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