The loss posed by the death of Supreme Court Associate Justice Antonin Scalia can only be understood by examining the vital role he played in defending the Constitution.
Scalia was a preeminent advocate of the concept of originalism, the defense of the fixed meaning of America’s guiding document. He once said that ““What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean.”
His views are vital at a time when judicial activism, the replacing of the normal legislative process with changing law through court decisions, has been so commonplace. The concept of “living constitutionalism,” the idea that trades relying on what the document actually says with an interpretation based on the views (and goals) of an individual judge, endangers the entire governing scheme of the nation, and the underlying guaranteed rights provided by it.
According to the Heritage Foundation Scalia believed that “…that those who make, interpret, and enforce the law ought to be guided by the meaning of the United States Constitution–the supreme law of the land–as it was originally written. This view came to be seriously eroded over the course of the last century with the rise of the theory of the Constitution as a ‘living document’ with no fixed meaning, subject to changing interpretations according to the spirit of the times.”
Originalism stands as a bulwark preventing the watering down of the Constitution. While many instances of loose interpretation are performed by judges who believe they are acting on the best of intentions, the end result jeopardizes key freedoms in return for temporary expediency, in pursuit of goals that could be better achieved through means more compliant with the explicit wording of the central law.
In the book, “Terms of Engagement: how our courts should enforce the Constitution’s promise of limited government,” Clark Neilly III, senior attorney for the Institute of Justice, writes:
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Some of the most sacrosanct rights provided by the Bill of Rights could be lost by judicial activism which ignores the actual wording contained within it. One example: The role of money in politics is certainly controversial. But the responses to it, which generally involve measures which limit or ignore the First Amendment, are attempted “cures” far worse than the “disease.”
President Obama’s impatience with the separation of powers and the Constitution’s governing scheme is well known. He has unblushingly proclaimed that “I can’t wait for Congress,” and “I have a pen and a phone and I know how to use them.” Despite the obvious threats this poses to the Constitutional order, those who favor the specific programs or goals he advocates ignore the larger issue of insuring the rule of law over the rule of a powerful ruler, and they have not protested. They apparently disregard the potential that a future President of a different political persuasion could run roughshod over their rights if that practice is permitted.
In his study, “On the Brink,” John Lott, writing at the start of the Obama Administration, predicted: “Obama’s most powerful weapon in transforming America will be the federal judges he appoints who share his radical philosophy…”
The lack of defense of a literal reading of the Bill of Rights in addressing populist issues is significant. Legislation was introduced in the Senate to limit the First Amendment, to address the role of money in politics. Numerous local governments continue to ignore the Second Amendment. Fourth Amendment privacy rights are arguably compromised in attempts to fight terrorism. The growing size of Washington’s regulatory agencies runs roughshod over the entire concept of the Ninth and Tenth Amendments, which provide that those powers not given to the federal government belong to the people and the states.
That’s one half of the entire Bill of Rights. Justice Scalia’s voice will be sorely missed.