The encomiums to Justice Antonin Scalia have been well deserved, because regardless of your opinion of his judicial philosophy, he was a brilliant writer and passionate about the law. Judicially, I applauded his “originalism,” in defending the Constitution’s original meaning against those who believe it is a “living document” whose meaning changes depending on the exigencies of the times. If our moral values and standards “evolve,” then judges can interpret the law based on those evolving values and standards (including their own evolving values and standards), which was an anathema to Scalia, who believed judges must stick to the language of the Constitution as it was understood by those people who wrote that language. That language describes a government in which each governmental branch has separate and inviolate powers. Scalia took that “separation of powers” doctrine seriously.
Further, in deciding many cases a judge must weigh two overriding issues: 1.) Do individual rights (as represented by plaintiffs or defendants) outweigh what is in the public good? And 2.) Should the courts even be weighing in on the issue, or should they let stand the handiwork of the Legislative Branch (Congress), which the Founders saw as the first-among-equals branch?
My impression is that Scalia preferred deferring to the Legislative Branch whenever possible because that is the branch most responsive to the people as expressed by popular majorities, which the Founders believed held ultimate sovereignty. But the Founders also put checks on popular, majority-rule democracy, because what is good for the majority isn’t always good for minorities or individuals. One check is our elected representatives, who have some political immunity from the will of the majority — multiple-year terms in office, for example — so they can independently judge whether what popular majorities want is also good for minorities and individuals.
Bringing us to the question of individual rights versus the public good as represented by popular majorities. Today, our elected representatives have increasingly relinquished their responsibility to protect minorities and individuals from majority rule, mostly by allowing their constitutionally assigned “checking” powers to be encroached upon by the executive branch — and the bureaucracies that report to it — whose leader sees himself as the representative of the majority of the people, and therefore the promoter of their wants.
The result has been an increase in what the Founders called “Tyranny of the Majority,” in which self-interested majorities are allowed to run roughshod over minority and individual rights.
Leaving, as Justice Scalia saw it, the Judicial Branch as one of the last constitutional checks on majority rule by issuing rulings that uphold the “unalienable” rights of individuals and minorities. His death has bereft us of a champion defender against the will of capricious and often dangerous majorities.
