This week Liberty's editors provide two different takes on Justice Scalia's passing.
Andrew Ferguson speaks ill of the dead here.
Justice Antonin Scalia, who died on February 12, was a person of intransigent mind, with a well-justified contempt for the intellectual weakness and silliness of his professional colleagues. He was the greatest influence on the Supreme Court in its present period and the Court’s best writer since, perhaps, the 1930s. He was devoted to the idea that the Constitution means what it says, not what a momentarily prestigious legal philosophy thinks it should say. He tried to interpret the Constitution according to its actual words, not according to the results he himself might have preferred. For that reason, his passing is a disaster for everyone who believes in constitutional, and therefore limited, government.
Among other good things, Scalia:
- Attempted to keep organs of the executive branch from becoming “junior varsity Congress[es],” establishing rules, procedures and “guidelines” that had the force of law.
- Spoke for the Court in denying government the power to circumvent the Constitution’s search-and-seizure provisions by the use of new electronic methods.
- Spoke for the Court in denying government the right to use claims of “hate speech” to circumvent constitutional rights.
- Spoke for the Court in maintaining Americans’ rights to gun ownership in the crucial Heller case, and dissented forcefully when the Court declined to consider more advanced Second-Amendment cases.
- Spoke for the Court in maintaining the right to sell ultraviolent video games.
- Memorably opposed the majority decisions upholding Obamacare: “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”
- In connection with the same decisions, stripped the mask of impartiality from his colleagues’ sorry faces: “Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. . . . And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”
- Provided the deciding vote for freedom and fairness in eminent domain, in the Williamson Country Regional Planning case.
- Was strongly influential in arguing against the use of “balancing act” criteria in decisions about constitutional rights.
- Was strongly influential in arguing against the use of “legislative history” as a way of qualifying or reversing the explicit meaning of statutes.
This list might be greatly extended. I could also compile a list of Scalia’s inconsistencies and blindnesses. But the fact is that for decades Scalia was the intellectual leader of the Court, whenever it admitted of any intellectual leadership, and the best bulwark of constitutionalists against the ability of modern-liberal judges to make the constitution what their ideology thinks it ought to be.
Scalia was an unembarrassed believer in the idea that the Constitution should be interpreted in the same way as any other text — by reading what is there and not what we want to be there.
Many libertarians don’t like Scalia, because of his particular rulings. So be it. But the disagreement often goes deeper. It goes to the philosophy of interpretation that many libertarians maintain. They think the Constitution was written to express broad principles of individual freedom and that its wording must always be interpreted in that light. Like modern liberals, who frequently refer to the Constitution as a “living entity,” the meanings of which are not bound by its actual wording, they want judicial decisions to embody a wide range of rights (i.e., a right to “privacy”) that never come close to being mentioned by the Constitution. If you want a judge to find them there, how can you object when the judge finds a lot of other things that aren’t there, and enforces them? This is what modern liberal jurists have been doing for several generations, and libertarians should not try to wish it away by appealing to essentially the same philosophy.
It was in his opposition to such ideas that Scalia truly distinguished himself. He was an unembarrassed believer in the idea that the Constitution should be interpreted in the same way as any other text — by reading what is there and not what we want to be there. He knew he would be despised as unsophisticated, at best, and as a mere advocate of his own bigotries, at worst. He repaid scorn with scorn — and who would not be scornful of the sophistries of Chief Justice Roberts, cynically arguing for the constitutionality of Obamacare immediately after he had argued for its unconstitutionality, or the inanities of the four modern liberal justices, who never saw a modern liberal law they didn’t like? What reflective person would deny Scalia’s contention that "the risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one's own views"? When Scalia joined the Court, this idea, though obvious, had been evaded for far too long, with devastating effects on the constitution’s system of limited government. Scalia’s aggressive advocacy of “textualism” gave it new importance, made its intellectual power impossible to ignore.
The truth is that the Constitution, if interpreted in the light of what it says, not of the pleasant emanations we sometimes feel radiating from its penumbra, would give us a world incomparably more libertarian than the one we currently inhabit. It would not be a world governed solely by principles of individual right, because the Constitution was not written solely to do that. But it would be a world so free that it would be a pleasure to suggest the few revisions that would complete the picture — instead of spending immense amounts of time and money fighting off attacks by modern liberals and conservatives who believe in legislating from the bench. And this is what people who care about individual freedom will now have to do, during the long, intellectually dismal period between Justice Scalia’s death and the confirmation of his successor.