Judge Antonin Scalia is dead, though not cold yet.
As we probably should have known, some people are dancing in the streets singing, “Ding dong the witch is dead” while others are howling, “Foul play!”
I think Scalia would have enjoyed the controversy over his death as he enjoyed the controversial issues he grappled with in life. He by all accounts enjoyed the good life and had a robust sense of humor. A trait he shared with friends in the legal profession, both liberal and conservative.
You see, Scalia lived his life by the precept first written in the Jewish scriptures that a man’s duty in any issue is first to hear your opponent out. He made a practice when hiring legal interns to include at least one liberal in every batch.
Yet a great many on the left are vociferously happy to see him go. Because Scalia was an originalist. He despised the idea of a “living Constitution.”
“The constitution is not an organism. It’s a legal text,” Scalia said at a talk at Princeton University. “It means today what it meant when it was adopted.”
Scalia opposed the idea of the judiciary deciding issues that he thought ought to be settled legislatively. For example that the court cannot rule the death penalty unconstitutional because the judges think it ought to be. His position was that if the Constitution doesn’t require abolishing it, it must be sent to the American people to be abolished in the legislature.
This is anathema to those who demand injustice be remedied RIGHT NOW.
Scalia knew what seekers of justice with a capital J lose sight of, that how a thing is done in a free society is at least as important as what is done.
And this is why I think originalism is important, and why I fear the vacancy in the Supreme Court left by Scalia. Because the left hates originalism, and the right often doesn’t understand it.
Why should we cling to legal precepts enshrined in a document written by men who could not possibly have foreseen the technology of today? When the First Amendment was adopted no one could have imagined the Internet, they barely understood there was such a thing as electricity!
For an originalist, there is a process by which the courts can adapt established law to new circumstances, but without inventing new law and imposing it by judicial fiat. And in extremis there is a process by which the Constitution can be amended.
Surprisingly for me, Scalia thought the process of amending the Constitution should be made easier.
There is something conservatives didn’t always like about Scalia, his respect for stare decisis, a fancy Latin word for precedent. Even when he thought an issue had been wrongly decided in the past, it is not a good idea to attempt to turn back the clock and undo long established precedent without dire necessity.
This is why I think it is important to have originalists on the bench. A common trait of extremists from the totalitarian left to the libertarian right is a burning desire for perfect justice.
There is no such thing this side of the grave. Since the time of Socrates philosophers have been trying to come up with a definition of justice, without getting any closer to universal agreement.
Beyond a certain minimum, it is more important that the law be consistent than it make perfect sense or be perfectly just. There are any number of inconveniences and stupidities we can put up within our system – if we know what to expect from day to day.
To make plans and investments, to establish careers, we must know that the rules we play by are not going to change capriciously. When laws and regulations are in a state of constant flux, we defer planning and hoard our resources rather than investing them productively.
This is not to say nothing should ever change. It means we have an established and reliable means of adapting to change, according to law and not the passing whims of men.