Magazine article The Human Life Review

Antonin Scalia: An American Originalist

Magazine article The Human Life Review

Antonin Scalia: An American Originalist

Article excerpt

APPENDIX B

With the death of Antonin Gregory Scalia the nation has lost one of its greatest jurists and a man who embodied the principle of fidelity to the Constitution.

Over the course of our nation's history, many jurists have been described as "towering figures in the law." Antonin Scalia had the distinction of being one of the handful for whom the description is actually justified.

Justice Scalia preached the principle that the Constitution should be interpreted in a way that honors the text-the words on the page-understood as it was by those whose ratification made it part of the fundamental law of the land. One might have thought this was simple common sense. But the principle had been ignored or abandoned by jurists and law professors who sought to expand the authority of judges to invalidate as "unconstitutional" legislation or executive actions that they happen to regard as unfair, unwise, or for some other reason undesirable.

In our own time, this impulse has been mainly evident among political progressives. It is what has given us court-ordered legal abortion in Roe v. Wade and judicially mandated recognition of same-sex partnerships as legal marriages in Obergefell v. Hodges. Earlier in our national history, it drove the jurisprudence of laissez-faire economic conservatives, generating such decisions as Lochner v. New York, a 1905 ruling that struck down a worker protection statute limiting the number of hours employees could be required or permitted to work in industrial bakeries.

For Scalia, judges who yield to the impulse to read into the Constitution "rights" or other principles, nowhere to be found in the text of the document or the logical implications or original understanding of its provisions, betray the rule of law and make a mockery of their oath of fidelity to the Constitution. To "Lochnerize," as it has come to be known, whether in the cause of laissez-faire economics (as in Lochner itself) or liberal social ethics (as in Roe and Obergefell), is to deprive the American people of the right to govern themselves. For judges, on the pretext of enforcing constitutional guarantees, to substitute their own moral and political judgments for the contrary judgments of the elected representatives of the people is an assault upon the very Constitution in whose name they purport to be acting.

Since various "theories" of constitutional interpretation ("living constitutionalism," "the moral reading of the Constitution") have been advanced by jurists and legal scholars in efforts to justify the judicial usurpation of democratic legislative authority, it became necessary for Scalia and other defenders of the idea that the Constitution means what it says-i.e., what the people who framed and ratified its provisions meant by the words they used-to give a name to their "theory" of constitutional interpretation. The name they chose was "originalism"-marking the conviction that the original public understanding of constitutional provisions and principles should guide and govern judges in determining whether a law or policy ought to be upheld as constitutionally valid or declared unconstitutional.

Not only was Nino Scalia an "originalist"-the leading originalist of his time- he was also a defender of the equal authority and responsibility of the three branches of government in matters of constitutional interpretation, a view that when fleshed out is known as "departmentalism." In other words, he sided with Abraham Lincoln and against Lincoln's nemesis, Supreme Court Chief Justice Roger Brooke Taney, on the question of whether the legislative and executive branches must always conform their conduct to the Supreme Court's interpretation of the Constitution. Taney said yes. Lincoln said no. The question arose whether Lincoln as president would consider himself bound by Taney's pro-slavery ruling in Dred Scott v. Sandford (striking down congressional restrictions on slavery in U.S. territories, and holding that blacks-even free blacks-could never be citizens). …

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