Monday, February 15, 2016

Justice Antonin Scalia RIP

Antonin Scalia, one of the nine Justices who serve on America's Supreme Court, has died at the age of 79, apparently of a heart attack.

Because Scalia was one of five so called "conservative" (small c) justices on a court which at the time of his death frequently split five to four between "conservatives" and "liberals" this is a pivotal moment in the power balance on the USA's Supreme Court.

About eight years, towards the end of George W Bush's second term as President and the election of his successor, Democrats like Senator Chuck Schumer said that any Bush nominee for vacant seats on the Supreme Court should be blocked by the Senate and that the nomination should be made after the election by the new President.

Yesterday Senator Schumer attacked the present Senate Majority Leader, Mitch McConnell, as an "obstructionist" for taking exactly the same position this year that Schumer himself had taken in 2007. My, what a difference it makes to some people's views whether it is an incumbent Democrat or Republican president who is coming to the end of his term and might be replaced by someone of the other party.

Justice Scalia deserves to be remembered for far more important things than the unseemly row over his seat on the Supreme Court which appears certain to follow his death. He was the arch-exponent of the view that the constitution should be interpreted to mean what the people who wrote it intended and not what was convenient for those who are in office today.

But although he was a hate figure for the stupid left in the USA, Scalia was a brave and intellectually honest man who was not afraid to side with the four "liberal" members of the court to make rulings which incensed his fellow "conservatives" when what he thought the US constitution actually said was inconvenient for the republicans and the right rather for the left, as an article notes here.

For example, writing as someone who believes in free speech for everyone and not just those who share my own views, I admire Scalia for having the guts to vote that the First Amendment to the US constitution, designed to protect the free expression of opinions, actually does protect the expression of anti-American opinions and therefore that "flag-burning" laws were unconstitutional.

Scalia also voted against the policy of wholesale collection of DNA evidence from all arrested parties, arguing that "the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection."

As a British citizen I am less concerned to prevent Britain's constitution being modified to keep up with the needs of the 21st century than Scalia was to prevent change in the US constitution. I support the idea of interpreting the law on the basis of what it actually says and what MPs can reasonably have been assumed to mean at the time they actually passed it for a rather different reason.

In this country we have an unwritten constitution and MPs are elected and judges are not. Therefore if Britain is to remain a democracy, the law should be what an elected parliament actually voted into law and not what anyone unelected, no matter how eminent, thinks they should have voted into law.

I see Justice Scalia as a model of a judge who tried with integrity to honour what the constitution and the law actually said, and I believe he deserves to be honoured and remembered not just in his own country but in any other country which believes in government by law, not by individuals.

Rest in Peace

POSTSCRIPT

The Economist Magazine has published some of the best obituaries ever written and they have a corker on Justice Scalia which can be read online here.

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