JUSTICE SCALIA AND THE RULE OF LAW: ORIGINALISM VS. THE LIVING CONSTITUTION

Authors

Richard F. Duncan, University of Nebraska College of LawFollow

Date of this Version

2016

Citation

(2016). Regent University Law Review 29(1), 9-34.

Abstract

Justice Antonin Scalia's sudden death in February, 2016, was a great loss for his family, a great loss for his friends, and a great loss for the "Written Constitution" of the United States of America. We will have no more of his brilliant, witty, and pugnacious judicial opinions. Instead, we will have to settle for the body of work he left behind as his legacy. But, as one commentator has said, his opinions are "so consistent, so powerful, and so penetrating in their devotion to the rule of law"—the real rule of law, not the political decrees of judges creating the so-called "Living Constitution" "that one may take one or two almost at random and catch a glimpse of the great patterns of his jurisprudence, as well as flashes of his famous wit." Scalia was the greatest Supreme Court Justice of his generation, perhaps of all time. Professor Steven G. Calabresi, a former law clerk of Justice Scalia, recently said that "[Justice Scalia] is the most important justice in American history—greater than former Chief Justice John Marshall himself."' I will not dissent from Professor Calabresi's opinion. When Justice Scalia passed away, I lost the hero of my life in the law. But he lives on in his written words, a body of work that was designed to shape our understanding of the Constitution for generations yet to come. I love the pugnacious poetry of his opinions, particularly of his dissents. Margaret Talbot once referred to Justice Scalia's provocative style as "the jurisprudential equivalent of smashing a guitar onstage." And so it was. Justice Scalia was once asked why he took such pains to use memorable terms and provocative phrases in his Supreme Court opinions (particularly in his dissents), and he said that he wrote them this way for law students. If his dissents are provocative and memorable, they will appear in law school casebooks, and if they are in the casebooks, they will be read by law students who might well decide that his views about the original meaning of the Written Constitution are persuasive. This made him a Justice who wrote in the spirit of a teacher or professor of constitutional law, and in the long run, this pedagogical function will likely stand as his most significant achievement. Although some credibly believe that his greatest contributions to the law are in the area of statutory construction and the merits of textualism over legislative history, 12 for me, Justice Scalia's most important legacy is his work on originalism versus the Living Constitution and his persuasive conclusion that originalism is the "lesser evil." Together with former Attorney General Edwin Meese III and the late, great Judge Robert H. Bork, Justice Scalia was, in his own words, one of "a small hearty minority who believe in a philosophy called originalism" as an essential component of "a government of laws and not of men." To Justice Scalia, the text of the Written Constitution is law, and the duty of the Court is to interpret the constitutional text based upon its original meaning. The so-called Living Constitution is not law but rather clay in the hands of Justices who shape it to mean whatever they believe it "ought to mean." The purpose of this Article is to focus on the part of Justice Scalia's incredible legacy that concerns the so-called "Great Debate" in constitutional law between originalism and the Living Constitution. I will focus particularly on Justice Scalia's argument that the Living Constitution is the greater evil because it substitutes the rule of unelected judges for the rule of law. Importantly, Scalia's vision of original understanding originalism is not a vacuous call for total judicial disengagement. Rather, Scalia believed, quite simply, that the Written Constitution "says what it says and doesn't say what it doesn't say." When the Constitution speaks, it is the duty of the Court to practice judicial engagement and apply the Constitution's precepts to decide cases governed by its original meaning. When the Constitution is silent, however, it is the duty of the Court to practice judicial restraint and permit Congress and state legislatures to make laws within their respective powers.