I know all the partisan pundits that canvas the mainstream news outlets will disagree, but I do not believe Scalia’s death will change much. The courts have been part of the problem we face for a long time.
The federal courts have already been complicit in the radical expansion of judicial power far beyond the dreams of those who ratified the Constitution. Especially since 1937, the advance of legislative and executive authority has almost always been rubber-stamped by the federal judiciary, including this Supreme Court. What is else is left for the federal courts to sanction and rubber stamp?
This court has ruled that Congress can legislate on any subject as long as the populace is taxed for that purpose (see National Federation of of Independent Business v. Sebelius), that the federal government can restrict the growth and consumption of a plant within a state (see Gonzales v. Raich), that criminals who rape children have the constitutional right to evade execution (see Kennedy v. Louisiana), that the federal government can impose restrictions on firearms and munitions (see Heller v. Washington, DC), and that local governments can seize private property and distribute it to other private interests (see Kelo v. City of New London). Scalia was correct on two of these four matters according to the original Constitution as ratified, but all these decisions were reached while he was on the court nonetheless.
The only major thing this court successfully stood in the way of was Obama’s recess appointments while the senate was in session. On that, even the progressive judges agreed.
In the previous era, it has ruled that due process can be eradicated arbitrarily by the government and citizens of particular ancestry can be forced into internment camps (see Korematsu v. United States), that the federal government could restrict and confiscate the ability to hold gold and other bullion (see Gold Clause Cases), that the federal government maintained the authority to determine the constitutionality of state minimum wage laws (see West Coast Hotel Co. Parrish), that the federal government had constitutional authority to institute a department to resolve labor disputes (see Virginian Railway Co. v. Railway Employees), that the Due Process Clause of the 14th Amendment guaranteed the “right” to welfare benefits (see Goldberg v. Kelly), that public schools must conduct federally-structured hearings prior to subjecting a student to a suspension (see Gross v. Lopez), that states could not criminalize actions or define crimes on the grounds that someone’s due process and privacy rights may be inhibited by an undesirable definition (see Roe v. Wade), that the display of a menorah in is constitutional, while a Christian nativity scene in the same area was unconstitutional (see County of Allegheny v. American Civil Liberties Union), and that states must pay welfare payments according to federal mandate even after the state intentionally acts to restrict its welfare system (see Edwards v. Calfornia).
Before that, it ruled that blacks, regardless of whether they were slaves or not, could not be considered as citizens (see Sanford v. Scott), that national banks are constitutional on the basis of “implied” powers and “delegated” in the 10th Amendment does not mean “expressly delegated” (see McCulloch v. Maryland), that the federal judiciary grants authority over state courts on all matters involving federal law (see Martin v. Hunter’s Lessee), that land sales coated in fraud were binding contracts and state attempts to reverse fraudulent sales are void (see Fletcher v. Peck), that federal judges can lecture other branches on constitutional obligations that apply only to their departments (see Marbury v. Madison), and that federal courts have the power to hear suits against a state by citizens of another state, even when that state does not consent to the suit (See Chisholm v. Georgia).
This is not a pre-1937 world, and the power of the federal judiciary knows no bounds. There is literally no new ground to occupy for the federal courts, and its trajectory to consolidate greater power would never have been reversed regardless. There are no new unconstitutional plans to endorse, and there has never been any indication that any past unconstitutional schemes will be voided. The appointment of an atrocious judge, with obvious disdain and/or negligence for the original Constitution, will not significantly change this path. The constitutional problems with the federal judiciary transcend the current ideological composition of its bench, and the addition of another politically-connected lawyer who favors case law precedents over how the Constitution was originally explained will not swing the pendulum. The pendulum has already been eradicated.
Scalia, despite what some seem to think, was generally a federal supremacist who refused to challenge the incorporation doctrine, favoring instead the legal theory of stare decisis. As such, he consented to the belief that the federal courts have an interposing responsibility to meddle in the internal workings of the states based on a fallacious reading of the 14th Amendment. In his book, he acknowledged this to be a federal usurpation of power, but refused to do anything about it because it would disrupt precedents. He pledged instead to uphold the erroneous decisions of previous courts rather than the Constitution as explained and ratified. That inclination is bipartisan, and spans all legal ideologies. Blame for its existence cannot be placed at the feet of Scalia alone – it is a solidified part of judicial orthodoxy, especially since the so-called Revolution of 1937. As long as the incorporation doctrine is embraced through jurisprudential consensus, there can be no “originalism.”
Outcomes that I like, based on blatant usurpations of federal power, are a dooming prospect – they should not be celebrated. They legitimize precedents that will ultimately serve to unravel these results and allow for the federal judiciary to come to a divergent conclusion in the future, thereby voiding all attempts to oppose them in the name of federalism. A court that comes to a decision one supports, but seizes unauthorized power in doing so, violates the boundaries of the Constitution in the interests of advancing judicial power and policing matters reserved for localities. The propensity to support incorporation when it produces desirable results, while objecting to it when it does not, is an intellectually inconsistent argument.
Scalia made some good writings and authored some convincing dissents, but he ultimately favored using judicial authority to impose his proclivities on individuals through cases the federal judiciary had no constitutional power to adjudicate. While some of the outcomes may have been desirable to many individuals, myself included, the gradual assumption of this type of authority in the federal judiciary was something the founding generation feared greatly, and something judges of all penchants, including Scalia, have been guilty of doing. The positive aspects of Scalia’s legacy can be appreciated while at the same time decrying this harsh reality.
His loss is sad, because he understood the Constitution better than most, but ultimately it doesn’t change the nature of the current Supreme Court, or refine the relative amount of power held by it. Originalism died long ago, and the jurisprudential consensus surrounding incorporation is evidence of that fact. The federal courts are simply an existential road roadblock to federalism, and it has become alarmingly clear that liberty must be won at a local level.
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