COMMENTARY: Reflections on Scalia: the passing of a patriot

By now, everyone knows of the untimely passing of one of America’s greatest legal minds, Justice Antonin Scalia. This column is not offered to eulogize this great patriot — others far more capable have already done so. Rather, the purpose of this column is first and foremost to pay our respects to a great legal scholar, a great man and a great American Patriot. America will miss his intellect, his scholarship and his leadership on the United States Supreme Court.

This column is also intended to help the reader to understand the impact his passing will have on America and to explore what each of us can do to ensure that his legacy does not die with him.

Throughout his almost 30 years on the Supreme Court, Justice Scalia espoused a simple philosophy of constitutional jurisprudence — a philosophy much eschewed by “The Left” and frequently misunderstood on “The Right.” It was this philosophy that gave us both the Heller decision written by Justice Scalia and the McDonald decision written by Justice Alito.

In his book titled “Scalia Dissents,” Kevin A. Ring describes the heart of Justice Scalia’s philosophy as follows:

John C. Sigler

“Scalia is a self-proclaimed ‘textualist.’ He believes laws — and especially that supreme law known as the Constitution of the United States — say what they mean and mean what they say. In short, when interpreting the Constitution, Scalia thinks judges should focus on the text. If someone claims he or she is being denied the exercise of a right or if the government asserts it has the authority to take a given action, courts must make certain there is specific textual support for each assertion.

“If the proper meaning of the text is clear, judges should then determine whether it provides support for the claimed individual right or governmental authority. If so, the claim is valid: if not, it should be rejected. The analysis is complete.”

Justice Scalia was also an “original intent” scholar who believed that the United States Constitution and the Bill of Rights are to be read and interpreted in the context of the times within which they were written. He did not believe as some “on the Left” have suggested that these are “living-breathing documents” that somehow take on new meaning as the result of the passage of time — on the contrary, Justice Scalia’s writings and public comments teach us just the opposite.

Scalia believed that the Constitution constructs three, co-equal branches of government, rejecting the “functionalist” theory, holding that the Framers of the Constitution never intended for one branch of government to “share” responsibilities with the other. On the contrary, Justice Scalia firmly believed that each separate “branch” served as a check and a balance against the others, that each branch has a specific constitutional role to play and that the Constitution forbids one branch from encroaching upon or assuming the responsibilities of the others.

Likewise, he believed that the Framers intended a republican form of government wherein the ultimate power resides in the people who have then granted certain authority and power to the States, which in turn have granted certain powers and authority to the federal government — a “bottom-up” form of government as opposed to a “top-down” form of government. He understood that the Framers were clearly rejecting a pure democracy in favor of a republic, recognizing the values and safeguards of “representation” versus the dangerous potential for “tyranny by the majority.”

By now you have heard much about the “balance” on the Supreme Court” and how the passing of Justice Scalia will “shift the balance of power” on the Court, so belaboring that issue further in this article would serve no useful purpose. It is important to recognize, however, the very real danger the appointment of anyone by President Obama to the Court will pose to our sacred and very fragile right to keep and bear arms.

When President Obama was running for his first term as President he vowed to “fundamentally transform America” — and he has done so. In 2008 no one believed that America could ever become a socialist state — but now in 2016, after almost eight years of Obama’s “rule”, we are having an election that will decide whether the United States of America will functionally become “The Socialists States of America”.

Also compare, if you will, the concepts of marriage, religious freedom, separation of powers, governmental ethics and restraint, the powers and authority of the States versus the federal government, and the overall relationship between government and the governed as they were when Obama came into office in January of 2009 to what we are seeing and living with today — a stark and startling contrast, at best.

Only the right to keep and bear arms has survived Obama’s quest to “fundamentally transform America” — so far.

In the weeks and months ahead we will hear much about so-called “moderate judges” who might be offered by Obama as replacements for Justice Scalia on the Court. We will hear about the importance of a fully staffed Court and how it is the constitutional responsibility of the president to name a replacement and for the Senate to confirm that nomination. And, of course, we will hear many arguments about so-called “litmus tests”.

Simply put, “yes,” Obama has the right, even a duty, to nominate a replacement. And the Senate has the duty to receive, but not accept, that nomination. However, the Senate has no duty whatsoever to vote upon, confirm, or even consider that nomination. Remember the “Separation of Powers Doctrine” — the president appoints, “by and with the Advice and Consent of the Senate.” Each has a role to play, and each plays that role subject to the direction of the Constitution.

Having nine Justices is, of course, optimum. But the Court works just as well with eight — and has done so many times in the past, most recently when Justice Kagan was required to recuse herself from decisions concerning cases in which she was involved as a lawyer for the Department of Justice — and, for the record, no one complained about having only eight justices on those cases when Obama appointed Justice Kagan during a time when it was obvious that those cases were coming or were already pending before the Court.

Finally, because Justice Scalia was both a leader and the deciding vote on cases where his “Textualist Philosophy” was important, shouldn’t the next Justice also be a texualist? If so, then, no “moderate judge” would qualify because a “moderate” is, by definition, anything but a “textualist.”

For once, Senate Majority Leader McConnell may have it right — the final selection of the next Justice of the Supreme Court should not occur until after the people have spoken in the 2016 elections. The 2016 elections should be about who will nominate the next Supreme Court Justice and, just as importantly, who will sit in the Senate to consider that nomination.

It remains to be seen whether the Senate Republicans — and Democrats, of course — are willing to bow to and respect the will of the people and allow our voices to be heard before a new justice is selected and seated. But if they do, we must be prepared to voice our opinions at the ballot box.

The 2016 election will truly be about the future of America and the future of our Second Amendment and the fundamental rights about which Justice Scalia wrote in “Heller.”

Election Day 2016 may very well be the most important election day in American history. Each of us has a very important duty to fulfill on that day. But we must be prepared to perform that duty.

Our duty is to vote to uphold and defend the Constitution of the United States as it was written and as it was intended by the Framers. To do that, we must vote for the person who is most likely stand with us, represent us and who will ensure that America’s First Freedom is protected by qualified “textualist” justices and judges — justices and judges who admire and follow Justice Scalia’s philosophy.

EDITOR’S NOTE: John C. Sigler is an attorney admitted to practice law in Delaware, in Maryland and before the United States Supreme Court.