He was pugnacious. He was opinionated. He was humorous, but dangerous when provoked. And he had become an institution in himself.<\/p>\n
\n\tI\u2019m talking, of course, of the late Supreme Court justice Antonin Scalia, who died last month at 79— at the time the longest serving member of the current
\n\tcourt, being appointed justice in 1986. He was seldom quiet. And his influence will likely continue for a long time. He will be missed as a man who spoke
\n\this convictions without hesitation. His originalist theory of constitutional interpretation is likely to be quoted for many years; if only as a
\n\tcounterpoint to the more typical Living Constitution model that permeates most of the judiciary.<\/p>\n
\n\tMany years ago I attended a Christian Lawyers weekend in Canada, which featured Justice Scalia. He was nothing if not controversial. In particular he waved
\n\tThomas More, the newly minted Roman Catholic patron saint of lawyers, in front of the mostly Protestant lawyers so provocatively that at one stage the
\n\tleadership went in to a huddle to see if a formal response was needed. They decided to roll with the many punches. And black-eyed as they became, all ended
\n\tup enjoying Scalia\u2019s trenchant legal analysis and his quick wit.<\/p>\n
\n\tHe made numerous jibes in the direction of capital justice. One was part of a humorous anecdote about cattle thieves in the wild West. Scalia made much of
\n\tthe either-or reality of trials for cattle rustling. If the court found you innocent, you went free. If you were guilty, they took you out and hanged you.<\/p>\n
\n\tThe story he told has resonance for me as I observe the current political posturing in the buildup to November elections. It went like this.<\/p>\n
\n\tA certain young fellow had been found guilty of stealing cattle. He was to be hanged. The townspeople, needing some excitement, gathered for the hanging.
\n\tStanding on the raised platform with the young man, the mayor told him, \u201cThese folks have gathered to watch you hang. We have a tradition here that you can
\n\ttalk to the crowd before you die. You can tell them whatever you want. Criticize the town, the judge, me if you like. You are free to talk.\u201d<\/p>\n
\n\tThe rustler looked around at the expectant crowd. He shook his head. \u201cNo, I\u2019ve got nothing to say.\u201d<\/p>\n
\n\tThe mayor was amazed. \u201cSon,\u201d he said, \u201csay anything you like. The time is yours. These folk expect it.\u201d<\/p>\n
\n\tAgain \u201cNo\u201d and a shake of the head.<\/p>\n
\n\tThis was too much for the local politician. \u201cWill the gentleman yield his time?\u201d he cried out.<\/p>\n
\n\tThe condemned man was puzzled. The mayor explained: the politician saw the potential for a crowd and wanted to address them if he was agreeable.<\/p>\n
\n\t\u201cSure,\u201d said the rustler, \u201cbut hang me first.\u201d<\/p>\n
\n\tThat joke was good for hearty laughs that somewhat obscured the justice\u2019s stark view of justice. In many ways it characterized his rather one-dimensional
\n\t\u201coriginalist\u201d view of the Constitution. Although I agreed with his point that if what was wanted by legislators or constituency went against the
\n\tConstitution, there was a plain solution—an amendment to the Constitution.<\/p>\n
\n\tThe reality is that the Supreme Court has periodically stretched the literal law to encompass things far afield from the narrow language of the
\n\tConstitution. I can think of two that fit this: the Citizens United case and Lawrence v Texas. The framers were indeed corporately minded and they did
\n\tindeed intend to protect privacy, but I think it hardly worth proving that their minds would have ever wandered enough to envisage CPAC electioneering and
\n\tgay rights threatening religious freedom rights.<\/p>\n
\n\tDuring a lecture Scalia gave that weekend at the University of British Columbia he said something so entirely full of common sense that it struck me he was
\n\tless dangerous than most of the ideologues in public office. \u201cI may believe these things,\u201d he said, alluding to his very reactionary views on capital
\n\tpunishment and separation (or lack of) of church and state. \u201cBut you don\u2019t have to worry about me,\u201d he said, \u201cbecause of my own view of the original intent
\n\tof the Constitution.\u201d<\/p>\n
\n\tMany of us felt his role in the Smith case was a betrayal of religious freedom. But some proof of his ability to hold a view and be constrained by the
\n\tlogic of the Constitution was on display when he supported the right to burn the flag. Right-wingers, including his own wife, could not believe he would
\n\tvote that way. But the good justice usually voted his legal truth and suppressed his own activism.<\/p>\n
\n\tMy fear is that others on the Court will not have the discipline to override their personal prejudices or identity agendas. In all my time observing the
\n\tCourt, I have been impressed by how imperfectly the justices follow the intended bias of the conservative or liberal factions that nominate them—Scalia
\n\t(with the nod to my prior point) and Thomas being two very clear exceptions, of course. In a multicultural, multifaith nation the Court presented a red
\n\tflag of late, with six of the nine Roman Catholics, three Jewish, and none Protestant. No constitutional crisis here, but a religious demographic
\n\taberration that in a time of religious contention could bleed through to troubling religious cases.<\/p>\n
\n\tAnd my fear is accentuated by the present factional reality. The assumption by both Liberal and conservative is they can load the deck with a reflex
\n\tpartisan. On top of that is an assumption I find terrifying: an assumption that I know Scalia himself would have rejected. It is the view that the Court
\n\tlegislates from the bench. That is a cynical view and one not supported by a reasonable study of the forming of the republic and the constitution.<\/p>\n
\n\tWe need justices who are men and women of honor. The need is not just for legal specialists—most people do not realize that justices do not have to be
\n\tlawyers or judges—but men and women of moral compass who seek justice. In the Old Testament book of Leviticus, I read this injunction: \u201cYou shall do no
\n\tinjustice in judgment. You shall not be partial to the poor, nor honor the person of the mighty. In righteousness you shall judge your neighbor \u201c(Leviticus
\n\t19:15, NKJV). Good advice.<\/p>\n","protected":false},"excerpt":{"rendered":"
He was pugnacious. He was opinionated. He was humorous, but dangerous when provoked. And he had become an institution in himself. I\u2019m talking, of course, of the late Supreme Court justice Antonin Scalia, who died last month at 79— at the time the longest serving member of the current court, being appointed justice in 1986.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[311],"tags":[143],"class_list":["post-6350","post","type-post","status-publish","format-standard","hentry","category-march-april-2016","tag-march-april-2016"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6350","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6350"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6350\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6350"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6350"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6350"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}