October 28, 2020

USA: Originalism Has Turned Out To Be More Than A Legal Doctrine. It Is The Common Ground Of American Conservatism. The Left Doesn’t Fear Amy Coney Barrett, It Fears the Constitution.

The Washington Free Beacon
written by Matthew Continetti
Friday October 16, 2020

"Enough to field a baseball team." That was the late Justice Antonin Scalia’s response when asked how many children he had. And he and his wife Maureen’s nine children have themselves parented, as of this week, 40 grandchildren. How big is the Scalia family? So big that, at the moment, it would not be allowed to hold an in-person gathering in the justice’s home state of New Jersey.

Even that count might not be accurate. Watching Judge Amy Coney Barrett testify before the Senate Judiciary Committee this week, I couldn’t help thinking that the Scalia family is larger than the individuals directly related to him. In both her September 26 remarks at the White House and her October 12 opening statement to the committee, Barrett spoke of the influence Scalia had on her life and identified herself with his approach to the law. "His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were," Barrett told the senators. "Sometimes that approach meant reaching results that he did not like. But as he put it in one of his best-known opinions, that is what it means to say we have a government of laws, not men."

Whether it was for the students he taught, or the clerks he hired, or the lawyers he mentored, or the readers of his work, Scalia modeled a form of jurisprudence rooted in the text of the Constitution and in the American political tradition. His approach came to be called originalism (in matters of constitutional interpretation) and textualism (in matters of statutory interpretation). But his legacy is far greater than these contributions to legal terminology and methodology. What this son of an Italian immigrant accomplished was nothing less than a revolution in the law—and the promulgation of a distinctly American conservatism that is needed now more than ever.

It was Scalia who was among the first faculty advisers of the Federalist Society, and who addressed the society’s first national gathering in 1982. Along with his colleagues Robert Bork and Laurence Silberman, Scalia stood for the idea that judges should interpret the Constitution and statutes based on their original public meaning. The clarity of his argument, the force of his intellect, and the charm of his conversation enlarged the audience for his views. That audience exploded in size after President Reagan elevated him to the Supreme Court in 1986. Over time, the strength of originalism’s reputation in legal circles became so overpowering that some liberal judges, such as Justice Elena Kagan, felt it necessary to describe themselves, however ironically, as "originalists."

Scalia pointed to his decision upholding the constitutionality of flag-burning as proof that originalism is not a mask for conservative politics. And there have been plenty of decisions—most recently Justice Neil Gorsuch’s opinion in Bostock—where self-described originalists and textualists arrived at places conservatives did not expect. But there is nonetheless an integral relationship between originalism and conservatism. What American conservatism seeks to preserve is the institutional and philosophical inheritance of the American Founding. This inheritance is codified in our enabling documents: the Constitution (as amended), the organic laws of the United States (which include the Declaration of Independence and the Northwest Ordinance), and the Federalist Papers. It is through fidelity to these words, as the Founders understood them at the time, that conservatives defend the constitutional structure and the individual freedom it secures.

Originalism has turned out to be more than a legal doctrine. It is the common ground of American conservatism. For years, the right has tried to define a "constitutional conservatism" that would serve as the political analogue to originalism. That project has been overshadowed by the rise of national populism. But it is worth noting that the current president won his office in no small part because he pledged to nominate judges in the mold of Scalia and approved by the Federalist Society. And his most enduring legacy will be his appointments to the federal courts.

It would be difficult to name other Supreme Court justices who have had such a galvanizing effect on American politics—and who continued to play such important roles after their deaths. What accounts for Scalia’s iconic stature? The latest collection of his writings, The Essential Scalia, edited by Judge Jeffrey S. Sutton and Edward Whelan, offers some clues. "Nino loved ideas—thinking about them, talking about them, arguing about them, as well as writing about them," Justice Kagan writes in her introduction. "That love may explain why he found it so natural to befriend colleagues with whom he often disagreed (yes, like me)." Scalia’s ability to depersonalize intellectual debate was a function of his self-confidence and sense of humor. His convictions were the result of deep reflection. But he was more than happy to defend them, and to explain why you were wrong.

What comes across most, though, is the quality of Scalia’s writing. It is clear, direct, witty, lapidary, memorable. Scalia’s opinions and dissents are famous for certain lines—"this wolf comes as a wolf"; "What Is Golf?"—but on second reading it is the way he develops his argument that most impresses. And he always makes a perfect landing. "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem," he wrote in Heller (2008). "That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

These aren’t judicial decisions. They are essays. And like great literature they will reverberate far into the future. As Antonin Scalia’s extended family, biological and philosophical, continues to grow.
National Review
written by David Harsanyi
Tuesday October 27, 2020

Nothing threatens the progressive project more than the existence of a Supreme Court that adheres to the Constitution. It’s really that simple.

That’s what the tantrum over Justice Amy Coney Barrett’s confirmation is all about. The notion that the same Democrats who shelved the judicial filibuster and now threaten to destroy the separation of powers with a Court-packing revenge scheme — the same people, incidentally, so fond of smear-drenched confirmation hearings — are sticklers for process or decorum is simply ludicrous.

For one thing, no norms have been undone by the confirmation of Barrett. If Democrats won a Senate majority in 2016, Merrick Garland would already be ensconced in the Supreme Court, election or no election. Many of the same Democrats now feigning outrage over Barrett’s confirmation, including Joe Biden, argued back then that it was the constitutional duty of the Senate to take up a vote. Our living constitution apparently offers contradicting directions from one election to the next.

If Trump had nominated Garland to replace Ruth Bader Ginsburg, Democrats wouldn’t have any problem placing him on the Court — not even on November 2. Liberals act as if they are imbued with a theological right to dictate not only the terms, but also the nominees, of confirmation hearings whether they win or lose elections.

And when you’re under the impression that the system exists solely to facilitate your partisan agenda, something will seem “broken” every time you lose. When Barack Obama was unable to pass his agenda after 2010, the system suffered from “dysfunction.” How many times did we hear that term? But now that Democrats are in the Senate minority, employing the very same tools to slow the president, we must “fix” the Electoral College, the Senate, and, most recently, the Supreme Court. If Democrats win back the presidency in 2020, the opposition will no longer be “resisting,” it will be “obstructing.” The filibuster will need fixing again. The media will again obsess over the problem of “gridlock.” History’s trajectory arcs left, and everything else is just an impediment.

The Left has been relying on the same brand of fearmongering over Republican-appointed judges for nearly 40 years. The only difference is that the hysteria has been ratcheted up to stratospheric levels. Yesterday, MSNBC’s Chris Hayes declared that Judge Barrett’s confirmation had “led to the deaths of probably 100,000 Americans.” (I do appreciate that the host slipped in the word “probably,” as if he were seriously calculating the death tolls, rather than saying something utterly insane.)

He wasn’t alone. Ahead of the Barrett vote, Senate minority leader Chuck Schumer claimed this “will go down as one of the darkest days in the 231-year history of the United States Senate.” For contemporary Democrats, the day the GOP confirmed a wholly capable and highly accomplished woman to the highest Court in the land — using the process prescribed under which every justice in history has been confirmed — is as infamous as the filibuster of the Civil Rights Act or the caning of Charles Sumner.

To be fair, Schumer argued that a resolution against Trump’s removal earlier this year was also “one of the darker moments in Senate history” and also that passage of the watered-down Republican tax-reform passage was “one of the darkest . . . days in the long history of this Senate.” So, basically, any time Chuck Schumer loses is the new darkest day in history.

Once Barrett’s confirmation became a reality, however, Democrats began turning to the real problem. Originalism is the stick in the spoke of progressivism. This crusade has the demagogues leading the idiots. The former are people such as Massachusetts senator Ed Markey, who alleges that “originalism is racist. Originalism is sexist. Originalism is homophobic. Originalism is just a fancy word for discrimination.” The latter are the minions who regurgitate this kind of vacuous talking point because they lack a basic comprehension of legal philosophies or civic education that includes an explainer on “amendments.”

None of which is to say the radicalized contemporary Left has nothing to fear. Yesterday, Schumer warned: “A warming planet. Workers falling behind. Dark money flooding politics. The curtailing of the right to choose. The limiting of voting rights. Those are the consequences of this nomination.”

What he means, of course, is that an originalist-majority Court may slow progressive environmentalist policies that undermine personal freedom and local sovereignty. He means that the Court may make it more difficult for Democrats to adopt policies that compel workers to join and fund unions and chip away at the Janus decision. He means lawmakers may not be able continue gnawing at Citizens United and weakening First Amendment protections. He means that unlimited third-trimester abortions on demand and funded by the state might be in trouble, that attacks on religious freedom might be blunted, and that states may be obligated to follow their own laws on Election Day rather than concoct rules as they go along.

Now, I have little doubt that a textualist court will let down partisan Republicans as well. Originalists disagree with one another quite often. But it is unlikely to overturn the traditional role of the state in American life. None of which means that liberals have to lose, only that to win, they’ll have to do so on the Constitution’s terms. The problem is that many would rather destroy it than do so. That’s what this debate is about. The rest is just noise.
UPDATE 10/28/20 at 10:44pm: Added info below. 👇 THE MARXIST DEMOCRATS SURVIVE ON LIES. 👇

Posted by Princess Mononoke at 10:33 PM

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