I posted a memorial to United States Supreme Court Justice Antonin Scalia, a post explaining the Bush v. Gore case and another in which I honored him by correcting some misconceptions and debunking some myths about the Constitution. The purpose of this post is to include a few additional thoughts about the great originalist jurist’s legal philosophy and theory of interpretation.
Liberals have no qualms about inventing new rights and interpreting laws in ways their authors could never have imagined and no one interpreting the laws had imagined even for centuries until now, which is contrary to the judicial role of only interpreting the law as it was intended by its authors and not effectively making law, in violation of the constitutional principles of the Separation of Powers (the division of government between Legislative, Executive and Judicial Branches). Before Scalia, legal interpretation was not focused on the text of the law. He vigorously opposed such judicial legislation and became the first modern champion of the legal theory of textualism, or “originalism” as a way to avoid this problem. Employing such methods of interpretation as consulting historical lexicons and dictionaries, Scalia was highly influential in leading the restoration of originalism. Not only conservatives followed his lead, but liberals were forced by his brilliant legal reasoning to make at least a minimal effort to examine the text of the law in light of how the words were originally intended to be understood and to avoid other practices of interpretation, such as trying to interpret the original intent of the law by examining its legislative history while ignoring the plain meaning of the law as it was democratically approved. Scalia understood that a judge’s role was not to correct an apparently-flawed law by supposing the legislature intended it to mean something other than what the words in its text reasonably mean.
An important note about originalism is that it is a moderate method of legal interpretation, as it requires neither overly-strict construction, nor permits too liberal interpretation, but reasonable interpretation, as the meaning of the text is to be interpreted as a reasonable person would have understood its meaning at the time the law was enacted. Yet originalism is based on conservative principle because it conserves the original intent by upholding the original meaning as reasonably understood.
In addition to the example of the application of originalism I cited in my post memorializing Scalia about the meaning of “Militia” in the First Amendment to the Constitution as including not only the National Guard, but the whole body of armed citizenry, I note another particularly good example of his originalism: his explanation of the Eighth Amendment’s prohibition against “cruel and unusual punishments.” Scalia noted that because the text plainly reads “cruel and unusual,” not “cruel or unusual,” something had to be both cruel and unusual to be constitutionally prohibited, not only one or the other. Of course, he noted “cruel” meant what was regarded as such at the time the Amendment was ratified, not, as liberals interpret it, as what may be regarded as cruel now.
Scalia exposed some inconsistencies by liberals in their practice of legal interpretation. He noted their adherence to stare decisis (let it be decided), which is a legal policy of deferring to precedent, even if a case had been judged erroneously, if overturning it would be overly burdensome because the case had become such settled law as to be relied upon, when his liberal colleagues agreed with the outcome of an erroneously-decided case, but their lack of reluctance in overturning similarly-settled cases with which they disagreed. Another inconsistency for which Scalia called out his colleagues is their recent trend of citing foreign law as authoritative in interpreting the U.S. Constitution, with the implication that the U.S. should follow the lead of the majority of foreign States, but yet upholding the Exclusionary Rule (a judicial policy that bars criminal evidence illegally obtained), even though no foreign State has such a rule.
An important aspect of Scalia’s judicial theory is the principle that the law must be based upon morals, as morality is necessary for society and thus for self-government. He thus opposed the overturning of reasonable laws simply because they were based upon morals. It is important to note the distinction between objective morals and religion beliefs. In this era, the debate about upholding objective morals versus opposing them seems like a conservative-liberal conflict, but Scalia was standing for the general principle, which had been previously accepted widely.
Although there were many cases in which Scalia was in the majority, even the unanimous majority, and wrote the opinions of the Supreme Court, whether it was united or divided, he was much more often in the minority. Even a dissenting opinion, however, is instructive to lawyers and legal scholars and can become the basis for future majority opinions or influence legislators. Because of his intellect, scholarship and writing skills, his direct influence could continue for decades through his many vigorous dissents. As one of the greatest American jurists, and especially as the great originalist, Scalia’s general influence will extend indefinitely.