"The Essential Scalia"

                                                                   Sydney M. Williams

www.swtotd.blogspot.com

 

Burrowing into Books

“The Essential Scalia,” Antonin Scalia

November 17, 2020

 

“Utterly central to the law is the meaning of words, and the meaning

of a word often changes over time, as any reputable dictionary

will show by its use of a parenthetical description such as ‘obs. (obsolete).”

                                                                                                                Justice Antonin Scalia

                                                                                                                Speech, “The Freedom of Speech,” 2012

                                                                                                                The Essential Scalia, Antonin Scalia

 

This book, with a foreword by Justice Elena Kagan, was edited by two of Justice Scalia’s former law clerks, Jeffrey S, Sutton and Edward Whelan. It is arranged into four sections – General Principles of Interpretation, Constitutional Interpretation (the longest section), Statutory Interpretation and Review of Agency Action. Within those sections, the book is composed of speeches and court decisions: majority opinions, concurrences and dissents. Justice Scalia wrote with unusual clarity, so those with no law school education, like me, can follow along, at least most of the time.

 

Scalia’s belief in originalism is based on the concept that it is not the role of courts to try to understand the intent of those who wrote the Constitution or subsequent Amendments and laws, but to let the words written speak for themselves, using the definition in place at the time. “Far from facilitating conservative opinions, originalism prevents judges, conservatives and liberals alike, from judging according to their desires.” Justice Scalia recognized that attitudes toward social behavior change over time. But, as a firm believer in the separation of powers, he believed that justices should not impose their personal feelings in interpreting the law. Laws can be added, cancelled or amended, which is the role of the Legislature, not nine men and women in black robes. “The reality is that originalism is the only game in town – the only real, verifiable criterion that can prevent judges from making the Constitution say whatever they think it should say. Show Scalia the original meaning, and he is prevented from imposing his nasty, conservative views upon the people.” “The living constitutionalist is a happy fella, because it turns out the Constitution always means precisely what he thinks it should mean,” he added with an obvious smile.

 

In a chapter on textualism (similar to originalism), Scalia wrote: “It is the law that governs, not the intent of the law giver…Men may intend what they will; but it is only the law that they enact which bind us.” Justice Scalia spoke often, at universities and before Congress, on the importance of the constitutional structure of government – separation of powers, a bicameral legislature, our system of federalism – and its need to be preserved against “the ineradicable human lust for power.” It is the structure, not the Bill of Rights, that make us unique. The latter represents “the fruit and not the roots of our constitutional tree.” 

 

He notes, in a chapter on federalism, that the Constitution “established a system of dual sovereignty.” It is a compromise between “…the disunity, the conflict of independent states” and “the uniformity, the inflexibility…of one centralized government.” We read his opinions on abortion, violent video games, hate speech, political patronage, prayer and marriage. In a 1992 Dissent regarding prayer at public meetings, Justice Scalia wrote: “…that fortress, which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.” In a case where the Court ruled 5-4, concluding that two Kentucky counties violated the Establishment Clause in displaying the Ten Commandments, Justice Scalia, in his Dissent, quoted the Northwest Territory Ordinance of 1787 (the first legislative act to outright ban slavery): “Religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education, shall forever be encouraged.” In Obergefell v. Hodges, the Court ruled state laws that define marriage as the union of a man and a woman violated the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Justice Scalia dissented on the basis that such decisions should be left to the people through their representatives: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” 

 

In a 1996 case regarding Virginia Military Institute, the Court ruled 7-1 (Clarence Thomas recused himself) ruled that their single-sex policy violated the Equal Protection Clause. Justice Scalia was the sole dissenting voice, referencing the concept of separation of powers: “The people,” he wrote, “may decide to change the one tradition, like the other (here he refers to the three service academies, where Congress approved the change), through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law.” The non-golf playing Justice Scalia dissented in PGA Tour v. Martin, which ruled in Martin’s favor. Carey Martin, a professional golfer, was prevented from playing because of a degenerative disease that precluded him from walking the course when carts were not permitted. While his decision was not popular with those who feel he unfairly hindered a handicapped individual, it was based on a strict adherence to the rules: “…the very nature of competitive sports is the measurement by uniform rules, of unevenly distributed excellence. This unequal distribution is precisely what determines winners and losers – and artificially to even out that distribution, by giving one or another player exemption from a rule that emphasizes his particular weakness, is to destroy the game.” He admitted that the PGA could change the rule or permit an exception, but that, he added, “is a different question than the one before the Court.”

 

There is consistency and clarity in the written opinions of Justice Scalia. Readers will be surprised by the number of times he is joined by “liberal” members of the Court. He reminds us that Justices cannot be like Humpty Dumpty, who said words mean just what he wanted them to mean. In our world, words have definable meanings, and the presumption is that laws are (and were) written by those who understood their meaning. He respects the Founders and their wisdom, expressed in the Constitution and the Federalist Papers, and in creating separate governing bodies – a Congress that represents the People and which writes laws, an Executive who carries out those laws and a Court, the only non-political body, that ensures laws passed comply with the Constitution and that adjudicates disputes. Even for a non-lawyer like myself his wise words are fun to read and easily understood.