I believe the subject of this treatise will be about an individual which a great many people consider to be public enemy number one. For those of you who have read my other treatises, I hate to disappoint you, this particular treatise will not be the scathing witch hunt which uncovers the corruptness of our so-called leadership or of any particular leader for that matter. Instead, I am going to spend the time looking into a man who much of the public seems to intensely dislike, but for whom I have a great deal of respect.
While there are nine U.S. Supreme Court Justices, I am going to focus on one. If you haven’t guessed who I am referring to by now, it is Senior Associate Supreme Court Justice Antonin Gregory Scalia. Antonin Scalia was unanimously confirmed by the U.S. Senate and assumed his office, or his seat, on 26 September 1986 as a Supreme Court Justice. Who is this Supreme Court Justice and what sets him apart from the rest? According to Wikipedia Justice Scalia is, “The longest-serving justice currently on the Court, Scalia is the Senior Associate Justice. Appointed to the Court by President Ronald Reagan in 1986, Scalia has been described as the intellectual anchor of the Court’s conservative wing[i].” I would like to mention a few more items noted in Wikipedia before I continue, which I believe will give us something to work with regarding Justice Scalia. Wikipedia also notes, “In his quarter-century on the Court, Scalia has staked out a conservative ideology in his opinions, advocating textualism in statutory interpretation and originalism in constitutional interpretation. He is a strong defender of the executive branch…and, in his minority opinions, often castigates the Court’s majority in scathing language.” I’ll also touch on Justice Scalia’s beliefs on such matters as flag-burning and abortion as they relate to the Constitution of the United States. I believe these items through his over 25 years on the Court will allow us to find out who Supreme Court Justice Scalia is and why so many people believe he is public enemy number one.
A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.
Because I love the U.S. Constitution and know the founding fathers of this nation were great men, I believe that would be a good place to start. What does Justice Scalia mean when he speaks about originalism in constitutional interpretation? According to an interview with Leslie Stahl of 60 Minutes, the CBS News report states, “Justice Scalia is still a maverick, championing a philosophy known as “originalism,” which means interpreting the Constitution based on what it originally meant to the people who ratified it over 200 years ago[ii].” Personally, I like the idea of interpreting the U.S. Constitution[iii] in a manner that upholds the values, principles and words of our founding fathers who actually risked everything to create such a wonderful document for the people of the United States. In the report Justice Scalia goes on to explain what he means, “It is an enduring Constitution that I want to defend.” Ms Stahl notes, “Scalia has no patience with so-called activist judges, who create rights not in the Constitution – like a right to abortion – by interpreting the Constitution as a “living document” that adapts to changing values.” Justice Scalia states why he is against the idea of a living Constitution, “What’s wrong with it is, it’s wonderful imagery and it puts me on the defensive as defending presumably a dead Constitution.” So it is apparent, Justice Scalia believes the U.S. Constitution should be and is our ‘rock solid foundation’ which we stand upon and which has elevated us, the United States, to our (at least once) grand stature. With regard to the founders, Justice Scalia goes on to say, “Well, it isn’t the mindset. It’s what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution.” Justice Scalia isn’t against progress or change, “Create it the way most rights are created…Pass a law.” But he is against changing the Constitution, our foundation. Like many people I believe if you wish to change the Constitution, lawmakers need to go through the extremely cumbersome amendment process in order to make the Amendment. However, making a law in itself, is much less cumbersome, it just needs to be constitutional.
Why does Justice Scalia advocate textualism in statutory interpretation and what is it? Oliver Wendell Holmes in The Theory of Legal Interpretation stated, “How is it when you admit evidence of circumstances and read the document in the light of them? Is this trying to discover the particular intent of the individual, to get into his mind and to bend what he said to what he wanted?” Mr. Holmes, who I might add was a brilliant man, further states, “Thereupon we ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used, and it is to the end of answering this last question that we let in evidence as to what the circumstances were[iv].” So I believe Mr. Holmes is stating textualism is not necessarily the intent of the man as much as it is the words themselves, as used by men in general, to understand the meaning of the words within a certain circumstance.
According to the Harvard Journal of Law & Public Policy, “The basic premise of textualism is that judges “must seek and abide by the public meaning of the enacted text, [as] understood in context” and should “choose the letter of the statutory text over its spirit[v].”” Mr. Davis further states with regard to textualism, “Only the statutory text has passed the constitutional requirements of bicameralism and presentment, and that judicial reliance on unenacted intentions or purposes “disrespects the legislative process.”” Also according to Mr. Davis, textualists believe those ‘unenacted intentions and purposes’ are that which “Skirts the constitutional protections designed to safeguard liberty by diffusing legislative power.” So textualism maintains the separation of power within the three branches of government itself and protects the U.S. Constitution as well as the liberty of sovereign individuals and sovereign States.
Just so you know bicameralism is Congress as two chambers, the House of Representatives and the Senate. For the definition of presentment I’ll go to Black’s Law Dictionary, “In criminal practice. The written notice taken by a grand jury of any offense, from their own knowledge or observation, without any bill of indictment laid before them at the suit of the government. A presentment Is an informal statement In writing, by the grand jury, representing to the court that a public offense has been committed which is triable in the county, and that there is reasonable ground for believing that a particular individual named or described therein has committed it[vi].”
So between Oliver Wendell Holmes and Mr. Davis of the Harvard Journal of Law & Public Policy, Justice Scalia’s advocacy of textualism in statutory interpretation is not the intent of what is or was meant, but the actual public meaning of the text itself within the context of what was said [in the statute] and this is done strictly to safeguard our liberty under the U.S. Constitution while holding the government in check. I can’t figure out how that is a bad thing. The framers of the Constitution believed in limited government, to be sure, limited federal government as stated by James Madison in Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government are few and defined[vii].”
Now imagine a provision—perhaps inserted right after…the Naturalization clause—which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits.
An example of one of Justice Scalia’s minority opinions can be found in Arizona v. United States. Justice Scalia states, “Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding[viii]?” Justice Scalia goes on to say, “The President said at a news conference that the new program “is the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.” This is wonderful example of Justice Scalia castigating the majority (let’s call it) in scathing language-lite (I would have just called them spineless jellyfish). While the majority opinion was in favor of the President’s so-called plan of doing nothing other than trampling atop the rights of the sovereign State of Arizona, Justice Scalia sets himself apart and appropriately rebuffs the majority as well as the Executive branch. Justice Scalia states, “The Court opinion’s looming specter of inutterable horror…seems to me not so horrible and even less looming…the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written…Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?” Justice Scalia seems right on point and makes my previous statement with regard to the Supreme Court Justices in “On Sovereignty[ix]” seem a bit harsh. Quite frankly I should have stated the Supreme Court might as well be referred to as ‘Eight Empty Chairs’ instead of nine. Justice Scalia quite eloquently affirmed Arizona’s sovereign status and rebuked the Executive’s misguided stance as well as the Supreme Court’s inconceivable majority opinion. Why should the sovereign State of Arizona be required to allow its borders to be violated? As a sovereign State, Arizona has every right to secure its borders, protect its citizens and enforce Immigration Laws even if the Federal government doesn’t have the backbone or the intestinal fortitude to aggressively enforce those laws. I have always been unable to fathom why the federal government shirks its own responsibilities but has such a voracious appetite for prosecuting decent Americans who simply exercise their freedoms as they see fit, which seem to be at odds with the misguided beliefs of the jack-booted thugs in Washington.
Apparently, the Obama administration which flatly refuses to rigorously enforce existing immigration laws, just like his predecessor, George W. Bush who also refused to enforce those laws should not handcuff a sovereign State from doing so. Each sovereign State, like the nation as a whole, has its own Constitution and its own three branches of government. The federal government in my view is always subordinate to the States as well as the individuals who make up the States, unless one of the various constitutionally guaranteed rights of the individual has been violated by the State. What right does the federal government believe it has to step in as ‘High Lord and Potentate’ and issue its so-called fatwa’s or to even dictate to the sovereign individuals and the sovereign States? The business of the State is just that, the business of the State. The federal government’s power is limited for a reason, the founders believed in the sovereign individual and the sovereign State. Clearly, the federal government merely acts out of jealousy in its daily attempts to usurp what is not rightfully theirs as stated in the Law of the Land, the U. S. Constitution.
Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing…But this wolf comes as a wolf.
Now that we have seen Justice Scalia beat up on Obama, I think it would be a good time to touch on him [Scalia] as a strong defender of the executive branch. In Morrison v. Olson Justice Scalia gave his dissenting opinion, “We should say here that the President’s constitutionally assigned duties include complete control over investigation and prosecutions of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States[x].” Clearly, Article II of the U.S. Constitution states the duties and power of the Executive Branch as separate from either the Legislative or Judicial Branches, as stated in Articles I and III respectively, and vice versa. Justice Scalia’s dissenting opinion continues, “In my view…the Court’s conclusion must be wrong…One of the natural advantages the Constitution gave to the Presidency, just as it gave Members of Congress (and their staffs) the advantage of not being prosecutable for anything said or done in their legislative capacities…It is the very object of this legislation to eliminate that assurance of a sympathetic forum.” As executive privilege is a principle based on the constitutionally mandated separation of powers – the Executive, Legislative and Judicial Branches operate independently from one another. Private decision making with their advisors, in this case the independent council was the Assistant Attorney General Olson, has to be done without fear of ‘how something might look’ to either of the other branches of government. Unless a crime has been committed, no branch of government may frivolously impede the duties of the other branches of government. Especially when the aim is simply to destroy an elected leader’s ability to carry out the duties of his office through a so-called witch hunt or a fishing expedition which effectively renders the elected leader impotent without just cause, or simply to act as a device to destroy one’s political enemy. “The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom.” This is a good example of Justice Scalia’s strong defense of the executive branch. But in doing so, Justice Scalia is actually defending all three separate branches of government and their duties as delineated in the U.S. Constitution. What strikes me as even more paramount than the defense of the Executive and the separation of powers (which is extremely important), is Justice Scalia’s believe that in doing so it is in the defense of the individual freedoms which are ultimately protected.
Lastly, we should take a look at Justice Scalia’s conservative ideology. If we go back to the 60 Minutes interview with Leslie Stahl, Justice Scalia states, “I’m a law-and-order guy. I confess I’m a social conservative, but it does not affect my views on cases.” An example of Justice Scalia’s impartiality, in spite of his own personal beliefs, is in regard to flag-burners, “If it was up to me, I would have thrown this bearded, sandal wearing flag-burner into jail, but it was not up to me.” While that does sound conservative to me, it also sounds impartial. Justice Scalia clearly states his disdain for flag-burning and flag-burners, yet his opinion with regard to the law is flag-burners are protected under the U.S. Constitution. I’m not so certain I could be so fair-minded. It seems to me, flag-burners have plunged themselves into the depths of the multitudes of depraved individuals around the globe who constantly burn our flag, yet cry a river whenever the United States does something with which they do not agree. Of course, they claim they burn our flag because of our aggression, and while there may be a certain amount of truth to that statement, these people which I speak of live in a barbaric rat hole as a result of their own choosing, not ours. Their argument is disingenuous as well as fallacious.
The right to abortion is another issue with which we are all too familiar, based on the landmark case Roe v. Wade. In Planned Parenthood v. Casey, Justice Scalia gave his dissenting opinion, “By foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. – We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining[xi].” Whether someone is for or against abortion, it seems clear to me as it seems to be with Justice Scalia, nowhere within the U.S. Constitution does it state there is a right to abortion. However, I do believe as Justice Scalia’s dissenting opinion states, this is a matter that should be left up to the States. Roe v. Wade is a perfect example of the federal government’s attempts to destroy States rights. Has there been an amendment to the Constitution? The easy answer is no, but if that is the case, then why does the federal government feel they have the right to enact a national law without going through the cumbersome amendment process to the U.S. Constitution? If a State or the people of a State enact a law which either affirms or denies the right to have an abortion through State law, the individual on either side is not held against their will in that State. They have the freedom and the right to leave and seek out their liberty in another State where the people of that State have beliefs which are more in keeping with their own set of beliefs. But to have a national law foisted upon us all with the misguided attempt at appeasement for some, completely disregards the others. Not to mention the fact that such an idea is completely foreign to the U.S. Constitution.
I would conclude by stating Justice Scalia is not only a fantastic jurist, but an outstanding Supreme Court Justice. This man has a clear grasp of the law and an understanding of the U.S. Constitution which is unparalleled. I happen to like the fact that he adheres to the public meaning of text in his interpretation of the statutes and how he sticks to what the founding fathers said and what the words meant to them regarding the U.S. Constitution and the Bill of Rights. Justice Scalia’s belief that the idea of a living constitution is in reality a dead constitution is an honorable defense of the U.S. Constitution. His belief that his duty is to defend an enduring Constitution speaks volumes about this man. Justice Scalia’s defense of the sovereign State in the face of Executive, Congressional and Judicial malfeasance is also quite noteworthy. To protect the sovereign State is to protect the sovereign individual and it would appear as though Justice Scalia is a staunch supporter of both. As I have already stated, he defends the Constitution, but he also does this by affirming there is a clear separation of power between the three branches of government as stated in the Constitution. His conservative leanings don’t seem to sway his opinions or impartiality with regard to any case. And his opinions in general are quite interesting to read. Justice Scalia shows up for work each day fully prepared to uphold, defend and protect the Constitution of the United States. I cannot imagine why so many people hate this man, unless of course, it is because they hate the U.S. Constitution.
Justice Scalia is in many ways like Socrates, he questions and reproves, he educates and he enlightens. While in his interview with Ms Stahl he stated, “I was never cool,” I would have to disagree with him on that point. I personally believe Justice Scalia is in fact very cool, I might even go so far as to say he is a role model for decent and honorable men and not just young lawyers who someday wish to sit on the Supreme Court. Justice Scalia is an example of a man who leads by example. If we had more like him on the Supreme Court, it’s possible our nation wouldn’t hit the nail right on our thumb quite so often.
If you think aficionados of a living constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens to enact it. That’s flexibility.
God Bless this Great Republic, the United States of America.
Brett L. Baker