I have followed
with interest the news about the passing of Antonin Scalia. Aside from the
sincere shock of the news (totally unexpected), I have been saddened by the
loss of a sincere friend of the Constitution. His passing could allow for irreparable
harm to the balance of power in the United States of America.
Why do I make
such an outlandish claim? Well, I know I’m just a basic guy, but let me try to
explain it this way.
Speaking if his
approach to interpreting constitutional law as a Supreme Court jurist, Antonin
Scalia once declared: “I am a textualist. I am an originalist. I am not a nut.”
What an odd
collection of ideas. What does being a “nut” have to do with seriously
considering the “text” of the Constitution and what it “originally” meant?
Consider Scalia’s
own explanation of his originalist approach to juris prudence in some remarks
he made at the Woodrow Wilson
International Center for Scholars in Washington, D.C., on March 14, 2005. He
said:
“I am one of a
small number of judges, small number of anybody — judges, professors, lawyers —
who are known as originalists. Our manner of interpreting the Constitution is
to begin with the text, and to give that text the meaning that it bore when it
was adopted by the people....
“This is such a
minority position in modern academia and in modern legal circles that on
occasion I’m asked when I’ve given a talk like this a question from the back of
the room — ‘Justice Scalia, when did you first become an originalist?’ — as
though it is some kind of weird affliction that seizes some people — ‘When did
you first start eating human flesh?’
“Although it is
a minority view now, the reality is that, not very long ago, originalism was
orthodoxy. Everybody, at least purported to be an originalist.”
Ahh, I see. In
other words, to some an originalist is old fashioned and cannot possibly keep
up with the times. So the argument must follow: we live in the day of the
information highway and along with advances in science and technology we have
far out-distanced the Founding Fathers. We need a constitution for our time
that meets modern needs and lives up to the intellect we have achieved over 200
plus years.
Here’s my
problem with this argument. In December 1833, God revealed to a prophet this
important insight about the Constitution of the United States:
“I have suffered
[the Constitution] to be established and should be maintained for the rights
and protection of all flesh, according to just and holy principles…
“And for this
purpose have I established the Constitution of this land, by the hands of wise
men whom I raised up unto this very purpose, and redeemed the land by the
shedding of blood” (D&C 101:77, 80).
Though Antonin
Scalia was likely unaware of this revelation, his intuition to bring to bear
originalism to his work may have been God-inspired. I think we are in desperate
need for more friends of the Constitution to maintain a balance with the
multiplying foes. And with Mr. Obama wielding the pen, I can only imagine the
direction he will choose to go.
