Scalia Made the Weather
The Supreme Court justice’s legacy is at risk
This article originally appeared in City Journal on March 8, 2016.
By John McGinnis
The English have a saying that certain politicians “make the weather,” by which they mean that they change the political climate and force others to react to their vision. Antonin Scalia made the weather on the Supreme Court of the United States for 30 years. Even in defeat, Scalia’s arguments for originalism in constitutional law and textualism in statutory interpretation were so powerfully stated that he forced others to respond. As a result, the Supreme Court today pays far more attention to originalism and textualism than it did when Scalia first came on the Court.
Scalia transformed the legal culture as well as the Court, assuring his influence for years to come. When I entered the academy a quarter of a century ago, originalism—the idea that the Constitution should be interpreted according to the meaning at the time of its enactment—was a marginal theory among professors. It was more mocked than analyzed. Today, originalism is the most discussed theory of constitutional interpretation. Law professors on the right overwhelmingly subscribe to it, but it has also gained adherents on the left. Scalia’s relentless insistence that the rule of law demanded originalism had a moral as well as analytic force. Just last month, a liberal law professor told me that—to his regret—his best and most serious students were attracted to originalism. The voice of Scalia will not be silenced as long as such students live.
Scalia’s jurisprudence was intertwined with the political philosophy of the president who appointed him. Ronald Reagan governed to promote free markets, federalism, and limited federal government. In the original meaning of the Constitution, the federal government’s domestic duty was to focus on making “commerce” regular, removing barriers to a continental free market, while leaving most other political authority to the states. The connections between the original meaning of the Constitution and Reagan’s political vision ran deep. The case for free markets and the case for constitutionally limited government flow from a similar view of human nature. At the time of the Framing, man was understood to be mostly self-interested. Yet the Framers were confident that institutions could harness individual self-interest for the greater good. Markets, for instance, transmuted that individual interest into a shared prosperity.
The Constitution did the same, pitting, in James Madison’s words, “ambition against ambition” in the political realm to make sure that the government was powerful enough to sustain contracts and defend property, but not so powerful as to become tyrannical and distort or suppress the market. The Constitution was thus a finely wrought Enlightenment device that harnessed the natural passions of man to preserve the social good. It also presupposed the capacity of men to bind themselves to a plan of governance that would do the harnessing. Hence Scalia’s great eloquence served the essential cause of ordering human affairs through language that was impartially parsed and understood. Our institutions are ultimately rooted in words. Scalia’s words preserved the discipline of words and thus our institutions.
Today, the ideal of limited government is under attack in both parties. A socialist has won several Democratic primaries and caucuses. The Republican front runner’s only real objection to big government is that he’s not running it. The possibility of objective rules and standards like those aspired to in our Constitution is under renewed attack on our university campuses. So is the free exchange of ideas. Scalia did great work, but his legacy will be preserved only if the republic can find new political champions of Enlightenment values who can make the case clearly, succinctly, and in fidelity to the Constitution’s original meaning. Originalists need again someone who can make the weather.