Never compromise your principles, unless of course your principles are Adolf Hitler’s, in which case you would be well advised to compromise them as much as you can.
Justice Antonin Scalia
One course everyone takes in law school is Constitutional Law. Typically, this class runs for two semesters, Con Law I and Con Law II, or one really long class for a single semester if you’re truly unlucky. It was two semesters for me. Con Law I focused on the structure of government, federalism, and everything prior to the Bill of Rights. Con Law II covered the Bill of Rights with emphasis on the 1st, 2nd, 13th, and 14th amendments. Criminal law classes covered the 4th-8th amendments. What made my class unique was we would read the applicable sections of the Constitution before studying Supreme Court case law.
For those who aren’t attorneys, this may sound like common sense in learning law. You may expect his to happen for all law students. You’d be wrong. I attended a speech given by a Supreme Court Justice, who I will not name here, who described their time in law school. During this Justice’s Con Law courses, the text of the Constitution was never mentioned. Professors did not read the text before beginning class. The actual text was unimportant in discussing constitutional law. The Ivy League professor, who was well known and respected, spent most of the time discussing what the law should be for a nation. Students would listen to lectures and contribute to class discussions on what the law should be or how it should change. This particular Justice found that practice odd when trying to understand cases building upon the text of the constitution. According to this Justice’s education, Constitutional Law was about shaping the law to meet societal demands, not interpreting the text.
It shouldn’t be surprising to see a “living constitution” theory arise when you hear these types of stories from members of the highest court in the land. The text and its original meaning is useless to a living constitution. What matters is what a judge wants the law to be instead. It is in this fray, in law school, you’re introduced to Justice Antonin Gregory Scalia. Justice Scalia focused on the original meaning of the text. He believed moderating or changing the meaning of the text were attempts to circumvent the political process by judges. This is where we get our conception of “legislating from the bench.” Justice Scalia charged living constitutionalism with usurping legislative and executive power from Congress and the President because it ignored the text and original meaning of the Constitution in favor of shifting societal norms.
Justice Scalia was known for dissenting. A lot. His dissents contain some of the most entertaining opinions you’re assigned in law school. Some students loved them, others hated them. I fell into the first category. Justice Scalia was always entertaining to me. By far, my favorite Scalia opinion came in a dissent about the “Lemon Test.” You may have read about the Establishment Clause of the First Amendment. Very broadly, it holds the government cannot establish a state religion in the United States. Over time, the Court has struggled with how to define what an establishment of religion constitutes. Eventually the Lemon Test was developed to provide lower courts with a set of factors to look for in cases. If all the factors were met, then you could say an establishment clause violation occurred.
The problem is the Supreme Court has haphazardly applied the Lemon Test in Establishment Clause cases. Sometimes the Court uses to the Lemon Test. Other times, the Court will use different set of standards with no mention of the Lemon Test. Scholars have tried to find ways to justify when the Lemon Test was or wasn’t applied, declaring it dead or alive depending on the case. Justice Scalia, fed up with how the Lemon Test was abused, gave a more colorful description:
As to the Court’s invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under …
The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will.
The Lemon Test Ghoul was one of many Justice Scalia zingers over the years. His quips and analogies provided wry insight into the problems of living constitutionalism. Shifting standards leave regular citizens unsure of their rights and attorneys and judges unclear on how to administer the law. Going back to the text and original meaning of the Constitution provided a firm foundation for Justice Scalia’s opinions.
To be certain, I had disagreements with Justice Scalia. Perhaps, the largest disagreement I had with him was over Employment Division v. Smith. A Religious Freedom case from 1990. Justice Scalia’s opinion in Smith necessitated the passage of federal and state Religious Freedom Restoration Acts (RFRA). RFRA’s restored the religious liberty case law back to a point before Justice Scalia’s opinion in Smith. We’re still feeling the ripple effects of the Smith decision. I always felt Justice Scalia’s commitment to the government’s war on drugs clouded his judgment on individual liberty cases.
Regardless of our differences, Justice Scalia was one of the most important and influential Supreme Court justices in American history. He guided the law towards concrete, objective standards for interpreting law instead of the shifting priorities of living constitutionalism. Justice Scalia was a mountain for conservative jurisprudence. He will be remembered as an intellectual giant who helped birth modern conservative intellectual movement. He helped build and strengthen the principals or originalism by focusing on the text of the constitution. And he argued it all with great flair. The dissent he was most proud of was his lone dissent from 1988 in Morrison v. Olsen. He ended that dissent with:
The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound.
The world lost a great man on February 13, 2016. He was far from perfect, even in his own intellectual goals. But he pursued a goal of keeping American law moored to the Constitution. His wit and wisdom will endure long after his death. He leaves behind a legacy of attorneys and legal scholars grateful for his constitutional interpretation framework. He will remain, forevermore, the original Originalist.
Rest in peace, Antonin Scalia.