Senators Must Keep Scalia’s Legacy Alive and Reject Obama’s Nominee

Justice Scalia’s true legacy was fighting for the Constitution.

Daniel Greenfield, a Shillman Journalism Fellow at the Freedom Center, is a New York writer focusing on radical Islam.

Even in death, he always had the last word. As debate over a possible recess appointment to the Supreme Court by Obama continues, Justice Antonin Scalia had already made the case against it.

“The court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future presidents against future Senates,” Justice Scalia wrote in his usual unsparing language in NLRB v. Noel Canning.

And, as always, he took the side of the Constitution over everything else indicting the court for casting “aside the plain, original meaning of the constitutional text in deference to late-arising historical practices”. In clear and forceful language, he warned that “the Constitution’s core, government-structuring provisions are no less critical to preserving liberty than are the later adopted provisions of the Bill of Rights” in maintaining “the “enduring structure” of constitutional government”.

To Justice Scalia, liberty meant limiting the powers of government by maintaining the Constitution. A recess appointment, the topic revived by his passing, is as grave a threat to liberty as a violation of the First Amendment. He was convinced that government breaking its constitutional chains was the true threat to liberty. Attacks on the First or Second Amendment were symptoms of that larger problem.

Often outnumbered, but never outwitted, Justice Scalia saw government as a monster that the Founders had chained with manacles made of words. His task was reforging them with his voice and pen.

Leftist judges and lawyers love to style themselves as defenders of civil rights, but their idea of civil rights is providing unlimited power to government. Justice Scalia was an actual believer in civil rights. Unlike the activist leftist judges to whom the law is merely a means to a leftist end, dressing up their usurpation of power under the mocking name of “Living Constitution”, he was an Originalist who truly fought for civil rights every time he fought for the truth of the word of the law over the power of men.

The best way to memorialize one of the greatest friends of the Constitution is by taking up his fight.

In his final years, Justice Scalia warned forcefully of the dangers of judicial tyranny by the Supreme Court. “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” he wrote. And he warned of the abuses of power by an overactive White House and an apathetic Congress that fails to check presidential totalitarianism.

With his death, the very crisis that he warned about is upon us and there is little doubt what he would say about it if he were still with us. It is the duty of a Senate, that has failed all too often in checking Obama’s unconstitutional abuses, to stand strong against any recess appointment or last year nominee.

This administration has violated the Constitution and the civil rights of Americans more grievously than any other in generations. Even liberals have blasted its abuses. A persecuted New York Times reporter called Obama, “The greatest enemy to press freedom in a generation”. Nat Hentoff wrote, “This is a man who is causing us and will cause us a great deal of harm constitutionally and personally. This is the first administration that has scared me.” Jonathan Turley has said, “The problem with what the president is doing is that he’s not simply posing a danger to the constitutional system. He’s becoming the very danger the Constitution was designed to avoid.”

Justice Scalia did his best to fight that danger. Now it’s our turn. Another radical leftist on the Supreme Court will not just destroy freedom for eight years, but for generations. The horrors of the Warren Court are still with us. Even the Roberts Court has done immeasurable damage to this country in only the last few years.

Politicians come and go, but the Constitution is meant to endure and the Supreme Court was appointed to be its guardian. In one of his final dissents, Justice Scalia began with the words, “I write separately to call attention to this Court’s threat to American democracy.”

With his death, that threat is graver than ever.

An administration that has waged a merciless war against the Constitution cannot be allowed to seat three anti-constitutional radicals on the Supreme Court. The Senate has a final opportunity to redeem its failures by making one last stand for freedom. And conservatives must set aside their current political divisions and maintain a united front in pressuring the politicians to stay strong against Obama.

 Justice Scalia had already described in stark terms what was at stake in one of his most famous dissents.

“This practice of constitutional revision by an unelected committee of nine… robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.” That is what is at stake in this climactic battle over whether Justice Scalia will be succeeded by an Originalist scholar respectful of our rights or a judicial activist bent on feeding maximum power to the institutions of the left while eliminating all obstacles in their way.

 Originalism, as Justice Scalia put it, means that the Constitution means what it means, not what it "ought to mean". The Constitution imposes clear limits on the power of government. The left does not believe that there should be any limits on its power. The fight over Scalia’s seat will be yet another test to see whether limited constitutional or unlimited and unconstitutional leftist government will prevail.

Justice Scalia was a champion of the former while Barack Obama is the foremost champion of the latter.

The struggle between the left and the rest of the country is the struggle between law and power, between truth and power, between justice and power and between liberty and power. By fighting for the Constitution, Justice Scalia took the side of law, truth, justice and liberty over leftist power. It is time for the Senate to do more than pay lip service in press releases, but to stand up and fight his fight.

Joe Biden has said, "The vote I regret casting out of all the ones I ever cast was voting for (Scalia) because he was so effective." In this final year, it is vitally important for Republicans not to cast any votes that they will regret.

Scalia’s fight for Constitutional Originalism over advocacy was rooted in the conviction that words have meaning and that truth matters. In his time on the bench, he forced even critics and enemies to address the meaning of the Constitution.  This, along with his 28 grandchildren, represents his greatest legacy.

Justice Antonin Scalia once declared, “I look forward to dissent!” Dissent from authority is the essence of freedom. To preserve the ideals that he fought for, the Senate must dissent from an Obama nominee. It must dissent from the judicial activist assault on the Constitution and our right of self-government.

To keep Scalia’s legacy alive, the Senate must dissent from Obama and stand with the Constitution. 

Justice Scalia once asked a British group what the American equivalent of "God Save the Queen" would be. They suggested, "God save the President." He corrected them, "God save the Constitution."