Antonin Scalia: the Loss of a Friend Emboldens Foes

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.