The Scalia Ethos

Rep. Ron DeSantis Congressman, Florida 6th district
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The death of Supreme Court Justice Antonin Scalia represents a major loss for constitutional government and the rule of law. Scalia was a legal giant who possessed a deep understanding of, and affection for, the U.S. Constitution and who discharged his duty to defend it with principled vigor and eloquence. He will go down as one of the greatest jurists in the history of American law.

Scalia’s impact can be seen in courtrooms, law schools and the halls of Congress. He was so influential because he was a talented communicator who fully understood the proper role of the courts in our constitutional system; Scalia was faithful to Alexander Hamilton’s dictum that courts are to exercise “neither force nor will but merely judgment.”

Consider the indelible mark on American law that Scalia left:

Textualism: Before Scalia arrived at the Supreme Court, the art of statutory interpretation had been lost in a sea of subjectivism. Scalia knew the proper role of the judge was to apply the law as written, not as the judge would like it to be written. He rejected the notion that courts have a roving license to rewrite statutes to conform with subjective views of legislative intent or with an unelected judge’s idiosyncratic notions of justice. This judicial posture recognizes that the Congress possesses the sole authority to legislate and prevents the courts from usurping power properly belonging to the people to exercise through their elected representatives.

Originalism: Liberal Supreme Court Justice William Brennan once remarked that one could “do anything around here with five votes.” Brennan dismissed the idea that the Constitution possesses a stable meaning and argued that judges needed to constantly reinterpret the meaning of the Constitution’s text – a Platonic king’s view of the judicial power that effectively makes five unelected lawyers on the Supreme Court a perpetual constitutional convention.

Scalia had contempt for this view because it distorted the separation of powers and diluted self-government. Scalia instead endeavored to apply the meaning of each provision of the Constitution as it was originally understood by the society that ratified it. Like the Constitution of the Founding Fathers, Scalia’s Constitution had a fixed, enduring meaning. This interpretive method necessarily limits the authority of judges and guards against unelected judges acting as an unaccountable super-legislature.

The Structural Constitution: By recognizing the important but limited role that courts play in our constitutional system, Justice Scalia was a staunch defender of the separation of powers and of the prerogative of the people to govern themselves. He often noted how one could find robust bills of rights in many totalitarian countries; what made the American system unique and our Bill of Rights effective was the basic structure of the Constitution in which legislative, executive and judicial authority are divided into separate and competing branches. Maintaining this structure is the surest way to preserve a free society, which is way Scalia was so insistent on combating the judicial usurpation of legislative power.

Scalia’s dissent in Morrison v. Olson, a 7-1 decision upholding the independent counsel statute, brilliantly lays out the theory of the structural Constitution and his opinion has stood the test of time. He began his opinion noting: “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf…” The Scalia opinion remains the definitive judicial discourse on the constitutional separation of powers.

Justice Scalia was the philosophical anchor of the U.S. Supreme Court whose impact on the law is commensurate with the impact Ronald Reagan had on our politics. He was a great American who will be sorely missed. Rest in peace.