Bill noted earlier this morning the renaming of George Mason's law school as the Antonin Scalia Law School. As he and Justice Kagan note, Justice Scalia was a giant of the law and a leader in producing an important change in direction for our judicial system.
The fundamental principle, too often forgotten, is that the rightful power belongs to the people "to institute [their] Government, laying its Foundation on Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness."
The Declaration is not just a decorative backdrop for debates. It is the guiding light of our government.
When the judicial branch of government imputes new principles into the Constitution that the people never put there and when it usurps to itself decisions that the form established by the people assigned to another branch it violates both the Constitution and the fundamental principle on which it is based.
Judges who commit such acts of usurpation may have the best of intentions. They may genuinely believe that different principles and different forms would be more just. But that is not their decision to make in a democracy. The sole legitimate way to make those changes is through the amendment process in Article V of the Constitution.
Originalism is not merely a philosophy or a theory. It is nothing less than the defense of the democratic bedrock of our government against autocracy.
Justice Scalia understood this. A great many more judges understand this now than did when he joined the Supreme Court, but still not enough.
The fundamental principle, too often forgotten, is that the rightful power belongs to the people "to institute [their] Government, laying its Foundation on Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness."
The Declaration is not just a decorative backdrop for debates. It is the guiding light of our government.
When the judicial branch of government imputes new principles into the Constitution that the people never put there and when it usurps to itself decisions that the form established by the people assigned to another branch it violates both the Constitution and the fundamental principle on which it is based.
Judges who commit such acts of usurpation may have the best of intentions. They may genuinely believe that different principles and different forms would be more just. But that is not their decision to make in a democracy. The sole legitimate way to make those changes is through the amendment process in Article V of the Constitution.
Originalism is not merely a philosophy or a theory. It is nothing less than the defense of the democratic bedrock of our government against autocracy.
Justice Scalia understood this. A great many more judges understand this now than did when he joined the Supreme Court, but still not enough.
But what is a conscience judge to do when originalism doesn't provide an answer - if its application doesn't answer the question of what punishment is "cruel and unusual;" what search or seizure is "unreasonable;" or what process is "due"?
If originalism can't answer these questions, aren't we back to what a particular judge (constrained by stare decisis) believes is "just" or "right" or "fair."? And isn't this what the framers intended?
It is true that original understanding does not always provide a direct answer to a specific question, such as whether use of a thermal imager on a house without probable cause is a "reasonable" search. I don't think anyone claims that it answers every question. But where it does, the answer must be regarded as final until the people change it by constitutional amendment.
I agree, originalism is often an exercise in circumstantial reasoning -- drawing reasonable inferences from founding era history -- that doesn't "directly" answer the constitutional question at hand. As such, it is subject to some degree of manipulation to reach an outcome that the justice believes is "right." But at least it compels the (unelected) justice to examine that history, instead of simply imposing his/her opinion of what is just and what is unjust on the people.
And Justice Scalia through his logic, reasoning, and unequaled intelligence created an analytical template which even the so-called liberal justices honor, respect, and (most of the time) try to adhere to in their decision-making process.