Does Scalia’s Death Equal Another Nail in the Coffin of the Constitution?

So much has already been written over the last couple days pertaining to the mysterious and unexpected death of United States Supreme Court Judge Antonin Scalia. Depending on your political leanings is how you will remember the Constitutionalist Judge. Having followed the Supreme Court process for many years, I have mixed feelings about his political career, but I am very aware that his constitutional beliefs riled up many feathers in the Nation’s Capital. Strong stance, sharp voice, armed with the Constitution, Judge Scalia was never one to shy away or sugar coat his view on a subject. 

A Reagan nominee, Scalia far outperformed his expectations that came with his nomination. He didn’t mind clashing with his own conservative colleagues if he had too, either. Saying of his moderate-conservative colleague, Justice Sandra Day O’Connor’s 1989 opinion in the case of Webster v. Reproductive Health Services “irrational,” “totally perverse” and “not to be believed.”

While speaking about Justice Anthony Kennedy’s opinion in the Lee v. Weisman case involving school graduation prayer, Scalia said of Kennedy’s opinion, “psychology practiced by amateurs” and “incoherent.” He found it hard to muster a majority for his views from that point on.

Perhaps Justice Scalia’s legacy will be the fact that he believed in a dead Constitution, not a living document, but one that was not a “breathing document.” He believed that that judges should decide cases according to the “public meaning” of the words in the Constitution or its Amendments as understood by the American people in the state constitutional ratifying conventions. He frequently lectured his colleagues against using a “living” or “evolving” interpretation of the Constitution, something he termed “idiotic.” He argued, “The only good Constitution is a dead Constitution. The problem with a living Constitution in a word is that somebody has to decide how it grows and when it is that new rights are – you know — come forth. And that’s an enormous responsibility in a democracy to place upon nine lawyers, or even 30 lawyers.” For him, the Constitution was static, unchanging and enduring, and should only be changed by the voters through the amendment process.

To the Conservative right, this was a very powerful mindset and to the progressive left, this was detrimental in trying to change the Constitution and it’s policies to fit the new global policies we have become accustom to seeing. 

Only Justice Clarence Thomas, who relies on the Declaration of Independence and its “inalienable rights” to judge cases, comes close to Justice Scalia’s views. His opponents among the more moderate and liberal justices have learned to use his techniques to develop “progressive originalism” to find in historical materials arguments to expand the meaning of the Constitution and protect the very rights, such as abortion and gay rights, that Justice Scalia argued were not there.

How will his death affect the Supreme Court today? Will this spring forth the progressive movement we have seen sweeping the nation? These are questions we have been asking ourselves since the announcement of his death. President Obama has already said that he [Obama] will continue forward with selecting the next Justice and the Republicans have already voiced their opinion that the next President should make the appointment. Another example of how politics doesn’t take a backseat to death or bereavement. 

What is at stake for the Republicans is a republican controlled Supreme Court for nearly 4 decades. If we have seen how far the progressives have come with a strong conservative voice in the Court, then just imagine the headway they would make with another liberal or progressive appointee? A nomination by Obama could and very likely would tip the pendulum in the progressive’s path and socialism would not be on the horizon, but in our backyards overnight.

Indeed Scalia’s death on the political game board left a lot of moves to be played. We really need to watch what plays are being made and how they effect us. This is a very key Justice position to fill and the political winds are waiting to see in what direction to blow. Gun rights, State rights, and many personal data collecting issues are making their way to the Courts and soon I look for many liberty taking actions to make their way to the High Court. We need a Constitutional minded nominee and we need to make our voices heard through our representatives and our protest and speeches.

By: Michael Howell

Be sure to check out more blogs from Michael Howell, host of “Fighting the Tyranny” radio show.





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