The Patriot Post® · The Original Scalia

We are a “nation of laws, not of men,” is usually attributed to our second President, John Adams. Supreme Court Justice Antonin Scalia surely not only knew that history, but lived it with passion.

Now as a figure of history in his own right, the 79-year-old will undoubtedly be dubbed the lighthouse of “original intent,” a stanch supporter of “originalism,” or, as he termed it, “textualism” — what did our Founders say, when did they say it, and what did they truly mean when they used the original quill (there were no pens or telephones for a president to use) to write the United States Constitution?

As that lighthouse for almost three decades, Scalia charted a course that would pull the court away from earlier paths of trying to determine what the legislation, and the legislators, “meant.” He pointedly asked at the Woodrow Wilson International Center for Scholars in 2005, “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?”

He did not believe the Constitution is an “evolving” document, nor should Supreme Court justices lower themselves to such a belief. “If we’re picking people to draw out their own conscience and experience a ‘new’ Constitution we should not look principally for good lawyers.” If that is the case, the jurist argued, “We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.”

Ultimately, Scalia was flexible – he believed if you followed the text, not seeking just what you wanted, not just trying to mix the flavor of the day, you could find a path. As to the thought judicial activists have that the founding document would bring “flexibility” if regarded as a “living document”? Perhaps. But, Scalia advised, with a constitutional caveat, “Think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.”

Like the carvings on the table before Moses, words had meaning to Antonin Scalia. And he had faith in his stand, regardless of any criticism from the left. He once told fellow Catholics that God knew the wise of the world would hold those of faith in contempt; but so be it. “Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world.”

He once told Federalist Society members the Constitution itself was the building block of our nation, the word “constitution” meaning “structure” — and that it even superseded the Bill of Rights. “Every tin horn dictator in the world today, every president for life,” he cautioned, “has a Bill of Rights… That’s not what makes us free; if it did you would rather live in Zimbabwe.”

Some of his arguments were even applauded by liberals. He once called himself the “poster child” of defense attorneys, saying, “The realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.”

The father of nine was neither a prude nor dislikable — he may have vehemently disagreed with Elena Kagan on abortion rights, but he taught her to fire a gun while duck hunting together (I would love to have been a fly on the tree for that one) and attended an opera with ACLU supporter Ruth Bader Ginsburg and enjoyed the evening as friends.

And on the practical side, court watchers say Scalia was the first to begin asking questions of attorneys pleading their cases before the court — give and take, “What if,” “Have you thought of”? He started the practice of fielding questions the common man might ask, giving verbal engagements that needed to be made, both intellectually and conversationally. Now most justices have followed suit, thankfully shedding a demi-god status.

Unfortunately for conservatives, judge Scalia will not be able to argue with his friends on issues President Obama will push in upcoming sessions before the Court, including issues such as executive action on immigration, increasing regulatory power of the EPA, voting rights, union fees, contraceptive coverage, and more; but I would bet he would once again argue various portions of “The genius of the American constitutional system is the dispersal of power. Once power is centralized in one person or one part of government,” he reasoned, the “Bill of Rights are just words on paper.”

He will miss those arguments, although he undoubtedly would like to have been a part of the action.

Now will come the political fallout of how to replace an icon of the Court, a political process he was not particularly a fan of any more than he bent to the progressive call of judicial activism; he simply believed in the Rule of Law, as written, or appropriately addressed by the rules given.

The passion, intellect, wit and wisdom of Antonin Gregory “Nino” Scalia will be missed — but he set a standard that will be remembered, debated and held for generations of both law students and citizens.

May we honor the Scalia’s memory by willing to be a part of the ultimate American court by giving our passion, engagement, votes, and adherence, to supporting the original intent of our founding documents.