On Saturday, we lost a truly great jurist in Antonin Scalia. Justice Scalia believed in interpreting the Constitution not as we would have it, but as the framers understood it. He was an “originalist”. He is considered to be a conservative among Supreme Court justices. It’s strange that a justice that believed the Constitution is an unmalleable document should be considered conservative, as if some other way of seeing it was just as valid. Scalia knew that the documents power laid in it immutability. He understood that the meaning of the Constitution could be interpreted, but could not be changed to fit out passions and our prejudices at the moment. Can what was unconstitutional yesterday be constitutional today simply because we wish it to be? Scalia knew the answer.
“A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.” – Justice Scalia
Justice Scalia’s view that the Constitution is “dead” should be a universal constant among justices, it should be common sense, and sadly it isn’t. Progressives see it as a living document, one that can change as society’s needs change. Each decision can take the law farther and farther from the Framer’s original intent until what we have is something that not only is unrecognizable as a constitutional entity, it may even contradict the plain wording of the original document.
President Obama doesn’t share the Scalia’s originalist view of the Constitution. To him, the Constitution is merely a guide, a series of suggestions to be followed or not according to what is politically desirable. He has appointed, and would presumably appoint judges to the Supreme Court who share this view. As many of the Court’s recent rulings have split five to four along ideological lines, it is easy to see that another liberal justice would change the balance of the court in favor the Constitutional destructionists. What under such a Court would be constitutional? Whatever the Progressives decree to be necessary to the advancement of their cause.
To those that think that the law should not be subject to the whims of a political ideology, but to our founding principles, the appointment of an activist justice should be avoided at all cost. Luckily, the U.S. Senate must consent to the president’s pick, and the Senate is controlled by those who tend toward Justice Scalia’s originalist views. The Republican Senate is not known for always standing steady on conservative principles. President Obama will likely nominate a candidate with a history of judicial activism. When the Senate initially rejects this nominee, he will call them obstructionist. He and much of the media will claim that they are attempting to deny him his Constitutional rights. Of course, this will be after he has exercised precisely that, his right to nominate a replacement for Justice Scalia. That right does not require the Senate to rubber-stamp his choice. The Senate’s right is also clear, they have the authority to consent (or not) to the president’s selection. Constitutional conservatives must then help them to steel their spines, to withstand the hurricane winds of criticism and accusations. The stakes are so high, so high—let’s hope they are up to the task.