Justice Scalia and Originalism

OK — Another post on Supreme Court Justice Antonin Scalia. The following article by Lee J. Strang looks at Justice Scalia’s advocacy of originalism coupled with his Christian faith ( he was a devout Catholic). This view provides a greater depth of understanding to the man than would a view based solely on his jurisprudence. The article appeared first at: http://www.crisismagazine.com as: How Scalia Inspired a Generation to Defend the Constitution.  Lee J. Strang is Visiting Scholar at the Georgetown Center for the Constitution and the John W. Stoepler Professor of Law & Values at the University of Toledo College of Law.  RMF

How Scalia Inspired a Generation to Defend the Constitution

by Lee J. Strang

We the People

Lee J. Strang

Lee J. Strang

The death of U.S. Supreme Court Justice Antonin Scalia at age 79 of natural causes Saturday in Texas is an ideal occasion to reflect on the profound influence he had on the legal profession and, by extension, the nation. Astute observers of academic life in America know that the law professoriate has long been dominated by liberals. I discovered this when I arrived at law school, and my professors ignored, dismissed, or derisively mocked conservative and libertarian legal arguments. The dominance of progressive legal views is so powerful that even faculty members who are politically moderate are pressured into silence. This was starkly portrayed to me when, as the president of my law school’s chapter of the conservative-libertarian Federalist Society, I asked a faculty member for suggestions on a speaker to present a pro-life legal perspective in a debate I was organizing at the law school. (The law school had no shortage of pro-choice faculty members.) 

images-1  This professor was not conservative but, because of his religious commitments, I suspected he was pro-life. When I asked him if he could recommend a pro-life debater, his normally jovial demeanor changed. He closed his office door and, in hushed tones reminiscent of a subject of a totalitarian regime, he told me that, yes, he was pro-life, but to please not tell anyone. I was stunned. This faculty member was a well-respected scholar with tenure; why was he so scared, I asked. He told me that, if his colleagues knew that he was pro-life, they would “ostracize” him.

It was in this intellectually stifling environment that I first encountered Justice Scalia’s contrarian opinions and compelling legal arguments. As a law student, I didn’t know where to look to find the best conservative and libertarian insights—I knew my teachers were not presenting them!—so Justice Scalia was a crucial resource for me and a generation of lawyers.

Perhaps Justice Scalia’s most important contribution to a generation of lawyers, and to our legal system, was his articulation and defense of a theory of constitutional interpretation called originalism. Originalism says that judges should interpret the Constitution according to its “original meaning,” which is the public meaning of the text when it was ratified. For instance, to ascertain the meaning of “religion” in the First Amendment, an originalist will identify the public meaning of the word religion in 1791 by looking at historical evidence.

It’s hard to convey how controversial originalism was, and to a significant degree remains today, among American legal academics. It’s even used as a litmus test for hiring. For example, when I was looking for a teaching job, I interviewed at a law school to teach property law. During one part of the interview, a faculty member launched into a diatribe about how wicked Justice Scalia was and that originalism was his depraved means of effectuating his devious designs. This law professor wished to discredit my candidacy, and he was trying to tie me to Justice Scalia and originalism as a sure-fire way to smear me in his colleagues’ eyes. It worked.

After it was initially proposed in the 1970s, originalism was subject to withering criticism and pronounced dead in the early 1980s. One prominent criticism of originalism, for example, was the claim that its adoption would lead to massive disruption to our legal system as numerous nonoriginalist precedents were overruled. This criticism possessed prima facial plausibility because of the importance of following precedent in our common law legal system, though these critics frequently disregarded their own prescription and felt little compunction overruling precedents with which they disagreed.

Screen Shot 2016-02-16 at 10.37.24 AM  Justice Scalia was the major figure reinvigorating originalism in the late-1980s, and he did so through his public advocacy for and use of originalism. Justice Scalia, in his opinions, in law reviews articles, and in many, many public lectures, argued that originalism was faithful to our written Constitution, and that living constitutionalism was not. He argued that unelected federal judges did not possess the authority to re-interpret the Constitution away from the American People’s constitutional judgments embodied in the Constitution’s original meaning.

Justice Scalia also responded to criticisms leveled at originalism. For instance, he argued that originalism should accept some nonoriginalist precedent for the sake of the rule of law. “I can be much more brief in describing [a] second … serious objection to originalism: In its undiluted form, at least, it is medicine that seems too strong to swallow. Thus, almost every originalist would adulterate it with the doctrine of stare decisis—so that Marbury v. Madison would stand even if Professor Raoul Berger should demonstrate unassailably that it got the meaning of the Constitution wrong.” Preserving deeply entrenched nonoriginalist precedent is, on balance, the better course because it preserves the rule of law, and protects the reliance interests built upon those precedents.

Most importantly, Justice Scalia used originalism in his opinions and, along with Justice Thomas, over time made originalist arguments legitimate and even successful. One example of this new-found success of originalist arguments is District of Columbia v. Heller (2008), where the Supreme Court ruled that the Second Amendment protected an individual right to keep and bear arms. Both Justice Scalia’s majority opinion and the dissenting opinions used originalist arguments.

Justice Scalia also served as a role model for a generation of lawyers, judges, and law professors. His powerful arguments provided a path for law students, lawyers, and legal scholars to craft their own originalist arguments. He also inspired us to confidently challenge the powerful nonoriginalist orthodoxy that dominated the legal academy. Today, originalists are on the cutting-edge of legal scholarship and argumentation. Originalists owe many of their successes to Justice Scalia.

Furthermore, Justice Scalia showed that the Catholic intellectual tradition provided a deep reservoir of insights into law, the role of judges, and even our own written Constitution. It’s no coincidence, for example, that Justice Scalia argued that originalism should accept some nonoriginalist precedent to protect the rule of law. The rule of law, fully articulated by the time of St. Thomas, is a central component of the common good, and originalism should protect it, where it can, for the sake of the common good.

Justice Scalia also served as a model for fellow Catholics fully engaged in our nation’s important legal debates. His religious commitments informed his conception of law and motivated him to “evangelize” originalism to Americans. Like that earlier Catholic lawyer, St. Thomas More, who publicly rejected King Henry VIII’s usurpation of the Church’s jurisdiction, Justice Scalia repeatedly exposed Supreme Court usurpation of the Constitution. Just this past summer, Justice Scalia pointed out the illegitimacy of the Court’s “interpretation” of the Constitution in Obergefell v. Hodges:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension … of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice Scalia will rightly be remembered for his manifold contributions to our legal system. I’ll mostly remember him as the pugnacious defender of the Constitution whose writings offered relief from the stifling hothouse of law school orthodoxy by opened a window to the outside world of originalism.

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About ronfurg

Former naval officer, federal investigator, forensic scientist, senior executive service member and pastor. In retirement serves as volunteer and life group leader at New Life Christian Church (www.newlife4me.com). Devoted to beautiful wife, kids and grandkids. Looking forward to the time when every knee will bow and every tongue will confess that Jesus Christ is Lord of all and that He is the Way, the Truth, and the Life.
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