The Patriot Post® · Scalia and the Constitution

I had the great privilege to hear Supreme Court Justice Antonin Scalia speak on three separate occasions and once to meet him in person after hearing him announce a decision. You can learn a lot about someone by reading his or her work, but some things have to be seen to be fully understood. Scalia was known for his public role as an associate justice and a staunch originalist. But he should be appreciated for much more than that — as a man with a genuinely wonderful sense of humor, as a man who loved his family, and who loved God. However, most of us only really know Scalia through his public work on the Supreme Court, and his insightful, sometimes biting opinions.

Scalia was an originalist but he was very careful to define what he meant by that. To understand the Constitution as an originalist did not mean reading it strictly, or narrowly, or as a Republican — it meant recognizing that the Constitution was written by 18th century men in a particular time, context, and with a particular meaning. As an example, Scalia noted that if it were not cruel and unusual in the 1790s to sentence a convicted murder to the death penalty, then the Constitution’s ban on cruel and unusual punishment in the Eighth Amendment should not be read as banning the death penalty. That, for Scalia, was an easy question for an originalist to answer.

There are much harder questions and Scalia would have been among the first to recognize that originalism has its weaknesses. He once wrote an essay titled “Originalism: The Lesser Evil.” But he long maintained that it was, quite literally, the only possible way of reading the Constitution for two important reasons. First, originalism requires careful historical and legal reasoning to determine what the terms and language of the Constitution meant when it was written. As Scalia loved to say, that sort of research is literally the only thing lawyers are particularly good at. The second reason Scalia said originalism was essential is because to read it any other way, as a living document or an aspirational text, is to expect lawyers to be something quite different than what they are — to expect them to be moral philosophers or policy makers. And really, Scalia asked with a twinkle in his eye, who would pick nine lawyers to be moral philosophers?

For Scalia, the only justification for the Supreme Court’s power of judicial review to strike down laws that violate the Constitution is that the Constitution has a specific meaning that we can know. If not, there is a real problem. By what authority can the Supreme Court strike down a democratically passed law, if not by an appeal to a specific, clear meaning of the Constitution?

That is why Scalia said that moving to any method of interpretation other than originalism would, in the end, destroy the Constitution. If justices are not bound to a specific understanding of the Constitution, we should not pick them on their legal qualifications. We should pick them based on their politics. Scalia was confirmed to the court unanimously in 1986, despite being known as a conservative. He liked to say that would never happen now, because the Senate has realized if they are not picking originalist judges, they are picking people to be judges who will behave rather like senators.

Given the politicized nature of the Supreme Court, it is no surprise that Washington is already squabbling over Scalia’s replacement, less than 48 hours after his death. Democrats are already declaring that Republicans are duty bound to confirm Obama’s replacement. Senator Chuck Schumer has been particularly insistent on this. But this is nonsense. Democrats have made it quite clear in the 30 years since Scalia was confirmed that a confirmation hearing is no longer a sure thing, and candidates should be evaluated on their record and method of interpretation. Moreover, no justice has been appointed and confirmed in an election year since 1940. Senator Schumer, in his rush to insist Republicans rubber stamp Obama’s appointee, has apparently forgotten his own promise in 2007 when George W. Bush was president, that “We should reverse the presumption of confirmation.”

Scalia was right about the danger that the appointment of justices to the Supreme Court would be politicized if the court itself came to be seen as a political instrument. That, I think, is why it is so important that Scalia’s successor think about the Constitution as Antonin Scalia did: that is, as a document with a knowable, if imperfect, historical meaning — as an originalist.