PEORIA, IL -- Are we all sick of the commentary praising Antonin Scalia as brilliant? It's not true.
There are also many questions about his death, such as who was at the ranch when he died (lobbyists?). The owner even had a case before the Supreme Court, according to news reports.
But back to his so-called brilliance. Here's another view by Randy Fritz, a retired teacher of history and social studies.
With the passing of Supreme Court Associate Justice Antonin Scalia, it is time to look back at his tenure with a more critical eye. Yes, I’m sure his reputation as a raconteur was well deserved. His judicial philosophy was, wanting, however; at least to me.
Let’s start with “originalism,” his cherished doctrine of the Constitution. To put it bluntly, there is no such thing, at least not in the sense he means it. It is a figment of the man’s imagination. His outsized personality was able to convince others on the Court of its validity; especially those with weaker minds (I name no names).
A single example will serve to illustrate. The year was 1791 and Alexander Hamilton had convinced Congress to pass a bill creating the (First) Bank of the United States. It was to be capitalized 1/5 by government revenue and 4/5 by private investment.
Hamilton saw the law as a way to carry out several of Congress’ powers, as delineated in Article I, Section 8. Among them were: the power to borrow money, collect taxes, coin money and regulate the value thereof. Hamilton concluded, through his reading of the “Elastic Clause” or “Necessary and Proper Clause” (Article I, Section 8, Clause 18): “[Congress Shall have the power to:] make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Let us remember that Hamilton was at the Constitutional Convention and influential in writing the document. “No,” he argued to president Washington, “we are not limited to the powers specifically created in I, 8 because the Elastic Clause allows us to” (of course I’m paraphrasing here—what he actually wrote would take pages to relate here you can find the actual report online).
Thomas Jefferson, Secretary of State, disagreed. He wanted a small national government and a rural society; he wanted, therefore, to limit the powers of the national government and therefore denied the “broad interpretation” espoused by Hamilton. The two were beginning to hate each other. Let us further remember that Jefferson was not at the Constitutional Convention. At the time of its writing he was the American ambassador to France.
George Washington, President and, earlier, president of the Constitutional Convention, signed the bill, thereby codifying the broad interpretation. There are other examples from the Washington/Hamilton era (like the Report on the Public Credit), but we needn’t go there.
In short, the broad interpretation is “originalism.” Any attempt to paint the Framers as “narrow” believers is completely wrong. From much other writing, other framers constantly saw changes in the document’s meaning, as situations warranted. Beyond “broad,” there is little original intent. I’m convinced this idea of “narrow Originalism” is a modern contrivance to limit federal power in the modern conservative mold.
Another point is germane here. Much of the Constitution is extremely vague. The framers knew the first president and Congress would begin the process, through precedent, of “forming” a new national government. Indeed they did so. The interpretation continues to this day, and Scalia’s claim that the Constitution is “not a living document [but] dead, dead, dead has no basis in reality. Read Article II and think about presidential power. There is almost nothing about it there. The framers left it to George Washington to fill in the blanks.
Finally, I would argue that Scalia’s argument is specious at a far more basic level. Would he deny the presidency’s ability to commit troops overseas? The Constitution gives that power exclusively to Congress. Should we not have an Air Force? It’s not mentioned anywhere in the document (for obvious reasons). There are a thousand other examples of agencies, boards, and applications in law that are necessary in a 21st-century American government that would be impossible with a “dead” Constitution.
Antonin Scalia was indeed powerful in his 30-year tenure. I’m not convinced that power was well exercised or historically based, as he so often claimed. -30-