Sunday, February 14, 2016

The Legacy of Antonin Scalia

By Michael Johns

When I first became engaged in national public policy and politics in the mid-1980s, the conservative movement had a saying, which I believe originated with former Heritage Foundation president Edwin Feulner: “People are policy.” In essence, the phrase represented our collective recognition that success (or lack thereof) ultimately rested with the people of our movement. Without capable and committed conservatives, little was possible. But with them, nearly anything was.
In the years since, we have lost a number of American conservatives who were more than just capable and committed. They were and are conservative icons whose work helped shape and develop American conservatism—and our Tea Party movement—as the major global political and intellectual force it is today.

Who are these icons?
  • Austrian school economist Ludwig von Mises, who provided much of the intellectual foundation of today’s free market economic thought, left us in 1973 at age 93.
  • Prominent anti-communist Whittaker Chambers, who fled the Communist Party, went on to articulate fundamental truths about communism and ultimately outed State Department employee Alger Hiss as a Soviet agent, died in 1961 at age 60.
  • Author and intellectual Russell Kirk, who helped define many of the enduring principles of conservatism, died in 1994 at age 75.
  • Ayn Rand, whose individualist fictional writings have proven hugely inspirational to our national Tea Party movement, died in 1992 at age 77.
  • William F. Buckley, Jr., who inspired many of today’s most prominent conservative intellectuals and writers, died in 2008 at age 82 (read my 2008 tribute to him here).
  • And of course (most prominent of all), our 40th president, Ronald Reagan, who proved that conservatism can win and succeed as a governing political force, died in 2004 at age 93.
This weekend, sadly, we add one more icon to that list: U.S. Supreme Court Associate Justice Antonin Scalia, whose extensive legal opinions and thinking were rooted in the conservative view that the “original intent” of the U.S. Constitution’s authors must guide modern law, has died at age 79.

Scalia deserves his place among conservative icons that have helped shape modern conservatism. Appointed to the Supreme Court by President Reagan in 1986, Scalia was a reliable conservative presence on the Court for three decades. He defended the rights of the unborn on a Court that largely did not. He opposed affirmative action as antithetical to the principles of equality under law. He defended the death penalty as legally permissible. At the core of these and many other rulings and opinions was a simple yet vastly critical concept: That the U.S. Constitution should be taken for what it says and what its authors intended—and nothing more or less.

Scalia’s written opinions on the Supreme Court rival those of liberal Thurgood Marshall as the most consequential legal opinions of modern times.  In Boumediene v. Bush in 2008, Scalia correctly dissented from the Court’s majority view that terror suspects at Guantanamo Bay were afforded legal rights of due process essentially indistinguishable from those of American citizens. The Court’s ruling, Scalia wrote in his dissent, “will almost certainly cause more Americans to be killed.”

In the critical Second Amendment case District of Columbia v. Heller also in 2008, Scalia wrote for the majority that the right of Americans to keep and bear arms was to be taken, as it is written in the Constitution, literally. “What is not debatable,” Scalia wrote, “is that it is not the role of this Court to pronounce the Second Amendment extinct.”

And most recently (and prominently), it was Scalia, in Obergefell v. Hodges last year, whose scathing dissent on this same sex marriage case argued that religious liberty was stomped on in the Court’s ruling. In his dissent, Scalia wrote: “The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

In addition to his defense of original intent on the Court, it should be remembered, Scalia never shied away from his Christian faith in a city and Court that increasingly shuns it. When one of his law clerks once refused to attend church with him, Scalia emailed the young clerk: “I shall tell the Creator of the Universe you were too busy to see him.”

As our national Tea Party movement enters its seventh year, our work, values and political positions benefit from being rooted in the thinking of some of the greatest conservative minds this nation has ever produced.

Antonin Scalia, we must remember, was one of them.