Antonin Scalia, George Washington, the Constitution and Our Future

As those of us who still revere George Washington remember him on his birthday (the actual date -- February 22 -- not the wan counterpart known as Presidents' Day) I am struck by a strong link between the recently departed Justice Antonin Scalia and the father of our country. Both men did their utmost to preserve the integrity of our precious Constitution.

In his Farewell Address, which has been read in the U.S. Senate every year since 1896, eloquently states, officials in each branch of the government -- legislative, executive, and judicial -- should “confine themselves within their respective constitutional spheres, avoiding any exercise of the powers of one department to encroach upon another," because such encroachments lead to “a real despotism.”

George Washington. (Image source: MountVernon.org)

It was this type of encroachment that Justice Scalia lamented in his opinion last summer in the Obergefell decision that legalized homosexual marriage when he referred to the Supreme Court's decision as a judicial putsch.

Contrary to what some progressives assert, Scalia's attempt to honor and uphold the original intent of the Constitution was not designed to tie us to the past.

Scalia would concur with Washington (again, in the Farewell Address): "The basis of our political systems is the right of the people to make and to alter their constitutions of government.”

However, “if, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield."

[sharequote align="center"]Beware of cutting constitutional corners for the sake of expediency.[/sharequote]

Washington's warning here is clear and his wisdom is timeless: Beware of cutting constitutional corners for the sake of expediency. Yes, an expanded, Constitution-busting exercise of power may indeed benefit you today, but the expansion of state power leads to a permanent diminution of liberty that will haunt you in the long run.

This vital point about constitutional integrity is either too subtle for the left to grasp, or they are so intoxicated by their zeal to get what they want that they either fail to believe that the expanded power of government will ever be used in a way of which they disapprove, or they are willing to roll the dice about the future in exchange for getting something they want today.

Indeed, here we see one of the fundamental differences between conservatives and libertarians on the right and progressives/liberals on the left: The left focuses on what they want, and the right (which includes Scalia and Washington) focuses on how. The difference is crucial.

Progressives are so convinced of the rightness of their positions, that they believe the end justifies the means. In their view, why should a document written in the 18th century get in the way of what progressive-thinking people in the 21st century want? To progressives like President Barack Obama, the Constitution is a nuisance to be swept aside. To constitutionalists, like Washington and Scalia, the Constitution is sacred and a protection.

The progressive philosophy that regards the constitution as a "living, breathing document" in practice makes our constitution a dead letter. If any branch of government can ignore, bypass, disobey, or nullify any constitutional stipulation today -- even if the action is favored by millions of Americans -- what is to keep government officials from ignoring, say, the First Amendment tomorrow?

Justice Scalia's dissent in Obergefell last summer vividly warns us about how close we are to losing our rights and liberties to what Washington called "usurpation" of the constitutional order. From the point of view of Washington and Scalia, Obergefell sets an ominous precedent: It establishes the undemocratic, unconstitutional doctrine that vital points of law are being enacted, not by the people's elected representatives in Congress, as the Constitution stipulates, but by as few as five unelected judges who have no compunctions about usurping the Constitution.

Whoever succeeds Justice Scalia, then, given the current 4-4 ideological split on the Court, may bear the awful burden of going down in history as the one who either put the nail in the coffin of our country's original constitutional vision -- that we are a nation of laws, not men, and with a limited government that cannot abrogate "unalienable" individual rights -- or who will take the side of Scalia and Washington and slow our slide down the slippery slope to tyranny.

Republican senators will be subjected to enormous pressures to approve the person whom President Obama nominates. It is quite possible that some of them will lose bids for reelection if they don't. The rest of us have to hope that those GOP senators understand that our entire constitutional order is at stake, and that they have the nobility of character and love of country that would lead them to put the Constitution ahead of their own personal career goals.

In addition to the fundamental issue of preserving some remnant of constitutional order, Sen. Rand Paul offers a second compelling reason for Republican senators not to approve an Obama appointee: In light of Obama's arrogations of executive power that are constitutionally dubious, it would constitute what Sen. Paul called a "conflict of interest" -- indeed, it would make a mockery of justice -- to allow Obama to appoint the justice who likely would be the deciding vote in cases in which Obama essentially occupies the seat of the defendant (a point about which progressives are oblivious, and so, in their usual supercilious fashion, they are ridiculing Rand Paul. As stated before, the left wants what it wants, and it is not particularly concerned about constitutional integrity in its efforts to get it.)

Let us hope and pray that the wise and caring advice imparted by the George Washington in his Farewell Address goes to the heart of every U.S. senator this February 22. Antonin Scalia did an outstanding job of upholding Washington's standards and the integrity of our Constitution. Whether his successor does the same or not will make a huge difference in the future direction of our Republic.

Mark Hendrickson is Fellow for Economic and Social Policy with the Center for Vision & Values at Grove City College.

Feature Image: Shutterstock

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