As a child of immigrants in New York City, I grew up watching Antonin Scalia on the U.S. Supreme Court. His life story appealed to me. His confirmation in 1986 marked an exciting new era for American jurisprudence, with a sharp-tonged Italian American commanding national attention for his learned opinions on the law.
Scalia was an intellectual, a firebrand and an original thinker who made constitutional questions interesting and deeply relevant for many impressionable observers.
But despite common labels, Scalia was not a conservative.
He did not adopt the core conservative position of respecting tradition and embracing slow, careful change with the times. That was the philosophy articulated most famously by the 18-century father of conservatism, Edmund Burke, who supported American independence as an appropriate adaption of republican political theory, but opposed the French Revolution for its demands to overturn hundreds of years of political practice in a matter of months.
In contrast to Burke and all of his followers, including midcentury American conservatives, Scalia wanted to negate more than a hundred years of American jurisprudence in strongly worded Supreme Court opinions. He worked to deny 14th Amendment equal protection guarantees to minorities despite decades of efforts to expand the circle of constitutional protections for citizens’ basic rights.
He attacked the long-standing separation of church and state in the United States. In his most radical opinion, he broke with the 200-year tradition of Supreme Court impartiality in presidential elections, ruling in late 2000 to stop the recount of votes in Florida, granting the presidency to George W. Bush. Making the Supreme Court a king-maker was a clear departure from any conservative definition of how judges should act.
The most accurate way to describe Scalia is as an “originalist” — a term he used to identify his obsessions with what the law originally meant.
Scalia was indeed a pioneer in articulating and applying this philosophy. He wanted to make the law ahistorical, freezing its meaning in another time and place, even as the world evolved. He said many times that the Constitution was not a “living and breathing document,” but instead a set of timeless, almost biblical, principles.
As commandments more than consensual principles, the provisions of the Constitution required close adherence at almost all costs.
The paradox of Scalia’s originalism is that it denied an evolving democratic society the right to reinterpret the law, and it empowered the chosen guardians of originalism to dictate what our forefathers allowed, and what they didn’t.
Scalia and his followers were not historians, so they made their judgments of past meanings from a highly personal reading of text that they then imposed on many others who understood the same laws differently.
From free speech and privacy to gun ownership and affirmative action, the dogmatic judgments of Scalia on the “original intentions” of the founders were highly impressionistic, although given authority by his status, rather than any mobilization of research or evidence. Scalia’s originalism was indeed largely reactionary and arbitrary, and it found many followers who favored his chosen policy outcomes.
Scalia leaves a powerful legacy because his life was so compelling, his language so strong, and his opinions so popular among those who want to turn back various liberal traditions.
His sudden death changes the balance on the Supreme Court and within American law as a whole. President Barack Obama has clear constitutional authority to nominate a replacement during the last year of his presidency, as President Ronald Reagan did in 1988.
Hearings on confirmation in the U.S. Senate will make the new appointment a public referendum on Scalia’s originalism. His radical jurisprudence will shape the coming months of political debate, but his philosophy is probably in slow decline. That is, of course, what real conservatives would expect: slow and steady change to redefine law in a more diverse American society.
Jeremi Suri holds the Mack Brown Distinguished Chair for Leadership in Global Affairs at The University of Texas at Austin. He is the author and editor of numerous books, including “Liberty’s Surest Guardian: American Nation-Building From the Founders to Obama.”
A version of this op-ed appeared in the Dallas Morning News.
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