For those attending the People’s Law School mounted annually by Baylor Law School a week ago, the day as a whole was surreal, even if the wealth of courses offered consumed only Saturday morning. Many of us spent the early hours learning about the uniqueness of the Constitution and Declaration of Independence in an era when kings and popes ruled by divine right; the complexities of the Fourth and Ninth Amendments; and the beauty of laws that favor no religion over another and thus keep (or should keep) Christian extremism at bay as well as quelling any overwrought fears of Sharia law on the loose in America.
But shortly after we left the lectures and returned to our daily routines, we learned 79-year-old U.S. Supreme Court Justice Antonin Scalia, the fierce, sometimes undisciplined champion of rigorous adherence to the Constitution, had died in the rugged Big Bend country of far West Texas. Possibly because Scalia was an outsized personality, his death following such lectures left me feeling a sense of loss.
Maybe if I hadn’t spent the morning listening to dynamic law professors such as Brian Serr and Jeremy Counseller pump up my blood about the Constitution and Bill of Rights, Scalia’s death might not have resonated so strongly. Granted, in some ways, Scalia was like a crazy uncle, given to making politically incorrect, even wildly inappropriate comments, but his broader message about always seeking the Framers’ intent and taking them at their literal word remains a critical guidepost in America.
Yet I suspect even Scalia occasionally wondered about his own fidelity to his much-cherished “originalism” — the concept jurists not draw inferences from founding documents that the Framers never intended, that the Constitution and Bill of Rights are static rather than “living” documents ideal for imaginative reinterpretation and “judicial activism.” Who in our age really knows how the Framers might have applied constitutional principles to once-unimaginable legal questions and societal dilemmas? In the end, it’s still an educated guess.
Even Scalia might have imagined a little beyond the Founders’ texts. His most famous Supreme Court opinion — District of Columbia v. Heller — makes a compelling case for broadening the Second Amendment by negating that pesky little modifying clause about militias. Some gun-rights enthusiasts, while happy with that part of the ruling, have never completely accepted Scalia’s other part — that gun rights are not absolute (anymore than any other right is) and that governments retain the power to regulate them.
As Serr noted in his constitutional law review at the People’s Law School, many people also overlook the Ninth Amendment, which suggests that the Framers didn’t think of everything in the founding documents and that the Bill of Rights shouldn’t be construed as precluding other unenumerated rights retained by the people. And at some point, when push comes to shove, the high courts must decide if some particular right fits the Founders’ notion as legitimate. The most famous example cited is the right to privacy, though anything beyond this has spurred intense legal debate. And few jurists rely solely on the Ninth to justify one right or another.
Once the door is wide open for one unenumerated right, others will follow. You may rejoice in one, tremble at another. Using the Due Process Clause of the Fourteenth Amendment, the U.S. Supreme Court in 1925 struck down a state law in Oregon outlawing private schools, which in turn cleared the way for home-schooling. In 1967, the Supreme Court struck down a Virginia law that forbade interracial marriage. From there it’s but a legal skip and a jump to last summer’s controversial Supreme Court ruling scuttling state laws banning same-sex marriage.
Indeed, as Serr noted in a lecture that stressed law, not religious dogma, if race can no longer be a reason to deny a civil marriage license, then a precedent of sorts is established to ensure gender can’t be cited as a reason to deny it. Serr also noted that states, counties and cities are far more guilty of restricting individual rights and liberties than the federal government.
Hours later, fresh from broadening our grasp of constitutional law and inalienable rights, we discovered that Scalia had died on the far edge of Texas — and one more fragile link to the Framers was gone, leaving us to redouble our own efforts at sorting out our liberties. Ironically, the first constitutional question to loom now is what the great originalist would have advised on the protocol to replace him.