Remembering Scalia, Peer of the Founders

Timothy S. Goeglein

Tim Goeglein is Vice President of External Relations for Focus on the Family, an organization dedicated to “Helping Families Thrive.” Its web site is at www.focusonthefamily.com.

God assumed from the beginning that the wise of the world would view Christians as fools . . . and he has not been disappointed. . . . If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world. — Justice Antonin Scalia, 2012

The most passionate, consistent, and intellectually irrepressible voice on the Supreme Court for religious liberty, the sanctity of human life, and marriage and family for the last three decades has gone silent. Justice Antonin Gregory Scalia, 79, died during a Texas hunting trip in February, a loss of almost incalculable proportions. He embodied limitless wisdom and virtue in nearly 30 years at the high court.

With Ronald Reagan, Margaret Thatcher, and William F. Buckley Jr., Scalia was one of the most influential conservatives of the last century. He believed that while change was inevitable, it needed to unfold prudently with an especial eye toward the unintended consequences in the law. He saw the Constitution as the embodiment of eternal precepts and was therefore rightfully wary of how bad law and poor constitutional reasoning could lead the irretrievable loss of liberty.

From the moment Reagan nominated him to the high bench in 1986, where he won unanimous approval in the U.S. Senate, Scalia was a force of nature to be reckoned with and an exemplar for a kind of jurisprudence that was considered somewhat quirky at the time but has come to be widely accepted as the most important constitutionally orthodox manner of judging cases in America.

Scalia believed in “textualism” or “orginalism,” that believed the words of the United States Constitution’s text actually meant what they said when they were drafted and adopted by the Founding Fathers at the Constitutional Convention in 1787. The document’s fixed meaning was the lodestar for Scalia’s way of judging.

He averred there was no such thing as a “living Constitution,” by which he meant a legal document whose meaning and definitions changed over and through time. He believed such a view, which amounted to legislating from the bench by mysteriously discovering rights that could not be found in the Constitution, made the application of the law irregular, uneven, and asymmetrical — ultimately shaped by fads, current modes of fashionable thought, and what was considered stylish and new in American political and cultural life.

“If you think aficionados of a living Constitution want to bring you flexibility, think again,” he warned. He said that mode of interpreting the law was a pathway fraught with danger, a view that proved prophetic time and again during his 30 years on the bench. He once quipped:

What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?

He said:

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.

Instead, Scalia championed a consistency in the law, infused with unmistakable depth and clarity, that was of a piece with James Madison and the other principle architects of the Constitution.

He was particularly dubious about considering “legislative history” when deciding cases, arguing repeatedly and persuasively that it was not Congress’ duty, role, or obligation to federalize and impose the law, but rather to make good laws within the limited, clearly-defined boundaries of what the Constitution allowed. Scalia was eager and willing to strike down laws that were discordant with an objective, unwavering constitutional standard.

His singular impact has been so widely and deeply felt that no one in law school today on the Left or the Right believes that congressional mandates can be taken, ipso facto, at face value if they violate what is otherwise a state or local prerogative. Even those who are avowed “living constitutionalists” dare to ignore originalism at their own peril.

Scalia’s profound renewal and regeneration of federalism — the proper, constitutional balance between federal and state power — is almost all due to his morally courageous leadership. It was a Herculean achievement in American jurisprudence and probably his greatest legacy.

His consistent plea to return to the proper balance of power rooted in America’s founding era — restricting the national government to exercise powers only fully enumerated in the Constitution, with all other powers pushed away from Washington’s maw — was propelled and extended through Scalia’ energetic lifetime of writing, speaking, persuading, cajoling, and advocating for this Madisonian worldview.

He venerated the achievement and wisdom of the 55 signers of the Constitution, and he made that achievement his lifetime benchmark of excellence. The genius of checks and balances and the separation of powers was the heart of American liberty, he believed. Scalia was a gifted and remarkable steward of the world’s greatest legal document, and was particularly alarmed that the high court was often willing to enable the executive and legislative branches to extend their reach of power beyond constitutional limits.

It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its members’ personal view of what would make a “more perfect union” (a criterion only slightly more restrictive than a “more perfect world”) can impose on its own favored social and economic dispositions nationwide . . .

he once observed. He often used humor to say a serious thing in a funny way.

Repeatedly in his questioning of the lawyers during oral arguments, and in his subsequent masterful legal opinions, he would assert there should be one unchangeable benchmark for considering and deciding cases: Did the Constitution allow it or not?

This view of judging often made him highly unpopular on major issues when he was in the minority. But he refused to substitute emotion for thought despite the vicissitudes of constitutional drift. He had an innate distaste for conventional wisdom, nostalgia, and fashion. This took moral courage.

Subsequently he became famous for the elegance, clarity, biting wit, precision, and crystalline touch of his many fiery and well-reasoned dissents in some of the most important cases considered during his lifetime. His willingness to go it alone also made him a bulwark for constitutionally protected freedoms, even as some of his eight fellow justices were willing to compromise liberty for more governmental control and the imposition of their personal views on the rest of the country.

This was especially evident in social and cultural areas about which the Framers intended the federal government to be mostly silent.

In 1989, when his fellow justice Sandra Day O’Connor used dubious and anodyne reasoning to defend her pro-abortion position, Scalia bluntly wrote that her hubristic rationale “cannot be taken seriously.” Where the Constitution did not allow the high court to rule, Scalia believed, it was a matter for the states and not nine unelected lawyers. He referred to such reasoning as a “whatever-it-takes pro-abortion jurisprudence.”

In 2003, when he dissented from the court’s decision to legalize sodomy, thereby opening a pathway for marriage between people of the same sex, Scalia wrote forcefully about how cultural trends and tides too often impacted the law:

Today’s opinion is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

Scalia asserted in that case, Lawrence v. Texas, that the court’s legislating from the bench would eventually be used to justify a new, transgressive definition of marriage. Twelve years later, in 2015, in a major dissent from the court’s decision establishing a new right to homosexual marriage, Scalia derided the ignominious majority opinion of Justice Anthony Kennedy, concluding that it was “couched in a style that is as pretentious as its content is egotistic.”

Wrote Scalia:

To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation. . . . The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.

Repeatedly Scalia warned in his characteristically incisive, persuasive, and sophisticated manner that we are a government of, by, and for the people and not a government to be led by self-styled, self-appointed elites who are interested in making law without the consent of the governed. He warned that the impact of the centralization of power in Washington was essentially creating a new constitution more like a national regulatory state and less like the constitutional republic which the Framers intended. He said:

If we’re picking people to draw out of their own conscience and experience a “new” Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless . . .

There were few things that bothered Scalia more than when his detractors suggested that the primary reason he had come to some of his important legal decisions on social issues was because of the primacy of his Christianity.

This was best illustrated in 2007 when a former colleague of his at the University of Chicago asserted that Scalia was in the majority upholding the ban on partial birth abortion because he was Catholic, suggesting that he was incapable of constitutional reasoning apart from his faith. Scalia subsequently told a reporter that the comment was untrue and unfair, and he vowed never again to appear at that university until the professor had left.

Yet he utterly dismissed the concept that there should be religious neutrality in the public square. He gave a speech earlier this year in which he said ours is a religious republic and that faith is a central part of our national life and constitutional understanding. He said God had been generous to the United States because Americans had always honored Him.

God has been very good to us. That we won the revolution was extraordinary. The Battle of Midway [following the terrible defeat of Pearl Harbor] was extraordinary. I think one of the reasons God has been good to us is that we have done him honor. Unlike the other countries of the world that do not even invoke His name, we do Him honor. . . . There is nothing wrong with that and do not let anybody tell you that there is anything wrong with that.

Scalia’s views were in sync with those of another great constitutionalist, John Adams, who wrote that our Constitution was made “only for a moral and religious people and is wholly inadequate to the government of any other.” Like Adams, Scalia believed the maintenance of freedom required the cultivation of virtue. In the American experience, both men believed virtue was nurtured by faith that provided the sustenance of liberty. Scalia abided by Adams’ formulation that the ultimate standard was “rule by law, and not by men.”

I had gotten to know Justice Scalia during the ten years I worked in the United States Senate, during the nearly eight years I worked at the White House, and in my current role with Focus on the Family in Washington. I visited with him in his chambers in 2014, and he shared a story I shall never forget, told in his charming, effecting, convivial, and gregarious style.

He had attended Georgetown University as an undergraduate, majoring in history. At the end of his senior year, before leaving for Harvard Law School where he would become Editor of the Law Review, Scalia had to appear before a small committee of the department to give an oral defense of his senior thesis.

He told me the session went marvelously until the final question. The chairman asked him, “Mr. Scalia, what is the most important event of world history?” Scalia said he didn’t remember the answer he gave because when he was done, the chairman looked at him solemnly and said:

Mr. Scalia, Georgetown has failed you if we didn’t teach you that the most important event of world history is the Incarnation of Jesus Christ.

Scalia told me he never forgot the answer to that timeless question.

Nor did he have doubts about the existence of evil in the world, once telling a magazine reporter he firmly believed in the devil.

When the august English writer and thinker Dr. Samuel Johnson died — he was the leading literary figure of 18th century London — his most famous eulogist said that Johnson’s greatness was so uncontested and undisputed that although he would be succeeded he could never be replaced.

In our American legal firmament, Scalia will eventually be succeeded but can never be replaced. He was a colossus.

He was the most important and influential Constitutionalist and jurist of his era. His vibrant legal reasoning and inimitable writing style were defined by their regal grace and stature. God gave him a beautiful mind and probing intellect. His categorical and clear-eyed defense of marriage, life, and conscience in the public square were matchless.

Scalia lived those principles in a long and happy marriage to Maureen, the love of his life; with their nine children and thirty-six grandchildren, whom he adored; and through his impact on legions of law clerks whom he credentialed to help extend the constitutional legal renaissance he started. We shall not see his like anytime soon.

How fitting then that he died just two days before our national holiday celebrating George Washington’s birthday. It was somehow right that the federal government closed the Monday after Scalia’s death, almost as if we were mourning yet honoring the passing of a great man.

He and Washington were peers of character, leadership, and a noble generosity of spirit that wreathed their consequential lives. Requiescat in pace.     *