Would his "traditional" reading of the Constitution have been accepted by its Framers?by Robert Singh / February 16, 2016 / Leave a comment
With the death of Justice Antonin Scalia on 13th February, the United States Supreme Court became a central issue in the raucous 2016 presidential campaign. While President Obama has stated his intent to nominate the next justice, Senate Majority Leader Mitch McConnell has argued that Scalia should not be replaced until after the presidential election—and nominees must be confirmed by the currently Republican-held Senate. These competing claims show how the Court now reflects and reinforces the broader partisan polarisation in Washington.
On decisions from gun control to campaign finance, the court over the last decade has pursued an outspokenly conservative agenda. But other key rulings—such as upholding the Affordable Care Act and the right to same sex marriage—have also grievously disappointed traditionalists. With the remaining eight justices now split between four progressives and four conservatives, Scalia’s replacement could potentially reshape constitutional law for years to come.
A man of acerbic wit and often scathing venom, Scalia developed an approach to constitutional interpretation—originalism—that many found coherent and compelling (a whole book, Scalia Dissents, was even dedicated to his disagreements with prevailing opinion). In a democracy, how can a Court legitimately strike down the laws passed by the Congress and signed by the president? Originalism offered a simple solution: rather than consider what the writers of laws, or of particular constitutional clauses, intended the law to mean, judges should instead interpret these in terms of how the text was commonly understood at the time it was adopted. That adherence to the values of others seemed to limit the dangers of judges writing their own views into law. It had the happily convenient benefit, to Scalia, of also yielding reliably conservative policy outcomes. But three problems plagued the path Scalia paved, which he never convincingly resolved.
First, the practical outcomes of Scalia’s philosophy are widely regarded as repugnant to contemporary moral values. Take