Saturday, February 13, 2016

Requiescat in pace Antonin Gregory Scalia: A Constitutional Originalist

"What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?" - Judge Antonin Scalia, Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005

Supreme Court Justice Antonin Gregory Scalia was a constitutional originalist and over the course of his time on the Court his approach in practice meant that he was a defender of civil liberties. Friends of freedom and the rule of law will mourn his passing today in Texas. Scott Turow in The New York Times made the case for Justice Scalia, the civil libertarian:
Scalia is one of the intellectual godfathers of a strand of Supreme Court decisions, crystallized by Apprendi v. New Jersey, that revolutionized sentencing laws. Following a strict interpretation of the Fifth Amendment’s guarantee of due process of law and the Sixth Amendment’s right to trial by jury, Scalia has insisted that any fact used to extend punishment beyond normal statutory limits must be specified and proved to a jury beyond a reasonable doubt. Despite his fevered support for capital punishment, Scalia also joined a court majority in holding that the Constitution requires a death sentence to be decided by a jury, rather than by a judge, effectively setting aside every capital sentence still on direct appeal in five states.
Nor are Scalia’s pro-rights decisions limited to one arcane area. In Kyllo v. U.S. (2001), Justice Scalia, writing for the court, deemed police use of heat-seeking technology to detect whether marijuana was being grown inside a house a violation of the Fourth Amendment’s prohibition on unreasonable searches. In a 2004 opinion, Scalia spoke for a court majority in finding unconstitutional the widespread practice of using recordings or prepared statements to the police as a substitute for the testimony of unavailable witnesses. And last term, supported by the court’s four more liberal justices, Scalia held that a defendant wrongly deprived of the lawyer of his choice gets a new trial, no matter how overwhelming the evidence of his guilt.
Justice Scalia is led to these seemingly divergent positions by his unyielding adherence to a school of constitutional interpretation called originalism. To Scalia, the Bill of Rights means exactly what it did in 1791, no more, no less. The needs of an evolving society, he says, should be addressed by legislation rather than the courts.
In 2005 the United States Supreme Court, in the Kelo v. City of New London case, stripped private property rights away from individuals and families. A majority of justices on the court claimed that cities and municipalities have the right to seize properties from private individuals in order to promote private development that could be put to “better” use to generate more tax revenue for their respective community. Justice's O’Connor, Rehnquist, Scalia and Thomas dissented from the majority. On October 17, 2011 Justice Scalia stated that the Kelo decision was a mistake that would be overturned by a future Court.
“My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence,” Scalia said. “But it has made very few mistakes of political judgment, of estimating how far … it could stretch beyond the text of the Constitution without provoking overwhelming public criticism and resistance. Dred Scott was one mistake of that sort. Roe v. Wade was another. … And Kelo, I think, was a third.”
 Thank you Antonin Gregory Scalia for your service to country and legacy of freedom. Requiescat in pace.

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