the world, but after six years, he entered academia, teaching at the University of Virginia.

After working for the Nixon and Ford Administrations, he taught at the University of Chicago and Stanford Law schools. In 1982, Ronald Reagan made him a federal judge, and in 1986, he made him a Supreme Court Justice at the age of 50.

When he came to the Court, originalism — the jurisprudential philosophy which Scalia championed — was completely out of fashion. Infamous cases like Roe v. Wade (1973), which appealed to “penumbras of emanations” from the Constitution rather than the actual Constitution, showed judges concocting absurd arguments for the sake of either preserving or striking down laws. What mattered to these judges was the outcome, not the process. For one particularly striking example, even some Supreme Court Justices thought that the death penalty was unconstitutional — even though it is in the Fifth Amendment.

Scalia, by the sheer force of his eloquence, was able to revolutionize the way judges and academics think about our laws. Now even his most bitter opponents at least pay lip service to the original meaning of laws.

In determining the meaning of a law, the originalist asks what the words of the law meant to those who made the law. For example, what did the “exercise” of religion mean to those who voted for the First Amendment?

In 1986, this was scoffed at and ridiculed. The Constitution was considered “living.” As the meaning of words evolved, so did the laws: what is “cruel and unusual” to one generation is not “cruel and unusual” to the next, and so the law changed, as if automatically, leaving legislators and judges guided only by their desires.

While Scalia is considered a conservative, as a judge he was not partisan. Originalism reduces the judge’s role, his or her own judgment, to the greatest extent possible. Originalism makes judges impartial: the law says what it says whether we like it or not.

Originalism is necessary for the rule of law, which was ultimately Scalia’s guiding principle of jurisprudence: the outcome of a case should depend as much as possible on what the law says, and as little as possible upon the whim of the judge. For people to flourish, they need to be free. And freedom requires the rule of law: if a judge can throw you in prison, invalidate a duly-enacted law, or fail to prevent an illegal government action for no good reason, then no one is free and no one is safe.

Our Constitution is the supreme law of the land. It is the ultimate expression of the will of the People. The Constitution comprises a set of limits on the power of government, spelling out what it can and cannot do. When politicians or even the people themselves try to do things that contradict the Constitution, they violate the ultimate will of the American people.

This respect for due process and law led to some outcomes which even Scalia found distasteful. For example, Scalia, despite a fervent lifelong patriotism, believed that burning the American flag was constitutionally protected speech. He despised this speech, but he recognized that the First Amendment protects even unpatriotic speech.

Justice Scalia was a great judge because of his principles, but he was a great man for other reasons. He was never hesitant to pounce upon a bad argument or give a witty one-liner, but Justice Scalia treated everyone with respect and charity. He spent every New Year’s with outspoken liberal Ruth Bader Ginsberg, whom he called his best friend on the Court. He took liberal Justice Elena Kagan hunting, and even advocated that the Obama Administration to appoint her to the Court in the first place.

Whoever succeeds Justice Scalia ought to not only hold his originalism, but also the virtues that made him great — zeal for the Constitution, moral courage to defend even unpopular ideas, and kindness toward even those with whom they disagree.

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