Column: On Justice Scalia and originalism

The Supreme Court is seen in Washington, Wednesday, Feb. 17, 2016, as preparations are being made to honor Justice Antonin Scalia, who died over the weekend at age 79. (AP Photo/J. Scott Applewhite)

On Saturday, Supreme Court Justice Antonin Scalia died. Known for his great intelligence, sense of humor and biting wit, he was surely one of the most impressive legal minds of our time. His death is a loss for the Court, the country, and legal reasoning itself. Whether one agreed or disagreed with Scalia’s interpretive philosophy, we must recognize him for one of the sharpest and most influential legal thinkers to sit on the Supreme Court.

A champion for originalism, Scalia believed the Constitution and its Amendments should be interpreted according to the original understanding of those who adopted them. This interpretive philosophy attests that the meaning of the U.S. Constitution is unchanging. The Constitution can only be changed in the manner the Constitution itself provided, the amendment process outlined in Article V. When the Supreme Court interprets provisions of the Constitution to mean something different than the meaning understood by those who adopted it, it illegally alters the Constitution by circumventing the amendment process. For example, those who ratified the Due Process Clause of the Fourteenth Amendment in 1868 clearly did not intend said clause to forbid states from outlawing abortion or same-sex marriage. The Court’s opinions finding rights to abortion and same-sex marriage under the Due Process have effectively amended the Constitution without the consent of three-quarters of the states.

These opponents of originalism, those who adhere to what is known as a “Living Constitution” believe the meaning of the Constitution changes over time, according to changes in social conditions. They believe that the Supreme Court determines when it is time to update its meaning. Scalia believed this interpretation undermined democracy and the rule of law by introducing changes to the supreme law of the land without the consent of the people required by the Constitution.

Many on the left have heavily criticized Scalia, without understanding his interpretive philosophy. His fiery dissents in cases that have been lauded as progressive victories by the left are not motivated from animus or a disagreement on policy, but a disagreement as to the law. The Court has never considered whether abortion or same-sex marriage should be rights, but only whether said rights are contained within the meaning of the Due Process Clause. Doubtless, those who truly understand his interpretive philosophy and legal reasoning will recognize his brilliance and integrity, even if they do not adhere to originalism. He has been the most influential advocate of originalism, inspiring several legal thinkers with his objective, consistent, democratic theory of Constitutional interpretation.

Scalia should be remembered not only for his legal mind and interpretive philosophy, but also for his warmth and amiability. Scalia has formed deep friendships with his ideological opponents on the bench, Justices Ruth Bader Ginsburg and Elena Kagan. He has referred to Ginsburg as his “best buddy” and remarked jokingly, “What’s not to like? Except her views on the law, of course.” He and Ginsburg have traveled to Europe and India together. In addition, Scalia provided Ginsburg an early copy of his dissent in United States v. Virginia (1996) to improve her majority opinion. David Axelrod, President Obama’s former advisor wrote this week that Scalia recommended liberal Elena Kagan to fill to Justice David Souter’s seat because he had great appreciation for her intelligence. After she joined the Court, Scalia took taught her to shoot and took her duck hunting.

Scalia’s close friendships with those whom he disagreed with should be a model for all Americans. We will certainly not always agree with each other, but we should respect and care for one another. Differing legal or political ideologies are no reasons to prevent a friendship from forming. While meant in a humorous way, Scalia’s above-quoted statement on Justice Ginsburg contains an important truth. There is much more to people than their ideologies and we would miss out on a great deal in life if we rejected potential relationships with people we disagree with.

Scalia was a great and inspirational figure in the history of the Supreme Court and American legal thought. One need not agree with his views to admire his intellect and generosity of character. America will not be the same without Antonin Scalia. He was one of the greats, truly a legal titan. We shall miss him dearly.   


Brian McCarty is a staff columnist for The Daily Campus opinion section. He can be reached via email at brian.mccarty@uconn.edu.