Scalia Defended Democracy: Liberals Subvert It

“I write separately to call attention to this Court’s threat to American democracy,” wrote Justice Scalia in his dissent from last year’s Supreme Court decision, where five unelected judges imposed same-sex marriage on all 320 million citizens.

“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.”

Exactly.

“A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

Right again.

In fact, Justice Scalia was nearly always right. And what he called “originalism” is the only judicial philosophy that protects the American ideal that the people have the right to govern themselves.

“Well, there are many legitimate philosophies of judicial review,” you say.

Not if you believe in democracy, or a representative republic. Only originalism, which insists on interpreting the Constitution by its original meaning, protects democratic rule. The people spoke when they originally passed the Constitution. And they can speak again through the amendment process.

But when justices take it upon themselves to amend the Constitution from the bench, then “we the people” no longer govern ourselves. We are, instead, governed by unelected justices who bypass democracy to impose their will on the rest of us.

“Oh, but the Constitution is a ‘living’ document!” say the liberals.

If it is, then we have no Constitution at all. Why have a written Constitution if justices can interpret it anyway they want? Why have red lights if drivers are free at anytime to interpret them as green lights?

Actually, in one sense the Constitution is a living document, but not in the sense liberals advocate. The Constitution is “living” through the amendment process built into the document itself. It is not living through the whims of liberal justices.

“Ah, but the amendment process is too arduous,” you say.

It’s supposed to be arduous because changing the highest law of the land can have serious negative consequences. When the court unilaterally changes the Constitution, it not only subverts democracy, but it often moves important fences without considering why they were placed there in the first place. Their cavalier changing of abortion and marriage laws, for example, is killing or hurting millions of innocent children.

Moreover, the separation of powers created by our Constitution recognizes the fact that power tends to corrupt — another reason why no one branch should be able to unilaterally alter the law.

As Justice Scalia put it, “If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.”

“Oh Frank,” you say, “Scalia was so extreme. Why can’t we take a moderate interpretation of the text?”

Justice Scalia had a brilliant response to that as well: “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?”

You want it to mean something else? You can change the meaning, as Justice Scalia observed, by convincing your fellow citizens at the ballot box!

In fact, that’s how it’s been for most of our country’s history. To show you how much our country long-believed what Justice Scalia championed — that the people, not judges, are the legislators — consider the fact that even moral no-brainers, such as the right not be enslaved, and the rights of blacks and women to vote, were enshrined in the Constitution by the amendment process, not by judges legislating from the bench.

A hundred years ago, no judges thought that the Fourteenth Amendment granted women the right to vote. A Constitutional amendment had to be passed to recognize the right. Yet, today five justices think that the Fourteenth Amendment somehow grants a woman the right to marry another woman. (Newsflash: if the equal protection clause didn’t guarantee a woman the right to vote when it was passed, it certainly doesn’t guarantee her right to marry another woman today!)

If you’re for so-called same-sex marriage (really genderless marriage), you might like the result of that decision. But you should be very afraid of the process by which that result was achieved. For if justices can evolve the Constitution according to their own whims, one day they might declare that your rights have “evolved” in a direction you don’t like.

Consider the “right” to abortion invented in 1973. If you’re a liberal, is that “right” subject to “evolution”? What if a judge comes along one day and declares that the U.S. Constitution has “evolved” to guarantee the unborn a right to life. Would you accept that idea of constitutional evolution?

And what’s to stop liberal justices from unilaterally “evolving” the Bill of Rights, so your rights to free speech, religion, association, and to bear arms are diminished? The only way to stop them is to put more Justice Scalias on the court. Indeed, only originalist judges should be confirmed on the Court. After all, you don’t need to worry about losing your freedoms to a judge’s political preferences if he is an originalist because his political preferences have nothing to do with his job! On the other hand, liberals are not committed to the defending the Constitution; they are committed to inserting their own “reasoned judgment” into the Constitution. They don’t trust the people or the democratic process but subvert them through judicial activism.

A liberal Supreme Court is not only a threat to democracy; it’s a threat to stability. If we don’t respect the rule of law, we will slip further into a state of corruption and instability common in so many other countries, where people rule by intimidation and political paybacks rather than adherence to the law as written. To maintain America we must respect the process by which we make, interpret and apply law.

Antonin Scalia consistently did that, even ruling against his own policy preferences when the law demanded he do so. He was a witty, winsome, articulate and unwavering defender of the most American of ideals — that we have the right to govern ourselves.

Please pray for his family. And pray for our freedoms that have become less secure with his passing.

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12 replies
  1. Luke says:

    I liked Antonin Scalia. (I think we can genuinely like those we disagree with it, and can even like them when we think some of their views are pure applesauce and jiggery-pokery.)

    That said, I think his views of democracy seemed more absent when the majority ruled his way. Citizens United would be a case in point. It created a new right (unlimited independent spending on political issues by non-profit corporations) that no legislature had voted for.

    I (through interests I control) am now able to do something I was not, not because of a vote by the representatives of the people, but because of five lawyers in robes. One of those five lawyers was named Antonin Gregory Scalia. That’s an incontrovertible fact. Thanks lawyers!

    When it comes to the people, well… the people, by and large, disagree with this decision. A Bloomberg poll in September 2011 (less than half a year ago, found that 78% believed the decision should be overturned while just 17% categorized it as a good decision. How is that for democracy? (Polls shouldn’t dictate decisions, of course, but this seems a useful data point when discussing this defender of the people, and the decisions he made in lieu of the legislatures.)

    If legislatures are the ones to pass laws, not nine lawyers in robes, then Citizens United should not be a ruling. Voicing this “nine lawyers” complaint only when it disagrees with one’s policy or ideological preferences, that’s politics.

    I won’t miss Justice Scalia being on the court, but I will miss him as a man. My thoughts and prayers go out to his family in their time of grief.

    Thanks,

    Luke

    Reply
    • Frank Turek says:

      Luke, The legislatures that voted for the outcome in Citizens United were in the states that ratified the Bill of Rights. So if you want to change the outcome of Citizens United you need to amend the Constitution because the First Amendment guarantees a right to free speech. Taking polls is not the job of the court, which is exactly Scalia’s point.

      Reply
      • Luke says:

        Dr. Turek,

        Thanks for your answer.

        To me it seems that either 5 lawyers in robes can change the current laws of the nation, or they can’t (shouldn’t). If you have it both ways depending on the case, you can’t honestly make the argument that they can’t.

        You’re literally saying, “they shouldn’t except when they should”.

        (Just to let you know, I actually think Citizens United was the correct decision. I just can’t pretend that it wasn’t five lawyers changing the existing laws of the nation.)

        Let me ask an honest question, and I really hope you will answer:

        Do you really believe that when those crafting the Bill of Rights thought of “speech” they thought included in that political spending by corporations?

        Scalia made famous the “original meaning” theory of originalism. Do you honestly believe that “reasonable people” of the late 18th century,would have found the “ordinary meaning” of the word “speech” to include spending money?

        (Does anyone know if there are any dictionaries of the time that would support such an idea?)
        (Does anyone know if there was such a concept as a political donation in 1800? I can’t seem to find good information on this. It seems that it may have been as foreign a concept as self-tying shoes. People did spend money on getting votes — including George Washington — but they just spent their own. I’d love to know more about this, if anyone has knowledge.)

        I’m don’t mean to set that up as a loaded question, so feel free to clarify if needed.

        Thanks,

        Luke

        Reply
        • Frank Turek says:

          I actually don’t believe in Judicial review. The constitution does not give the Court that power. The Court took it for itself in Marbury vs. Madison. However, assuming they have that right, then yes, if someone or a group of someones (a corporation) wants to make his or their voice heard through money, then the First Amendment protects that right. Those that think otherwise can pass a Constitutional Amendment stating they don’t.

          Reply
          • Luke says:

            So to me, not believing in Judicial Review is a logical, honest position. Yay you!

            In defending Citizens, I think you answered a question different that the one I asked. My question was (and I really appreciate the interaction): do you think that a “reasonable person” in 1790 would take the “ordinary meaning” of the word “speech” and take it to mean spending money.

            I ask this because this was Justice Scalia’s test.

            Thanks,

            Luke

    • Frank Turek says:

      Hi Tom, The first link you put up there talks about politics being a soft science. But that was exactly Scalia’s point: being a judge shouldn’t be political. Once a judge becomes political, he risks becoming a legislator who subverts democracy.

      Reply
  2. Frank Turek says:

    Luke, I see no reason to believe that an ordinary person in 1791 would think that the first amendment prevented more wealthy people from spending more money to get their speech heard. The Constitution says that Congress can’t prohibit free speech. It doesn’t say that each person is guaranteed equal resources or ability to speak.

    Reply
    • toby says:

      Frank,

      Would this also apply to the second amendment? Would ordinary people back then with cannons and single shot guns agree with people privately owning militaristic weapons of mass casualty? If we took a literalist view of the constitution we could well be within our rights to demand that all citizens could only own single shot weapons because the original drafters of the constitution were thinking of the weapons of their time.

      Reply
  3. cathy says:

    What a great article Frank! What you wrote is very interesting. I wish I understood our government better. I recently heard somewhere that the balance of powers notion was erroneous. If my recent understanding is correct, the legislative branch is supposed to have more power than the supreme court. And all the three branches of power are really not supposed to be equally “balanced.”

    It seems out legislative branch is not doing its’ job in controlling the Supreme Court. And we the people are not doing our job of controlling our legislators. I guess controlling what needs controlling is easier said than done.

    Then somewhere I heard about vertical balance too. Maybe this is where state rights should be balanced with federal rights. I am not sure that the federal government, the Supreme Court included, should hold sway over the sovereign rights of the states. I guess our states are also kind of wishy-washy about asserting their rights.

    Yet our Tenth Amendment says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states are reserved to the states respectively, or to the people.

    You mentioned that the supreme court usurped a lot of power they weren’t originally supposed to have.
    Are there any powers reserved for the states that they haven’t usurped!!?

    Reply

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