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JUSTICE SCALIA AND THE RULE OF LAW:

ORIGINALISM VS. THE LIVING
CONSTITUTION
Richard F. Duncan
University of Nebraska College of Law, [email protected]

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(2016). College of Law, Faculty Publications. 200.
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(2016). Regent University Law Review 29(1), 9-34.

JUSTICE SCALIA AND THE RULE OF LAW:

ORIGINALISM VS. THE LIVING CONSTITUTION

Richard F Duncan*

What secret knowledge, one must wonder, is breathed into lawyers

when they become Justices of this Court, that enables them to discern
that a practice which the text of the Constitution does not clearly
proscribe, and which our people have regardedas constitutional for 200
years, is in fact unconstitutional? . . .The Court must be living in
another world. Day by day, case by case, it is busy designing a
Constitution for a country I do not recognize.1
INTRODUCTION
Justice Antonin Scalia's sudden death in February, 2016, was a great
loss for his family, a great loss for his friends, and a great loss for the
"Written Constitution" of the United States of America.2 We will have no
more of his brilliant, witty, and pugnacious judicial opinions. Instead, we
will have to settle for the body of work he left behind as his legacy. But,
as one commentator has said, his opinions are "so consistent, so powerful,
and so penetrating in their devotion to the rule of law" 3-the real rule of
law, not the political decrees of judges creating the so-called "Living
Constitution" 4 "that one may take one or two almost at random and catch
a glimpse of the great patterns of his jurisprudence, as well as flashes of
his famous wit." 5 Scalia was the greatest Supreme Court Justice of his
generation, perhaps of all time.6 Professor Steven G. Calabresi, a former

* Sherman S. Welpton, Jr. Professor of Law, University of Nebraska College of Law.

1 Bd. of Cty. Comm'rs v. Umbehr, 518 U.S. 668, 688-89, 711 (1996) (Scalia, J.,
dissenting). This quote is so powerful that Judge Bork borrowed it as the title of his book,
ROBERT H. BORK ET AL., "A COUNTRY I DO NOT RECOGNIZE": THE LEGAL ASSAULT ON
AMERICAN VALUES (Robert H. Bork ed., 2005).
2 The phrase "Written Constitution" represents a major characteristic of the
originalist school of Constitutional thought: the application of a fixed meaning of the law of
the Constitution. DAVID A. STRAUSS, THE LIVING CONSTITUTION 3 (2010). The Written
Constitution contrasts the "Living Constitution," the idea that those applying the
Constitution must revise it to adapt "to new circumstances, without being formally
amended." Id.at 1.
3 Matthew J. Franck, Scalia's Last Opinions, NAT'L REV. (March 14, 2016),
https://www.nationalreview.com/nrd/articles/431866/scaliaslastopinions.
4 STRAUSS, supranote 2, at 2.
5 Franck, supra note 3.
6 Other commentators agree with the author's opinion. See, e.g., Symposium,
Antonin Scalia A Justice in Full, NAT'L REV. (Feb. 29, 2016),
http://www.nationalreview.com/article/432005/antonin-scalia-justice-full (statement by
 REGENT UNIVERSITY LA WREVIEW [Vol. 29:9

law clerk of Justice Scalia, recently said that "[Justice Scalia] is the most
important justice in American history-greater than former Chief Justice
John Marshall himself."' I will not dissent from Professor Calabresi's
opinion.
When Justice Scalia passed away, I lost the hero of my life in the law.
But he lives on in his written words, a body of work that was designed to
shape our understanding of the Constitution for generations yet to come.
8
I love the pugnacious poetry of his opinions, particularly of his dissents.
Margaret Talbot once referred to Justice Scalia's provocative style as "the
jurisprudential equivalent of smashing a guitar onstage." 9 And so it was.
Justice Scalia was once asked why he took such pains to use
memorable terms and provocative phrases in his Supreme Court opinions
(particularly in his dissents), and he said that he wrote them this way for

attorney and former FCC chairman Richard Wiley describing Scalia as "one of this nation's
all-time greatest justices").
7 Steven G. Calabresi, Scalia Towered over John Marshall, USA TODAY (Feb. 14,
2016), http://www.usatoday.com/story/opinion/2016/02/13/scalia-text-legacy-clerk-steven-
calabresi-column/80349810/; see also Steven G. Calabresi, The Unknown Achievements of
Justice Scalia, 39 HARV. J.L. & PUB. POL'Y 575, 575 (2016) ("Scalia was the greatest Justice
ever to sit on the Supreme Court .. ").
8 For example, Justice Scalia demonstrated a witty use of satire in PGA Tour, Inc.
v. Martin:
It has been rendered the solemn duty of the Supreme Court of the United States
...to decide What Is Golf. I am sure that the Framers of the Constitution, aware
of the 1457 edict of King James II of Scotland prohibiting golf because it
interfered with the practice of archery, fully expected that sooner or later the
paths of golf and government, the law and the links, would once again cross, and
that the judges of this august Court would some day have to wrestle with that
age-old jurisprudential question, for which their years of study in the law have
so well prepared them: Is someone riding around a golf course from shot to shot
really a golfer?
532 U.S. 661, 700 (2001) (Scalia, J., dissenting). His way with words is also on display, with
a much more serious tone, in the famous Establishment Clause case of Lee v. Weisman:
I find it a sufficient embarrassment that our Establishment Clause
jurisprudence regarding holiday displays.., has come to "requir[e] scrutiny more
commonly associated with interior decorators than with the judiciary." But
interior decorating is a rock-hard science compared to psychology practiced by
amateurs. A few citations of' [r]esearch in psychology" that have no particular
bearing upon the precise issue here ... cannot disguise the fact that the Court
has gone beyond the realm where judges know what they are doing. The Court's
argument that state officials have "coerced" students to take part in the
invocation and benediction at graduation ceremonies is, not to put too fine a point
on it, incoherent.
505 U.S. 577, 636 (1992) (Scalia, J., dissenting) (citations omitted) (quoting American Jewish
Congress v. Chicago, 827 F.2d 120, 129 (7th Cir. 1987) (Easterbrook, J., dissenting)).
9 Margaret Talbot, Supreme Confidence, NEW YORKER (Mar. 28, 2005),
http://www.newyorker.com/magazine/2005/03/28/supreme-confidence.
2016] JUSTICE SCALIA AND THE RULE OF LAW

law students. 10 If his dissents are provocative and memorable, they will
appear in law school casebooks, and if they are in the casebooks, they will
be read by law students who might well decide that his views about the
original meaning of the Written Constitution are persuasive. 11 This made
him a Justice who wrote in the spirit of a teacher or professor of
constitutional law, and in the long run, this pedagogical function will
likely stand as his most significant achievement.
Although some credibly believe that his greatest contributions to the
law are in the area of statutory construction and the merits of textualism
over legislative history, 12 for me, Justice Scalia's most important legacy is
his work on originalism versus the Living Constitution and his persuasive
conclusion that originalism is the "lesser evil." 13
Together with former Attorney General Edwin Meese III and the late,
great Judge Robert H. Bork, Justice Scalia was, in his own words, one of
"a small hearty minority who believe in a philosophy called originalism" 14
as an essential component of "a government of laws and not of men." 15 To
Justice Scalia, the text of the Written Constitution is law, and the duty of
the Court is to interpret the constitutional text based upon its original
meaning. 16 The so-called Living Constitution is not law but rather clay in
the hands of Justices who shape it to mean whatever they believe it "ought
to mean." 17

10 Jennifer Senior, In Conversation: Antonin Scalia, N.Y. MAG. (Oct. 6, 2013),

http://nymag.com/news/features/antonin-scalia-2013- 10/.
11 A few months before his death, Justice Scalia told students at St. Thomas School
of Law that he writes his dissents "for you guys." He continued: "IfI write it I know it will
be in the casebook, because the professors need something to talk about." His hope was that
by writing colorful dissents that are must reading, he may be able to persuade future
generations of law students about "what he believed to be true principles of law." Michael
Stokes Paulsen, Scalia at St. Thomas: Closing Arguments, PUB. DISCOURSE (Feb. 18, 2016),
http://www.thepublicdiscourse.com/2016/02/16501/.
12 See Robert Post, Justice for Scalia, N.Y. REV. OF BOOKS (June 11, 1998),
http://www.nybooks.com/articles/1998/06/1 1/justice-for-scalia/ (referencing a study on the
recent drop in Supreme Court cases that use statutory construction, and stating: "Scalia's
relentless campaign against the use of legislative history, and his refusal to join opinions
interpreting statutes by referring to that history, have been astonishingly effective.").
13 Antonin Scalia, Originalism: The Lesser Evil, 57 U. CINN. L. REV. 849, 862-63
(1989).
14 Talbot, supra note 9.
15 ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW

25 (1997).
16 See Howard Slugh, Antonin Scalia, the Forward-LookingJustice, NAT'L REV. (Feb.
23, 2016), http://www.nationareview.com/article/43 1795/antonin-scalia-originalism-why-
critics-are-wrong (explaining Scalia's belief that the Supreme Court must follow the
Constitution's original meaning to uphold the balance of power between our governmental
branches).
17 SCALIA, supra note 15, at 39.
 REGENT UNIVERSITY LA WREVIEW [Vol. 29:9

The purpose of this Article is to focus on the part of Justice Scalia's

incredible legacy that concerns the so-called "Great Debate" in
constitutional law between originalism and the Living Constitution. 18 1
will focus particularly on Justice Scalia's argument that the Living
Constitution is the greater evil because it substitutes the rule of unelected
judges for the rule of law.
Importantly, Scalia's vision of original understanding originalism is
not a vacuous call for total judicial disengagement. Rather, Scalia
believed, quite simply, that the Written Constitution "says what it says
and doesn't say what it doesn't say." 19 When the Constitution speaks, it is
the duty of the Court to practice judicial engagement and apply the
20
Constitution's precepts to decide cases governed by its original meaning.
When the Constitution is silent, however, it is the duty of the Court to
practice judicial restraint and permit Congress and state legislatures to
make laws within their respective powers. 21 In other words, the Court's
job is to apply the Constitution, not to write the Constitution.
This is the remarkable legacy left behind by a giant of the law. So,
saddle up your horses, and let's go for a ride down some of the paths
Justice Scalia has blazed.
I. JUSTICE SCALIA'S ORIGINAL MEANING ORIGINALISM vs. THE LIVING
CONSTITUTION
I have never heard of a law that attempted to restrict one's "right to
define" certain concepts; and if the passage calls into question the

18 See infra note 23.

19 In a 2014 speech entitled "Interpreting the Constitution: A View From the High
Court," Justice Scalia said this: "The Constitution is not a living organism. It's a legal
document, and it says what it says and doesn't say what it doesn't say." Justice Scalia:
'Constitution Is Not a Living Organism', Fox NEWS POLITICS (March 15, 2014),
http://www.foxnews.com/politics/20 14/03/15/justice-scalia-constitution-is-not-living-
organism.html; see also Antonin Scalia, Constitutional Interpretation, at 18:38, C-SPAN
(Mar. 14, 2005), https://www.c-span.org/video/?185883-1/constitutional-interpretation
&start-1073.
20 MICHAEL STOKES PAULSEN & LUKE PAULSEN, THE CONSTITUTION: AN
INTRODUCTION 26 (2015) ("The rights of the people are written down, and government is
bound to honor and enforce those rights in strict accordance with what was written. Actions
of government that infringe those rights are unconstitutional and illegal ... because the
words of the Constitution are supreme."); Slugh, supra note 16 (explaining Scalia's view on
the proper role of the Court, which is to interpret and discern the written text of the
Constitution and apply it).
21 Cf. Scalia, supra note 13, at 854 (describing how, if the Constitution did not have

a fixed meaning, then it should be left entirely to the legislature-rather than the courts-
to determine the content and meaning of the law through reference to modern social values).
2016] JUSTICE SCALIA AND THE RULE OF LAW

government's power to regulate actions based on one's self-defined

22
"concept of existence, etc.," it is the passage that ate the rule of law.

A. The Great Debate

The "Great Debate" in constitutional law 23-one that has raged for
over 200 years and recently came to a boil in Obergefell v. Hodges24-is
this: Should courts interpret the Written Constitution's text as it would
have been understood by ordinary citizens alive at the time the text was
adopted? Or, should they interpret the Constitution as a "living"
organism, one meant to evolve to suit the changing needs and values of
contemporary American society?
Originalists believe that if the Constitution must evolve to keep pace
with our constantly changing world, we should seek this change through
the legitimate amendment process of Article V.25 Simply put, amendments
should come from the people, not the Supreme Court.
Conversely, proponents of a Living Constitution believe that the
formal amendment process is too "cumbersome" to keep the Constitution
current because it is too difficult to amend the Constitution under the
process set forth in Article V, and that necessity, therefore, requires the
Supreme Court to amend the Constitution from the bench.26 For example,
if the duly-ratified Constitution does not give Congress sufficient power to
deal with a global economy and contemporary social issues such as same-

22 Lawrence v. Texas, 539 U.S. 558, 588 (2003) (Scalia, J., dissenting) (emphasis in
original).
23 I am referring to the great debate between Justice Chase and Justice Iredell that
took place in 1798 in Calder v. Bull, regarding the question of whether judges should impose
their own interpretation of natural justice when reviewing legislative enactments or simply
apply the fixed principles of the Constitution. Compare Calder v. Bull, 3 U.S. (3 Dall.) 386,
387-88 (1798) (opinion of Chase, J.) (arguing that judges have the right to impose their own
interpretation of natural justice), with id. at 398-99 (opinion of Iredell, J.) (arguing that
judges have no such right, and can only determine the validity of a law by judging whether
it is within the power delegated to the legislature by the Constitution).
24 Compare Obergefellv. Hodges, 135 U.S. 2584, 2598 (2015) (claiming that "[h]istory
and tradition guide and discipline" the inquiry of constitutional interpretation, "but do not
set its outer boundaries," and that the Constitution must be adapted to "new insight[s]" into
the meaning of liberty), with id. at 2624 (Roberts, C.J., dissenting) (stating that this
conception of the judiciary's role as a deliverer of social change is contrary to the Founder's
conception of the judiciary).
25 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 18 (5th ed.
2015). See generally U.S. CONST. art. V (delineating how the Constitution is to be amended).
26 See CHEMERINSKY, supra note 25, at 24 (stating that the "cumbersome amendment
process" makes it too difficult for we the people to amend the Constitution and thus judicial
amendments are "necessary if the Constitution is to meet the needs of a changing society").
David Strauss also argues that we need a Living Constitution created by the Court because
"the world has changed in incalculable ways" and "it is just not realistic to expect the
cumbersome amendment process to keep up with these changes." STRAUSS, supra note 2, at
1-2.
 REGENT UNIVERSITY LA WREVIEW [Vol. 29:9

sex marriage, then it is the duty of the Court to recognize that the
Constitution has somehow evolved to meet our ever-changing political
needs. 27 After all, why should contemporary Americans be encumbered
with the views and philosophies of long-dead white males who had no
understanding of the needs and values of America in 2016?28 And, as
Justice Brennan liked to say, there are so many "majestic generalities and
ennobling pronouncements" 29 in the Constitution-due process, equal
protection, privileges and immunities-and these "luminous and obscure"
terms make it so easy to interpret the Constitution to mean whatever the
Court wants it to mean while still claiming faithfulness to the written
text.30
B. Justice Scalia's Originalism
The Living Constitution is not the supreme law of the land. Rather,
"this Constitution," the Written Constitution as duly ratified by we the
people in the several states from time to time, is explicitly recognized in
Article VI as "the supreme Law of the Land." 31 Indeed, it was the existence
of a Written Constitution, as a "paramount" and "unchangeable" law that
binds and governs the courts, which allowed Chief Justice Marshall to
infer the power of judicial review in Marbury v. Madison.32 As Justice

27 CHEMERINSKY, supra note 25, at 24.

28 See Thomas E. Baker, Constitutional Theory in a Nutshell, 13 WM. & MARY BILL
RTS. J. 57, 73 (2004) (explaining how non-originalists reject "being ruled by dead white
men"). Of course, Supreme Court Justices do not live forever, and yet their opinions under
the Living Constitution "rule" us from the grave. For example, all of the Justices who decided
Roe v. Wade, 410 U.S. 113 (1973), are now dead. See ORIGINALISM: A QUARTER-CENTURY OF
DEBATE 310 (Steven G. Calabresi, ed., 2007) (noting that "Roe v. Wade represents the dead
hand of the past for us now").
29 Justice William J. Brennan, Jr., Speech to the Text and Teaching Symposium, in
ORIGINALISM: A QUARTER-CENTURY OF DEBATE, supra note 28, at 55, 56.
30 Id. In Justice Brennan's mind, the ambiguity of these majestic generalities "calls
forth interpretation, the interpretation of reader and text." Id. And for himself, as a modern
Justice reading the text of the Constitution, Brennan explained that "the ultimate question
must be: What do the words of the text mean in our time?" Id. at 61.
31 U.S. CONST. art. VI, cl. 2 (emphasis added). The full clause states:
This Constitution, and the Laws of the United States which shall be made in
pursuance thereof, and all Treaties made, or which shall be made, under the
authority of the United States, shall be the supreme Law of the Land; and the
judges in every State shall be bound thereby, any Thing in the Constitution or
laws of any State to the Contrary notwithstanding.
Id.
32 5 U.S. (1 Cranch) 137, 177-78 (1803). The Court in Marbury made clear that the
Constitution is a law of written rules for the government of judges interpreting it. Id. at 180
("Why does a judge swear to discharge his duties agreeably to the constitution of the United
States, if that constitution forms no rule for his government? if [sic] it is closed upon him and
cannot be inspected by him?").
2016] JUSTICE SCALIA AND THE RULE OF LAW

Scalia observed, Chief Justice Marshall's inference depended upon the

"perception that the Constitution, though it has an effect superior to other
laws, is in its nature that sort of 'law' that is the business of the courts-
an enactment that has a fixed meaning ascertainable through the usual
devices familiar to those learned in the law." 33 Indeed, if the Constitution
were not a fixed law but rather an open invitation to apply contemporary
meanings and values, "what reason would there be to believe that the
34
invitation was addressed to the courts rather than to the legislature?"
Thus, the Written Constitution governs the judiciary as well as Congress
and the President. Just as an act of Congress or an executive decision that
violates the Constitution is unconstitutional, a judicial ruling contrary to
the Constitution is also illegitimate and unconstitutional. 35
In an important book he co-authored with Bryan A. Garner, Justice
Scalia summarized his view of originalism as follows: "The Constitution is
a written instrument. As such its meaning does not alter. That which it
meant when adopted it means now."3 6 Thus, the Written Constitution is
not a living organism that changes, evolves, or is self-amending. It is the
product of a supermajority consensus among we the people of the several
states, and only becomes law when ratified by three-fourths of the states.3 7
In other words, the Constitution may only be changed when an
amendment is ratified by thirty-eight of the present fifty states.38 Since
the Supremacy Clause makes the Constitution the supreme law of the
land, binding Congress and all fifty state legislatures, the requirement of
ratification by a supermajority ensures that democratically enacted laws
will be invalidated only when there is strong consensus among the states
concerning the entrenchment of new national norms.3 9 This supermajority
consensus ensures that regional differences about basic values and
liberties are settled and compromised before new principles are

33 See Scalia, supra note 13, at 854.

34 Id.
35 See PAULSEN & PAULSEN, supra note 20, at 26 ("No branch of the federal
government-not the Congress, not the President, not even the Supreme Court-can
legitimately act in ways contrary to the words of the Constitution.").
36 ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
LEGAL TEXTS 81 (2012) (quoting South Carolina v. United States, 199 U.S. 437, 448 (1905)).
37 U.S. CONST. art. V.
38 Id. (stating that an amendment to the Constitution shall take effect only "when
ratified by the Legislatures of three fourths of the several States, or by Conventions in three
fourths thereof').
39 U.S. CONST. art. VI, cl. 2. See John U. McGinnis & Michael B. Rappaport, A
PragmaticDefense of Originalism,in ORIGINALISM: A QUARTER-CENTURY OF DEBATE, supra
note 28, at 164, 168 (explaining how a supermajority allows the enactment of laws based on
a significant consensus).
 REGENT UNIVERSITY LA WREVIEW [Vol. 29:9

entrenched in the Constitution. 40 This process helps citizens "transcend

their differences" and may even result in greater and more widespread
41
allegiance to the Constitution and the Court.
Justice Scalia once provided this pithy description of his approach to
interpreting the Constitution: "What I look for in the Constitution is
precisely what I look for in a statute: the original meaning of the text, not
what the original draftsmen intended." 42 In other words, it is the objective
meaning of the text that was ratified-not the subjective intentions of
those who drafted the text-that governs Justice Scalia's interpretation of
the Constitution. In his landmark majority opinion in Districtof Columbia
v. Heller,43 Justice Scalia was finally able to write his version of
originalism into law:
The Second Amendment provides: "A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed." In interpreting this text, we are
guided by the principle that "[t]he Constitution was written to be
understood by the voters; its words and phrases were used in their
normal and ordinary as distinguished from technical meaning." Normal
meaning may of course include an idiomatic meaning, but it excludes
secret or technical meanings that would not 44
have been known to
ordinary citizens in the founding generation.
The Heller opinion, using original meaning originalism to hold, for the
first time, that the Second Amendment creates "an individual right to
keep and bear arms," 4 5 is, perhaps, Scalia's greatest achievement. But it
is a 5-4 opinion 46 and may not long outlive him. 47 Thus, his lasting legacy
is likely to be his entire body of work that sets forth his defense of
originalism and his convincing critique of Living Constitutionalism.
C. Justice Scalia's Two Imperfect Librarians
Justice Scalia recognized that the choice between original meaning
originalism and Living Constitutionalism is a search for the lesser of two
evils, like being asked to choose between two librarians: one who speaks

40 See McGinnis & Rappaport, supra note 39, at 168 (explaining why a supermajority
consensus is important and what happens if the Supreme Court establishes national norms
rather than a substantial consensus).
41 Id.
42 SCALIA, supra note 15, at 38.
43 554 U.S. 570 (2008).
44 Id. at 576-77 (citations omitted) (quoting United States v. Sprague, 282 U.S. 716,
731 (1931)).
45 Id. at 595.
46 Id. at 572.
47 Justice GinsburgOnce Again Shares Her Intent to OverturnHeller, NRA-ILA, (July
15, 2016), https://www.nraila.org/articles/20160715/justice-ginsburg-once-again-shares-her-
intent-to-overturn-heller.
2016] JUSTICE SCALIA AND THE RULE OF LAW

too softly and one who speaks too loudly. 48 For example, he admitted that
the greatest defect of originalism "is the difficulty of applying it correctly
. . . [because] it is often exceedingly difficult to plumb the original
understanding of an ancient text."49 But that simply requires hard work
and serious research: something lawyers are well-equipped to do.1°
On the other hand, the greatest defect of the Living Constitution-its
total reliance on the subjective moral and philosophical preferences of
nine unelected lawyers who serve on the Supreme Court51-is its
incompatibility with the rule of law, "the very principle that legitimizes
judicial review of constitutionality."52 The Living Constitution, which
evolves to mean whatever the Supreme Court thinks it ought to mean at
53
any given time, is the rule of man, not the rule of law.
Proponents of the Living Constitution have no answer to the charge
of "judicial personalization of the law."54 As Judge Bork has said, "The
truth is that the judge who looks outside the Constitution always looks
inside himself and nowhere else." 55 Even when a judge purports to apply
contemporary moral principles or fundamental community values to
"discover" constitutional doctrine, the reality is that there are always
competing moral systems and values in society, and the judge will always
(or almost always) decide cases based upon his or her own moral

48 Scalia, supra note 13, at 863. Obviously, the librarian who speaks too softly,
although not perfect, is the lesser evil.
49 Id. at 856.
50 As Steven Calabresi has observed, we are literally "awash in pamphlets,
newspapers and books" from the Founding Era and "the most authoritative sources of all for
original meaning textualists-dictionaries and grammar books from the 1780s-abound, and
can easily be consulted." Steven G. Calabresi, Introduction to ORIGINALISM: A QUARTER-
CENTURY OF DEBATE, supra note 28, at 1, 11.
51 Scalia, supra note 13, at 852.
52 Id. at 854. Judicial review is based upon the idea that "the constitution is to be
considered, in court, as a paramount law." Id. (quoting Marbury v. Madison, 5 U.S. (1
Cranch.) 137, 177-78 (1803) (explaining how the Constitution is either foundational to our
law or simply another piece of legislation)). Judge Bork similarly says that Marshall's
justification for judicial review was based "on the ground that the Constitution is a written
document, that it is law, that it governs courts as well as legislatures, and that its principles
are those contemplated by the ratifiers and the framers who produced it." ROBERT H. BORK,
THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 28 (1990).
53 In his dissent in Obergefell v. Hodges, Justice Scalia explicitly accused the majority
of violating the rule of law by creating a constitutional right of same-sex marriage with
complete disregard for the Constitution's original meaning, declaring: "Today's decree says
that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the
nine lawyers on the Supreme Court." 135 S. Ct. 2584, 2627 (2015) (Scalia, J., dissenting).
54 Scalia, supra note 13, at 863.
55 Robert Bork, The Struggle Over the Role of the Court, NAT'L REV., Sept. 17, 1982,
at 1138.
 REGENT UNIVERSITY LA WREVIEW [Vol. 29:9

preferences and values.56 To me, as to Justice Scalia and Judge Bork, the
issue is a simple one: We can either have the rule of law or the Living
Constitution, but we cannot have both. The power of judicial review does
not give the Court the power to write or amend the Constitution but only
the power to apply the Written Constitution as ratified by the founding
society. 5 The Constitution is the work of we thepeople, not they the Court.
Like Justice Scalia's librarian who speaks too loudly, the Living
Constitution should be rejected because it is the greater evil. 58
D. Is a "Common Law" Constitution the Rule of Law or the Rule of Man?
Defenders of the Living Constitution sometimes try to argue that the
Living Constitution is consistent with the rule of law because it has
developed as a kind of common law system under which the "content" of
constitutional law "is determined by the evolutionary process that
produced it."59 It is evolution, not creation, and therefore the Supreme
Court does not act as a creator or a ruler but merely as a body of judges
presiding over this "evolutionary process through the development of a
body of precedents."60 Justice Scalia begged to disagree. He once described
the Living Constitution as:
[A] body of law that.., grows and changes from age to age, in order to
meet the needs of a changing society. And it is the judges who determine
those needs and "find" that changing law.... Yes, it is the common law
returned, but infinitely more powerful than what the old common law
ever pretended to be, for now it trumps even the statutes of democratic
6 1
legislatures.
This common law process, Justice Scalia persuasively argued, is
illegitimate because the "evolution" of constitutional law begins and ends
with Supreme Court decisions. "The starting point of the analysis will be
Supreme Court cases, and the new issue will presumptively be decided
according to the logic that those cases expressed, with no regard for how

56 Id.
57 See Scalia, supra note 13, at 854 (explaining that, if the meaning of the constitution
is not fixed, then there would be no reason why the judiciary should be entrusted with the
power to discern its meaning rather than the legislature).
58 Id. at 864. Originalism is the lesser evil, "the librarian who talks too softly,"
because it "establishes a historical criterion" for interpreting the Constitution "that is
conceptually quite separate from the preferences of the judge himself." Id.
59 STRAUSS, supranote 2, at 38.
60 Id.
61 SCALIA, supra note 15, at 38.
2016] JUSTICE SCALIA AND THE RULE OF LAW

far that logic, thus extended, has distanced us from the original text and
62
understanding."
Thus, a constitutional right to abortion may "evolve" like so: On day
one, the Court creates a new right for parents to direct the education and
upbringing of their children by choosing to send them to private rather
than public schools.6 3 On day two, the Court reasons that if parents have
a right to direct the education of their children, then surely they must also
have the right to decide whether to conceive children in the first place;
thus, first married couples,64 and then all individuals 6 5 have the right to
use contraceptives. Finally, on day three, the Court cites the Day One and
Day Two precedents as creating a "right of privacy" that "is broad enough
to encompass a woman's decision whether or not to terminate her
pregnancy."66 Like Tinker to Evers to Chance,67 the Court went from one
decision to another and yet another to create a right to abortion-on-
demand in a Constitution that says not one word about parental rights, or
contraception, or abortion, or privacy. 68
Moreover, this judge-made abortion amendment became part of
constitutional law without any ratification by we the people in the several
states. Indeed, one may well ask whether there was ever a time in
American history when the abortion right created by the Supreme Court
in Roe v. Wade could have been ratified by three-fourths of the several
states as required by Article V.69 It seems unimaginable that thirty-eight

62 Id. at 39. Moreover, if today's Court disagrees with yesterday's decisions, it "will

distinguish its precedents, or narrow them, or if all else fails overrule them, in order that
the Constitution might mean what it ought to mean." Id. (emphasis in original).
63 See Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923) (discussing the parents' right
to teach children a foreign language); see also Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-
35 (1925) (discussing parents' right to direct the education and upbringing of their children
by enrolling them in nonpublic schools).
64 Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (discussing the right of
married couples to use contraceptives).
65 Eisenstadt v. Baird, 405 U.S. 438, 452-53 (1972) (discussing the right of an
individual, whether married or single, to use contraceptives).
66 Roev. Wade, 410 U.S. 113, 152-53 (1973).
67 "Tinker to Evers to Chance" is a reference to a line from Baseball's Sad Lexicon, a
baseball poem written by Franklin Pierce Adams and referring to the 1910 Chicago Cubs
infield of shortstop Joe Tinker, second baseman Johnny Evers, and first baseman Frank
Chance. Thus, a double play on a ball hit to the shortstop would go from Tinker to Evers to
Chance. See Tom Singer, Power of Poem Immortalizes Cubs Trio, MLB.coM (2008),
http://m.mlb.com/news/article/3000452.
68 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 951-53 (1992) (Rehnquist,
C.J., concurring in part and dissenting in part) (citing Bowers v. Hardwick, 478 U.S. 186,
194 (1986)).
69 This was certainly not the case in 1973 when Roe v. Wade was decided; at that
time, all but four states had laws prohibiting abortions in most cases, and thirty-three states
prohibited it nearly entirely. Sarah Kliff, CHARTS: How Roe v. Wade Changed Abortion
 REGENT UNIVERSITY LA WREVIEW [Vol. 29:9

states would ratify an amendment proposing the Court's abortion

doctrine. And yet, all it took for such a right to be grafted on to the living
common law constitution was for the Court to decide that such a right
ought to exist. This is not the rule of law; it is "judicial despotism."7 0
Professor David A. Strauss believes that a common law approach to
changing the Constitution is legitimate because "the common law has
been around for centuries"71 and because it is better to be ruled by
contemporary legal elites than by "[t]he will of the people who lived so long
ago." 72 But the ancient common law of property, torts, and contracts that
first-year law students study in every law school in the country, unlike
the Living Constitution's judicial decrees amending the Written
Constitution, does not give courts the power to strike down acts of
Congress and the laws of all fifty states. 73 Ordinary common law rules can
be changed or even abolished by ordinary acts of legislatures. 7 I spend
half of my course in first-year property law teaching students about all
the common law rules that have been repealed or altered by state
legislatures. It is this legislative supremacy over judge-made law that
75
renders the ordinary common law compatible with the rule of law.
Judges make rules to decide cases that come before them, but the
legislature always has the last word. At the end of the day, free men and
women should prefer democratic self-governance by means of legislative
enactments over subjective rule by the decrees of an unelected body of
lawyers. The former is the rule of law; the latter is the rule of man.
E. "ConstitutionalLaw" vs. "This Constitution" The Latter is Supreme, the
Formeris Not
There is a crucial distinction between the Written Constitution and
what we call "constitutional law." 76 The Written Constitution of 1789, as

Rights, WASH. POST (Jan. 22, 2013),

https://www.washingtonpost.com/news/wonk/wp/2013/01/22/charts-how-roe-v-wade-
changed-abortion-rights/.
70 BORK, supra note 52, at 41.
71 STRAUSS, supra note 2, at 43.
72 Id. at 49.
73 Baker, supra note 28, at 66.
74 Mohamad v. Palestinian Authority, 132 S. Ct. 1702, 1709 (2012) (stating that
Congress "plainly can override [common law] principles").
75 See Daniel A. Farber, Statutory InterpretationandLegislative Supremacy, 78 GEO.
L.J. 281, 283 (1989) (explaining the subordinate role of judge-made common law to law duly
enacted by the legislature).
76 See Edwin Meese III, The Law of the Constitution, in ORIGINALISM: A QUARTER
CENTURY OF DEBATE, supra note 28, at 99, 101 (explaining that the distinction is necessary
to maintain a limited government).
2016] JUSTICE SCALIA AND THE RULE OF LAW

amended from time to time under Article V,77 is the real Constitution, the
one Article VI refers to when it declares that "[t]his Constitution ...shall
be the supreme Law of the Land." 78 In contrast, "constitutional law" is the
case law of the Supreme Court that is decided in the name of the
Constitution but often has little or nothing to do with the text or original
79
meaning of the Written Constitution.
When one looks at Supreme Court opinions decided under the Living
Constitution, it becomes apparent "that what the judges have done and
are continuing to do is to treat the document [the Written Constitution]
as having authorized courts to create a body of constitutional law related
only in the most general sense to the original understanding." 80 In other
words, Judge Richard A. Posner sees constitutional law as a body of law
8
which is "legislative in character, [with] the judges being the legislators." 1
As Judge Posner correctly observes, "[c]onstitutional law is the Supreme
Court's practice of forbidding whatever a majority of the Justices consider
egregious invasions of rights that those Justices think people in the
82
United States should have."
Speaking at the 2015 Loyola Constitutional Law Colloquium, 83 Judge
Posner explained his views about constitutional law under the Living
Constitution. Basically, he said that he is "not particularly interested" in
the "text of the Constitution" or in the history of the framing and
ratification of the Written Constitution.8 4 Remarkably, here are Judge
Posner's actual words as transcribed:
I'm not particularly interested in the 18th century, nor am I particularly
interested in the text of the Constitution. I don't believe that any
document drafted in the 18th century can guide our behavior today.
Because the people in the 18th century could not foresee any of the
problems of the 21st century .... I think we can forget about the 18th
century, much of the text. We ask with respect 85to contemporary
constitutional issues ... what is a sensible response.

77 U.S. CONST. art. V.

78 U.S. CONST. art. VI.
79 RICHARD A. POSNER, DIVERGENT PATHS: THE ACADEMY AND THE JUDICIARY 94
(2016) ("What is called 'constitutional law' is for the most part not in the Constitution
itself.").
80 Id. at 94-95.
81 Id. at 96.
82 Id. (emphasis added).
83 Hon. Richard A. Posner, U.S. Court of Appeals for the Seventh Circuit, Address at
the Loyola University Chicago School of Law Sixth Annual Constitutional Law Colloquium
(Nov. 7, 2015).
84 Josh Blackman, Judge Posner on Judging, Birthright Citizenship, and Precedent,
JOSH BLACKMAN'S BLOG (Nov. 6, 2015), http://joshblackman.com/blog/2015/11/06/judge-
posner-on-judging-birthright-citizenship-and-precedent/.
85 Id.
 REGENT UNIVERSITY LA WREVIEW [Vol. 29:9

Judge Posner went on to describe his personal, pragmatic approach, when

acting as a judge deciding constitutional issues:
I'm a pragmatist. I see judges as trying to improve things within certain
bounds. There are practical restrictions on the exercise of one's moral
views. There are specific laws that are deeply entrenched. Where the
judges are free, their aim, my aim, is to try to improve things. My
approach with judging cases is not to worry initially about doctrine,
precedent, and all that stuff, but instead, try to figure out, what is a
sensible solution to this problem, and then having found what I think is
a sensible solution, without worrying about doctrinal details, I ask "is
this blocked by some kind of authoritative precedent of the Supreme
Court"? If it 6is not blocked, I say fine, let's go with the common sense
8
... solution.
Having freed themselves from the text and original meaning of the
Written Constitution, non-originalists are free to write a Living
Constitution that requires everything they think is good and prohibits
everything they think is bad. Indeed, within weeks after Justice Scalia's
sudden death earlier this year, two prominent non-originalist scholars,
Dean Erwin Chemerinsky of UC Irvine School of Law and Professor Mark
V. Tushnet of Harvard Law School, began dreaming about what a liberal
Supreme Court could accomplish under the Living Constitution. Dean
Chemerinsky's wish list included decisions by a liberal Supreme Court:
* extending abortion rights;
* upholding affirmative action programs giving racial
preferences to minorities;
s
* overruling Citizens United v. FederalElection Commission
and its protection of corporate political speech;
* upholding broad "congressional power to regulate interstate
commerce and to tax and spend for the general welfare;"
* "returning to the view that the Second Amendment protects
only a right to have guns for the purpose of militia service;"
and
* using the Establishment Clause "to strike down religious
prayers at government functions, religious symbols on
government property, and government support for religious
88
schools."
Moreover, according to Dean Chemerinsky, "[t]he possibility of five or six
Democratic justices allows one to imagine"89 what other liberal policies

86 Id.
87 558U.S. 310, 319(2010).
88 Erwin Chemerinsky, What if the Supreme Court Were Liberal?, THE ATLANTIC
(Apr. 6, 2016), http://www.theatlantic.com/politics/archive/2016/04/what-if-the-supreme-
court-were-liberal/477018/.
89 Id.
2016] JUSTICE SCALIA AND THE RULE OF LAW

could be imposed on all 320 million Americans in the name of the Living
Constitution. Of course, one man's dream is another man's nightmare.
Professor Tushnet was even more extreme than Dean Chemerinsky.
Licking his lips at the prospect of a liberal Supreme Court, Professor
Tushnet blogged that it is now time for liberals to abandon "defensive-
crouch liberalism" and go on offense. 90 Believing mistakenly that liberal
control of the Court was in reach, Tushnet said liberal constitutionalists
should compile "lists of cases to be overruled at the first opportunity," to
take a "hard line" approach toward the losers in the LGBT culture wars
by denying them religious accommodations, and to always remember that
evolving constitutional doctrine "is a way to empower our allies and
weaken theirs." 91
The Living Constitution is a weapon of ideological war when wielded
by legal elites who view constitutional law as the means of imposing their
views of the good life on everyone else through the supreme law of the
land. Justice Scalia understood this, and it was his life's work to protect
we the people from being ruled by an unelected body of lawyers with the
power to shape the Constitution to mean whatever they want it to mean.92
The Written Constitution as originally understood is law; the Living
Constitution as decreed by 5-4 majorities of the Supreme Court is power.93
As to which is better, the choice should be a simple one.
II. JUSTICE SCALIA'S DEFENSE OF ORIGINALISM FROM ITS CRITICS
It certainly cannot be said that a constitution naturally suggests
changeability; to the contrary, its whole purpose is to prevent change-
to embed certain rights in such 94
a manner that future generations
cannot readily take them away.
Living constitutionalists attack originalism primarily on two fronts.
First, they argue that originalism produces a dead and inflexible
constitution, one that was created "hundreds of years ago by people who
are no longer alive." 95 In the words of Justice Scalia, the argument most
frequently made against originalism and "in favor of The Living
Constitution is a pragmatic one: Such an evolutionary approach is
necessary in order to provide the 'flexibility' that a changing society

90 Mark Tushnet, Abandoning Defensive Crouch Liberal Constitutionalism,

BALKINIZATION (May 6, 2016, 1:15 PM), http://balkin.blogspot.com/2016/05/abandoning-
defensive-crouch-liberal.html?m-0.
91 Id.
92 See supra Part I.B.
93 See Obergefell v.Hodges, 135 S. Ct. 2584, 2612 (2015) (Roberts, C.J., dissenting)
(declaring that "[t]he majority's decision is an act of will, not legal judgment.").
94 SCALIA, supra note 15, at 40.
95 STRAUSS, supra note 2, at 18.
 REGENT UNIVERSITY LA WREVIEW [Vol. 29:9

requires."96 Since the "cumbersome amendment process" makes it too

difficult for we the people alive today to amend the Constitution to keep it
up to date, "it is desirable to have the Constitution evolve by
interpretation and not only by amendment." 97
Second, living constitutionalists attack originalism because they
believe it will not allow the Court to reach results that they believe are
desirable. 98 They argue that under original meaning originalism the
Constitution would not protect abortion rights, same-sex marriage,
women's equality, or even racial equality and integration in public
schools. 99
The critics of originalism are wrong on both counts. The Written
Constitution may not be easy to amend, but it creates a republican system
of government that is designed to allow laws to be updated from time to
time to take account of changing times, new technologies, and the
contemporary policy preferences of we the people alive today. 100 Within
the scope of its enumerated powers-powers that, while limited, give it
broad and sweeping authority over interstate commerce, 101 taxing and
spending, 10 2 declaring war, 10 3 and the raising and support of armed
forces 104-Congress has the power to pass any law that is required to meet
the needs of changed times and circumstances. 105 Moreover, with respect
to issues beyond the enumerated powers of Congress, our system of
federalism allows the states reserved powers extending "to all the objects
which, in the ordinary course of affairs, concern the lives, liberties, and
properties of the people; and the internal order, improvement, and
prosperity of the State."106 Indeed, when the Court constitutionalizes an
issue committed to Congress or the States by the Written Constitution, it
deprives the people of the most fundamental liberty of all: the liberty to

96 SCALIA, supra note 15, at 41.

97 CHEMERINSKY, supra note 25, at 24.
98 See, e.g., STRAUSS, supra note 2, at 12-16 (discussing a number of holdings the
author claims are unsupportable by an originalist theory of interpretation).
99 See CHEMERINSKY, supra note 25, at 18, 24; STRAUSS, supra note 2, at 12-16
(discussing these specific outcomes the authors claim would not be constitutionally protected
using an originalist theory of interpretation).
100 See SCALIA & GARNER, supra note 36, at 410 (discussing the flexibility of changing
the Constitution via amendment or legislative action rather than by judicial activism).
101 U.S. CONST. art. I, § 8, cl. 3.
102 Id. art. I, § 8, cl. 1.
lO3 Id. art. I, § 8, cl. 11.
104 Id. art. I, § 8, cl. 12.
105 See PAULSEN & PAULSEN, supra note 20, at 43-48, 50.
106 THE FEDERALIST No. 45, at 292-93 (James Madison) (Clinton Rossiter ed., 1961).
2016] JUSTICE SCALIA AND THE RULE OF LAW

make laws through the cherished right of democratic self-government.101

As G.K. Chesterton once said, "What is the good of telling a community
that it has every liberty except the liberty to make laws? The liberty to
make laws is what constitutes a free people." 108 Chesterton's observation
has the ring of a deep truth. The right of democratic self-government is
what separates free men and women from serfs tugging their forelocks in
total obedience to the decrees of the great lords and ladies of the feudal
estate (or of the Supreme Court).
The original Constitution is not dead and inflexible; rather, it creates
a flexible and enduring system of democratic self-government. Justice
Scalia powerfully turned the tables on the Living Constitutionalists and
explained how originalism creates flexibility-not rigor mortis-and how
it is the Living Constitution that is inflexible:
[T]he notion that the advocates of the Living Constitution want to bring
us flexibility and openness to change is a fraud and a delusion. All one
needs for flexibility and change is a ballot box and a legislature. The
advocates of the Living Constitution want to bring us what
constitutions are designed to impart: rigidity and difficulty of change.
The originalists' Constitution produces a flexible and adaptable political
system. Do the people want the death penalty? The Constitution neither
requires nor forbids it, so they can impose or abolish it, as they wish.
And they can change their mind-abolishing it and then reinstituting
it when the incidence of murder increases. When, however, Living
Constitutionalists read a prohibition of the death penalty into the
Constitution ... all flexibility is at an end. It would thereafter be of no
use debating the merits of the death penalty, just as it is of no use
debating the merits of prohibiting abortion. The subject has simply been
eliminated from the arena of democratic choice. And that is not, we
emphasize, an accidental consequence of the Living Constitution: It is
the whole purpose that this fictitious construct is designed to serve.
Persuading five Justices is so much easier than persuading Congress or
50 state legislatures-and what the Justices enshrine in the

107 See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2626-27 (2015) (Scalia, J.,
dissenting) (discussing the problem of allowing the courts to decide issues that the
Constitution says should be left to the states or to Congress).
108 G.K. CHESTERTON, Mr. Bernard Shaw, in HERETICS 54, 61 (1905). Justice Scalia
made the same point, perhaps more colorfully, in his powerful dissent in the Court's recent
same-sex marriage decision: "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." Obergefell, 135 S. Ct.
at 2627 (Scalia, J., dissenting). See also Bork, supra note 55, at 1139 (making the same
point).
 REGENT UNIVERSITY LA WREVIEW [Vol. 29:9

Constitution lasts forever. In practice, the Living Constitution would

better be called the Dead Democracy. 109
The Living Constitution is not a one-way ratchet that only creates
new rights and freedoms. Rather, it is a make-it-up-as-you-go body of law
that gives and takes based upon the moral and policy preferences of five
members of the Supreme Court. 110 And when the Court speaks, the debate
is over and the decree of the Court is embedded forever (or until the Court
decides to overrule itself). As Justice Scalia has said, "the reality of the
matter is that, generally speaking, devotees of the Living Constitution do
not seek to facilitate social change but to prevent it.111 The Court's job is
to decree amendments to the Living Constitution, and the job of we the
people is to shut up and obey. 112
The idea of a Living Constitution being revised by the Court to keep
up with changing times is nothing more than a results-oriented theory of
interpretation. 113 Basically, Living Constitutionalists say that because it
is too difficult to amend the Constitution under Article V to reach
desirable contemporary results, then it is the duty of the Court to sit as
an ongoing constitutional convention with the power to both propose and
ratify constitutional revisions by a vote of at least 5-4.114 This is the law of
rulers, not the rule of law, and no results, no matter how desirable, are

109 SCALIA & GARNER, supra note 36, at 410; see also SCALIA, supra note 15, at 41-42
(discussing how judicial decisions can actually reduce, rather than increase, constitutional
flexibility).
110 See SCALIA, supra note 15, at 43 ("[T]he record of history refutes the proposition
that the evolving Constitution will invariably enlarge individual rights.").
"I Id. at 42.
112 Consider the infamous "we-rule-you-shut-up-and-obey" passage on the abortion
liberty from the plurality opinion of Planned Parenthoodof Southeastern Pennsylvania v.
Casey (delivered by Justices O'Connor, Kennedy, and Souter):
Where, in the performance of its judicial duties, the Court decides a case in such
a way as to resolve the sort of intensely divisive controversy reflected in Roe and
those rare, comparable cases, its decision has a dimension that the resolution of
the normal case does not carry. It is the dimension present whenever the Court's
interpretation of the Constitution calls the contending sides of a national
controversy to end their nationaldivision by accepting a common mandate rooted
in the Constitution.
505 U.S. 833, 866-67 (1992) (plurality opinion) (emphasis added). Of course, the national
division over the abortion issue is based upon the fact that the Court's abortion jurisprudence
is not rooted in the Constitution, but rather is the product of the Court's subjective policy
preferences about abortion versus the right to life.
113 See David E. Pozen, ConstitutionalBad Faith, 129 HARV. L. REV. 885, 943-44
(2016) (explaining the problem with results-oriented interpretation of the Constitution, but
suggesting that it cannot be avoided).
114 See CHEMERINSKY, supra note 25, at 24 (discussing the need for non-originalist
revision of constitutional provisions due to the difficulty of the amendment process).
2016] JUSTICE SCALIA AND THE RULE OF LAW

worth taking the Constitution away from we the people to whom the
Constitution belongs.
Living constitutionalists also use another kind of results-based
justification for allowing the Court to revise the Constitution. Non-
originalists reject originalism based upon "the old canard that originalism
cannot justify Brown v. Board of Education,115 which struck down
segregation in schools, or Loving v. Virginia,116 which struck down anti-
miscegenation laws." 117Not only is this wrong, but the opposite is actually
true. Originalism not only supports the racial equality rulings in Brown
and Loving,118 but only originalism can avoid holdings like that in Plessy
v. Ferguson,119 which upheld racial segregation in public transportation
120
and created the Orwellian notion of "separate but equal."
2
For example, in the Slaughter-House Cases,1 1in which the Supreme
Court first considered the meaning of the Civil War Amendments (the
Thirteenth, Fourteenth, and Fifteenth Amendments), the Court carefully
considered "the history of the times"1 22 and concluded that "the one
pervading purpose" 123 of the Civil War Amendments was "the freedom of
the slave race, the security and firm establishment of that freedom, and
the protection of the newly-made freeman and citizen from the
oppressions of those who had formerly exercised unlimited dominion over
him."124 Thus, the original meaning of the equal protection explicitly
guaranteed by the Fourteenth Amendment is to strike down "any action
of a State" resulting in "discrimination against the negroes as a class, or
on account of their race."125 Thus, any state action involving racial
discrimination or racial segregation, whether in public transportation, or

347 U.S. 483, 495 (1954).

115
388 U.S. 1, 12 (1967).
116
117 ORIGINALISM: A QUARTER-CENTURY OF DEBATE, supra note 28, at 34.
118 See SCALIA & GARNER, supra note 36, at 87-88 (discussing how the Court did not
need to rely on the changing times in its reasoning because the original meaning of the
Thirteenth and Fourteenth Amendments supports the holding in Brown v. Board of
Education).
119 163 U.S. 537, 544 (1896).
120 Id. at 552 (Harlan J., dissenting).
121 83 U.S. (16 Wall.) 36, 66-67 (1873); id. at 125, 128 (Swayne J., dissenting)
(indicating that the Thirteenth, Fourteenth, and Fifteenth Amendments were products of
the Civil War).
122 Id. at 67 (majority opinion).
123 Id. at 71.
124 Id.
125 Id.
at 81 ("The existence of laws in the States where the newly emancipated
negroes resided, which discriminated with gross injustice and hardship against them as a
class, was the evil to be remedied by this [equal protection] clause, and by it such laws are
forbidden.").
 REGENT UNIVERSITY LA WREVIEW [Vol. 29:9

public schools, or marriage, violates the original meaning of the

126
Fourteenth Amendment.
Of course, some results that liberal elites love, such as the Court-
created right to abortion-on-demand and the judicial re-definition of
marriage to include same-sex couples, are based upon non-originalist
reasoning. Originalism could never have reached these results. 127 Indeed,
much of the attraction of the Living Constitution to legal elites and their
allies is that it allows them to constitutionalize their moral and policy
preferences.128 If you like abortion and same-sex marriage, they are
constitutionally protected even though the Written Constitution says
nothing about abortion, or privacy, or marriage, or sexuality. 129 If you don't
like the right to bear arms or property rights, they are not protected even
though the Written Constitution explicitly covers them. 130 The
Constitution can be whatever Living Constitutionalists want it to be. But
be careful, because a constitution of clay that can be molded into the shape
of your happiest dreams of the good life can just as easily morph into the
form of your worst nightmares of dystopia.
The subjectivity of the Living Constitution and the oligarchic powers
it gives to an unelected legal elite are, for me, the conclusive argument for
rejecting this dangerous theory. Or, to put it differently: "The conclusive
argument in favor of originalism is a simple one: It is the only objective
standard of interpretation even competing for acceptance." 131
The original Written Constitution creates a flexible system of
government with the capacity of passing laws necessary to meet the needs
and challenges of contemporary America while at the same time

126 See, e.g., BORK, supra note 52, at 74-76 (discussing how the original understanding
of the equal protection clause supports the holdings in desegregation cases); SCALIA &
GARNER, supra note 36, at 87-88 (discussing how the original meaning of the Fourteenth
Amendment supports the desegregation of schools and how reliance on changing times is not
necessary to support such a holding); Michael W. McConnell, Originalism and the
Desegregation Decisions, 81 VA. L. REV. 947, 960-61, 1140 (1995) (discussing the strong
support of the desegregation cases by the original meaning of the Fourteenth Amendment).
127 See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2627-28 (2015) (Scalia, J.,
dissenting) (discussing how the original meaning of the Fourteenth Amendment could not
have supported a conclusion that a prohibition of same-sex marriages is unconstitutional).
128 See supra Part I.C.; see also STRAUSS, supra note 2, at 37-39 (summarizing the
originalist argument that going beyond the intent and original understanding of a law
inherently requires personal preferences, and discussing the value of individual judges'
notions of fairness and beliefs of what social policy should be).
129 See Obergefell, 135 S. Ct. at 2640-41 (Alito, J., dissenting) (discussing the

Constitution's silence as to same-sex marriage and the majority's opinion that it is a

constitutionally protected right nonetheless).
130 See U.S. CONST. amends. II, V (guaranteeing the right to bear arms and protecting
private property).
131 SCALIA & GARNER, supra note 36, at 89.
2016] JUSTICE SCALIA AND THE RULE OF LAW

embedding certain liberties deemed essential by a consensus of we the

people in the several states who ratified them. 132 If the rule of law means
anything, it means that changes in the Constitution should come from a
strong consensus of the people acting pursuant to Article V, and not from
a 5-4 majority of the Supreme Court acting in accordance with its
subjective beliefs about what the Constitution ought to be. 133 The
Constitution says what it says and it doesn't say what it doesn't say. Those
are the only results permitted by the rule of law. Justice Scalia believed
that originalism was a lesser evil because it rejects the rule of man in favor
of the rule of law. 134 And that is where I stand as well.
III. JUSTICE SCALIA'S DISSENT IN OBERGEFELLAND THE RULE OF LAW:
"JUST WHO DO WE THINK WE ARE?" 135

Recently, Justice Kennedy spoke at Harvard Law School and, in

answer to a question from an audience member, said that under the rule
of law a public official who cannot in good conscience obey a Supreme
Court decision, such as its same-sex marriage decree in Obergefell, must
either enforce the law or resign from public office.1 36 This exchange was
obviously a reference to Kim Davis, the Kentucky county clerk recently
jailed for refusing to issue marriage licenses to same-sex couples in
violation of a federal court order requiring her to do so. 137
Rather than focus on Kim Davis and her disobedience of the Court's
decree in Obergefell, I want to ask a different question. Is Justice
Kennedy's opinion in Obergefell a legitimate exercise of the rule of law? In

132 See id. at 410 (discussing the flexibility of the legislative process).
133 See, e.g., Obergefell, 135 S. Ct. at 2622-23 (Roberts, C.J., dissenting) (discussing
how the rule of law should be rooted in the objective security of formalism rather than the
subjective personal beliefs of a majority of the Court).
134 SCALIA, supra note 15, at 25.
135 Obergefell, 135 S. Ct at 2612 (Roberts, C.J., dissenting). Justice Scalia joined this
opinion "in full." Id. at 2626 (Scalia, J., dissenting).
136 HarvardLawSchool, Supreme Court Associate Justice Anthony Kennedy Visits
HLS, at 50:42, YouTUBE (Oct. 26, 2015), https://www.youtube.com/watch?v
-ZHbMPnA5n0Q. Here is the transcript of Justice Kennedy's response:
Great respect, it seems to me, has to be given to people who resign rather than
do something they think is morally wrong in order to make a point. However, the
rule of law is that, as a public official, in the course of performing your legal
duties, you are bound to enforce the laws.
John Riley, Justice Kennedy: Public Officials Can't Ignore Supreme Court Rulings, METRO
WKLY. (Oct. 28, 2015), http://www.metroweekly.com/2015/10/justice-kennedy-public-
officials-cant-ignore-supreme-court-rulings/.
137 Alan Blinder & Tamar Lewin, Clerk in Kentucky Chooses Jail over Deal on Same-
Sex Marriage,N.Y. TIMES (Sept. 3, 2015), http://www.nytimes.com/2015/09/04/us/kim-davis-
same-sex-marriage.html.
 REGENT UNIVERSITY LA WREVIEW [Vol. 29:9

other words, is it a valid application of the Written Constitution, or is it

an illegitimate exercise of raw judicial power?
Obergefell, of course, held that same-sex couples have a fundamental
right to marry under the Due Process Clause of the Fourteenth
Amendment, and that therefore, "there is no lawful basis for a State to
refuse to recognize" same-sex marriages. 138 Of course, in Obergefell,
Justice Kennedy made absolutely no effort to root the right to same-sex
marriage in the original meaning of the Written Constitution. 139 Instead,
he relied on his "reasoned judgment" and a "new insight,"140 on his
"understanding of what freedom is and must become,"141 and on "a better
informed understanding of how constitutional imperatives define a liberty
that remains urgent in our own era." 142 Or, in the words of Chief Justice
Roberts, Justice Kennedy's Obergefell decree is based merely on his
personal belief "that the Due Process Clause gives same-sex couples a
fundamental right to marry because it will be good for them and for
society." 143
Justice Kennedy's majority opinion in Obergefell is not law; it is full
of moral philosophy and bad poetry, but not a speck of constitutional
law. 144 As both Chief Justice Roberts and Justice Scalia made clear in their
dissenting opinions, Justice Kennedy's "judicial policymaking . . . is
dangerous for the rule of law." 145 Or, in the words of Justice Scalia, Justice
Kennedy's opinion constitutes a "judicial Putsch," lacks "even a thin
veneer of law," and amounts to "a naked judicial claim to legislative ...
power.., fundamentally at odds with our system of government." 146
Although the Written Constitution is silent about homosexuality and
same-sex marriage, 147 it is not silent about which level of government is
entrusted with the power to define and regulate "all the objects, which, in
the ordinary course of affairs, concern the lives, liberties, and properties
of the people; and the internal order, improvement, and prosperity of the
State." 148 Under the Tenth Amendment, the power to define and regulate

138 Obergefell, 135 S. Ct. at 2607-08.

139 Id.at 2598.
140 Id.
141 Id. at 2603.
142 Id. at 2602.
143 Id. at 2616 (Roberts, C., dissenting). Or to put it another way, "The majority's
driving themes are that marriage is desirable and petitioners desire it." Id. at 2619 (Roberts,
C., dissenting).
144 Id. at 2611.
145 Id. at 2622.
146 Id. at 2628-29 (Scalia, J.,dissenting).
147 See id. at 2613 (Roberts, C.J., dissenting) (discussing the Constitution's silence as

to marriage in general).
148 THE FEDERALIST No. 45, at 292-93 (James Madison) (Clinton Rossiter ed., 1961).
2016] JUSTICE SCALIA AND THE RULE OF LAW

marriage is "reserved to the States respectively, or to the people."149

Indeed, even Justice Kennedy, in his opinion in U.S. v. Windsor,150
recognized that under the Constitution, "The whole subject of the domestic
relations of husband and wife, parent and child, belongs to the laws of the
States and not to the laws of the United States." Moreover, as Chief
Justice Roberts' principal dissent in Obergefell made absolutely clear:
"There is no dispute that every State at the founding-and every State
throughout our history until a dozen years ago-defined marriage in the
traditional, biologically rooted way . . . as the union of a man and a
woman." 151
Chief Justice Roberts and Justice Scalia, dissenting in Obergefell, did
not hesitate to declare the majority's decree in the case a clear violation of
the rule of law. Justice Scalia joined Chief Justice Roberts' dissent in
full. 152 He also wrote a separate dissent "to call attention to this Court's
threat to American democracy." 153 Chief Justice Roberts' dissent brought
the light, and Justice Scalia's dissent brought the thunder to Justice
Kennedy's non-originalist majority opinion in Obergefell. Here are just a
few of the points Chief Justice Roberts and Justice Scalia made:
* "[W]e have no longer a Constitution; we are under the
government of individual men, who for the time being have
power to declare what the Constitution is, according to their
own views of what it ought to mean." 154
* "If an unvarying social institution enduring over all of
recorded history cannot inhibit judicial policymaking, what
can?" 155
* "The majority's decision is an act of will, not legal
judgment." 156
* "Those who founded our country would not recognize the
majority's conception of the judicial role. They after all risked
their lives and fortunes for the precious right to govern
themselves. They would never have imagined yielding that
right on a question of social policy to unaccountable and
unelectedjudges .... The Court's accumulation of power does

149 U.S. CONST. amend. X.

150 133 S. Ct. 2675, 2691 (2013) (quoting In re Burrus, 136 U.S. 586, 593-594 (1890)).
151 Obergefell, 135 S. Ct. at 2614 (Roberts, C.J., dissenting).
152 Id. at 2626 (Scalia, J., dissenting).
153 Id.
154 Id. at 2617 (Roberts, C.J., dissenting) (quoting Dred Scott v. Sandfurd, 60 U.S. (19
How.) 393, 621 (1857) (Curtis, J., dissenting)).
155 Id. at 2622 (Roberts, C.J., dissenting).
156 Id. at 2612.
 REGENT UNIVERSITY LA WREVIEW [Vol. 29:9

not occur in a vacuum. It comes at the expense of the

157
people."
0 And finally, Justice Scalia leaves not a hint of doubt as to his
view that Obergefell is not a legitimate part of the rule of law:
"Today's decree says that my Ruler, and the Ruler of 320
million Americans coast-to-coast, is a majority of the nine
lawyers on the Supreme Court." 158
If "this" Written Constitution is not only law, but "the supreme Law
of the Land," as Article VI explicitly prescribes, 159 then Justice Kennedy's
lawless opinion in Obergefell does not follow the rule of law. As Chief
Justice Roberts said so well in his dissent, if you like the results in
Obergefell, by all means celebrate those results: "But do not celebrate the
Constitution. It had nothing to do with it." 160
If the Constitution had nothing to do with the doctrine of Obergefell,
then the rule of law had nothing to do with it either. Here is a way to think
about Obergefell and whether it is an activist, extra-constitutional
decision by the Supreme Court. Think about this: Was there ever a time
in American history when three-fourths of the States-thirty-eight of the
fifty states today-would have ratified a constitutional amendment
proposing to redefine marriage as decreed by the Court in Obergefell?
Remember, the Constitution is supposed to represent a consensus
among we the people in the states, not a national democratic vote or poll
and not the policy preferences of unelected judges. 161 So was there ever a
time in American history when three-fourths of the states would have
ratified a proposed constitutional amendment redefining marriage as
including same-sex marriage? 1789? 1868 (when the Fourteenth
Amendment was ratified)? 1920? 1973? 2015? Ever?
If your answer is "no, never," then that tells you something about
Obergefell and whether it is legitimate. How can same-sex marriage be a
legitimate constitutional right if we all agree it could never have been
ratified as a legitimate part of the Written Constitution?
Thus, perhaps it is Justice Kennedy, not Kim Davis, who is guilty of
violating the rule of law. And Justice Scalia is surely correct when he
concludes that the Living Constitution is a clear and present danger to the
precious right of we the people to democratic self-government in the
several states. 162 As Justice Scalia said in his last great dissent: "[T]o allow

157 Id. at 2624.

158 Id. at 2627 (Scalia, J., dissenting).
159 U.S. CONST. art. V.
160 Obergefell, 135 S. Ct. at 2626 (Roberts, C., dissenting).
161 See U.S. CONST. art. V (stating that the Constitution may only be amended by the
consent of three-fourths of the state legislatures).
162 Obergefell, 135 S. Ct. at 2626-27 (Scalia, J., dissenting).
2016] JUSTICE SCALIA AND THE RULE OF LAW

the policy question of same-sex marriage to be considered and resolved by

a select, patrician, highly unrepresentative panel of nine is to violate a
principle even more fundamental than no taxation without
6 3
representation: no social transformation without representation." 1
Justice Scalia should have dropped the microphone when he published
this truth about the threat of the Living Constitution to liberty and
democratic self-government. His voice on the Court will be missed more
than we can quantify.
CONCLUSION: JUSTICE SCALIA'S LEGACY

"When I'm dead and gone, I'll either be sublimely happy or terribly
unhappy." 164
When we talk about the passing of a great man, we ask: what was his
legacy? What did he leave behind? In the smash Broadway hip-hop
musical about the life and death of Alexander Hamilton, Hamilton: An
AmericanMusical, Hamilton, after being mortally wounded in a duel with
Aaron Burr, raps about his legacy:
Legacy. What is a legacy?
It's planting seeds in a garden you never
get to see.
I wrote some notes at the beginning of a song
someone will sing for me.
America, you great unfinished symphony, you
sent for me.
You let me make a difference.
A place where even orphan immigrants
165
can leave their fingerprints and rise up.
So, as we think about the legacy of Justice Scalia, what would the
song of his legacy sound like? Justice Scalia, of course, believed that the
Written Constitution should be interpreted based upon the original
understanding, the original public meaning, of the ratified text of the
Constitution, rather than a subjective and evolving meaning based upon
the moral and policy preferences of "nine unelected lawyers" who happen
to serve on the Supreme Court. 166 He wrote his opinions with powerful and

163 Id. at 2629.

164 Jennifer Senior, In Conversation: Antonin Scalia, N.Y. MAG. (Oct. 6, 2013),
http://nymag.com/news/features/antonin-scalia-2013-10/. Justice Scalia was referring to his
belief in the existence of both heaven and hell. Ms. Senior seemed surprised when he said
this and asked him whether he actually believed in heaven and hell, to which Scalia replied
"Oh, of course I do." Id.
165 LIN-MANUEL MIRANDA, The World Was Wide Enough, on HAMILTON: AN AMERICAN
MUSICAL (Atlantic Recording Corp. 2015). Hamilton is a work of artistic genius.
166 Obergefell, 135 S. Ct. at 2629 (Scalia, J., dissenting).
 REGENT UNIVERSITY LA WREVIEW [Vol. 29:9

provocative prose so that they would survive his time on earth and be read
by law students and law professors for generations to come. 167
Like Rafael Sabatini's delightful character, Scaramouche, Justice
Scalia "was born with a gift of laughter and a sense that the world was
mad." 16 8 He was the hero of my life in the law. Like Hamilton, Justice
Scalia left behind an enormous legacy of scholarship published in his
brilliant, pugnacious, and often bitingly humorous judicial opinions,
books, law review articles, and speeches. 169 He has slipped this mortal coil,
and his absence leaves a hole in constitutional law that may never be
filled. But I know where he is; he is in a place in which he is "sublimely
happy," one in which "justice roll[s] on like a river, [and] righteousness
like a never-failing stream!" 170

167 See supra notes 10-11 and accompanying text.

168 RAFAEL SABATINI, SCARAMOUCHE: A ROMANCE OF THE FRENCH REVOLUTION 1

(1976).
169 Compare Joyce 0. Appleby, Foreword to THE REVOLUTIONARY WRITINGS OF
ALEXANDER HAMILTON vii, viii-x (Richard B. Vernier, ed., 2008) (discussing the skill and
impact of Hamilton's writings), with notes 9-11 and accompanying text (discussing Justice
Scalia's lasting legacy, as evidenced by his writings).
170 Amos 5:24 (New International Version).