Antonin Scalia

Justice Scalia Liked the Court. He Loved the Constitution.

Law students jokingly called him the pope of originalism, a phrase he loved.

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SteveMasker/Flickr

When the sad news came of the sudden death this past weekend of U.S. Supreme Court Justice Antonin Scalia, I wept for my friend.

We had developed a happy friendship during the past 15 years, one which I had selfishly hoped would endure. He permitted his friends to see all of him. We knew him to be in private just as he appeared in public—happy, loud, brash, warm, engaging, challenging, witty, brilliant, courageous, Catholic, traditionalist. He also let us know that he understood the significant role history gave him. Knowing him personally and spending private time with him was one of the great gifts of my adult life. In my heart, there is a great sense of loss.

Regrettably, in the nation there is a sense of loss for the Constitution as well.

Justice Scalia was the most aggressive and consistent defender on the Supreme Court of the primacy of the text of the Constitution in the post-World War II era. He was the modern-day progenitor of the idea—and eventually the jurisprudence—of interpreting the Constitution faithful to the plain meaning of its words. He was utterly and unambiguously faithful to this concept. This theory of constitutional interpretation has two names—textualism and originalism.

Justice Scalia argued that the Constitution means what it says; its says it is the supreme law of the land; and all American judges have taken an solemn oath to be subject to what it says. It is superior to the jurists who interpret it. It is what is says, not as they might wish it says. Thus, all judges are bound by the text. Hence the word "textualism."

So "no law" means no law. "Due process" guarantees fair process, not substance. A constitutional guarantee is a real guarantee. The exercise of rights articulated in the Constitution cannot be subject to popularity contests.

If the text of the Constitution is ambiguous, it then becomes the duty of the jurist to ascertain the original public meaning of the words that form the ambiguity. Hence the word "originalism." Ascertaining original public meaning often requires the skills of a historian; yet, thanks to James Madison, the historical record is ample.

chmeredith/Flickr

The rejection of this line of thinking permits jurists to interpret the Constitution in novel and creative or even destructive ways, according to their own ideologies. It permits them to adapt a meaning in the text that they wish had been there to fortify contemporary societal attitudes. Justice Scalia argued that that is not the job of jurists.

Federal judges have life tenure because they represent the anti-democratic part of the federal government. Their job is to preserve constitutional norms and structures and guarantees from interference by the popular branches of the federal government or the States, even when those branches or the States command popular support.

The job of the jurist, he argued, is not to adapt the text of the Constitution to public trends or cultural changes. That is the job of the Congress and the States through legislation.

His textualism/originalism arguments provoked a firestorm of opposition on the Court and in the legal academy. The opposition reacted and coalesced around a concept called the "living Constitution." Its tenets are that modern-day jurists can adapt the Constitution to modern-day societal preferences and governmental needs.

Justice Scalia argued that that itself violates the judicial oath, which is to uphold the Constitution as it was written, not as some jurists may wish it to be. Only three quarters of the States, he maintained, can change the Constitution—by amendment—and they have done so only 27 times in the past 225 years.

Some justices throughout history have been compromisers and conciliators. Not Justice Scalia. He was a lion of textual orthodoxy. He was a rock of original meaning. Law students jokingly called him the pope of originalism, a phrase he loved.

This steadfast attitude about the proper judicial role on the Court led him to author staunch defenses of the right to life even in the womb, free speech even when hateful, private property even when it is in the government's way, the right to confront one's accusers at trial even when unpleasant, the right to keep and bear arms in the home even if locally prohibited, and the right to privacy in "persons, houses, papers, and effects."

He famously voted to limit privacy to those four areas because of his fidelity to the text of the Constitution, which articulates persons, houses, papers and effects as the areas immune from government intrusion without a proper search warrant. He believed that if those areas are to be expanded, it is for the States to expand them by amendment, not for the Court to do so based on a wish list.

In the early days of our friendship, I was a bit awed by him. I once asked him if he felt he belonged to the Court. His reply was short and blunt. He told me he belonged to the Roman Catholic Church, he belonged to his family, and he belonged to the Constitution. The Court, he said, was just one creature intended to preserve, protect, and defend the Constitution. The Constitution is the Court's creator. No creature can be greater than its creator. He liked the Court. He loved the Constitution.

Now he is with the Creator of us all. Now he belongs to the ages.

COPYRIGHT 2016 ANDREW P. NAPOLITANO | DISTRIBUTED BY CREATORS.COM

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  1. If “no law” means no law, then where do laws against slander and libel come from?

    If “shall not be infringed” means no infringement, where do any gun laws come from?

    Sorry, Judge, nice try, but BZZZZZZT

    1. If “no law” means no law, then where do laws against slander and libel come from?

      States, who are not congress.

      If “shall not be infringed” means no infringement, where do any gun laws come from?

      Progressives.

      1. States, really, as i the 14th amendment had no words and was forced into silence? BBZZZZZT

      2. States, really, as i the 14th amendment had no words and was forced into silence? BBZZZZZT

      3. O squirrels I love you so

    2. Oh, and when they are searching your car with a drug dog, that’s not a search in CITY OF INDIANAPOLIS v. EDMOND.

      I recall he was pretty awful on drug search cases.

      1. I recall he was pretty awful on drug search cases.

        My recollection of his dissent in the Indianapolis v. Edmond was that he was a bit more measured/reasonable about it. That setting up a specific roadblock to look for drugs with drug dogs doesn’t de facto constitute a suspicionless search or can be indicative of (an unwritten) suspicion.

        You’re, of course, right in that he dissented but I recall it as hardly a case to hang him by. Especially when we have cases like Kelo v. New London and King v. Burwell for which Justices deserve hangings/woodchippers.

      2. Yeah, Scalia was an originalist when such an interpretation aligned with his personal beliefs, but not when it differed from his personal beliefs. In other words, he was just like everyone else.

        1. How does anyone know? ‘Originalism’ is just another interpretation, and interpretations generally follow the views, philosophy, and especially interests of the interpreter. There is no escaping from the fact that all language has to be interpreted, and when the interpreters and their mental frameworks change, so does the interpretation. Scalia is hardly the first example of the problem.

    1. No, no, he’s just… sleeping.

  2. Is this an example of Napolitano culturally expropriating his own kind?

    I’m not sure anymore.

    1. Here’s a hint – the term “Cultural Appropriation” is bullshit non-speak spewed as an excuse to chaseize people and create an astroturf moral high ground to feel smug from.

      1. Cultural appropriating cannibalism is REAL, bra.

        1. Rufus, I’m afraid your speech indicates a brain defect which general emerges as a side effect of eating canukistanis. The only treatment is euthenasia.

          *loads shotgun*

          1. /Homer scream. Runs away in nothing but long-johns.

        2. Wait, are you saying that Jeffrey Dahmer was guilty of cultural appropriation from the New Guinea highlands tribes? What a monster.

  3. “Justice Scalia argued that the Constitution means what it says”

    Yeah but he didn’t rule that way.

  4. Well yeah, Scalia had good points.

    Except, for example: Commerce Clause scope and excessive deference to precedent. Thus his terrible concurrence to Gonzales v. Raich.

    Also, I’m disappointed that Napolitano defends Scalia’s concept of the limits of the right to privacy. Scalia’s notion reveals a positivist notion of government power: that government has all power except for where that power is explicitly limited. So Scalia assumes the government already has the power to search anything it wants unless limited by those four words. This was not the originalist thinking.

  5. Supposed to Interpret the constitution, not Worship it.

    1. Welcome to Reason, where people like you are reviled, and for good…er…reason.

  6. Greetings earthlings and statist automatons! Dream On?:

    “…In your dream, the constitution was not a scam,
    In your dream, the Supreme court is not a scam,
    In your dream, 9/11 was not a scam…….”

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  8. Oh eat shit and die Napolitano you conservative fuck. Textualism and originalism was a pretext for doing whatever the fuck he wanted. When the text of the constitution didn’t support that he ignored it as quickly as anybody. Where was the equal protection clause when it came to gays? What wasn’t interstate commerce when it came to drugs?

    1. Amen

  9. I understand your personal fondness for Scalia. But that has clouded your assessment. He was a selective textualist, in other words a hypocrite. He expressly rejected 9A and advocated ignoring it. He took that position because 9A incorporates natural rights into the Constitution. But Scalia was a statist who believed govt alone created and granted rights. In deference to his political ideology, he allowed it to trump textualism.

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  12. East Coast Italians tend to defend each other even when it’s obvious that one of them is wrong. When they’re both Catholic, the bond is even closer.

    Scalia was a major force for textualism even if he didn’t practice it consistently himself. His brushing away of Alan Gura’s 14th Amendment arguments in “McDonald vs Chicago” was a blatant refusal to even acknowledge the text, much less enforce its original meaning. “Due process” means nothing if it is merely procedural. To have teeth it must be substantive but that substance is in the 14th Amendment’s “Privileges and Immunities” section, the section that Scalia openly despised.

    No doubt Scalia thought that “stare decicis” justified his ignoring “Privileges and Immunities” but “stare decisis” is Latin for “Once we fuck something up, it stays fucked”. I don’t find that in the original text.

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  15. Dear Mr Napolitano, some questions:

    What if the Constitution and Bill of Rights is a fraud?
    What if the Supreme Court is a fraud?

    Dream On?:

    “In your dream, the constitution was not a scam,
    In your dream, the Supreme court is not a scam,”

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    http://www.youtube.com/watch?v=QMXtoU…..e=youtu.be

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