Antonin Scalia, Wise & Brilliant Christian Jurist

In addition to being an exceptional Supreme Court Justice, Antonin Scalia was a powerful Christian.  Newt Gingich, former Speaker of the House, and fellow Catholic writes in The Washington Times that Justice Scalia would often say to an audience:  “I  hope you have the courage to have your wisdom regarded as stupidity.”  He was not addressing young attorneys engaged in the ongoing battle to defend the Constitution with these words.  They were directed, not at fellow lawyers, but fellow Christians.

Scalia said to one such gathering of believers that surely those who adhere to the most traditional beliefs of the Christian faith are regarded in educated circles that we travel in as simple minded.  To make his case, he noted a recent story in The Washington Post that called Christian fundamentalists poorly educated and easily led.  But he urged that rather than retreat, Christians confront such contempt head-on, and be willing in the words of St. Paul, to be “fools for Christ.”  (I Cor. 4:10)

Of course, Scalia saw the obvious parallel to his day job on the Supreme Court.  Just as cultural elites look down on the Christian faithful as ignorant simpletons, so too our political elites look with scorn at “We the People” who believe in being faithful to the Constitution.  This is one of the reasons a brilliant man like Ted Cruz is so despised even by fellow Republicans in Washington.  He stands up for his faith and for his belief in the Nation as Founded.

Justice Scalia personified that those who believe in the Constitution are no fools.  He bested those who doubted the wisdom of the Founders with his arguments from the bench and in written opinion–sometimes especially when writing a dissent.  Along the way he became one of the most consequential defenders of the Constitution ever to sit on the Supreme Court.  He reduced arguments to one simple question for matters that came before the Supreme Court:  “Who decides?”

In answering the question, Justice Scalia employed originalism, a mode of constitutional analysis that interprets the Constitution according to the meaning of the text as it was understood at the time it was established.  Originalism thus rejects the notion that modern judges substitute their own views about the meaning of the Constitution. Instead he argued judges should be guided by the original meaning in their decision making.

Back in 1969 I took a graduate course in American Political Theory at the University of CO, Boulder, taught by a Dr. Wilson.  One evening he asked us why our Constitution was such a brilliant document.  We said such things as our Enlightened Founders brought with them the best thinking of freedom from Europe.  And that we were a wide open new nation where ideas on a free society could be practiced.   He said we were not wrong but that some thought God intervened and inspired our Founding Documents.  Being young we scoffed at this but I noticed Dr. Wilson was not smiling.  He said, “Young Gentlemen, the theory of divine directions makes as much sense as any other explanation I have heard for the brilliance of the Constitution that has stood the test of time.”   I rather think Antonin Scalia would agree with that.

Gingrich goes on to note Scalia’s dissent in Obergefell v. Hodges.  The Justice argued that when judges substitute their own thinking about the meaning of the Constitution:

“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.”

The ongoing struggle to protect the freedom of Americans to govern themselves was at the heart of Scalia’s approach to judging during his long tenure on the Supreme Court.  Self-governance is also at the heart of the choice to replace Scalia on the Court.

A constitutional conservative in the mold of Antonin Scalia sees the role of the judge as one of self-restraint, guided by the meaning of the Constitution as understood by the Founders.  Those guided by progressive legal theories do not consider themselves limited by the original meaning of the Constitution.  They believe the Constitution is a living document such that new realities require new laws.

Though Thomas Jefferson feared judicial tyranny, most of the Founding Fathers believed the Supreme Court to be the weakest branch which would be amply checked by the Legislative and Executive Branches.  But over the past 50 years the Supreme Court has become a permanent Constitutional Convention whereby the whims of five appointed judges have rewritten the meaning of the Constitution and assigned to themselves the last word in the American political process.

This is the type of Justice President Obama will appoint.  He has that right just as the U.S. Senate has a right to reject his nominee(s).  They are under no obligation to confirm the President’s choice.  But will they wait for a new President to decide?   Given the record of the Republican Senate so far, many of us are not sanguine.

Fortunately, the Republicans have a model to follow in this newest battle to protect self-government–Antonin Scalia himself who for 29 years showed us how to defend freedom.   Again and again he reminded us of the wisdom of the Constitution’s deference to the people and its system of checks and balances.

A number of years ago a Washington Redskins running back by the name of John Riggins was sitting at a banquet table with Supreme Court Justice, Sandra Day O’Connor  and her husband.   Riggins, in his cups and overflowing with advice, said, “Lighten up, Sandra baby.”  His manners were bad but his advice good for the majorities of five justices who have been kicking over our liberties.  Lighten up on us already.   It might be good for the GOP members of the U.S. Senate to remember this story as well and to stall until we have a new President in January 2017 who might give us a fifth Justice more like Antonin Scalia.  Barack Obama certainly will not.  God grant us such wisdom and the courage of a Justice Scalia once again.  Let us be willing to be fools for Christ’s sake.

Elutychus

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