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Justice Scalia and Constitutional Fidelity
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When the sad news came of the sudden death this past weekend of U.S. Supreme Court Justice Antonin Scalia, I wept for my friend.

We had developed a happy friendship during the past 15 years, one which I had selfishly hoped would endure. He permitted his friends to see all of him. We knew him to be in private just as he appeared in public — happy, loud, brash, warm, engaging, challenging, witty, brilliant, courageous, Catholic, traditionalist. He also let us know that he understood the significant role history gave him. Knowing him personally and spending private time with him was one of the great gifts of my adult life. In my heart, there is a great sense of loss.

Regrettably, in the nation there is a sense of loss for the Constitution as well.

Justice Scalia was the most aggressive and consistent defender on the Supreme Court of the primacy of the text of the Constitution in the post-World War II era. He was the modern-day progenitor of the idea — and eventually the jurisprudence — of interpreting the Constitution faithful to the plain meaning of its words. He was utterly and unambiguously faithful to this concept. This theory of constitutional interpretation has two names — textualism and originalism.

Justice Scalia argued that the Constitution means what it says; its says it is the supreme law of the land; and all American judges have taken an solemn oath to be subject to what it says. It is superior to the jurists who interpret it. It is what is says, not as they might wish it say. Thus, all judges are bound by the text. Hence the word “textualism.”

So “no law” means no law. “Due process” guarantees fair process, not substance. A constitutional guarantee is a real guarantee. The exercise of rights articulated in the Constitution cannot be subject to popularity contests.
If the text of the Constitution is ambiguous, it then becomes the duty of the jurist to ascertain the original public meaning of the words that form the ambiguity. Hence the word “originalism.” Ascertaining original public meaning often requires the skills of a historian; yet, thanks to James Madison, the historical record is ample.

The rejection of this line of thinking permits jurists to interpret the Constitution in novel and creative or even destructive ways, according to their own ideologies. It permits them to adapt a meaning in the text that they wish had been there to fortify contemporary societal attitudes. Justice Scalia argued that that is not the job of jurists.

Federal judges have life tenure because they represent the anti-democratic part of the federal government. Their job is to preserve constitutional norms and structures and guarantees from interference by the popular branches of the federal government or the States, even when those branches or the States command popular support.

The job of the jurist, he argued, is not to adapt the text of the Constitution to public trends or cultural changes. That is the job of the Congress and the States through legislation.

ORDER IT NOW

His textualism/originalism arguments provoked a firestorm of opposition on the Court and in the legal academy. The opposition reacted and coalesced around a concept called the “living Constitution.” Its tenets are that modern-day jurists can adapt the Constitution to modern-day societal preferences and governmental needs.

Justice Scalia argued that that itself violates the judicial oath, which is to uphold the Constitution as it was written, not as some jurists may wish it to be. Only three quarters of the States, he maintained, can change the Constitution — by amendment — and they have done so only 27 times in the past 225 years.

Some justices throughout history have been compromisers and conciliators. Not Justice Scalia. He was a lion of textual orthodoxy. He was a rock of original meaning. Law students jokingly called him the pope of originalism, a phrase he loved.

This steadfast attitude about the proper judicial role on the Court led him to author staunch defenses of the right to life even in the womb, free speech even when hateful, private property even when it is in the government’s way, the right to confront one’s accusers at trial even when unpleasant, the right to keep and bear arms in the home even if locally prohibited, and the right to privacy in “persons, houses, papers, and effects.”

He famously voted to limit privacy to those four areas because of his fidelity to the text of the Constitution, which articulates persons, houses, papers and effects as the areas immune from government intrusion without a proper search warrant. He believed that if those areas are to be expanded, it is for the States to expand them by amendment, not for the Court to do so based on a wish list.

In the early days of our friendship, I was a bit awed by him. I once asked him if he felt he belonged to the Court. His reply was short and blunt. He told me he belonged to the Roman Catholic Church, he belonged to his family, and he belonged to the Constitution. The Court, he said, was just one creature intended to preserve, protect and defend the Constitution. The Constitution is the Court’s creator. No creature can be greater than its creator. He liked the Court. He loved the Constitution.

Now he is with the Creator of us all. Now he belongs to the ages.

Copyright 2016 Andrew P. Napolitano.

 
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  1. When Antonin Scalia
    knocked on Heaven’s gate
    Did he learn that context matters
    When words determine fate?

  2. jtgw says: • Website

    I’ve seen arguments that a true originalist should question the very practice of judicial review, since that prerogative is not given to the court in article 3 of the constitution, where the role of the judicial branch is explained. What I want to know, though, is what happens when the court sees a conflict between the law and the constitution; the constitution makes it pretty clear that it is the supreme law of the land, so the court should be bound to apply it over any other law.

  3. Rehmat says:

    Well, Andrew Peter Napolitano, you’re not the only one who cried at death of the Crypto Jew at the Supreme Court. Everyone whose loyalty is with a foreign entity – felt like you.

    I wonder do you agree with Donald Trump that Scalia was murdered by someone closer to Democrat party?

    https://rehmat1.com/2016/02/18/justice-scalia-the-jewish-gentile/

  4. Thirdeye says:

    Apparently Mr. Scalia’s view of protecting the Constitution did not extend to protecting it from the superstitions dogmatism of the Church of Rome. “Originalism” = dogmatism. The likely result is the same for the Church of Rome and the United States: self-destruction.

  5. @Thirdeye

    If the constitution does not mean what it says, then there is no rule of law. Your “equation” simply does not hold up.

    I’d bet a dollar to a donut if you were in the dock, you’d discover a sudden love for the constitution as Scalia saw it. One does not have to be a Roman catholic to understand why he stood where he did. Rehmat’s anti-Semitism notwithstanding.

  6. OutWest says:

    I view the constitution as differing from law per se. It defines the areas that the people, i.e. those in whom freedom resides, chose to yield certain of those freedoms to Authority. Should Authority need more concessions from the people it should go to the people to seek such further empowerment, i.e. amend the constitution.

    Be it royalty, the church or civil government, Authority will always afford itself more power if self-enabled to do so.

    • Replies: @jtgw
  7. I can’t add much to this except to agree deeply. It should be noted that a very important root of our contemporary understanding of law grew out of Canon Law and the need of the Roman Catholic Church to train churchmen in it. These were the first “Law Schools” in post-Roman, European civilization.

    Perhaps Scalia will be remembered as we remember Beothius, the last prominent example of a great tradition. From now on, judges will just be high priests of received, political opinion.

  8. @Thirdeye

    Originalism isn’t “dogmatism.” The Constitution may be freely changed or amended according to the will of the people and it contains in its text the process for doing so. Scalia objected to de facto changes to the Constitution made by as few as five justices. The alternative schools of “interpretation” amount to lawyers and judges telling the text what it means, rather than the other way round.

    • Replies: @jtgw
  9. jtgw says: • Website
    @OutWest

    The constitution also declares itself the supreme law of the land, however, in the same article where the judicial branch is defined. So it does appear to treat itself as applicable law, and not some second-order definition of where law is applicable. This in turn does, to me at least, suggest the possibility of a kind of judicial review, i.e. if a court tries to the apply the law to a case, and an applicable statute is found to be in conflict with the constitution, the court should apply the constitution, effectively nullifying the statute.

    • Replies: @Alec Leamas
    , @jtgw
    , @OutWest
  10. @jtgw

    I think that the objection to judicial review isn’t that the Constitution itself is supreme, but rather that the judiciary’s interpretation of the Constitution is supreme to that of the Executive and Legislative branches. One might say that rejecting judicial review could likely lead to a tyrannical President unconcerned with the Constitution, but it begs the question as to whether this is not preferable to a tyrannical judiciary unconcerned with the Constitution.

    • Replies: @Orville H. Larson
  11. jtgw says: • Website
    @jtgw

    I made a mistake: the Supremacy Clause is in article 6, not 3.

  12. jtgw says: • Website
    @Alec Leamas

    Perhaps it isn’t so much judicial review per se that’s the problem, but the notion that the judicial branch has the last word in interpreting the Constitution and that other branches are obligated to defer to the judges. Ron Paul has argued that the Constitution authorizes Congress, in article 3, section 2, to pass legislation that strips the federal courts of jurisdiction over certain issues.

    It seems to me best that every branch of government be empowered to uphold the Constitution according to its own interpretation. If there are conflicts of interpretation, each branch has constitutional powers to override the other branches, if they can secure enough support. Moreover, if a state’s interpretation of the constitution conflicts with the interpretation of the federal government, the state should be empowered to nullify it, and if that leads to irreconcilable conflict between the state and the federal government, the state has a right to secede from the union.

    John Tyler, for example, is held by many constitutionalists to be the best president, since he promised to veto any legislation that he considered to be unconstitutional. I would say furthermore that if Congress overrode his veto, he would have the choice of not enforcing it. This in turn might provoke Congress to impeach him, but you can see where I’m going with this: there are specific tools given to each branch to champion the constitution as it sees appropriate.

  13. @Alec Leamas

    ” . . . One might say that rejecting judicial review could likely lead to a tyrannical President unconcerned with the Constitution, . . .”

    Hell, nobody in Washington, District of Corruption is concerned with the Constitution–the President least of all!

  14. OutWest says:
    @jtgw

    Wasn’t it John Marshall that unilaterally declared the constitution the supreme law of the land?

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