To paraphrase an old Elvis joke, Antonin Scalia is dead and I don’t feel so good myself.
As John Donne teaches and Hemingway reminded us, each man’s loss diminishes us, for each of us is involved in mankind. Certainly the passing in his sleep, at the age of 79, of Antonin Scalia is a great personal loss for his loving wife of many years, his nine children and their spouses, and his thirty-three grandchildren. Anyone looking to leave a mark upon one’s passing should hope to be as prolific.
But as a lawyer, professor, Court of Appeals Judge, and Supreme Court Justice, Antonin Gregory Scalia was of course prolific in other ways. One of only 112 people ever to have held the position, Antonin Scalia served as a Supreme Court Justice for nearly thirty years, roughly tied for twelfth longest in U. S. history with William Johnson (a Thomas Jefferson appointee) and Oliver Wendell Holmes, Jr. During that time Justice Scalia authored over 300 opinions, nearly 400 concurrences, over 250 dissents, and 50 partial concurrences and partial dissents—roughly one thousand overall.
But it is for their content, style, and consistency, not their number, that legal scholars will long remember Justice Scalia’s opinions, whether in the majority or in dissent. His wit, insight, and outspokenness truly revolutionized modern Supreme Court jurisprudence.
In launching National Review some sixty years ago, the late William F. Buckley Jr. announced that his new magazine “stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it.”
When Antonin Scalia joined the Court some thirty years ago, without using those words, he stood athwart the “living Constitution” yelling “stop.” Through his intellect, his congeniality, and his communications skills, Justice Scalia fundamentally changed the terms of the Constitutional debate.
For much of the preceding century, both on the court and in the law schools, Constitutional law was not so much an examination of the Constitution as an examination of judicial precedent. Like the common law, precedent evolves and adapts incrementally over time, and so with it “evolved” the Constitution.
But the Constitution is a legal document, Justice Scalia reminded us, and should be interpreted as such. Its meaning should not change with the makeup of the Court or the whims of popular culture. The Constitution certainly applies to changing times, but the document itself does not change. Nor does the Constitution permit the Court to change the law: only the people, speaking through their legislatures, can do that.
If the death penalty was Constitutional in 1789, then unless and until the Constitution is amended the death penalty is constitutional today. States may outlaw it if they wish, and the federal government may do so for federal crimes, but the Constitution does not require it. If people in 1789 had a right to keep and bear arms, then so do the people today, even if those arms are more modernized.
Certainly the means of “speech” have changed, for example – radio, television, and texting did not exist in 1789—but Congress may still not ban it outright. Americans may practice more religions (or none at all) today than they did in 1789, but Congress may no more establish one nor prohibit its “free exercise” today than it could in 1789.
Justice Scalia applied this same textual analysis to statutes that came before the court for construction, not always with success, as the Chief Justice’s opinions in Sibelius and King v. Burwell will long remind us. Above all other Justices, Justice Scalia seemed clearly to internalize that the Constitution limits the powers of Congress to those enumerated in Article I, Section 8, and that all else is reserved to the states and to the people, respectively, under the Tenth Amendment.
In Justice Scalia’s view, the Constitution is silent on many things, including the definition of marriage and a woman’s choice to have an abortion. On the former he claimed colorfully not to care one whit, and on the latter personally a great deal, but on both he was consistent: the Constitution says nothing about either. Both the definition of marriage and the proper restrictions, if any, on abortions, should be left to the people and the states to define through the representative democratic process. As he noted quite dryly in his Obergefell dissent, a body of nine lawyers from two law schools and of only two religions can hardly be called unrepresentative.
Although serving on the Court, Justice Scalia’s primary concern was to keep power in the legislature, which he saw being surrendered to the executive branch as much as to the courts. As early as his law school professor days he warned students about the growing power of the unelected administrative state. And he warned Congress quite graphically that it should deal with executive overreach directly, not come crying to the courts to fix things.
Justice Scalia, in short, believed in liberty, the bulwark of which is process, not substance. The Constitution governs the former and the people, through their legislatures, govern the latter. His complaint in Obergefell, as he made explicit, was not the matter of same-sex marriage, which should be up to the people, and not to the court. “Who rules me,” he said, was his greatest concern.
The passing of Justice Scalia leaves the President and the Senate with a vacancy to fill, which will come in due time. More important, it leaves a nation without an engaging, clear-thinking, and consistent defender of the Constitution as well as a husband, father, friend, and grandfather.
Let us all mourn his passing in the hope that the bell tolls only for us, and not for the Constitution that protects us.