On Scalia's Departure

I have a soft spot for now-deceased Supreme Court Justice Antonin Scalia. He spoke at my college graduation before I was very familiar with his jurisprudence, which I came to admire as refreshingly contrary to the demand that the Constitution accommodate every sentimental impulse that grips the modern and juvenile mind, yet without regard to the amendment process. His death reveals just as much about what is wrong with modern thought as did his life and work.

For example, the legal intelligentsia characterize Scalia as a proponent of "originalism," which is portrayed as merely one interpretive tool in a judge's kit when dealing with the Constitution. Yet originalism is the only legitimate approach for a judge to take, i.e., reading the Constitution as it was drafted and allowing the people (rather than judges) to change it through their sole power of amendment. Even ordinary statutes are interpreted according to their plain language and, if ambiguity creeps in, contemporary sources are consulted rather than the whims of the judge. The moment a judge takes it upon himself to impute his own beliefs into a codified law such as the Constitution or a statute, he usurps the power of the people and elevates himself above the law. That the majority of legal scholars today regard Scalia's approach as negative or regressive reveals just where we are -- at their mercy, and in a great deal of trouble.

By the same token, I disagree with those who lament the unlikelihood that Scalia will be replaced with someone of equal intellectual rigor and constitutional fidelity, and for two key reasons:

• For one, we should not be entrusting the Constitution to judges in the first place. To pine for a "good judge" to rescue the Constitution and us commits the same fallacy as Scalia's worst detractors. The judiciary is simply a co-equal branch of government and inferior to the Constitution, which belongs to us. A judge's proper role is very meager -- to resolve cases and controversies among specific parties, not to amend the Constitution for the entire country. As a (once) Protestant nation, we are not supposed to rely on high priests to reveal truth; we are to assume the responsibility of reading scripture and ascertaining the truth for ourselves.

• Second, from a more practical perspective, I say let the Supreme Court (and all courts) be staffed with more idiots and halfwits. Let's have more asinine rulings that declare polygamy and bestiality to be constitutional rights; that the First Amendment doesn't protect "hate" speech; and that the federal government really can do anything "for the common good" and is unbounded by the enumeration of its powers. This could be the only way to shake more people out of their stupor and get them to re-assume responsibility for their fates, just as the founders of this country did when they gathered at Lexington and Concord. If we cannot do this, we do not deserve to be free anyway.