Scalia’s Death and the ‘Living Constitution’

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Scalia’s Death and the ‘Living Constitution’

For three decades, Justice Antonin Scalia was on a mission to rein in a runaway Supreme Court. What does his absence mean for America?
From the April 2016 Trumpet Print Edition

Immediately after the sudden death of Supreme Court Justice Antonin Scalia, furious debate began about which president should appoint his replacement—the incumbent, Barack Obama, or the next president of the United States.

On February 13, the day Scalia died, Republican presidential candidates argued in unison that the late judge’s replacement ought to be nominated next year by the next president. Considering the importance of this lifetime appointment, they argued, it would only be right for it to reflect the will of voters in the coming presidential election.

Besides that, there is widespread concern among conservatives that President Obama would turn the nine-member Supreme Court into a transformative institution by appointing a polar-opposite liberal, giving liberals a five-seat majority.

The truth, however, is that for three decades, Justice Scalia had been fighting a losing battle to rein in a Supreme Court that was already descending into judicial activism. Nevertheless, it is certain that whoever replaces him will lack his principled judicial approach. Scalia’s absence will accelerate America’s dangerous trend toward lawlessness.

The ‘Living Constitution’ Oxymoron

Justice Scalia was a staunch proponent of originalism. He made his rulings based on the original intent of the Constitution, rather than trying to interpret it to mean what he wanted it to mean. National Review called him “the reliable anchor of the Supreme Court’s originalist wing in an era of deep division and conflict with the ‘living Constitution’ approach to jurisprudence that holds down the other wing of the Court” (February 14).

The “living Constitution” approach is actually an effort to destroy the Constitution! It says that America’s founding legal charter no longer means what it meant when written—it is “living,” and thus changing to fit “the evolving standards of decency that mark the progress of a maturing society”—a common phrase in Eighth Amendment jurisprudence. Unfortunately, as Scalia lamented in an interview in 2009, “It’s up to the court to decide when it [the ‘living’ Constitution] morphs and how it morphs!” That philosophy, he explained, “has made enormous headway not only with lawyers and judges but even with John Q. Public.”

Thus judges, rather than rendering judgments according to what the law says, end up transforming and making law according to their own whims. As Robert Bork wrote in his book The Tempting of America, “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.”

Such application of the law promotes tyranny. It leads to exactly the kind of abuses of authority that America’s founders sought to prevent. The more the Constitution is cast aside, the less it protects Americans’ freedoms.

When the law is ignored and the rule of law is destroyed, the nation descends into a state like the nightmarish period of the judges in ancient Israel—when “every man did that which was right in his own eyes” (Judges 17:6; 21:25). The end results of that way of thinking are tragic (Proverbs 14:12; 16:25).

‘The Great Dissenter of Our Age’

Justice Scalia worked to prevent the Supreme Court’s descent into such thinking. However, often he found little success. He was reduced to writing eloquent explanations of the erroneous thinking of the court’s rulings in his minority, dissenting opinions. The National Review editorial board called Scalia “the Great Dissenter of our age.”

Perhaps the worst of the liberal rulings the court churned out was its endorsement of same-sex marriages in every state of the Union in June 2015. Five of the nine Supreme Court justices supported that ruling.

This is how Justice Anthony Kennedy explained the majority opinion: “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed” (emphasis added throughout). Kennedy believes the Constitution should be an ever changing, evolving document.

“Since the dawn of history,” Justice Kennedy continued, “marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government.” The majority opinion paraphrased Confucius, but it did not reference God!

In his dissent, which quoted Kennedy’s majority opinion, Justice Scalia wrote: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Scalia called the majority ruling “this Court’s threat to American democracy.” “This is a naked judicial claim to legislative—indeed, super-legislative—power,” he wrote; “a claim fundamentally at odds with our system of government. … A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy. … Today’s decree says that my ruler, and the ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the court’s claimed power to create ‘liberties’ that the Constitution and its amendments neglect to mention.”

That is an apt description of the feeble state of the rule of law in America! And now that Scalia is gone, judicial imperialism is sure to reach new heights.

Fundamental Transformation

In a press statement after Scalia’s death, President Obama said, “Justice Scalia dedicated his life to the cornerstone of our democracy: the rule of law.” His own words and actions, however, show that he himself takes a very different view of the law. Barack Obama has been an outspoken critic of the Constitution and has long desired to cast off its restraints.

In a 2001 public radio interview, then Sen. Barack Obama said the Constitution reflected the “fundamental flaw” of the United States. He characterized the supreme law of the land as “a charter of negative liberties. Says what the states can’t do to you. Says what the federal government can’t do to you, but doesn’t say what the federal government or state government must do on your behalf.”

There is a reason the Constitution focuses on what the government can’t do to you: because it aims to restrain despotism and to preserve freedom! That is its great strength, not its fundamental flaw!

When he became president, Mr. Obama promised his supporters a radical transformation of the U.S. By the end of his first term, some supporters felt the change he promised wasn’t coming fast enough. To them the president explained: “What’s frustrated people is that I have not been able to force Congress to implement every aspect of what I said in 2008. … Well, you know, it turns out that our founders designed a system that makes it more difficult to bring about change than I would like sometimes.”

You can be sure that another Obama Supreme Court appointee would make it easier for the president to bring about that desired change.

Just look at the president’s last appointee, Sonia Sotomayor. When he nominated her after the retirement of Justice David Souter in 2009, President Obama said he wanted to install a judge who exercises “empathy” for certain groups. He specifically said he’d like to see someone with a “heart” for the poor, someone who would judge according to the special needs of the downtrodden.

That may sound compassionate and wonderful. But when judges begin favoring one group over another in how they apply the law, that is not justice! It erodes the rule of law. There is a reason America’s founders established a justice system that honored the biblical instruction to “Judge not according to the appearance,” to “not respect persons in judgment” (John 7:24; Deuteronomy 1:17; 16:19; Proverbs 24:23; James 2:9). That kind of impartial justice—in which everyone is treated equally, regardless of rank, station, connections, race, wealth or poverty or anything else—is a great blessing, but mighty difficult to achieve and extremely rare in history! The story of man is full of judges and authorities who ruled according to their own whims rather than the laws on the books.

America has not followed the rule of law perfectly. But it has been the envy of other nations to the degree that it has. The president, however, views this as a liability and a flaw.

This lawless thinking was aptly expressed in Supreme Court Justice Ruth Bader Ginsberg’s comment to Egyptian reporters in 2012: “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012.” Egypt, she said, needed a more recent document to work from, like South Africa’s constitution, which guarantees citizens the rights to housing, education and health care.

At the time of Sotomayor’s nomination, economist Thomas Sowell wrote: “For more than a century, believers in bigger government have also been believers in having judges interpret the restraints of the Constitution out of existence. They called this ‘a living Constitution.’ It has in fact been a dying Constitution, as its restraining provisions have been ‘interpreted’ to mean less and less so that the federal government can do more and more” (National Review, May 8, 2009).

That fundamental transformation of the United States that the president promised is taking place before our eyes.

The United States Under Attack

Where is all this leading in this election year?

It remains to be seen whether President Obama will succeed in appointing a new justice. Even if he does not, the chances of the next president and Congress both being conservative and appointing and confirming a judge who respects the Constitution as Antonin Scalia did are practically nil.

Regardless of who Scalia’s replacement is, America is set on a path of lawlessness. Prophecies like 2 Timothy 3 inform us that the moral climate in America is going to get worse and worse.

Many people can recognize the radical changes taking place in America. President Obama is redefining, undermining and overthrowing the rule of law, and thereby transforming America in ways that few thought possible. However, few understand just how bad this trend is because they do not see the spiritualdimension behind it.

To understand this dimension, you need to read America Under Attack by my father, Trumpet editor in chief Gerald Flurry. In it, he notes the distress of many about the direction of America today. They can see the nation rapidly losing its moral character and its strength. But he explains that the situation today is even worse than most people realize!

There is an evil spirit at work whose activity is intensifying as the world approaches its final days. He is revealed in the Bible as Satan the devil.

“Can you detect this evil spiritual influence in our world today?” my father asks. “It is a real spiritual power, and it almost mesmerizes people with its lies! This points right back to Revelation 12:9 and the fact that Satan has unmatched powers of deception. It is all prophesied in your Bible!”

For reasons that booklet explains, the devil has his sights set on bringing down the number one superpower on Earth.

That destruction starts from within. It is what we are witnessing right now. According to the prophecies of the Bible, it will culminate in the worst period of destruction this world has ever seen: the Great Tribulation.

That is what we can expect to see happen in the United States of America, a nation now ruled not by law, but by men.

Rule of Law, or Rule of Men?

The torturing of America’s Constitution did not start with the death of Antonin Scalia.

In 2001, Trumpet editor in chief Gerald Flurry published a booklet called No Freedom Without Law. The second chapter, “Justice and Our ‘Evolving Constitution,’” says this: “Of course the Constitution is not perfect and needs a little fine tuning at times. But if we do more than that, we are tearing down the very foundation of our Republic! … [T]oo many of our people want an evolving Constitution and law. … [Our leaders] like an ‘evolving Constitution,’ which places more trust in human reasoning than law. It is a dangerous recipe for disaster. … Our people are being led into more and more lawlessness. Human nature hates law. Events tend toward catastrophe unless law keeps us in check. Our forefathers understood human nature and law far better than we do today. …

“The only perfect law is God’s. The framers of America’s Constitution founded much of that document on God’s law as they understood it. … Proper judgment must always include law. That is why it is so crucial that judges not change the righteous law or reject it.”

In 2009, Mr. Flurry said in a television program, “If we as a people don’t obey the rule of law, then we fall victim to the rule of man. This leads to the horrifying rule of brute force.”

When Justice Confirmation Turned Political

When Robert Bork was nominated to the Supreme Court by President Ronald Reagan in 1987, a firestorm erupted in Congress. In his book The Tempting of America, Bork described that clash over his nomination as “simply one battle in this long-running war for control of our legal culture.” He explained: “There may be legitimate differences about the nomination, but, in the larger war for control of the law, there are only two sides. Either the Constitution and statutes are law, which means that their principles are known and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win. Until recently, the American people were largely unaware of the struggle for dominance in law, because it was waged, in explicit form, only in law schools. Now it is coming into the open.”

Like Antonin Scalia, Bork was a strict constitutionalist. In 1982, the Senate confirmed Bork as an appellate judge. The American Bar Association gave him its highest rating: “exceptionally well qualified.”

Yet, within 45 minutes of his nomination to the Supreme Court, Sen. Ted Kennedy denounced him on national tv. Joe Biden, who chaired the Senate confirmation hearings for Bork, was highly critical of Bork’s nomination.

After three months, Bork’s nomination was rejected by the Senate’s Judiciary Committee. In a statement at the White House, Bork said: “In the 100 days since [my nomination], the country has witnessed an unprecedented event. The process of confirming justices for our nation’s highest court has been transformed in a way that should not and indeed must not be permitted to occur again. The tactics and techniques of national political campaigns have been unleashed on the process of confirming judges. That is not simply disturbing, it is dangerous. Federal judges are not appointed to decide cases according to the latest opinion polls. They are appointed to decide cases impartially according to law. But when judicial nominees are assessed and treated like political candidates, the effect will be to chill the climate in which judicial deliberations take place, to erode public confidence in the impartiality of courts and to endanger the independence of the judiciary. …

“In 200 years no nominee for justice has ever campaigned for that high office. None ever should, and I will not.”

The Alito Filibuster

Samuel Alito is another constitutionalist who almost received the Bork treatment. When President George Bush nominated him to the Supreme Court in 2005, the American Bar Association rated him “well qualified.”

But then Sen. Barack Obama denounced the nomination, saying he was “deeply troubled” when he examined “the philosophy, ideology and record of Samuel Alito.” He voted to filibuster Alito’s nomination because he believed Alito was “somebody who is contrary to core American values, not just liberal values.”

Senator Obama also said that Alito “believes in the overarching power of the president to engage in whatever the president deems to be appropriate policy.”

Yet, today it is President Obama who, as a 2012 panel of experts told the House Judiciary Committee, “has made a habit of bypassing or ignoring constitutional limitations on his power.”

When asked during a February 16 press conference about the 2006 filibuster of Judge Alito, President Obama responded, “Look, I think what’s fair to say is that how judicial nominations have evolved over time is not historically the fault of any single party. This has become just one more extension of politics. And there are times where folks are in the Senate and they’re thinking, as I just described, primarily about, is this going to cause me problems in a primary? Is this going to cause me problems with supporters of mine? And so people take strategic decisions. I understand that.” In other words, it’s just politics—regardless of constitutionality.

There is an active, deliberate effort to undermine the rule of law by removing America’s constitutionalists. Just as Isaiah 3:1-2 prophesy, “the judge” is disappearing from America along with other strong leaders.