A Constitutional Hero

News of the death of lawyer Ted Olson is received with great sadness here at the Sun, as, no doubt, in many other editorial rooms around the country. We had been in touch with him on and off for decades, in respect of a number of the most newsworthy cases in American constitutional law. He was without fail brilliant, illuminating, inspiring, and indulgent of us ink-stained scriveners trying to untangle the issues and principles — usually on deadline.In our case, this began when your editor was pulling an oar in the editorial galley of the Wall Street Journal and Olson was being pursued on some long forgotten matter by an independent counsel named Alexia Morrison. Olson believed an independent counsel was unconstitutional. The matter ended up at the Supreme Court, where, in 1988, Olson lost by a vote among the justices of seven to one. So the independent counsel was adjudged constitutional.Then a remarkable thing happened. The sole dissent on the case, by Justice Antonin Scalia, began to prosper in the national debate. The Great Scalia warned that the power of an independent counsel could rattle the “boldness of the president” himself — and also his aides. Sometimes danger comes in sheep’s clothing, Scalia wrote, but “this wolf comes as a wolf.” Congress saw that Olson was right and it let the independent counsel law elapse.Olson bore up inspiringly in the course of that case, in which the government eventually decided not to prosecute him. Olson himself would go on to serve as solicitor general, one of the greatest positions in American law. Not, though, before he represented Governor George W. Bush before the Supreme Court in the case in which Mr. Bush won the 2000 election in Florida and thus the presidency. It was one of the most controversial decisions in history.Most of those decisions gave Olson the status of a national hero in the conservative movement. Yet he will also be remembered for his role on the liberal side in another struggle, to have same-sex marriage vouchsafed a constitutional right. We came to disagree with him on the constitutional questions involved, but to admire him ever more greatly for the principled way in which he advanced the cause, which eventually triumphed.To be such a hero on both sides is a rare thing. Olson successfully pursued constitutional theories on behalf of his clients that restored federalism, protected free speech, and restored property rights. He was unafraid of controversial clients, like Jonathan Pollard. He managed to persuade scores of judges that the Constitution is our permanent guide. May he rest on a cloud with Madison and his cronies and smile at the justice they bestowed below.________Correction: Seven to one was the vote of the Supreme Court in Morrison v. Olson. The vote was given erroneously in the bulldog edition.

A Constitutional Hero

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