Harker, L. Margaret

English

University of Richmond

University of Richmond Law Review Volume 51 Issue 1 Article 2 11-1-2016 In Memoriam: Justice Antonin Scalia and the Constitution's Golden Thread L. Margaret Harker University of Richmond School of Law Follow this and additional works at: https://scholarship.richmond.edu/lawreview  Part of the Judges Commons, Jurisprudence Commons, and the Supreme Court of the United States Commons Recommended Citation L. M. Harker, In Memoriam: Justice Antonin Scalia and the Constitution's Golden Thread, 51 U. Rich. L. Rev. 1 (2016). Available at: https://scholarship.richmond.edu/lawreview/vol51/iss1/2 This Essay is brought to you for free and open access by the Law School Journals at UR Scholarship Repository. It has been accepted for inclusion in University of Richmond Law Review by an authorized editor of UR Scholarship Repository. For more information, please contact scholarshiprepository@richmond.edu. IN MEMORIAMJUSTICE ANTONIN SCALIA AND THECONSTITUTION'S GOLDEN THREADL. Margaret Harker *As Americans, it is our duty to remember United States Su-preme Court Justice Antonin Scalia's unwavering commitment tothe words of our Constitution-their true meaning as the Found-ers deliberately wrote them. Words have meaning. Otherwise,what purpose do they serve?Chief Justice John Marshall, the great Federalist and Virgini-an, wrote, "As men... generally employ the words which mostdirectly and aptly express the ideas they intend to convey, the en-lightened patriots who framed our Constitution, and the peoplewho adopted it, must be understood to have employed words intheir natural sense, and to have intended what they have said."'That the Constitution's words have fixed meaning matters be-cause, as Justice Scalia deeply appreciated and as Chief JusticeMarshall argued, "a constitution is framed for ages to come, andis designed to approach immortality as nearly as human institu-tions can approach it.".. 'That near immortality is best effected,[Marshall] thought [and Justice Scalia's legacy demonstrates], byunderstanding the words of the instrument to have a 'true mean-ing' that can be known, a meaning that is to be presumed fixed* J.D., 2011, University of Richmond School of Law; B.S., 2006, Santa Clara Univer-sity.1. Gibbons v. Ogden, 22 U.S. 1, 188 (1824).2. Cohens v. Virginia, 19 U.S. 264, 387 (1821).UNIVERSITY OF RICHMOND LAW REVIEWand incapable of change either by legislative fiat or by judicialconstruction.'Justice Scalia served our country and our Constitution by hon-oring the words that make our founding document nearly immor-tal and that protect our "right to life, liberty, and the pursuit ofhappiness," articulated in the Declaration of Independence.4On November 19, 2010, during my third year at RichmondLaw, the Federalist Society presented Justice Scalia with its Jo-seph Story Award for Contributions to Constitutional Law. Aspresident of the chapter, I had the privilege of delivering theaward presentation speech at the private reception we hosted.I began the presentation with a brief recounting of a story, be-cause all good stories have a moral about life. And as an adultstudent of law, I concluded that one of my favorite childhood sto-ries tells an important lesson about the rule of law-one whichJustice Scalia venerated."The Magic Thread," told in William J. Bennett's The Book ofVirtues: A Treasury of Great Moral Stories,' illustrates the recenthistory of the Supreme Court, especially as to values-driven deci-sion making. The story goes:There was once a young, able boy who was forever daydream-ing. He desired many things, but had little patience to earn them.One day the young boy encountered an old woman who gave hima silver ball, from which dangled a golden thread, his life thread,explained the old woman. If he wished time to pass quickly, heneed only pull the thread and an hour would pass like a second.3. GARY L. McDoWELL, THE LANGUAGE OF LAW AND THE FOUNDATIONS OF AMERICANCONSTITUTIONALISM 323 (2010).4. The rights pronounced in the Declaration of Independence-written by Virginianand third President of the United States Thomas Jefferson and carefully protected by theConstitution-were sacred to Justice Scalia. They were initially proclaimed in the VirginiaDeclaration of Rights, written by Virginian and Founding Father, George Mason: "all menare by nature equally free and independent and have certain inherent rights, of which...they cannot ... deprive or divest their posterity; namely, the enjoyment of life and liberty,with the means of acquiring and possessing property, and pursuing and obtaining happi-ness and safety." VIRGINIA DECLARATION OF RIGHTS § 1 (1776).5. THE BOOK OF VIRTUES: A TREASURY OF GREAT MORAL STORIES 57-63 (William J.Bennett ed. 1993).[Vol. 51:1JUSTICE ANTONIN SCALIABut the old woman also warned that once the thread was pulledout, his life would be over.6The young boy eagerly pulled the thread-first, to escape hisunpleasant school days and then, as he grew, to skip throughtimes of hardship or difficulty in his life. He quickly moved hislife ahead, always searching for the easy, happy outcome in all ofhis life's experiences. Before he knew it, the young boy hadturned into an old man. He had shortcut his way through lifewithout ever experiencing its meaning.One day, walking through the woods the now old man encoun-tered the old woman. He lamented that his life would soon beover and that because he had skipped through the hard work ofliving he was unable to benefit from the good things. The storyends: the old woman gave the old man another chance. She tookback the magic silver ball of golden thread and allowed the boy tolive his life again, to live a life of meaning.Justice Scalia's method of constitutional construction embodiesthe moral of the Golden Thread story. He did not grasp for happyoutcomes while skipping over legal difficulties. He was constitu-tionally principled, patient, and disciplined. We admire his prin-ciples, respect his patience, and revere his discipline.There can be no reasonable doubt that Justice Scalia's servicereflects commitment to and deep respect for the Constitution andthe true meaning of its words-which he knew to be lasting andenduring, not evolving.Justice Scalia did not pull from the Constitution's precious fab-ric an alluring golden thread. In the hard cases of constitutionaldecision making he did not take shortcuts to arrive at politicallyfelicitous, culturally convenient, or socially pain-free outcomes.Like Chief Justice Marshall, Justice Joseph Story valued thisessential quality of a good judge. In his Commentaries on theConstitution of the United States, Story wrote, "[o]urs is emphati-cally a government of laws, and not of men .... It is on this ac-count, that our law is justly deemed certain, and founded in per-manent principles, and not dependent upon the caprice, or will ofparticular judges."76. Id. at 58.7. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES2016]UNIVERSITY OF RICHMOND LAW REVIEWJustice Scalia strived to uphold the important truth that ChiefJustice Marshall explained: "[t]he 'peculiar circumstances of themoment... may render a measure more or less wise, but cannotrender it more or less constitutional.'8The modern day Court has too often done what Chief JusticeMarshall warned against and foretold:There was no doubting that on occasion some would try to invokewhat they would insist to be "the spirit and true meaning of the Con-stitution" in order to reach the interpretive end they might seek; thiswould almost always be accomplished by ignoring the "plain" or"natural" meaning of the words actually used.Justice Scalia dedicated his judicial career to stopping theCourt from succumbing to the temptation to skirt the foundingdocument, even when doing so may result in desirable ends. Hismajority opinion in District of Columbia v. Heller"° and dissentingopinion in Obergefell v. Hodgesnepitomize that noble fight.In the landmark Heller decision, the Court held that the Se-cond Amendment12 protects the right to keep and bear arms forthe purpose of self-defense.3 This holding and the Justice's semi-nal opinion in this case exemplifies his fidelity to the true andplain meaning of the text of the Constitution.In meticulously and thoughtfully reaching this conclusion, Jus-tice Scalia echoed Chief Justice Marshall's concern about judgesdisregarding the text of and the true meaning of the Constitution:Undoubtedly some think that the Second Amendment is outmoded ina society where our standing army is the pride of our Nation, wherewell-trained police forces provide personal security, and where gunviolence is a serious problem. That is perhaps debatable, but what isnot debatable is that it is not the role of this Court to pronouncethe Second Amendment extinct. 14349-50 (1883).8. McDOWELL, supra note 3, at 324 (quoting GERALD GUNTHER, JOHN MARSHALL'SDEFENSE OF MCCULLOCH V. MARYLAND 190-91 (1969)).9. Id. at 325 (quoting Cohens v. Virginia, 19 U.S. 264, 380 (1821)).10. See District of Columbia v. Heller, 554 U.S. 570 (2008).11. Obergefell v. Hodges, __ U.S. 135 S. Ct. 2584, 2626-31 (2015) (Scalia, J.,dissenting).12. "A well regulated Militia, being necessary to the security of a free State, the rightof the people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II.13. Heller, 554 U.S. at 635. Two years after Heller, in McDonald v. Chicago, 561 U.S.742, 750 (2010), Justice Scalia joined the majority opinion in which the Court made clearthat this foundational principle and holding applies to the states.14. Heller, 554 U.S. at 636.[Vol. 51:1JUSTICE ANTONIN SCALIAThe Justice explained the error of ignoring the written word ofthe Constitution:We know of no other enumerated constitutional right whose coreprotection has been subjected to a freestanding "interest-balancing"approach. The very enumeration of the right takes out of the handsof government-even the Third Branch of Government-the power todecide on a case-by-case basis whether the right is really worth in-sisting upon. A constitutional guarantee subject to future judges' as-sessments of its usefulness is no constitutional guarantee at all.Constitutional rights are enshrined with the scope they were under-stood to have when the people adopted them, whether or not futurelegislatures or (yes) even future judges think that scope too broad.5Justice Scalia's dissent in Obergefell further embodies his devo-tion to the Constitution, its binding nature, and its careful andunambiguous establishment of the Court's role as a separatebranch of government.16 In Obergefell, the majority held that theFourteenth Amendment17 requires a state to license and recognizea marriage between two people of the same sex.8 Justice Scalia'sdissent reads in part:Today's decree says that my Ruler, and the Ruler of 320 millionAmericans coast-to-coast, is a majority of the nine lawyers on theSupreme Court. The opinion in these cases is the furthest extensionin fact-and the furthest extension one can even imagine-of theCourt's claimed power to create "liberties" that the Constitution andits Amendments neglect to mention. This practice of constitutionalrevision by an unelected committee of nine, always accompanied (asit is today) by extravagant praise of liberty, robs the People of themost important liberty they asserted in the Declaration of Independ-ence and won in the Revolution of 1776: the freedom to govern them-selves.'9Justice Scalia's commitment to the Constitution and the prin-ciples it espouses, reflects the basic tenets of the Federalist Socie-ty, for which Justice Scalia was a faculty advisor in its foundingin 1982.15. Id. at 634 (emphasis in original).16. See Obergefell, __ U.S. at__, 135 S. Ct. at 2627-31 (2015).17. The portion of the Fourteenth Amendment Obergefell relied upon reads as follows:"No State shall ... deprive any person of life, liberty, or property, without due process oflaw; nor deny to any person within its jurisdiction the equal protection of the laws." U.S.CONST. amend. XIV, § 1.18. See Obergefell, __ U.S. at__, 135 S. Ct. at 2608.19. Id. at __ 135 S. Ct. at 2627 (Scalia, J., dissenting).2016]UNIVERSITY OF RICHMOND LAW REVIEWIndeed, Justice Scalia always fought the constitutionally de-structive tendency of judges to decide the law as an act of theirwill, not the Founders'. He fought it as a law professor and as anexecutive branch official. He fought it as a judge on the UnitedStates Court of Appeals for the District of Columbia Circuit. Andhe steadfastly waged this essential struggle on the United StatesSupreme Court, where he was the Senior Associate Justice untilhe died on the eve of February 13, 2016.America is extraordinarily fortunate, indeed blessed, to havehad Justice Scalia. We continue to admire his unique courage andsingular discipline in upholding the rule of law to protect our lib-erty. We are grateful for his vital role as a model of constitutionalrestraint for law students, professors, lawyers, and judges.At the close of my expression of gratitude to the Justice, Ihanded him a gilded antique jewel box containing a spool of gold-en thread, secure, in the knowledge that he would never unspoolit.With the grace of God, may Justice Scalia's leadership, charac-ter, principles, and courage forever inspire Americans.[Vol. 51:1

In Memoriam: Justice Antonin Scalia and the Constitution\u27s Golden Thread

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In Memoriam: Justice Antonin Scalia and the Constitution\u27s Golden Thread

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