Antonin Scalia’s Flexible Constitution

Who is to decide?  This question animated Associate Justice Antonin Scalia, who died of natural causes in mid-February.  He was the longest-serving member of the current Supreme Court.  Nominated by Ronald Reagan in 1986, Scalia was known for his acerbic wit and fidelity to the text of the Constitution, as understood by those who ratified it.

When the Supreme Court deals with hot-button issues, politicians and pundits typically debate what the “right” policy result is.  For example, leading up to Obergefell v. Hodges (2015), commentators argued about the desirability of an expanded understanding of marriage.  Most asserted that if two people of the same sex declare their love for each other, then neither fundamental nor statutory law should stand in the way of the union.  Very few questioned whether the Supreme Court was the right body to decide the issue.  So long as the question is deemed important and some sort of constitutional claim can be pled, modern Americans assume that the final call belongs to nine unelected judges in Washington, D.C.  They cannot comprehend that the process that is followed is often more significant than the ultimate policy determination.

This type of thinking (or lack of thinking) vexed Justice Scalia.  “I am one of a small number of judges, small number of anybody—judges, professors, lawyers—who are...

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