Antonin Scalia’s defense of the Constitution was rooted in a determination to let the law speak for itself. His “textualism” took its motive force from the simple idea that a judge’s job is to apply the law (or adjudicate under the law) rather than to change it to mean what it “should” mean, or what he wants it to mean. Only if the plain words of the text are ambiguous does a judge have the right to look behind them, and then only to clearly relevant materials such as contemporaneous dictionaries, well-established rules of construction, and perhaps sections of the same or similar legislation using the same term in the same fashion. The job is not to judge the purpose, but rather to determine the meaning, of the text.
Justice Scalia’s determination to take the law as it is earned him many enemies among our progressive elites. The criticism was and remains that Scalia’s textualism prevents the Constitution (and law more generally) from “growing” to meet the changing needs of the people and their government. Scalia was uncaring and a servant of injustice, we have been told, because he was not willing to use the law to do things its often privileged and corrupt authors did not intend it to do. The reprehensible hit piece sent out to faculty and students at Georgetown Law School by Professors Gary Peller and Louis Michael Seidman well illustrates the level of hatred aimed at Justice Scalia on account of his principled approach to law. It was wrong, according to these two professors, both of whom deny the legitimacy of our Constitution, for their law school to mark Justice Scalia’s passing with sympathy and respect because he was, on account of his judicial decisions, a bad man. The virtue progressive lawyers like Mr. Peller and Mr. Seidman demand of judges is quite clear. A good, virtuous judge is one who cares about the oppressed (defined by race, class, and gender), knows that law often is a tool of oppression, and sets himself the task of rewriting the law to make it a tool of justice by serving the interests of oppressed groups, as determined by progressive elites. In rejecting this hubristic model of the judge as savior, Justice Scalia earned endless calumnies, most especially the constant jibe that he was merely a tool of powerful bad actors.
The irony in these charges is thick, for it was precisely Justice Scalia’s refusal to go beyond the text of the Constitution or law that made his jurisprudence by far the most democratic and egalitarian, in the historical American sense, on the Supreme Court of his and perhaps any other time. The Supreme Court Justice who divines “emanations” from “penumbras” of various phrases and ideas in the Constitution and stitches them together into doctrines like the “right to privacy” is serving neither the law nor the people, but his own ideology. The “right to privacy” has of course been used to further the progressive agenda to normalize abortion and to undermine the legal status of traditional marriage, so all Americans are supposed to be in favor of it. Sadly, given time and repeated reinforcement from the bench, many people have come to accept the ideologues’ position. Progressive jurisprudence “works” in the sense that it takes political positions opposed to the will of the majority of the people, enshrines them into law, and enforces them until the people internalize them. In this way we have allowed our courts to change the very fabric of our nation and society, undermining the rights of families, churches, and local associations to the point where most every issue, whether public or private, is subject to federal regulation and judicial interpretation. Thanks to relentless judicial hectoring, Americans as a people have actually begun to believe that their “betters” in Washington have the right and duty to tell them how to lead their lives, and even how to think about themselves and their fellows. If this sounds to the reader like the role of a propaganda ministry rather than a court, well, perhaps the reader requires more time with progressive teachers to point out the error of his ways.
Progressive judges take the law away from the people in order to make it their own. Antonin Scalia’s jurisprudence has proven the last, best defense against this assault on constitutional self-government. Rather than choose the “right” value, then read it into the law so as to force the people to agree, textualism rests on the understanding that in a republic the law itself is the will of the people as expressed through the institutions and procedures they enshrined in the Constitution. So long as the legislation is enacted into law through the means provided for in the Constitution (which includes, importantly, that it flows from a power of the government enumerated by that Constitution), it is valid. The sole caveat to this essential truth of constitutional government—that the law must not trench upon any specifically protected right laid out in the Constitution—cannot be used as a means of rearranging law and society without in the process destroying constitutionalism. Specific rights, whether against bills of attainder or against Congress making a law abridging freedom of speech, are limitations on power; their intrinsic purpose is to keep the government from oppressing the people, not to grant power to judges to rearrange society to fit their own visions of justice.
Justice Scalia could be harsh in his criticism of his opponents—and even of some of his would-be allies. This was because his very being, as a judge, was bound up with a deep commitment to focusing on the text rather than the will of the judge. Sometimes this brought Justice Scalia into conflict with various “natural-law” thinkers on the right, including even his colleague on the Court, Justice Clarence Thomas. Where Justice Thomas on numerous occasions has sought to push interpretations of legal texts back to first principles, Justice Scalia was determined to leave philosophical arguments to the side. In particular, Justice Thomas frequently eludes to the Declaration of Independence and the principles of governance and natural rights set forth in its second paragraph. Justice Scalia, meanwhile, saw natural-law jurisprudence as irrelevant at best to textual analysis. The conflicts between these two visions are quite interesting for the student of jurisprudence, and this author finds merit and fault with both positions. One may, after all, recognize natural law as the proper guide to law-making and a source of insight into human nature, while also recognizing that judges are not philosophers, but rather students of the language, logic, and history of law.
To understand Justice Scalia’s contribution to constitutionalism one must first recognize the reason for his rejection of natural law as the master tool of jurisprudence. That reason may be summed up in the phrase “public meaning.” Textualism makes most sense when it includes the demand that statutes be interpreted according to their public meaning—that is, the meaning that their intended audience could be expected to give to them. Legal terms and even statutory purposes, on this view, are law in the full sense only when and to the extent that those expected to follow them can actually understand them. This is, in fact, an important aspect of a natural-law understanding of statutes, for the essence of law lies in its being a rule of action the people can, in fact, follow. And the people cannot follow a rule they do not know. This, in turn, is what makes progressives’ judicial activism so detrimental to the rule of law, and so anti-democratic. Laws that change their meaning according to the ideological positions of judges lack certainty; the people will not know from one session of the Supreme Court to the next, for example, whether their states will be required to issue licenses for same-sex unions, or whether they must enter into interstate commerce by purchasing health insurance (sadly, the list could go on). The very unpredictability of progressive judicial decisions renders them, not merely unfair, but in an important sense, not law. If one is to be punished for something one reasonably thought was legal (such as not purchasing health insurance), then one is being punished arbitrarily, without fair warning. This is tyranny, and tyranny in small things by nature grows into tyranny in large, and eventually all things. It is inimical to justice and free government.
One frequent justification for jettisoning public meaning has been the claim that people’s understandings of key concepts such as “privacy” or “equal protection of the laws” change over time. But these changes themselves generally are the result of changing judicial decisions. The purpose of our system of precedents (following the decisions of previous courts) is to prevent this kind of slippage in textual meaning. Only by sticking to the settled, contemporaneous public meaning of the text can the people control their own law—changing its terms through legislation or constitutional amendment, rather than passively waiting for judges to change the laws for them.
Even some members of the legislature wish to eliminate the use of public meaning as a measure of statutory language. A principal reason for resistance to public meaning is its laying of responsibility on the drafters of laws for the words they use. When judges seize control over legislative meaning, often in the name of “legislative intent,” they leave room for legislators to disclaim responsibility for bad drafting and even bad intent. They may claim credit for declaring that some good thing be provided or some bad thing prevented, while leaving it to judges to make their grand, vague proclamations into reality through the force of judicial decisions. Only by refusing to “fix” laws by rewriting them can judges fulfill their fundamental duty to decide cases according to law—and focus the people’s attention where it belongs, on those who make the laws and so should be held accountable for their quality and their effects.
We will not see the likes of Justice Scalia again. Sadly, it is at least questionable whether, without his presence on the Court, the Constitution and the rule of law will long survive the continuing onslaught of political actors in the legislature, in the White House, and on the bench. Claims to serve “justice” over law end up serving neither, instead widening the area within which mere will rules us all.
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