Scalia’s America
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

During the debates over the adoption of the Constitution, Alexander Hamilton attempted to quell the fears of New Yorkers with recent memories of the abuses of the English courts, writing that “Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.”
It hasn’t quite worked out that way. The most striking modification of the American political regime since World War II has been the rise of the judiciary and the decline of competing authorities. The family, the church, state, and local governments, and the United States Congress – all have either ceded power to the judiciary or had authority stripped by the judiciary.
Judicial activism, of course, is hardly a particularly recent or American invention. In 1625 Francis Bacon warned, “Judges ought to remember that their office is jus dicere, and not jus dare – to interpret law, and not to make, or give law.” But the judiciary is now so dominant that calling this ascendancy a “modification” of our political regime is a bit like saying that the French Revolution modified the status of the French nobility.
In other words, it only makes sense (as Supreme Court Justice Antonin Scalia put it in a different context) “because there is a figure of speech called understatement and a literary device known as sarcasm.”
You can find this quip, and many others, in “Scalia Dissents,” a lengthy compilation of high-court opinions compiled by Kevin A. Ring, former counsel to Sen. John Ashcroft. Understatement and sarcasm are two of the weapons wielded deftly by Justice Scalia, so that the opinions gathered in “Scalia Dissents” – unlike the overwhelming bulk of legal writing – are surprisingly enjoyable to read.
Justice Scalia’s humor, as well as his robust and sharp judicial prose, is a natural accompaniment to his favored judicial philosophy. Known as “originalism” or (in Justice Scalia’s formulation) “textualism,” this philosophy is keenly attuned to language, requiring that judges interpret and apply both statutes and the Constitution in accordance with the meanings they had at the time they were enacted.
This contrasts both with the judicial philosophy of “original intent” and the philosophy of the “living Constitution.” Original intent attempts to interpret legal texts according to the intentions of the legislators who approved them, often emphasizing the legislative history of the laws’ passages through Congress. In Justice Scalia’s view, this gives unwarranted legal force to the opinions of individual legislators.
“The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators,” Justice Scalia wrote in a 1993 concurring opinion in Conroy v. Aniskoff.
More familiar is Justice Scalia’s dissent from the “living Constitution” approach, that has justified the explosive growth of judicial power. Advocates of the living Constitution argue that the constitution needs to be read in light of “evolving standards.” Is there a Constitutional prohibition on the death penalty or a right to sodomy? Judges favoring the living Constitution approach have answered both these questions in the affirmative (although the death penalty decision was later overturned).
Rather than the living Constitution, Justice Scalia has joked that he prefers a “dead” Constitution. This is refreshingly contrarian but not quite accurate. Justice Scalia actually prefers a Constitution alive and responsive to “those judgments … made by the people, and not imposed by a governing caste that knows best,” as he wrote in Lawrence. Mr. Ring’s epilogue is titled “Scalia’s America”- a possible allusion to the outcome of a future Scalia-led Supreme Court and an intentional echo of the parade of horrors that Senator Edward Kennedy once claimed would arise in “Robert Bork’s America.” This recalls the widespread opinion that Justice Scalia owes his 1986 appointment to being nine years younger than Bork and therefore – in the grim reaper logic of lifetime tenor appointments – a more promising candidate.
What would Scalia’s America look like? Mr. Ring believes “freedom, democracy and diversity would flourish.” The judiciary would be the least dangerous branch promised by Hamilton. But Mr. Ring reminds us it is unlikely that we will achieve Scalia’s America in the justice’s lifetime. The powers the federal judiciary has accumulated over the years are not likely to be surrendered lightly. Indeed, the accomplishment of Scalia’s America is not the task of Justice Scalia.
Justice Scalia has noted, in opinions like McConnell v. Federal Election, that the “first instinct of power is the retention of power.” But he has provided us with what Mr. Ring describes as “an enormous intellectual foundation on which to build.”
Mr. Carney is a freelance writer in New York.