On this Presidents’ Day, we are mourning the death of Antonin Scalia, our second-greatest Supreme Court Justice ever.
That judgment of greatness means to measure impact simply and impact that served the cause of strengthening the American republic. Only John Marshall exceeded Scalia in both, and all the justices that arguably exceeded his importance in terms of impact simply, such as Oliver Wendell Holmes, Jr., Felix Frankfurter, and William Brennan, were guilty of a having had a harmful impact. (In Frankfurter’s case, there was a mix of help and harm in which the latter ultimately weighed more, but Holmes and Brennan, correctly understood, were destroyers simply.)
The reasons for Scalia’s greatness can be boiled down to a) his rhetorical approach, and b) his interpretational philosophy, called originalism; but of course, his rhetoric would never have mattered without the philosophy.
What is originalism?
Reader, if you don’t know the answer to that question immediately, and if you don’t already know what I try to hammer into my students as a teacher of constitutional law, that
Originalism isn’t Original Intent,
isn’t Original Intent,
isn’t Original Intent,
and isn’t Strict Constructivism either.
…well, I’d say you have some reading to do. Are you reading today about whether Obama can make a recess appointment? About which cases Scalia won or lost? About how to judge his use of fiery rhetoric? Stop reading those sorts of pieces, and first turn to the best short introduction to Scalia’s understanding of originalism that I know of, “Constitutional Interpretation the Old-Fashioned Way,” a talk from the Justice himself. It’s only about five pages, and is also one of the most delightfully humor-studded documents in American history. If you want something more developed and formal, that talk boils down some of the arguments Scalia makes in the lead essay in this book, A Matter of Interpretation: Federal Courts and the Law.
One of those arguments is the following:
What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.
Again, if you are puzzled by that statement, it is your Civics-class duty as an ordinary American citizen to get reading. Perhaps after reading the little lecture above, find internet versions of the Roper v. Simmons and the Lawrence v. Texas cases–those cases are probably the most telling and simultaneously most accessible ones which feature major Scalia dissents. Don’t leave this stuff to the “experts” on one hand, and to the sound-bite/demagogic types on the other. For, to end with another Scalia quote:
…this is what I will conclude with although it is not on a happy note. The worst thing about the Living Constitution is that it will destroy the Constitution.