- - Thursday, February 18, 2016

“I hope to impart to you the courage to have your wisdom regarded as stupidity.

For decades, Supreme CourtJustice Antonin Scalia shared some form of this message with countless audiences.

One might think that these words of encouragement were meant for the ears of young Federalist Society lawyers engaged in the ongoing battle to defend the Constitution.

But in fact, Justice Scalia directed these words not at fellow lawyers, but at fellow Christians.

Said Scalia at one such gathering, “surely those who adhere to all or most […] traditional Christian beliefs are regarded in the educated circles that you and I travel in as, well, simple-minded.”

As an example, he noted a recent story in the Washington Post that called Christian fundamentalists “poorly educated and easily led.”

Scalia urged that, rather than retreat, Christians confront such contempt head-on, and be willing, in the words of Saint Paul, to be seen as “fools” for their belief in God.

Scalia surely saw the obvious parallel to his day job. Just as our cultural elites look down on the Christian faithful as ignorant simpletons, so too our political elites look with scorn at Americans who believe we should remain faithful to the Constitution.

Justice Scalia proved beyond doubt that those who believe in the Constitution are no fools—and that when his opponents regarded the Founders’ wisdom as stupidity, they did so at their own peril. Time and again, he bested them in his arguments from the bench and in his written opinions, even—perhaps especially—when writing in dissent.

In the process, Scalia became one of the most consequential defenders of our constitutional order in the history of the Supreme Court.

Scalia usually had one simple question for constitutional matters that came before the Supreme Court: Who decides?

In determining the answer, he employed originalism, a mode of constitutional analysis that interprets the Constitution according to the meaning of the text as it was understood at the time it was established. Originalism rejects the idea of a judges substituting their own views about the meaning of the Constitution. Instead, he argued, judges should use the original meaning of the Constitution to guide them in their decision making.

In his recent dissenting opinion in Obergefell v. Hodges, Scalia succinctly stated the stakes involved when judges substitute their own views about the meaning of the Constitution:

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.

The ongoing struggle to protect the freedom of Americans to govern themselves was at the heart of Scalia’s approach to judging during his long tenure on the Supreme Court.

Self-governance is also at the heart of the choice to replace Scalia on the Court.

If you are a constitutional conservative in the mold of Antonin Scalia, you view the role of the judge as one of self-restraint. You are guided by the meaning of the Constitution as it was understood by the Founders. You defer to the political branches and to the people to make judgments about important matters the Constitution says nothing about. You do not pretend to know what is best for America in the abstract and you certainly don’t claim the power to create new law, even if it may be popular to do so.

If you are an adherent of progressive legal theories, you are guided in your rulings by what you see as best for the country. You do not consider yourself limited by the original meaning of the Constitution. You believe the Constitution is a “living” document, such that new realities may require new laws in the form of Supreme Court decisions “interpreting” the Constitution. You are limited only by what the constituency you are a part of thinks it can get away with politically and by the plausibility of your interpretive justification. Both limitations are rather low thresholds. Since one political party believes as you do, and the other party is supremely reluctant to take on the executive branch let alone the judicial branch, there is much to get away with.

Our founding fathers believed that the Supreme Court was the weakest branch and that the legislative and executive branches would have ample abilities to check a Supreme Court that exceeded its powers.

But this is not true today. Over the last half century, the Supreme Court has become a permanent constitutional convention in which the whims of five appointed judges have rewritten the meaning of the Constitution and assigned to themselves the last word in the American political process. Under this new all-powerful model of judicial supremacy, federal judges have been able to redefine the Constitution and the law unchecked by the other two co-equal branches of government.

If you are wondering why there is so much upheaval about the choice to replace Justice Scalia, it is because of the all powerful model of today’s Supreme Court.

In a Republic like ours based on the rule of law and the principle that we the people govern, rights like religious freedom and the right to bear arms should not hinge on who becomes the next justice. Until we bring the courts back under the Constitution, however, they very well might.

Fortunately, in this newest battle to protect self-government, we have a model to follow. For 29 years, Antonin Scalia showed us how to defend freedom. Again and again, he reminded us of the wisdom of the Constitution—its deference to the people, its system of checks and balances.

President Obama has every right to nominate a replacement for Justice Scalia, and surely he will. But the Senate has an equal Constitutional role to play—and perhaps a greater claim to representing the will of the people. The Senators are under no obligation to confirm the President’s choice, especially when they have good reason to expect that such a nominee would do harm to our system of government and the rule of law.

Vince Haley is vice president of special projects at Gingrich Productions.

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