Justice Antonin Scalia is dead. He died on February 13 at a West Texas ranch resort. By all accounts it was a peaceful passing.  He was devoted to his family and a dedicated friend to those whom he loved.   While his death is tragic in human terms, especially to his family and loved ones, it provides an opportunity to bring some badly needed vitality to the Court.


Conspiracy Theories


Conspiracy theories are already circulating throughout social media, fueled by the irresponsible speculation of far-right activists like Alex Jones and Michael Savage. According to them, some assassin associated with the New World Order smothered the controversial conservative justice with the pillow reportedly found on the justice’s head.


This is right-wing conspiracy theorist’s way of elevating Justice Scalia to constitutional hero status.


Scalia was many things, but a hero was not one of them. He was an extremely intelligent man and a brilliant legal writer. But he was also an arrogant, self-centered justice who used the power and authority of the Supreme Court to promote his own conservative political ideology.


Pro-Death Penalty, Anti-Gay, Anti-Abortion


This was evidenced in a December 2012 book promotion speech at the American Enterprise Institute where he expressed support for the death penalty and disdain for homosexuality and abortion:


“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”


Justice Scalia was known as a constitutional originalist—someone who adheres to what former U.S. Attorney General Edwin Meese III in 1985 described as the “jurisprudence of original intention.”


Constitutional Originalist


In effect, the constitution should be strictly interpreted or construed by the intent of the twenty-one original Founding Fathers—fourteen of whom were slaveholders—and who gave the right to vote only to white, male property owners who constituted only 6 percent of the population in 1789 when the first presidential election was held.


We do not subscribe to the original intent of the Founding Fathers. Their intent existed in a time when the Framers could not possibly fathom the state of society today.


We subscribe to what former President Abraham Lincoln said in his 1863 Gettysburg Address: that we are a “government of the people, by the people, and for the people” and that our Constitution is meant to serve and protect all the people.


A Living Document


That means our Constitution is a “living document,” as described in 1987 by former Supreme Court Justice Thurgood Marshal, which evolves with the current moral, political and cultural climate.


Through his opinions, it is clearly evident that Justice Scalia did not believe the Constitution is an evolving legal document. He did not believe in racial or gender equality or freedom from discrimination based on sexual orientation.  He did not believe that all people to have an equal voice in government through the right to vote.  He did not care to prevent executions of potentially innocent people as long as they had their day in court.


Yes, Justice Scalia believed that the Fourth Amendment protected the individual from unreasonable government intrusion, that the Sixth Amendment thoroughly protected an individual’s right to confrontation of adverse witnesses and that the Fifth Amendment guaranteed the right to a jury trial in criminal cases.  These protections were specifically included in the bill of rights and, Scalia believed, meant exactly what they said.  As criminal defense attorneys, we applauded these decisions.


However, the Constitution, we believe, is for all the people, and as the collective will of the people changes, subject to the protections set out in the Bill of Rights, so should the Constitution.


Scalia proponents lament that his death will create a constitutional vacuum in the court; that the constitution has lost a dear friend.


We do not think so. Hopefully, Scalia’s replacement will bring some badly needed vitality and progress to the court.


President’s Constitutional Duty to Nominate Replacement


The President not only has the constitutional right but the constitutional duty to nominate a justice to replace him.  That was the original intent of the Founding Fathers.  It is ironic that the Scalia proponents, those who support constitutional originalism, are the ones who are so vociferously denouncing the President for doing so.


We look forward to the Scalia replacement. It is time for the Constitution to be viewed through the lens of the present, rather than tied to the antiquated views of the past.