Was Scalia the Last Great Originalist?

• With the death of Antonin Scalia, the Supreme Court lost a great defender of originalism.
• His commitment to the original meaning of the Constitution made him a staple of American law.
• Though he is gone, other judges can carry forward his legacy.

“The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery,” Justice Antonin Scalia wrote in his dissenting opinion in King v. Burwell, a contentious 2015 case on the constitutionality of provisions of the Affordable Care Act. “The philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution…This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.”

Such opinions were typical of Justice Scalia, who suddenly and tragically passed away last week in Texas. His commitment to the original meaning of the Constitution, and his rigorous advocacy for that originalism, made him a staple of American law. He single-handedly kept originalism in the conversation as a valid, and respected, form of constitutional interpretation, and worked that interpretation into decisions in which he authored the majority opinion.

Scalia’s originalism was often identified with political conservatism. But not all originalists have been conservatives. Justice Hugo Black, who upheld President Franklin D. Roosevelt’s progressive New Deal legislation, took a textualist approach to constitutional interpretation that was in some ways similar to Scalia’s originalism. So while the two might disagree on whether the intentions of the framers should inform our understanding of the Constitution, both would agree that the founding document ultimately prescribes a mandate that is not easily subject to change.

Justice Scalia’s mode of constitutional interpretation also led him to sometimes depart from his conservative colleagues, instead allying with the liberal wing of the court. In 2004, during the height of post-9/11 fear of terrorism, he joined with liberal Justice John Paul Stevens in arguing that the executive branch could not unilaterally prescribe the indefinite detention of an alleged terrorist who was a U.S. citizen:

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause…allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge.

Perhaps only one time did Justice Scalia depart from his strict originalism — that being the case of Gonzales v. Raich, where he read the Necessary and Proper and Interstate Commerce Clauses of the U.S. Constitution as allowing the federal government to regulate the noneconomic intrastate production and consumption of marijuana.

This rare departure from his normal modus operandi notwithstanding, Justice Scalia left a strong originalist mark on American jurisprudence. The question now is how long this mark will endure. With justices such as Anthony Kennedy writing opinions referring to a “liberty to…express [one’s] identity” that is found absolutely nowhere in the text or origins of the Constitution, the survival of Scalia’s legacy is by no means guaranteed. Among the Court’s current makeup, perhaps only Clarence Thomas will be able to carry forward Justice Scalia’s originalism. But while Justice Thomas is certainly a brilliant legal mind in his own right, he simply is not Justice Scalia.

I always hate to use a jargonistic term, but I’m a textualist. I believe that the written Constitution reflects the social contract that people have made with each other and with their government. And just as with any contract, a judge’s role is to enforce that contract vigorously. And the best way of doing that in an objective manner is to resort to the text, and to give meaning to the words as they were intended to mean. Obviously that’s not always possible, so occasionally a judge will have to resort to legislative intent and things of that manner. But I think textualists are the most faithful to the Constitution. When you stray from the text you are literally amending the Constitution, which in my view leads to judicial lawlessness.