Of Many Things

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.

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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.

• • •

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.

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William Rydberg
1 year 10 months ago
I am no lawyer, but I have a problem with his view that if one has more money and assets than another, that person ought to have a louder voice in Law because "they have more to lose (or protect)". I understand he tied his view to his understanding of the First Amendment, which in my opinion is not completely right. Consequently, America has PACs (among other things) ruining people's voices. He was a good Catholic, may his soul and all of the souls of the faithful departed rest in peace. Just a Canadian's opinion on democracy generally speaking... I believe Justice should be blind like the famous statue... in Christ,
Richard Booth
1 year 10 months ago
The author wrote: "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." Does the author actually think that most reasonable people would have understood the Bush v. Gore case as Scalia did? Does the author also think that most reasonable people who heard arguments in "Citizens United" would have thought that money is free speech, upon which no limits should be placed? To my mind, these decisions did not have most reasonable people in mind at all; rather, they both smack of a partisanship that has no place in the Supreme Court but, nonetheless, reigns supreme. Scalia is a wonderful example of this. God rest his soul.
E.Patrick Mosman
1 year 9 months ago
" they both smack of a partisanship that has no place in the Supreme Court" So how would one describe two Supreme Court justices who presided at same-sex marriages prior to voting on the case and refusing to recuse themselves from the decision making process? Isn't that the epitome of "blatant partisanship"? Or the SCOTUS justice that was deeply involved with Obamacare in the Obama administration who refused to recuse herself when the questions on Obamacare were argued in the Court, another example of "blatant partisanship"?
Joris Heise
1 year 9 months ago
Respectfully, I continue to disagree about the value of Justice Scalia's influence on us. On the one hand, his "originalism" suffered and suffers from two defects: First, it negates the importance of persons, of citizens, of living human beings--and therefore justice. Law services justice, and in his interpretation of law, I think he got it backwards--most obviously in his comment that innocent people judged by law should suffer. He would have joined in the Dred Scott decision--a bad--immoral--decision. Secondly, this is the more important aspect of it: his Catholicism SHOULD have made him morally aware, morally awake and morally practical in judgment, but he made a typical effort to dissociate his belief (NOT his religion), from his judicial decisions. Part of the belief of Catholicism (aside from the rituals, creed and papal influence, etc.) is a sense of God as Father to us in our common creation, the there is a "natural law" and that this has little to do with religious traditions and practices, but very much to do with relationships and the current living population. I find it ironic that Ginsberg and Scalia come to realize that the truth is in dialogue, that we benefit one another by disagreements, and that these two in particular sharpened their opinions by their friendly differences; Justice Scalia failed to realize that this is also true about the Constitution and judicial decisions--that it is in the discussion/dialogue of real persons--NOT originalism--that should give rise to judicial justice. Law services justice, and, as I have said, I believed he inverted--and perverted--that relationship.
Nancy and Thomas Chisholm
1 year 9 months ago
Contract the funerals yesterday: Justice Scalia and Harper Lee. Majesty and Humility. Non fiction and fiction. Bluster vs reticence. "I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand. It's when you know you're licked before you begin anyway and you see it through no matter what. You rarely win, but sometimes you do." -Atticus Finch. Father Malone's assessment of man that granted power to corporations far beyond my once inalienable vote is incredible. I wonder if our mutual leader, Pope Francis, SJ will agree. Requiescat in Pace?
Ed Dailey
1 year 9 months ago
One can argue rather convincingly that Congress, filled with uncompromising ideologues, is a far more dangerous threat to the balance of powers enshrined in our constitutional system than is the Supreme Court, regardless of the justices' approaches to applying the Constitution to dynamic change in the 21st century.
David Bjerklie
1 year 9 months ago
In evaluating Justice Scalia’s constitutional interpretative philosophy of original meaning, it seems to me that the first job of constitutional interpretation would be to understand it’s purpose, as stated very succinctly below: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. It is the constitution’s purpose as stated in the preamble above that necessitates it being a living document. Too often, I think, the purpose gets lost in the rigidity, politics, and interpretation in light of the past – for example, we would never try and provide for the common defense using methods familiar to the founding fathers. Did Justice Scalia’s decisions reflect the purpose of the constitution? Not sure, but in any case there is no philosophy that allows us to escape the fundamental requirement that anything we do in law (or economics, or education, or anything for that matter) must be interpreted according to how it promotes union among the people, justice, the common good, domestic peace, and establishing structures that help all people flourish through liberty. I think that these are the standards we must hold as Americans, and most especially as Catholics.
Joseph J Dunn
1 year 9 months ago
Justice Scalia’s reliance on “original meaning” acknowledges that in the Constitution, it is We the People who established the government, and who retain to ourselves the ultimate power change it by amending that Constitution. By using the amendment process set forth in Article V of the original document, we have changed the Constitution twenty-seven times, updating it to meet our evolving intentions. Some amendments make demands on our government. We have declared our exemption from unwarranted searches and seizures, changed the way in which our senators are chosen and the plan of succession when a president is dead or disabled, limited the number of terms that a person may serve as president, expanded the ways in which the federal government may tax us. In other amendments, We have updated our expectations of ourselves—banning slavery, recognizing a right to vote for all men and women, and lowering the voting age to eighteen. For the ultimate example of our ability to wield this power to fit the Constitution to our current sentiments, we need look no further than the Eighteenth and Twenty-first Amendments. If We do not like the way in which the Supreme Court reads the First Amendment, or the Second, or any other, We need simply to restate it or repeal it, by amendment, to make clear our current intent. It is this work of We the People that keeps the Constitution a living document. Justice Scalia understood the limitations implicit in a Constitution that vests only certain enumerated powers in the federal government and its branches, and in which the People clearly retain to themselves the power to make changes.
E.Patrick Mosman
1 year 9 months ago
Article III of the Constitution set forth the duties of the Supreme Court and unfortunately the judges appointed for life and Court has deemed itself to be a maker of laws rather than deciding on the constitutionally of State and Federal laws: The Court has undertaken new roles such as the "Sherlock Holmes" court which has discovered hidden in the "the "penumbras" and "emanations" of the Constitution new rights. Progressives and Liberal judges, even SCOTUS Judge Roberts, obviously have no qualms and, in fact, relish the idea that the Constitution can be read as a work by Lewis Carroll who thought he was creating a fictional world with Alice in Wonderland. It is reminiscent of Humpty Dumpty in "Through the Looking Glass", who "said in a rather scornful tone,' it (a word) means just what I choose it to mean, neither more nor less." in an exchange with Alice about words and their meanings. Actually we are living in it now as Chief Justice Robert's and his four liberals had to search "the "penumbras" and "emanations" of the Constitution to find a tax where the authors, sponsors worked diligently to insure that the word "Tax" did not appear in the ACA ie Obamacare law and the President made sure that all Americans understood that there would be no tax in in his healthcare proposal. Lying and duping the American people should be a high crime and not just a misdemeanor. The Justices had to twist legal logic into a pretzel shape to turn a "penalty" into a tax and "by the State" into the Federal government. Humpty Dumpty could not have been more right. "How strangely will the Tools of a Tyrant pervert the plain Meaning of Words" - Samuel Adams
Richard Booth
1 year 9 months ago
Lately, we discover that Scalia was a member of the "Hubertian" society, if it may be so called, a secret fraternity (i.e., all male) founded in the 1600s. The society had the whole paraphernalia - capes included. No wonder Scalia was ultra-conservative, since his mind actually lived in a world hundreds of years old. It says a lot about the man and his approach to change.
E.Patrick Mosman
1 year 9 months ago
Would your comment apply to all members of The Sovereign Military Order of Malta which is the modern Rome-based continuation of the medieval Knights Hospitaller with origins in the Fraternitas Hospitalaria hospital founded circa 1048? The members also wear the whole paraphernalia - capes included. Do they all have a Medieval mindset?
Michael Painter
1 year 9 months ago
It was a disappointment to read Fr. Malone's column, because from a lawyer's viewpoint, Justice Scalia wasn't a great thinker, though maybe he did get others to think. He developed his philosophy to suit the outcomes he desired. That's shown by his total discarding of the introductory phrase ("A well-regulated militia ...") of the Second Amendment in the Heller gun control case. The Founding Fathers didn't just put it in there to take up space on the page. It was supposed to mean something. Also the phrase "bear arms" originally had a military meaning. He discarded that, as well. Some "originalism." He was also tended to be unbelievably rude and sarcastic, both on the bench and in his writings, something no judge or justice should be, Anyone seriously interested in understanding Justice Scalia's legacy and thinking ought to read this article/book review by Judge Richard Posner. It's a real eye-opener—and Judge Posner is no flaming liberal, either. (In fact he's quite conservative, coming from the University of Chicago.) https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism
E.Patrick Mosman
1 year 9 months ago
"Judge Posner is no flaming liberal, either. (In fact he's quite conservative, coming from the University of Chicago.)" "Posner has generally been identified as being politically conservative; however, in recent years he has distanced himself from the positions of the Republican party authoring more liberal rulings involving same-sex marriage and abortion." Source: https://en.wikipedia.org/wiki/Richard_Posner Apparently Judge Posner has reversed the old adage; "If you aren’t a liberal when you’re young, you have no heart, but if you aren’t a conservative at 40, you have no head." by becoming a more 'hearty' liberal in his older age.

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