Skip to main content

The late Justice Antonin Scalia was a leading advocate of the “originalist” school of constitutional interpretation. He believed that the key to properly interpreting the Constitution was to look at what the language of that document meant to the Framers. Thus, his dissent from the recent decision to recognize a right to gay marriage was grounded on the proposition that those who wrote the Constitution could not have meant to recognize such a right.

Antonin Scalia

Original Intent: GOP Ignores Scalia's Theory—John Peeler

Now, it is true that, like any other human being, he was not totally consistent: he let his own political convictions color his constitutional interpretations. Of course, there is the infamous Bush v. Gore decision of December 2008, in which a 5-4 Republican majority stopped the recount in Florida and handed the presidency to George W. Bush. Scalia wrote the majority opinion, and was at pains to say that it could not be used as a precedent. In other words, it had no legal or constitutional foundation. Five Republican justices just thought the country had gone through enough uncertainty.

For all their fulminations about Obama’s allegedly unconstitutional behavior, the Republican senators are blatantly disregarding the original intent of the Framers, and thus dishonoring the principles of Justice Scalia himself.

But he usually made an effort to veil his partisanship in the cloth of original intent. So it is just deliciously ironic that the Senate Republicans, within hours of his death, announced that President Obama’s nominee, no matter who, would receive no recognition from the Senate majority: no hearings, no vote, not even courtesy meetings. The stance was based on the theory that a president in his last year should not make a nomination to the Supreme Court, that the voters should be allowed to speak first.

Here is the constitutional language: the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court…”

Scroll to Continue

Recommended Articles

Nothing in this language, and nothing elsewhere in the Constitution or its amendments, says or implies that a president in his final year should not nominate a justice of the Supreme Court. On the contrary, the language is imperative: the President “shall nominate”. That the Senate may refrain from advising and withhold its consent is implied, but there is absolutely no evidence that the intent of the framers was to permit the Senate to unilaterally decide that a president in his final year must forfeit the authority to nominate.

Moreover, it is manifestly contrary to the Founders’ intent to subject the Supreme Court to direct popular vote. Nothing could be further from what they had in mind. Remember that, originally, neither the President nor the Senate were directly elected by the people. The President was elected by the Electoral College, and the Senate by the state legislatures. Both were thus to be insulated from direct popular election. The appointment of Supreme Court justices was vested in these two entities, and specifically NOT in the popularly elected House of Representatives. And once appointed, justices are to hold office “during good behavior,” that is, as long as they choose, without being subject to any requirement for reelection or reconfirmation.

For all their fulminations about Obama’s allegedly unconstitutional behavior, the Republican senators are blatantly disregarding the original intent of the Framers, and thus dishonoring the principles of Justice Scalia himself.

Of course, if Scalia had lived and one of the other justices had died instead, he would surely be actively devising some casuistry by which Original Intent could justify this blatant partisan coup. Principles are for justifying the conclusion you’ve already reached. Mitch McConnell understands this well. Maybe Scalia has been speaking to him from the grave.

john peeler

John Peeler