The American Constitutionalist

The fourth was Professor Antonin Scalia — not Justice Scalia, or even Judge Scalia, but Professor Scalia. Still three years from his appointment by President Ronald Reagan to the federal court of appeals, and seven years from the Supreme Court, Scalia was even then, at age 43, a widely esteemed constitutional mind. A veteran of the Gerald Ford Justice Department, Scalia was spending his Carter administration exile at the University of Chicago and AEI.

In that debate, Nino Scalia displayed the wit and acumen that would one day secure his place among America’s greatest Supreme Court justices. Yet his most revealing comments spoke not to constitutional doctrine but, emphatically, to democratic constitutionalism. Arguing in favor of states convening a constitutional convention, Scalia rejected the notion that the Supreme Court should set ground rules for the process:

Then, turning rhetorically toward his fellow citizens, he urged them not to rely on the Court to singlehandedly erase the uncertainty and risks inherent in political and civic life. “It is foolish to sit, wringing one’s hands, wondering what the Supreme Court is going to tell us the Constitution requires on an issue such as this. And that is what we are condemned to do unless we can screw up our courage and say, Let’s throw the dice.”

In that one exchange, a generation ago, we find the spirit that animated Justice Scalia’s three decades on the Supreme Court. Though a constitutional scholar of unrivaled skill, his constitutionalism reflected a deeper view of republican self-government: that the Court, though powerful in its own proper sphere of action, was no deus ex machina for a democratic society. A nation that demands to be governed by the judiciary becomes a nation dominated by the judiciary — and, ultimately, degraded by it.

He would repeat this theme during his time on the Court, primarily in the dissenting opinions for which he will now be known, like Justice Oliver Wendell Holmes Jr. a century ago, as “the Great Dissenter.” In his last significant dissent, rejecting the five-justice majority’s creation of a constitutional right to same-sex marriage in Obergefell v. Hodges (2015), Scalia urged that “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.”

He could be even blunter. “The Court must be living in another world,” he wrote in 1996. “Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.”

But the irony in all of this is that the Great Dissenter may ultimately win a majority more significant than a nine-justice court. Antonin Scalia may well prevail in the great intellectual battle of his lifetime: to displace “living constitutionalism” as the predominant theory of constitutional law and to supplant it with the actual words of the Constitution, as understood by the generation that wrote and ratified it. And similarly, when adjudicating cases arising from federal statutes, to read and interpret the actual words of the laws passed by Congress, rather than divining some supposed “legislative intent.”

On those fundamental questions of law, democracy, and judicial power, Justice Scalia may gain decisive victories, leaving as his legacy an American constitutionalism that perhaps even he could not have hoped for, in that AEI debate, in 1979.

The success of Scalia’s promotion of “originalist” constitutionalism and “textualist” statutory interpretation is perhaps best evidenced by the fact that modern lawyers can hardly imagine the world that preceded it. When today even significant liberal legal thinkers such as Yale’s Jack Balkin attempt to recast liberal jurisprudence in originalist terms (hence Balkin’s Living Originalism), it may never occur to young lawyers that just a generation ago constitutional argument proceeded with little or no attention paid to the actual text of the Constitution.

But decades later, Scalia himself remembered. In the foreword to the Federalist Society’s triumphal Originalism: A Quarter-Century of Debate (2007), Scalia recalled that “twenty years ago, when I joined the Supreme Court, I was the only originalist among its numbers. By and large, counsel did not know I was an originalist — and indeed, probably did not know what an originalist was.” Instead of premising their arguments on the Constitution’s actual words, lawyers’ briefs and oral arguments “generally discussed only the most recent Supreme Court cases and policy considerations; not a word about what the text was thought to mean when the people adopted it.”

Today, by contrast, it would border on malpractice for lawyers to litigate a constitutional issue without focusing on the constitutional text, attempting to square their argument with the founding generation’s understanding of the provision at issue. In NFIB v. Sebelius (2012), when the Obama administration needed to defend Obamacare’s “individual mandate” as a lawful exercise of the federal government’s constitutional power “to regulate Commerce .  .  . among the several States,” the argument began with a quotation of those very words, and eventually went so far as to invoke Samuel Johnson’s 1773 Dictionary of the English Language for a sufficiently expansive definition of “regulate.”

Indeed, in District of Columbia v. Heller (2008), originalism’s high-water mark, both sides of the divided Court justified their interpretations of the Second Amendment primarily in originalist terms — not only the Scalia-penned majority opinion, which held that the Second Amendment protected an individual’s right to keep and bear arms, but also the dissent, penned by Justice John Paul Stevens, which argued that “when each word” of the Second Amendment “is given full effect,” the amendment protects only the right to keep and bear arms in conjunction with military service.

Scalia relied upon originalism because he believed it indispensable to preserving the legitimacy of the courts, a counter-majoritarian force in our otherwise democratic republic. The Constitution itself does not expressly provide for judicial review of the laws; rather, he wrote in a 1989 article, it is “reasonably implicit” because, as Chief Justice John Marshall wrote in Marbury v. Madison, “it is emphatically the province and duty of the judicial department to say what the law is,” and if a federal or state law conflicts with the “paramount” Constitution then the latter must prevail. “Central to that analysis,” Scalia observed, “is the perception that the Constitution” is “an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law.” In other words, we must treat the Constitution as law, with a meaning no more fungible than that of statutes and contracts.

The contrary struck Scalia (and now myriad other lawyers and citizens) as untenable: “If the Constitution were not that sort of a ‘law,’ but a novel invitation to apply current societal values, what reason would there be to believe that the invitation was addressed to the courts rather than to the legislature?”

Of course, originalism is “not without its warts,” as Scalia himself admitted in the same 1989 article. “Its greatest defect, in my view, is the difficulty of applying it correctly.”

Moreover, Scalia recognized, there are practical limits to originalism. To apply it unflinchingly in all cases would require the courts to displace many long-settled precedents and thus risk demolishing longstanding institutions. And so he was willing to temper originalism with stare decisis, the principle of judicial deference to precedent. At his confirmation hearing, he observed, “Government even at the Supreme Court level is a practical exercise,” and when prior judicial mistakes “are so woven into the fabric of law” that they become “too late to correct,” they may need to be left intact. And so, he further noted in A Matter of Interpretation (1997), “stare decisis is not part of my originalist philosophy,” but “a pragmatic exception to it.” Or, as he sometimes joked, “I’m an originalist and a textualist, not a nut.”

As with any other method of judicial interpretation of the Constitution and statutes, there is always the danger “that the judges will mistake their own predilections for the law,” he wrote in his 1989 article. But originalism, anchored expressly in what he saw to be the more objective criterion of historical proof, seemed less susceptible to such confusion than a nonoriginalism that “plays precisely to this weakness.”

That was the flaw that pervaded much of the Warren Court’s mid-20th-century jurisprudence, the liberal judicial activism that Scalia and his colleagues rose up against. When he wrote in his 1997 book that “judges are not .  .  . naturally appropriate expositors of the aspirations of a particular age,” he was speaking to that Court’s work and the generation of “living constitutionalists” that followed in its wake. Originalism arose as a “movement to curb the pretensions of the Warren Court and return the meaning of the Constitution to what it said,” he wrote in a 2013 remembrance of the late judge Robert Bork. To be sure, the modern Supreme Court continues to decide some of its most significant decisions with too much focus on a five-justice majority’s sense of the good and too little focus on the original meaning of the constitutional terms at issue. But such decisions are today seen more clearly for what they are, by their defenders and critics alike.

Originalism and textualism are the first of Scalia’s legacies. The second, no less important, is his dedication to reinforcing the Constitution’s separation of powers. This, too, was a rebuke to the constitutional mindset that preceded his.

For generations, progressives and liberals sought to minimize the separation of powers, concentrating power instead in a single arm of government, often in administrative agencies insufficiently constrained by Congress or even by the president. Frustrated by the inefficiency of constitutional checks and balances, the left preferred unilateral administrative power. Midcentury, when the left reembraced judicial authority, it was to enforce the Bill of Rights against state governments.

Scalia showed that both of those tendencies obscured the Constitution’s larger truth. “It is a mistake to think that the Bill of Rights is the defining, or even the most important, feature of American democracy,” he wrote in 2008. The Constitution’s structural features, its separation of powers and federalism, are the real guarantors of liberty— which is why so many foreign constitutions boast long lists of “rights,” yet fail to protect any of them. “Those who seek to protect individual liberty ignore threats to this constitutional structure at their peril.”

His structural focus is best exemplified in Morrison v. Olson (1988), where he alone dissented from the Court’s conclusion that the “independent counsel” statute did not violate the Constitution’s separation of powers, despite the fact that the IC was neither appointed by the president with the advice and consent of the Senate nor removable at will by the president, and despite the significant powers that the IC wielded.

Scalia recently called the Morrison dissent his “most impressive opinion,” and it surely is the first of his opinions that should be read by anyone interested in his work. After recounting the Constitution’s tripartite structure and the arguments pressed by Hamilton and Madison in favor of that structure, Scalia quoted Federalist 51, warning:

He then added, with characteristic style:

Scalia ended his Morrison dissent by rejecting the seven-justice majority’s approach, embracing instead the reasoning of another body of constitutional thinkers. “I prefer to rely upon the judgment of the wise men who constructed our system,” Scalia wrote, “and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that ‘[t]he executive Power shall be vested in a President of the United States.’ ”

Scalia’s faith in the founding generation and two centuries’ experience would soon be vindicated. By the time the independent counsel statute expired in 1999, none would say with a straight face that it was anything other than the constitutional disaster that Scalia said it would be.

The separation of powers undergirded another of Scalia’s major contributions: his reinvigoration of the doctrine of “standing.” In Lujan v. Defenders of Wildlife (1992), his opinion for the Court held that plaintiffs could not invoke the jurisdiction of federal courts without demonstrating that they had suffered a concrete “injury” caused by the defendant, for which the court could grant meaningful relief. This doctrine served to close the courthouse doors to lawsuits brought by activists seeking to use the courts to change federal law or policy even though they themselves had not been directly affected by it. And Scalia’s opinion rooted the doctrine in Article III of the Constitution, which gives federal courts jurisdiction only for certain “cases” and “controversies” — and more generally in “the Constitution’s central mechanism of separation of powers,” which “depends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts.”

A few years before Lujan, while Scalia was still a judge on the D.C. circuit, he spoke even more directly to the nature of standing as an “essential element” of the separation of powers. “The judicial doctrine of standing is a crucial and inseparable element of” the separation of powers “whose disregard will inevitably produce — as it has during the past few decades — an overjudicialization of the process of self-governance.” This was a crucial principle undergirding much of Scalia’s constitutional approach. Originalism and the separation of powers were not ends in themselves, but means to the end of constitutional self-government. Courts must sometimes be a counter-majoritarian force in American government, Scalia saw. Yet the “remedy” they supply for the “diseases most incident to Republican Government” must be a “Republican remedy,” in the words of The Federalist.

This was the point of his paean to self-government at the AEI discussion of constitutional conventions in 1979, and he reiterated it throughout his career, especially in the myriad cases in which he dissented from the Court’s decisions conjuring new rights in the name of the Fourteenth Amendment’s “due process” clause. To the extent that the Court departs from the amendment’s originally understood meaning, choosing instead to recognize constitutional rights in light of the judges’ own value judgments, the Court will ultimately undermine its own legitimacy. “The people know that their value judgments are quite as good as those taught in any law school — maybe better,” Scalia wrote in Planned Parenthood v. Casey (1992), dissenting from the Court’s reaffirmation of a constitutional right to abortion and scoffing at the Court’s pretension to settling the national abortion debate. “If, indeed, the ‘liberties’ protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours.”

He added one further thought of no small significance now, in the aftermath of his own passing: “Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.” That was the inevitable result of a “living constitution” jurisprudence in which values would become constitutionalized not by the people themselves but by the Court’s imposing its will on the people.

But Scalia also recognized that the task of balancing the court-centric rule of law with the republican self-government of Congress, the president, and the states was easier said than done, a point he made eloquently in a short 1983 preface in the Journal of Law & Politics:

And where no lines could be drawn, it might fall to Congress, the president, the states, and the people, not the courts, to resolve the tensions. This informs one of the more challenging aspects of his jurisprudence: those cases raising the very structural issues that he stressed, but which provided few or no bright-line rules and thus were less amenable to judicial decision.

Take for example the “nondelegation doctrine”: the notion that if Congress delegates broad power to an agency, with no “intelligible principle” guiding or limiting the agency’s exercise of discretion, then Congress has effectively delegated “legislative” power to that agency, legislative power that the Constitution vested in Congress and not the president or the departments. Scalia recognized the principle, but in cases like Whitman (a 2001 Clean Air Act case for which he wrote the Court’s unanimous opinion) and Mistretta (a 1989 sentencing guidelines case in which he dissented), Scalia resolved that this was a question that the Court simply was not equipped to answer: “But while the doctrine of unconstitutional delegation is unquestionably a fundamental element of our constitutional system, it is not an element readily enforceable by the courts.” Because “the limits of delegation ‘must be fixed according to common sense and the inherent necessities of the governmental co-ordination,’ ” he found it a constitutional question best left to Congress, not the courts.

The tensions between the rule of law and republican self-government are also evident in what may be his most challenging opinion, Employment Division v. Smith (1990). Writing for the Court that the First Amendment did not entitle people to smoke peyote for religious purposes in violation of an Oregon statute, Scalia warned that the challengers’ view of liberty, if taken to its logical end, would make democratic self-government impossible. “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ — permitting him, by virtue of his beliefs, ‘to become a law unto himself’ — contradicts both constitutional tradition and common sense.” The Court could draw no such line circumscribing democratic government so tightly; it would have to be drawn, if at all, by the legislatures. (Which Congress and many states did, with religious freedom restoration acts, such as the federal RFRA enforced by a majority of the Court, including Scalia, in the 2014 case Burwell v. Hobby Lobby.)

Such were the admitted limits of Scalia’s originalism. His counterparts on the left respected no such limits: “As one cynic has said,” Scalia once wrote in a thinly veiled reference to Justice William Brennan, “with five votes anything is possible.” But without a “solid textual anchor or an established social norm from which to derive the general rule,” even a five-justice majority is simply legislating — the emphatic province of the people in a democracy, not of the judiciary.

These limits were part of what made originalism, as Scalia put it, “the lesser evil.” Those words were not lightly chosen; rather, they reflected the bedrock underlying Scalia’s principles: his faith.

This is no small irony. Scalia often was criticized for importing his Catholic morality into Fourteenth Amendment cases regarding hot-button moral issues. This criticism was often made in the most superficial terms, and thus was easy for Scalia to rebut; judicial creation of a right to same-sex marriage contradicted his originalism no less than his Catholicism. But his superficial critics failed to grapple seriously with the true Catholic underpinnings of Scalia’s jurisprudence: first, St. Paul’s instruction to every Christian, including every judge, to “submit himself to the governing authorities, for there is no authority except that which God has established”; and second, the recognition that the city of man is not the city of God, and thus we must accept the fact that our institutions are necessarily imperfect.

Scalia explained the first point in 2002, in a widely read essay for First Things titled “God’s Justice and Ours.” There he explained why Catholic teaching on the death penalty’s morality had no bearing on his evaluation of its constitutionality. “The choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases.”

But Scalia explained the broader relationship between his faith, political principles, and legal methodology in a far less prominent essay published in 1987, in the Christian Legal Society Quarterly. There he stressed that, “in the last analysis, law is second best.” While we aspire to “a government of laws, not of man,” this is only “the most realistic of aspirations for a world that is not populated by angels.” And even with the best of aspirations, “government by men and women is, of necessity, an imperfect exercise.”

For that reason, Scalia did not pursue a notion of the law as earthly perfection; instead, he was comfortable with the imperfections of democracy within the broad limits set by the Constitution. And the Christian obligation to obey “lawful, civil authority” is “the first and most important Christian truth to be taught about the law, because it is a truth obscured in an age of democratic government.”

One hesitates to complain that Justice Antonin Scalia’s time came “too soon.” As columnist Ross Douthat reacted to the news, “we should all die full of years,” a father of 9 and grandfather of 36, “in our sleep after quail hunting.” But in one narrow respect Scalia’s time did come too soon, for it interrupted his late-career reconsideration of one of the cornerstones of his legal thought: the proper relationship between the courts and the administrative state.

This was one of the “tensions” between the rule of law and the will of the people to which he had alluded in his 1983 Journal of Law & Politics preface. For the vast majority of Scalia’s public career, he was a strong proponent of judicial deference to administrative agencies’ legal interpretations. And this was, by his own explanation, a response to both judicial micromanagement of administrative agencies by the 1970s courts and the broader micromanagement of democracy by the Supreme Court under Chief Justice Earl Warren.

In an important article published in the Duke Law Journal not long after he joined the Supreme Court, he argued that judges should defer to an agency’s interpretation of a statute when Congress had written the statute without a clearly stated intent on the legal question at issue, because Congress meant (actually or presumably) “to leave its resolution to the agency.” When Congress has left the matter to the agency’s discretion, “the only question of law presented to the courts is whether the agency has acted within the scope of its discretion — i.e., whether its resolution of the ambiguity is reasonable.” Better to have such matters decided by agencies that are democratically accountable (through the president) than by unelected judges.

In short, Scalia emphatically approved the doctrine of “Chevron deference,” as well as the related doctrine of “Auer deference,” by which the courts give even more deference to an agency’s interpretation of its own regulations. Throughout the 1990s and 2000s, through Republican and Democratic administrations alike, Scalia defended Chevron and Auer deference against virtually all challenges. Even as late as 2013’s City of Arlington v. FCC.

But in recent years, Scalia began to have a very public change of mind. Beginning with a concurring opinion in Talk America v. Michigan Bell Telephone (2011), Scalia criticized Auer deference because it effectively conceded the concentration of both lawmaking and law-interpreting powers in a single agency, in violation of the separation-of-powers principles underlying our Constitution.

And in recent months word began to spread quietly that Scalia was even reconsidering Chevron deference, admitting doubts about the doctrine that he more than anyone had defended throughout his career. News of such reconsiderations stunned proponents (including me) and critics alike.

But perhaps we should not have been so surprised. Looking back to his writings, including his pre-judicial writings, we see that Scalia’s evaluation of the proper relationship between agencies, courts, Congress, and the rule of law was, from the very beginning, a practically minded effort to resolve a “tension” between law and politics.

In his 1989 Duke Law Journal article, he observed that the “presumption” of Congress committing such legal questions to agencies rather than courts was just that — a “presumption.” True, he noted, it was “a more rational presumption today than it would have been thirty years ago — which explains the change in the law [in favor of judicial deference to agencies].” But implicit in that reasoning is the notion that this presumption might prove unsustainable if agencies ceased to concern themselves with treating Congress’s statutes as laws limiting their own discretion.

Perhaps Scalia decided that we had reached the point of unsustainability. Some of his last, best opinions hinted at it. In Utility Air Regulatory Group v. EPA (2014), striking down the EPA’s attempt to impose a permitting requirement on facilities emitting greenhouse gases, Scalia’s opinion for the Court announced that “we are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery. We reaffirm the core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” As administrative agencies (and the president overseeing them) grew ever bolder in their efforts to act in lieu of legislation, or even in defiance of longstanding laws, Scalia may have concluded that the balance between law and politics had been lost, and that courts needed to play a more vigorous role in holding agencies to the rule of law.

If Scalia were looking at striking a new practical balance between law and politics in administration, then the last years of his life brought him full circle. In the late 1970s and early 1980s, Professor Scalia edited and wrote for the American Enterprise Institute’s Regulation magazine, and in those pages he urged his fellow conservatives not to bind themselves thoughtlessly to past proposals for reforming the administrative agencies, especially when tectonic shifts in American politics, which had brought President Reagan to office, suddenly offered an opportunity to achieve structural reform through the executive branch itself.

In Regulation‘s January/February 1981 issue, for example, Professor Scalia urged conservatives not to race to impose on the new, deregulation-minded agencies the statutory restraints that they had long wanted to place on a regulation-minded administrative state, because such restraints would now thwart agencies’ new deregulatory efforts. “The game has changed,” he stressed, and those “who continue to support the unmodified proposals of the past as though the fundamental game had not been altered .  .  . will be scoring points for the other team.”

Or, as he warned in a similar 1982 essay on federalism, there may well be “an understandable tactical reason” for adopting a particular compromise between competing structural interests. “Unfortunately, a tactic employed for half a century tends to develop into a philosophy.” Scalia’s final years seemed focused on precisely such reevaluation, in light of the administrative state’s unprecedented new assertions of power and discretion.

‘I do believe that every era raises its own peculiar threat to constitutional democracy,” Scalia wrote for the Cato Journal in 1985. He came of age when “the distinctive threat of our times” was judicial enforcement of a so-called living constitution, with judges and activists using broad terms in the Bill of Rights and the Fourteenth Amendment to destroy the space that our Constitution left for republican self-government. And he feared that the result of such judicial domination would be the degradation of republican virtue itself, rendering the people incapable of self-government. If he did not succeed in defeating that threat singlehandedly in his own lifetime— and the Court’s recent decisions make it impossible to say that he did — then he at least gave future generations an example of how victory might someday be won.

Adam J. White is a visiting fellow at the Hoover Institution in Washington, D.C.