He was a dedicated and eloquent foe of the notion of a ‘living Constitution.’
Over the last week, three major stories dominated the news: U.S. Supreme Court Justice Antonin Scalia passed away, the Supreme Court stayed the implementation of the Obama administration’s power-plant rule, and Donald Trump and Bernie Sanders won the New Hampshire primaries. There is a connection here: Each story speaks to what’s happening to the rule of law in America.
In the 1960s and 1970s, American courts and law schools, under the influence of Chief Justice Earl Warren and Justice William Brennan, were dominated by the view that judges had authority to interpret a “living constitution,” with a meaning that changed over time based on the judge’s values and policy preferences. As Justice Brennan put it in his 1985 speech at Georgetown University, in interpreting the Constitution, judges should account for “social progress” and define what “the words of the text mean in our time.”
From his appointment to the Court in 1986, Justice Scalia was a leader in the revolt against this view. He contended that a “living constitution” established the rule of men, not the rule of law. He starkly noted in one dissent that “day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize.” Instead, as he put it in another case, the “‘judicial Power of the United States’ conferred upon this Court . . . must be deemed to be the judicial power to say what the law is . . . not the power to change it.” He issued a clarion call for adherence to the original public meaning of the Constitution and a restoration of the proper, limited role of the judicial branch.
For the last 30 years, the major debates in constitutional law have been fought on these terms: Scalia’s view versus the living constitutionalists. Scalia’s view has yet to win a permanent majority of the Court or of the American bar — many judges and lawyers still want courts to act like Congress — but no one can deny that he shifted the legal landscape. As the dean of Harvard Law School in 2007, Elena Kagan (later Scalia’s colleague, friend, and philosophical rival on the Court), admitted, Scalia “is the justice who has had the most important impact over the years on how we think and talk about law.”
He is, indeed, the most important figure in American law in the last 50 years. Justice Scalia — through the power and wit of his writing, through the clarity and persuasiveness of his arguments, through the courage of his convictions — indelibly influenced the intellectual development of generations of lawyers. Even those who disagreed with him had to meet him on his terms — they had to argue text and history to courts, not just policy — which wasn’t uniformly true before his tenure.
For those who believe that fidelity to the rule of law makes America exceptional, and that the rule of law means adherence to a written text and not people’s whims, the passing of Justice Scalia is a profoundly solemn occasion. He was our most eloquent, unwavering, and persuasive champion.
#share#Justice Scalia’s passing is especially poignant right now, during a time in our history when the rule of law seems under daily assault. Enter Barack Obama — of Harvard Law School, where the living-Constitution view prevailed during his student days and still commands overwhelming support today. As president, Obama has taken living constitutionalism to its logical endpoint: Written law is a not a barrier to the policy preferences of those in power — not to judges who interpret the law, but also not to presidents who execute the law. This latter application is especially worrisome because, unlike courts, presidents command the military and police powers.
President Obama has said many times that if Congress won’t act on a policy issue, he will act unilaterally, even in contravention of the written law. And he has done so, time and again — on health care, on the environment, on immigration, on foreign policy. The Supreme Court’s recent stay of implementation of the EPA’s Clean Power Plan is only the latest instance of the Obama administration’s overreach.
And what have these eight years of lawlessness wrought? Enter Trump and Sanders. In their victory speeches in New Hampshire, these candidates sounded similar themes: Evil people are to blame for all of your problems, and if I am elected, my administration is going to take care of everything for you. Sanders promised the world: higher wages, free medical care, free college — you name it, his administration will provide it. Trump simplifies it even more — you name the problem, he will fix it by . . . being great! Neither man goes deeper than that — they offer scant details on how to achieve these results, no explanation of the economics that will support their utopias, no clarification on how existing law will allow for their proposals.
And yet these men lead in the polls. Why do so many Americans, who have so long cherished the rule of law, think either man can deliver on these promises unilaterally? Perhaps because, after seven-plus years of President Obama’s lawlessness, this is what we’ve been conditioned to believe: that executives can command any outcome, at any time, regardless of mere paper constraints.
#related#In a 1988 case challenging the constitutionality of the “independent counsel” law, Justice Scalia wrote a dissent in which he explained that some cases about the separation of powers come “in sheep’s clothing” and require “careful and perceptive analysis.” In that particular case, however, he famously quipped that “this wolf comes as a wolf.” In other words, the affront to the constitutional scheme — to the very rule of the law that is the foundation of American liberty — was stark. It’s a fitting description for the much broader assault on the rule of law that we see today. President Obama, and some of those who seek to replace him, believe that the executive is all-powerful, and that their whim is law. These wolves come as wolves.
As we reflect on Justice Scalia’s life in the law, let the meaning of his legacy thunder through the American electorate and keep the wolves at bay.
— Jesse Panuccio is an attorney in Florida.