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A Giant Has Fallen—The Death of Justice Antonin Scalia and the Future of Constitutional Government

In the 1960s the Supreme Court invented an individual “right to privacy” that was used to overturn state laws against birth control. In 1973, the same argument was used by the Court’s majority in the Roe v. Wade decision legalizing abortion. In 2003, the Court struck down laws criminalizing sodomy and in 2013 and 2015 the Court issued rulings that eventually legalized same-sex marriage throughout the nation.

Even before his nomination to the Supreme Court in 1986, Antonin Scalia was known for his brilliant defense of originalism and what was often called a “strict constructionist” reading of the Constitution—though he preferred to call his approach “textualism.” Put simply, Scalia argued that the American commitment to democratic self-government required that the Constitution be honored as the nation’s authoritative text. He firmly believed in the right of the people to establish a constitutional government that would recognize the ultimate authority of the people, not an elite of unelected judges, to establish laws.

As he often said, his concern was not necessarily what policy the people should adopt through electing representatives who would produce legislation. His concern was who decides. It should be the people through their elected representatives, not an elite of judges. “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society,” he warned.

In his remarkable and haunting dissent to the 2015 Obergefell decision legalizing same-sex marriage, Justice Scalia made this point emphatically: “This is a naked judicial claim to legislative—indeed super-legislative—power; a claim fundamentally at odds with our system of government.” He continued: “A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

He was often most eloquent in dissent and prophetic in his warnings. He warned that the Court’s 2003 decision in Lawrence v. Texas would mean “the end of all morals legislation.”

Further:

“Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

If the people believe that same-sex marriage should be legal, then let them elect legislators who will accomplish that by law, Scalia urged. He advocated the same for abortion and endless other issues. He was stalwartly opposed to judges usurping political authority for themselves—though he fully understood that the Supreme Court’s majority intended to do just that. He also understood that the Constitution operated as a necessary restraint upon political impulses: “A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.”

Scalia could be withering in argument, but was known as a jovial personality. His best friend on the Court was perhaps its most liberal member, Justice Ruth Bader Ginsburg. With brilliant clarity, he once explained, “I attack ideas. I don’t attack people. And some very good people have some very bad ideas. And if you can’t separate the two, you gotta get another day job.”

He also understood that his approach to the Constitution would not always lead to comfortable conclusions. “If you’re going to be a good and faithful judge,” he said, “you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”