Former Democratic presidential candidate Lawrence Lessig praised late Justice Antonin Scalia, saying “what was most striking to me was to watch someone of great power constrain his power not for favors or public approval, but because he thought it right.”
In a column in USA Today, Lessig wrote that Scalia “was an ‘originalist’ committed to interpreting the Constitution in the way it would have been understood at the time it was adopted.” (RELATED: Scalia’s Oldest Son: People’s Nasty Opinions Weren’t Important To The Justice)
However, Scalia was “a conservative who was, as any of us are regardless of our politics, committed to particular outcomes that he hoped the law would support.”
An avowed “liberal” who clerked for Scalia in the early 1990s, Lessig wrote that Scalia struggled with conflict of “originalism” versus his “conservatism.” Lessig said, “In every case that I knew in my time as a clerk, however reluctantly, in the end Scalia followed originalism, whether the result was conservative or not.”
The Harvard Law School professor wrote about a time where Scalia’s conservatism and originalism came into conflict and Lessig said, “Scalia told me, maybe reluctantly. ‘I don’t believe in an originalism of convenience.'” As Scalia would call it “inconsistent originalism.”
Lessig wrote, “These acts of integrity were incredibly important to me in my becoming a lawyer.” Writing that the times he disagreed with Scalia’s claim that he was using an originalist interpretation of the Constitution, instead of a conservative interpretation, Scalia “told me I obviously hadn’t read the cases carefully enough. And maybe, in at least some of those cases of disappointment, I hadn’t.”
“[W]hether perfectly or not, what was most striking to me was to watch someone of great power constrain his power,” Lessig wrote, “not for favors or public approval, but because he thought it right.”