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The Scalia Legacy

March 7, 2016

The recent passing of a long serving Supreme Court Justice prompts us to ponder the significance of the basic principles by which he ventured his opinions.  Justice Scalia claimed that “original meaning” drove his actions on the Court.  This belief shaped his opinions which fell on both sides of the political spectrum.    The Judge, being a strong literal supporter of a right against unauthorized seizure, prompted a law professor to write “he did not believe in a living Constitution, he believed in a powerful, binding one.” 

Scalia once wrote, “I have defended criminal defendants’ rights—because they’re there in the original Constitution—to a greater defense than most judges have.”  He held that the use of thermal-imaging devices is a search thus requiring a warrant and a hidden GPS created an unreasonable search; he dissented against upholding a warrantless traffic stop, and challenged taking DNA samples during booking procedures.

His strong “originalist” beliefs found him writing scathing majority opinions against or a dissenting opinion on a variety of popular fades about powers in government.   He most often voted with the intent of the tenth amendment in cases which defined powers between the federal and state governments.  In one example he wrote that when Congress fails to enact interstate commerce legislation and state legislatures fill in the void, the judiciary hasn’t the authority to vacate a state’s actions unless Congress passes legislation on the matter.

He strongly supported the autonomy of each branch of government to act within its powers.  In one case, he wrote against the Independent Counsel Law claiming “unwarranted encroachment on the executive Branch by the Legislature.”  In another, a Sentencing Commission challenge, Scalia wrote that an unelected group of judges creating sentencing guidelines usurps the power of the legislative branch.   

But, perhaps his greatest influence is in the area of religious freedom.  He wrote the opinion in “Employment Division vs. Smith” which moved religious rights protection from the courts into the legislative branch bringing forth the Religious Restoration Act (RFRA).  Several cases, including the recent Hobby Lobby case, have used the RFRA to protect the rights of religious freedom for individuals.   

In a very real sense, Scalia was often alone in defending the words and meaning of the Constitution.  One opinion is often insufficient to ensure justice is preserved by the Court.  We would be better off by appointing others who are “originalist.”  If he wasn’t running for President, Ted Cruz would be a good appointment, fitting well into the shoes left by Scalia’s passing. 

Following the “originalist” approach to interpreting the Constitution is not a step backwards.  It’s a step forward because it has its roots in the belief that absolutes exist; as opposed to a “relativist’s” approach which believes there are no such things as absolutes and everything is relative – shorthand for saying “The law is what we say it is, not what was intended by the drafters thereof!”  The foundations of our freedoms are found in absolutes and the “originalist” approach exhibited by Scalia.   

Mark and Bill and John