I have often said that if Justice Antonin Scalia and I were both legislators, we would likely sit on opposite sides of the aisle; but if we were both justices of the U.S. Supreme Court, we would more often than not concur in our opinions. That always strikes people as a little odd, but there’s no reason why it should. After all, what the law should be and what the law actually is are different questions, whose answers require different methodologies. I just happen to think that Mr. Scalia’s method of modified originalism is the most democratic and intellectually coherent approach to constitutional interpretation.
I’m not alone in that view. In the course of his 30 years as an associate justice of the U.S. Supreme Court, Mr. Scalia, who died suddenly last week at the age of 79, convinced thousands of us that the trajectory of our federal jurisprudence was seriously endangering the balance of powers enshrined in our constitutional system.
Justice Scalia called his method “original meaning.” Put simply, the idea is that the Constitution should be interpreted to mean what reasonable people would have understood it to mean at the time when its various bits and pieces were adopted. Note that “original meaning” is different from “original intent,” which Mr. Scalia thought was not really knowable. In other words, “original meaning” is not an attempt to get inside James Madison’s head. Justice Scalia was simply saying that in a democracy, the standard of constitutional interpretation should center on the voter: What would the voters who voted for a particular constitutional provision have understood it to mean when they voted? And if we no longer want a given provision to mean that, then we should change it at the ballot box rather than from the bench; we should not delegate our tough public policy choices to nine unelected, unrepresentative members of an Eastern elite who all went to Harvard or Yale.
Mr. Scalia argued the case for his method of constitutional interpretation in almost any forum that would have him. By no means did he effect a consensus; but the fact that his method is now considered credible and is required reading in most constitutional law classes is a testament to Mr. Scalia’s intellectual prowess, ensuring that he now joins the likes of Oliver Wendell Holmes in the pantheon of the court’s intellectual titans.
More important, however, Mr. Scalia should be remembered for his capacity for friendship. While he was not a perfect man and often employed a style of provocative hyperbole that could be condescending, if not disrespectful, he also happened to be one of the few remaining major Washington figures who cultivated private friendships with people he routinely opposed in public. His storied friendship with the liberal Justice Ruth Bader Ginsburg actually inspired an opera: “We were best buddies,” she said last week. “We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation.” For his part, Mr. Scalia once remarked: “Call us the odd couple. She likes opera, and she’s a very nice person. What’s not to like? Except her views on the law.”
If it’s hard to imagine Paul Ryan and Barack Obama having a similar friendship, then you see the problem with our national politics.
R.I.P. Mr. Justice Scalia.
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I would like to take this opportunity to thank the Catholic Communications Campaign, which provided the funding for this issue of America focused on international religious freedom. Please note that the opinions of the authors are their own and do not necessarily reflect the opinions of the campaign.
