Much will be written and said about the career and legacy of Supreme Court Justice Antonin Scalia, who passed away on Saturday. But few have the perspective of Kevin Gutzman, Ph.D., best-selling author of four books, including The Politically Incorrect Guide to the Constitution, in which he takes a critical look at the role of the Supreme Court in expanding federal power beyond what he argues were the framers' original intentions or the scope of subsequent amendments.
Gutzman's work on this subject aligns closely with what Scalia saw as the proper role of a Supreme Court Justice, to interpret the Constitution as it was originally understood by those who framed and ratified it.
I had a chance to interview Dr. Gutzman at length on Sunday, the day after Justice Scalia's passing. Here are some highlights:
On Scalia's overall importance as a Supreme Court Justice:
"The way I understand Scalia's career is that it reflects the priorities of the president and the attorney general who were responsible for putting him on the Supreme Court. And of course, those were Ronald Reagan and Edwin Meese."
So, if you flashback to the political culture, the legal culture of the 1980s, the kind of reigning idea on the Supreme Court was that well, whatever outcome would be a good outcome was the outcome that the justice should vote for. And this was essentially regardless of the way the people thought the Constitution was supposed to work when they agreed to it.
This was most famously captured in a quote from the most important liberal justice of the 20th century, William Brennan, who's quoted in Woodward and Armstrong's best-selling book on the Supreme Court, Brethren, saying that William Brennan operates on what he calls 'the Rule of Five.' The Rule of Five is if you can get five votes, you can do anything. And this is essentially a reflection of Brennan's behavior on the Court. More or less, he never voted for a legal outcome that didn't represent the implementation of his own policy preferences. Of course, you and I might think that's the opposite of constitutionalism, which is that you have a framework of government that binds everybody, regardless of their policy preferences."
I argue that is the opposite of constitutionalism and so did Edwin Meese, the attorney general responsible for putting Antonin Scalia on the Court. Meese gave a famous speech, circa 1985, I think, 1986, which was the year that Scalia was appointed to the Court, Meese gave a famous speech called 'Toward a Jurisprudence of Original Intent.' And in that speech, Meese explained that he thought the Constitution should be read as it had been intended to be read or expected to be read by the people who agreed to it," said Gutzman.
Gutzman addressed the argument made by Justice Brennan and others that this was either arrogantly assuming 18th century intentions could be known or an attempt to take America back to the 18th century in general:
"The other way to understand Meese's idea of a constitutionalism of original intent is that it reflects the baseline understanding of the America regime that the government is supposed to have been created by the people and it was supposed to be the government the people intended to create.
So, for example, you wouldn't have William Brennan just taking every opportunity as a Supreme Court Justice to have the law reflect whatever his preferred policy was, regardless of what the Constitution actually was supposed to mean, but instead, as Meese and Scalia claimed, the Constitution ought to be read the way the people intended it to read.
Or, another way to put that is, the government ought to be by the people in general who ratified the Constitution or who had amended since the original, un-amended Constitution was ratified. It ought to be read that way instead of being read by the likes of the nine people who happen to be accidentally on the Supreme Court at any given time."
"So successful were Meese, Scalia, Reagan, Bork and these people, in pushing their idea that judges shouldn't just be our supreme legislators, but instead they should be beholden to the people, that who created the Constitution, that today, in 2016, thirty years after Scalia was appointed and Rehnquist was elevated, really the Reagan/Meese way of thinking about the Constitution is the starting point, even for liberals," added Gutzman.
Professor Gutzman's last book, James Madison and the Making of America, made several cameo appearances in the Netflix original series, House of Cards. His next title will be on the radical beliefs of Thomas Jefferson, due for release in early 2017. More information can be found on his website.
For the full interview, click here.
Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.