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In replacing Scalia, find someone with as great a mind as his

REUTERS/Darren Ornitz
I envied Scalia’s wit and brilliance.

“I’m an originalist. I’m not a nut.” That is how Justice Antonin Scalia characterized his approach to interpreting the Constitution when he spoke to a capacity audience in Minnesota only four months ago.

JoAnn McGuire

The University of Minnesota Law School sponsored the event. As a graduate, I was able to secure tickets to hear him speak at Northrop Auditorium last October.

I was excited to hear what the “conservative” Scalia had to say, even though I idolized the “liberal” William O. Douglas in the prime of his career.

Decades ago when I was a law student, we called people like Scalia “strict constructionists.” At the risk of making my former law professors cringe or, more likely, turn over in their graves, I think of an originalist as someone who construes the words of the Constitution narrowly. An originalist asks, “What did the drafters mean when they wrote the words they wrote?” Non-originalists might be more concerned with making the Constitution a living document that pertains to current issues. So they would ask, “What would the drafters have meant if they were alive today?”

No legalese, please

I didn’t take notes or record Scalia’s lecture because we were directed to come without cellphones, computers, backpacks or handbags. That makes me a poor scribe of how witty and mesmerizing he was. I do remember that he chided lawyers who write and talk in legalese. He preferred the use of understandable, conversational language. For example, in legal briefs, lawyers are prone to saying “the instant case” instead of “this case.” You wouldn’t walk around a cocktail party and comment how good “the instant drink” is, he said.

With humor, but not disparagement, he pointed to the lack of diversity among the Supreme Court justices, who are predominately from the East and graduates of Harvard or Yale Law Schools. Because they are not representative of the citizenry and are not elected, they should not make laws, he argued.

Someone asked about lifetime appointments for U.S. Supreme Court justices. Scalia opined that all sitting justices were still firing on all cylinders and that they would know when it was time to retire. (Unfortunately, my idol, Douglas, did not.)

One person fittingly asked the originalist if he had used the privilege of his office to read an original copy of the Constitution. Scalia responded that he had not. He was confident that the copies floating around were accurate replicas of the original document.

Wit and brilliance

Scalia delivered the best lecture I had ever heard, including the one I attended when my idol spoke to students during my law school career. I envied Scalia’s wit and brilliance. My friends and I left declaring that we, too, were originalists. That doesn’t mean we changed our liberal or semi-liberal views. We just believe that the Constitution should not be stretched, expanded or updated by judges for noble or other purposes. Legal scholars are better equipped than I to debate whether Scalia succeeded at this.

What I do know is that I am not concerned about whether the person who replaces him is liberal, conservative or any other flavor. I only hope his successor will be someone with as great a mind.

 JoAnn McGuire is a former corporate litigation attorney. For the last several years she has worked as a nonprofit executive. Recently, she founded a nonprofit called Women Still Working that helps professional women age 55 and older find rewarding work, whether paid or unpaid. She lives and works in Eden Prairie.


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Comments (41)

  1. Submitted by Hiram Foster on 02/17/2016 - 08:54 am.

    Brilliant minds

    Let’s face it, if Antonin Scalia had been all that smart, he would have gotten into medical school. His brilliance was mainly the result of an ability shared by many lawyers to firmly argue and even to believe impossible things. One prime example is originalism. Only someone who had a lawyer’s fierce and unbending willingness to entirely overlook the obvious could possibly argue, and with a straight face mind you, that an institution as complex and diverse as a legislature could possibly have some sort of collective “original intent” which in the case of constitutional legislation, Supreme Court justices were obliged to honor more than two hundred years later.

    This may seem harsher than than I want it to be. Justice Scalia was a delightful old rogue whose humor and humanity will be dearly missed in ways that we might not fully appreciate for a good long while. He had a flair for the language and a gift for the gab. But the notion that he was some giant of the mind that possessed an intellect which allowed him to perceive truths about the law and the constitution denied to the rest of us is both untrue, and does a disservice to the law and the constitution and roles they play in our daily lives.

    • Submitted by Dennis Tester on 02/17/2016 - 09:27 am.


      It means read the words as written. As opposed to making things up out of whole cloth and calling it “interpretation.”

      The only people who believe the Constitution is a “living, breathing document” are those who don’t like what it says.

      • Submitted by RB Holbrook on 02/17/2016 - 09:43 am.


        Justice Scalia’s textualism, like that of all other exponents of that theory, was awfully selective and depended largely on whose ox was being gored.

      • Submitted by Todd Hintz on 02/17/2016 - 12:41 pm.

        Living Document

        Considering the Constitution has been amended several dozen times, I would argue it is very much a living document.

      • Submitted by Edward Blaise on 02/17/2016 - 09:25 pm.

        Being most modern day Republicans….

        Who are unable to come to grips with:

        “he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court…”

        And this one too:

        “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President”

    • Submitted by Joe Musich on 02/17/2016 - 08:24 pm.

      I would agree that …

      Originalism is hokum! Scalia might have only had a sharper mind amongst “thinkers” on his side of the aisle. The fact that the Constitution was amended almost immediately belies Originalism. ‘Twas an historic whoops. If originalists were originalists the theory would lead to not even second guessing themselves. Scalia impressed me as a bully in the sense of Macarthy then an intellectual genius. History being written in the moment always seems to have a way to come to some sort of more contextual appraisal then we are now experiencing.

  2. Submitted by Hiram Foster on 02/17/2016 - 10:03 am.

    Written words

    Reminds me of a line from “30 Rock”, where Jenna says something like, “Writers, those are the people who put those shapes down on paper, aren’t they.” Words aren’t just writing, indeed words existed before writing and don’t require paper or ink for that matter to have meaning and effect. And in litigation, as in life, it’s the words, in all their inconstant glory, that matter.

  3. Submitted by Greg Kapphahn on 02/17/2016 - 10:32 am.

    A Simple Question

    Can ANYONE come up with an example where Antonin Scalia’s pursuit of “originalism” ever caused him to vote on and issue before the Supreme Court in a way that ran counter to his preexisting (and well known) political philosophy?

    Just as with the Bible (even among those who regard it to be “inerrant”) where you can make the Bible say anything you want just by picking and stringing together particular passages and verses,…

    even if your conclusions are completely antithetical to what those words meant in their original context,…

    so it’s VERY easy to make the “founders” or a previous congress say anything you want them to say about their “original intent” by choosing those who said exactly what YOU want them to have said,…

    or interpreting your own perspective into their words, then claiming you’re unimpeachably correct because you’re in agreement with “the founders.”

    Antonin Scalia was a MASTER of this,…

    but it was not a matter of intellectual (or legal) brilliance,…

    but far more a matter of personal charisma, which allowed him to charm others beyond rational thought,…

    and creativity used to avoid taking responsibility for his own opinions.

    I’m left to wonder why Justice Scalia was NEVER able to say, “this is what I think and believe,”…

    but always found it necessary to hide behind the smokescreen of saying,…

    this is what OTHERS believed,…

    others whom we cannot question or argue with because they’re long since dead,…

    and finally, why would ANY of us would believe that men (and I do mean men) who lived 200+ years ago,…

    were better equipped to deal with the legal issues of law and justice that arise in our own day and time than we, ourselves, could ever be.

    The argument which claims to value antiquity above all else is, in an of itself, a legal fallacy,…

    a fallacy of which Justice Scalia was a very masterful and continuous practitioner.

    But sadly, if we clear away that smokescreen I fear his “brilliance” evaporates at the same time.

    • Submitted by Hiram Foster on 02/17/2016 - 10:52 am.


      One area where you might seem some variance between his legal and personal opinions is in the area of criminal rights. Strict constructionism, which seems to be a predecessor to Scalia’s originalism developed in the 1960’s as a response to the Warren court’s activism particularly in the area of criminal procedure. I never quite resonated to the logic of that myself, since however strictly you choose to construe the constitution it still says things about rights to a lawyer and freedom from search and seizure and whatnot. Those things were controversial then, but not really controversial now except around the edges, in part because police have found certain advantages in according defendants their rights. Because those decisions are so firmly accepted now, it didn’t cost Justice Scalia to question certain aspects of them because the substance of his criticism was in areas that are no longer seriously disputed.

  4. Submitted by Ray Schoch on 02/17/2016 - 10:36 am.

    My 2¢

    Having never met Justice Scalia, or heard him speak in person, I can’t speak to the relative greatness of his intellect, though I certainly agree, as a non-lawyer, that legalese is a serious and ongoing problem that continues to rankle ordinary citizens (and sometimes, our understanding of the law) thousands of years after we began to write laws down. I can only speak to his philosophical position.

    Though I often find “strict contruction” appealing as a SCOTUS doctrine, I think it has genuine limitations as a philosophical approach because it suffers from the same intellectual constraints as religious fundamentalism. The world and human societies have changed since the documents in question were written, so many relatively common issues of current society and law are nowhere to be found in those original documents. As a result, we have to literally make up what the original document and/or its writer(s) might have intended or meant in relation to that modern problem or law. Moreover, those original writers have died, which means we have no choice but to rely on our *own* understanding and/or interpretation of what that document might mean in relation to some current issue or problem.

    Let me repeat that. We have no choice but to approach the Constitution as a living, breathing document.

    The alternative is to allow it to fossilize, and become increasingly irrelevant to the conditions found in contemporary life. A governing document that can’t move beyond the 1780s because “that’s what the writers intended” is a document that has historical interest, but is severely flawed as a template for establishing how we should relate to each other in the modern world. Because those writers are long dead, and in most cases left nothing in writing about how to deal with the contemporary issue currently being argued, whatever it might be, we cannot in any useful way ask them what the language they used actually means or intends in relation to our current problem.

    I agree that the role of the SCOTUS is not to make up new law out of whole cloth, but “originalists” flatter themselves – without justification – that they know the thought process of the document’s writers. They do not. Their interpretation is based on their own life and experience – it cannot help but be that – and is, ipso facto, not the same thing as James Madison’s or Thomas Jefferson’s life and experience.

  5. Submitted by Dan Hintz on 02/17/2016 - 10:44 am.


    If you take the time to read Scalia’s actual opinions, you know that Scalia was an originalist or strict constructionist only when it suited his needs. When it didn’t, his principles seemed to magically vanish and he was as activist and political as anyone on the court.

    Let’s mourn his passing and honor his service without resorting to fiction.

    • Submitted by Rachel Kahler on 02/17/2016 - 11:26 am.


      Scalia was not some special medium that channeled the Founders. Nor did he adhere to strict construction of anything that pushed too hard against his personal and political views. In fact, he was famous for ignoring clear legislative intent of modern laws, yet claimed that the Constitution should be read as the Founders intended. In some few cases, he seemed out of step with his beliefs (as noted above re criminal law), but in most cases, his “originalist” views were carefully colored to illuminate his preferred path to the law. If he truly believed that intent was important, he would have also considered intent in modern laws, but he instead applied the philosophy of “the law is the law and the words are the words” to modern law, at least when it suited him. It’s not difficult to find examples of his personal and political agendas cloaked in “originalism”. And it’s certainly not difficult to find examples of Founders’ intent that not only conflicted with the intent of other Founders, but both supported and rebuked the idea of the Constitution being a living document. So, it was easy for Scalia to /claim/ originalism, but if you pick the right Founder’s writings and opinions, he’d be wrong. Thus, as Mr. Schoch pointed out above, we have no choice but to treat the document as something other than set in stone, yet not so flexible as to be outside the plausible meaning of the words as put to the page.

  6. Submitted by Hiram Foster on 02/17/2016 - 11:03 am.

    Fundamental questions

    We can talk a lot about what the constitution says, but the real issue is the vast amount of things it doesn’t say. My copy of the constitution which I keep next to my computer at all times is only 26 pages long. Imagine that. I recall reading that a proposed constitution of the European Union was something like 600 pages long and it got rejected maybe in part because of its’ length.

    The fact is, the men who wrote the constitution weren’t most of them at least, stupid. They were wary of the dangers of imposing their will on their remote ancestors. They were that the document they created in 1787 would have to apply to a future they couldn’t possibly foresee. The solutions they chose to deal with that problem in constitution making (and let’s remember they were pretty much the first folks in history to do that) was the favored choice of lawyers then and now; they were sometimes vague, and much of the time silent to altogether. Living as they did in an era, where the proper application of leeches was in every doctor’s list of skills, and where barbers’ doubled as brain surgeons, they chose to have nothing at all say about 21st century health care. The simple answer to what their original intent was on such issues, or what the text of the document had to say in those 26 pages, is quite clear, and that’s nothing at all. They were leaving that and pretty much everything else, up to us.

  7. Submitted by Neal Rovick on 02/17/2016 - 11:47 am.

    Original or originalist?In

    Original or originalist?

    In the days of the FF, was there any press other than printed paper ? How can the rights accorded to the printed press relate to all of the other forms of media today?

    The bits and pieces related to “well regulated militia” can be entirely disregarded.

    The creation of an artificial person (corporation) with all of the rights of a person (and none of the responsibilities)?

    Terminate the electoral process of a state in order to impose a federal decision?

    Certainly an original “originalist”.

  8. Submitted by Hiram Foster on 02/17/2016 - 11:49 am.


    It has been said that consistency is the hobgoblin of small minds, and in a way I think we are better off that relatively few justices of the Supreme Court in our history have been unduly cursed with that particular demon. Justice Scalia was as prone to making the laws fit the facts as any other justice, I suppose, and as a general proposition, one that we might risk applying to liberals, that isn’t a totally awful thing.

    There is a difficult philosophical problem here. Lord Acton famously said that power corrupts, and absolute power corrupts absolutely. While I have never been willing to go as far as his lordship on that particular issue, I do recognize, that absolute power carries with it, it’s own, unique, and often difficult to manage, set of baggage. Justice Scalia’s career which was marked both by a high set of principles, and also a failure to live up to them, and his career is a demonstration both the advantages and the limitations, of the choice to live according to principle. For some of us, his career is a cautionary tale showing the benefits of living more modestly with perhaps fewer claims of intellectual omniscience.

  9. Submitted by Bill Willy on 02/17/2016 - 01:02 pm.

    From one of the Horse’s mouth

    Anyone who reads the entire letters these excerpts are from will see it’s likely Thomas Jefferson would have characterized Antonin Scalia’s “originalist” construct (fantasy) as nothing more than a vehicle for his 30 year effort to force Americans to relinquish their fundamental right to life, liberty and the pursuit of happiness to his ideological “brilliance” and the long ago dead. I doubt there’s anyone in American history who would have agreed with him less.

    Thomas Jefferson to James Madison – 6 Sept. 1789

    “. . . no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer.

    “Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right. . .”

    Thomas Jefferson to Samuel Kercheval, July 12 1816

    “. . . Let us provide in our constitution for its revision at stated periods. What these periods should be nature herself indicates. By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period, then, a new majority is come into place; or, in other words, a new generation. Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself that received from its predecessors; and it is for the peace and good of mankind that a solemn opportunity of doing this every nineteen or twenty years should be provided by the constitution, so that it may be handed on with periodical repairs from generation to generation to the end of time, if anything human can so long endure. . .”

    • Submitted by Hiram Foster on 02/17/2016 - 01:33 pm.

      Original intent

      Thomas Jefferson wasn’t a member of the Constitutional Convention.

      • Submitted by Bill Willy on 02/17/2016 - 02:13 pm.


        Not sure what that means (as in, so his views on the constitution are therefore not valid or relevant and Scalia’s views on “originalism” are?), but perhaps I should have been more clear and pointed out that he was just one of “Founding Fathers” who, “together with several other key players of their time, structured the American democracy and left a legacy that has shaped the world,” and are so often referred to when this topic comes up.

        • Submitted by Hiram Foster on 02/18/2016 - 05:56 am.

          Jefferson’s views are as valid as anyone else’s I suppose, but he wasn’t at the convention so they were not part of any original intent formed there.

          Lots of politicians have said lots of things for lots of reasons about the constitution over the past two hundred years. It’s been something of a cacophony out there. It’s their subsequent views about the constitution which Justice Scalia opposed. The fact is, back then, the Constitution was new, but so was the whole enterprise of constitution making. This was particularly true of Jefferson, who was perhaps jealous of a document he didn’t create or a central process in which he didn’t participate, and whose ambivalence on the dominant issue of our republic, slavery was personally central to his own life. They were literally inventing America in this and in other respects as they went along and that process continues today. Many people reject the metaphor of a living and breathing document, but not very many of them would reject it as applied to our government or our nation as a whole.

  10. Submitted by Rosalie O'Brien on 02/17/2016 - 01:43 pm.

    Justice Scalia

    I attended the same lecture that Ms. McGuire did. I came away feeling sad that the atmosphere in the auditorium had lost its enthusiasm and excitement as the Justice put down several earnest young people (I figured they were probably law students) by failing to give real answers to their apparently well-intentioned (no pun intended) questions. He repeatedly dismissed them or said the equivalent of “get over it,” his well-known response to concerns over the Florida recount decision.

    No doubt, he exhibited an exhaustive command of the law and a high-energy approach to legal analysis. But I think it is his style that causes people to say how great he was, rather than legal brilliance per se. His opinions are rife with examples of his ability to turn a phrase in the style of an old-fashioned pedant or preacher.

    It may be that in spite of his characteristic high-energy approach–or perhaps because of it–he had gotten just plain tired. May he rest in peace.

  11. Submitted by beryl john-knudson on 02/17/2016 - 02:22 pm.

    With all due respect Scalia was a judge; challenged in his

    unjust persuasions…call it bigotry:

    Should a Supreme Court Judge ever rest on the bench who does not recognize that all citizens of this democratic society have the right to equal justice under the law of the land as so interpreted today in our just society with all and in spite of the diversity of opinions; wherever or when that applies?

    • Submitted by Ron Gotzman on 02/17/2016 - 04:35 pm.

      Cheap shot….creative trumpism

      Please give a specific example(s) for your labeling of Scalia as a “bigot.”

      • Submitted by RB Holbrook on 02/17/2016 - 05:02 pm.

        For Example . . .

        “”I’m just not impressed by the fact that the University of Texas may have fewer (African-Americans),” Scalia said, in part. “Maybe it ought to have fewer. And maybe some — you know, when you take more, the number of blacks, really competent blacks, admitted to lesser schools, turns out to be less.”

        Speaking about voting rights protection for non-white voters, he said “I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”

        There were also his many comments about homosexuality and gay people, but those were just his honest opinion, right? And since some white people have been executed, there is nothing inherently racist in his theory that the Constitution cannot be invoked to prevent the execution of a demonstrably innocent person.

      • Submitted by beryl john-knudson on 02/17/2016 - 06:20 pm.

        My comment is my view but call it a label if you choose,eh?

        Latest comment of Justice Scalia wasn’t too long ago… but was the latest of many words and actions downsizing the common thread of decency that one would expect from a just voice on the Supreme Court This represents one Of the last suggestively bigoted remarks,”cheap shots” of Scalia… about black students was in December I believe…

        …”There are those who contend that it does not benefit African Americans to get them into University of Texas where they do not do well as opposed to going to a less advanced school.”…the latest sense of’ lesser being’ attitudes, remarks,political affirmations over the years to validate his far-right political views; yes indeed,

        We bury any man with a degree of sadness but words and actions leave a trail in the footprints of time?

        A bigot? Too harsh? I don’t think so, but you may think otherwise

      • Submitted by Logan Foreman on 02/22/2016 - 05:37 pm.

        See above

        A complete bigot, Ron.

  12. Submitted by Connie Sullivan on 02/17/2016 - 02:58 pm.

    Those of us who are familiar with eighteenth-century orthography and punctuation have had a problem with Justice Scalia’s (and other right-wing legal authorities’) inability to understand the comma placement in the Second Amendment to the Constitution. It didn’t have the same function as a comma does today, and for a judge not to understand that original-context nuance has always seemed inexcusable to me.

    Similarly, Scalia’s curious misinterpretation of the capitalized word “State” in the Affordable Care Act elaboration about which health-insurance exchanges (state or federal) were valid for people to receive premium subsidies. “State” with a capital in mid-sentence means the government at any level; it does not mean Delaware, Utah, or South Dakota, which are “states,” no cap. We can blame the anonymous writer of that provision for using political scientese in the phrasing. But the justice had to WANT to misinterpret “State” in that case (in which I understand he was in the minority).

    There are more than several commentators who have remarked that Justice Scalia tended to “lose it” in recent years, when he was in the minority on a decision. Kind of Trump-like, he was tending to rant in sometimes embarrassing exaggerated terms.

    Charismatic, maybe, but no more brilliant than your run-of-the-mill Supreme, in my book.

    • Submitted by Rachel Kahler on 02/17/2016 - 04:26 pm.


      Even a non-lawyer, who has paid attention in high school history class, recognizes that “State” does not equal “state.” He was a character and a magician, which suggests he was a brilliant social engineer. But I’m not convinced that an exceptional social engineer should be considered a brilliant justice. After all, the title “justice” suggests that the role is to serve Justice, not simply exhibit a little razzle dazzle.

  13. Submitted by James Hamilton on 02/17/2016 - 07:45 pm.

    Oh my.

    Textualism and originalism are not the same thing.

    Textualism “is a method of statutory interpretation whereby the plain text of a statute is used to determine the meaning of the legislation. Instead of attempting to determine statutory purpose or legislative intent, textualists adhere to the objective meaning of the legal text.”

    Textualism is the primary approach to the interpretation of laws in every court in the nation, state or federal. Where the language of a law, including a constitution, is unclear, courts first resort to standard dictionary definitions then, if necessary, to the rules of grammar. Most would agree that where the meaning of a word has changed since the law in question was written, the definition in use at the time the law was passed should control. Where the word had more than one meaning at that time, and either meaning could have been intended, courts will look behind the words in an attempt to discern the intent of the enacting body. Various methods are used for this, including resort to legislative history.

    Scalia described originalism in this way: “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” This is similar to the method outlined above, when it hues to the text.

    One of the things Scalia objected to, and rightfully so in my opinion, was any decision which disregarded the plain language of a law, including what the law does NOT expressly state. His dissents in various cases make this clear, including his dissents in both ACA cases.

    He wasn’t immune to the urge to activism or the influence of his own political and religious orientation, however. It was these, I believe, that lead him far beyond either textualism or originalism. This is nowhere more apparent than in his dissent in OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL. There, he wrote:

    “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.”

    This position is completely divorced from the text of the Fourteenth Amendment and based solely on what he assumes people believed about a subject not specifically addressed by the amendment. When one lays down basic principles, one does not necessarily anticipate every circumstance to which they may be applied, any more than one anticipates every consequence they may have. In fact, virtually every human action has unintended consequences.

    This is the fallacy of Scalia’s reasoning, in Obergefell and elsewhere: the belief that what one may have thought or not thought should govern – or, more accurately, thought about or not thought about – should dictate how even the clearest text should be read. Under Scalia’s approach, every law passed by Congress regulating automobile manufacturing would be beyond the scope of the Commerce Clause, because none of the drafters or legislators approving the Constitution ever could have anticipated that this clause would be so applied.

    • Submitted by Rachel Kahler on 02/18/2016 - 08:18 am.

      My my

      In the end, I’m not sure it mattered what he /claimed/ to be. He was as driven by his personal views and politics as anyone else. The difference between him and others is that he gave a name to what he did with the law–he manipulated the written word to his own benefit in front of an entire nation. I don’t believe he was a great mind at all. At least not with regard to the Constitution or the law. Well, maybe in his own mind.

    • Submitted by Charles Holtman on 02/18/2016 - 08:48 am.

      Two comments

      First, there is the established process-based distinction between statutory and constitutional interpretation. Statutes are applied textually, based on the assumption (better now to say “conceit”) that if the statute, as textually applied, turns out to be flawed, the legislature can “fix” it. A constitution cannot (practicably) be “fixed” so the courts have an essential role in forming an interpretation of the constitutional provision that is consonant with the societal values to which the constitution is intended to give meaning.

      More fundamentally, and I think this is what you’re saying: I think the whole discussion surrounding originalism is a bit of a strawman. No one holds that the “intent” of the original drafters should be disregarded, the question is at what level of abstraction that “intent” should be understood. Interpretivists hold that the “intent” expressed by the drafters was an intent as to the basic values that should be given priority (and reconciled), whereas originalists like Scalia maintain that the framers had an intent as to concrete conditions. I certainly am one of those who think the latter is rather obviously incoherent, though it does tend to lead to congenial outcomes for those with a reactionary view of social relations.

      Interpretivists understand that the chief qualification for a Supreme Court justice, moreso than being a “brilliant legal mind,” is the capacity to assess how the relations between members of a society, and between the State and its citizens, should be structured to give meaning to the shared set of values that underlie the constitution, within the context of the social, economic and technological conditions that obtain in the here and now. In other words, one foot in the rarified law and one foot in the realm of human aspiration and how actual people live actual lives. That is why, for example, William Brennan, though not the most extraordinary legal technician, was an extraordinary justice, and why those like Scalia and Bork, despite their formidable analytical capacity and quickness of mind, were not qualified for the Court.

  14. Submitted by Tom Anderson on 02/17/2016 - 09:56 pm.

    Time for a change

    Since the Founding Fathers wanted the Constitution to expire before the average home loan and since the Constitution is a living, breathing document, let’s tear up the first one and have Congress construct and pass a new one. Shouldn’t take any longer than the process to select the next Supreme Court Justice who, after the President signs the new Constitution, could then help determine if the new Constitution is constitutional.

  15. Submitted by Hiram Foster on 02/18/2016 - 08:14 am.

    The founding fathers

    I don’t think the founding fathers knew what they were doing. After all, nobody had done it before so they had no history they could learn from. They were a diverse lot of people, and no doubt there were a number views out there, some of them different, others contradictory. It is interesting to me, that we in this country at this time look to them to illuminate the political debates of today. In Britain it quite simply occurs to no one that the Parliament of 1787, and the way it approached the problems of it’s time, should determine British politics and policy in the year 2016.

  16. Submitted by RB Holbrook on 02/18/2016 - 11:44 am.

    Fiat Justitia Ruat Caelum

    Normally, I’m a big fan of the maxim “de motuis nil nisi bonum,” but the Scalia hagiography has made me reconsider.

    As has been noted, Justice Scalia was as driven by finding a way to justify the results he wanted as any Justice who has ever served on the Court. Scalia’s drive seems especially bad because of his loud proclamations of originalism or textualism. Justice Scalia’s textualism could lead him not only to decline to address the flawed line of cases holding that the 11th Amendment prohibits citizens from suing their own states in federal courts, but to wax poetic about that reading of the Amendment. Imagine what his criticism would be of a reading of, say, the Establishment Clause that said the First Amendment “was important not merely for what it said but for what it reflected,” or that “behind the words of constitutional provisions are postulates which limit and control.” I’m not seeing a lot of textualism there.

    His originalism was likewise selective. Scalia wrote that the 14th Amendment should not apply to gender-discrimination cases because the Amendment was intended only to eradicate the legal disabilities of slavery. Well, okay, that may be arguable, even if it adds to the text of the Amendment. Logic and that level of originalism would therefore seem to dictate that the 14th Amendment is therefore inapplicable to a question of how votes for President are counted in Florida. I wonder what changed in the interim?

    His vehement insistence that the Constitution is not a living document did not even slow him down when he wanted to contradict himself. His concurrence in Citizens United noted that the Founders may have meant to exclude corporations from the protection of the First Amendment, but “modern corporations might not qualify for exclusion.” Why? Has our understanding of the Constitution changed, without an amendment? Sounds kind of “living” to me.

    There is also the matter of Justice Scalia’s many ethical “challenges.” Suffice it to say that no state or lower federal court judge would even dream that it would be proper to go on a hunting trip paid for by a party in a proceeding before the court. Justice Scalia seemed to see nothing at all wrong with that.

    So rest in peace, Justice Scalia. I hope your successor is at least as intellectually capable as you were. I also hope that he or she does better on so many levels.

  17. Submitted by Bill Willy on 02/18/2016 - 06:55 pm.

    For a moment I could see him in one of those wigs

    While looking around at some of the things Scalia said, I came across this comment by someone calling themselves “Ginger Is A Construct” under an article at It seems to sum up the case for the “living document” pretty well:

    “I mean, the Federalists did distrust the general populace enough to keep even landless white men from voting. Folks like Adams referred to democracy derisively as ‘mobocracy’ and a ‘leveling spirit.’ That’s why we have the electoral college, after all. But [the hell with] trying to live our lives in the mold of elite men who lived 240 years ago. I don’t [use] a chamber pot, own slaves, wear periwigs, or ride in a carriage; why am I going to allow colonial American values to determine the rights and health of myself and others?”

  18. Submitted by Howard Miller on 02/24/2016 - 04:57 pm.

    separation of faith and law

    Mr. Scalia was clearly very bright. Still, felt as though his religious faith informed his views too much on what constitutes acceptable law in a pluralistic secular society …. to put it plainly, he didn’t mind imposing his Catholic faith on all of us through his interpretation of constitutional law. He doesn’t mind the powerful (i.e., private employers ) imposing their religious faith on employees by denying certain benefits based solely on the employers’ faith, completely ignoring the religious rights of employees in the process. He didn’t mind strong intrusion of the majority’s faith into the public square. And what’s up with accepting favors from litigants with issues before the SCOTUS? He died while on a freebie at a nice hunting lodge, invited by a litigant who received favorable treatment by the SCOTUS. How is that ethical? Seriously?

    He never recused himself to my knowledge, notably in the Cheney “private meeting” case as VP. These actions together contribute to our sharp divides of late on how to govern as We, the People.


    a constitutional “originalist” is someone who pretends that the plain meaning of words are utterly invariant over hundreds of years of accumulated social experience, rapidly changing social context, and the evolution of language itself. It seems like a form of conservative idealism rather than a practical view for pursuing justice in this society today

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