Sunday, February 14, 2016

Antonin Scalia, Rest in Peace

           Antonin Scalia, Associate Justice of the United States Supreme Court, the brilliant champion of restoring originalism in interpreting the law, died yesterday at the age of 79 in Texas.  The great jurist was a devout Catholic, conservative, patriot and defender of the Constitution and its principles of limited and divided government.

            Scalia was born in Trenton, New Jersey in 1936.  His father was an immigrant from Sicily, Italy and his mother the daughter of Italian immigrants.  The family moved to New York when Scalia was six.  The young scholar received a Bachelor’s Degree in History from Georgetown University in 1957 and graduated from Harvard Law School three years later, earning high academic honors from both schools. 

            Scalia practiced law privately in Ohio for several years and then taught as a professor of law at the University of Virginia from 1967-1971.  President Richard Nixon appointed him General Counsel of the Office of Telecommunications Policy in 1971 and Chairman of the Administrative Conference of the United States, in which capacity he served from 1972-1974.  Scalia was nominated Assistant Attorney General for the Office of Legal Counsel by Nixon in 1974 and then re-nominated by President Gerald Ford and confirmed by the Senate.  Returning to private life after 1977, he worked briefly for the American Enterprise Institute and then taught law at the University of Chicago from 1977 to 1982, where he was the first academic advisor of the Federalist Society, during which time he also edited Regulation magazine.  President Ronald Reagan nominated Scalia to the United States Court of Appeals for the District of Columbia Circuit and he was confirmed by the Senate. 

            Reagan nominated Scalia to the Supreme Court in 1986 to replace Justice William Rehnquist, whom Reagan had nominated as Chief Justice to replace retiring Chief Justice Warren Berger.  The Senate confirmed Scalia unanimously. 

Scalia thus became the first Justice of Italian descent.  His appointment and honorable service as a Justice of the Supreme Court helped to dispel prejudices against Italians, and particularly Sicilians, that were based upon associations with crime.  His intellect also served also as a contrast to the prejudice against the Southern Italians for their supposed lesser intelligence. 

Similarly, Justice Scalia’s famous brilliance disproved the liberal notion that conservatives are not intellectual.  He also became known for his wit, writing skill and for his forceful argumentation.  Scalia was the most frequent questioner at oral arguments and his written opinions were by far the most studied by legal students. 

Scalia understood the role of a judge to interpret the law and not to make law.  Scalia respected the constitutional doctrine of the Separation of Powers, which created divided government between the legislative, executive and judicial branches, with a system of checks and balances.  He understood that it is not the judge’s duty to fix a flaw in a law by re-interpreting it in a way different from how its text plainly reads.  Scalia argued that interpreting the law by trying to determine the legislative intent leads judges to substitute their own intent of what they believe the law ought to mean for what it truly does.  Therefore, he opposed the trend toward judicial activism that led to judge-made law and instead applied the principle of original meaning by interpreting the law based upon how the words in it would have reasonably been understood to have meant at the time the law was written, in contrast to how liberals change the meaning of the law by changing the meaning of words.  By restoring the principle of original meaning, Scalia was thus not only a counter-revolutionary defender against liberalism of the Constitution, but of the democratic process, as the law ought not to be changed by judicial whim, but only by the people through the official actions of the elected representatives.   When the original meaning cannot be conclusively interpreted, he believed judges should resist the temptation to interpret the law as they want it to mean and instead interpret it in light of the legal tradition found in common law cases and state laws. 

The most noteworthy example of Scalia’s originalism was his majority opinion in the Heller case in 2008, in which the Court ruled that the District of Columbia had violated the plaintiff’s Second Amendment right to keep and bear arms—the first time the Court had ruled that there was such an individual right.  The originalist jurist cited historical examples to prove that by “Militia,” the Framers meant not only the state National Guards, as liberals insisted the word had come to mean in modern times, but the entire body of private citizens.  Scalia demonstrated his commitment to his principle of opposing judicial activism by even interpreting the law to mean something that he personally opposed.  His support for the Separation of Powers was also evident in rulings against usurpations by other branches of government, such as in the case of President Barack Obama’s unconstitutional abuse of the power to make recess appointments. 

Scalia also defended the constitutional principle of federalism that limits the federal government only to certain powers, while reserving the rest to the States, a principle, like that of the Separation of Powers, that has been violated for several decades.  He understood that these principles guided constitutional interpretation.  Scalia was successful in a number of cases in limiting the increasing concentration of power by the federal government.  A significant recent example was the 2012 decision overturning as unconstitutional part of the federalization of health insurance, known as “Obamacare,” that would have forced States to expand Medicaid. 

Another recent trend among liberal colleagues on the Supreme Court in legal interpretation Scalia opposed was their citation of foreign law. 

Although Scalia was more often in the minority on the Court, there were other significant conservative victories on a range of issues in his nearly thirty years on the Supreme Court, such as in regard to religion, abortion, the death penalty, border security, election law and freedom of expression.  

The Supreme Court rulings of which Scalia participated promoted liberty and good government, but it is his restoration of originalist interpretation of law that was his greatest contribution to American jurisprudence.  The Good Judge’s opinions will continue to be studied by legal scholars.  May Antonin Scalia’s life and work continue to be a good example to others and may Americans enjoy more the blessings of liberty and good government as his legacy. 

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