Scalia’s Ex Post Facto Favor

scaliaI can’t think of a decision handed down by the late Justice Antonin Scalia that I agreed with. It’s easy. We just had different opinions. Mine were based on my outlook on life, upbringing and moral compass. He contended his were based solely on his interpretation of the Constitution with a large dollop of his faith thrown in.

But then he died and I read and heard more about Justice Scalia than I’d heard or read the entire time since I became aware of him when he ascended to the High Court in 1986. I’d read his decisions over the years and most time, angrily disagreed.  But what did I know about the law? I’m a journalist. He was a jurist. Still, his opinions seemed, at times unreasonable, insensitive and just mean.

That opinion, from the bench in my basement writing this, is now open to further examination. Listening to interviews with him during coverage of his death, I found his reasoning far beyond that of just conservative thinking, malicious ruling or cantankerous crankiness. His reasoning for, what I continue to believe,were confounding, infuriating rulings appeared sincerely based on his belief the Constitution is a document not open to interpretation or interpolation, but rather a turgid screed sealed in its original 18th century form.

In one interview he asked his questioner whether or not he’d read The Federalist Papers. federalistpapersOf course he hadn’t. But now I am. The Federalist Papers is a collection of 85 articles and essays written by Alexander Hamilton, James Madison and John Jay promoting the ratification of the U.S. Constitution.  Even after  a quick survey of the 85 papers before delving deeper I have learned that the Constitution must take into account the individual rights of  each state, must create order, fairness and even courtesy in government. I have not yet found a passage supporting Justice Scalia’s contention the Constitution is not open to interpretation.

I look forward to the next week or two filling my brain with the heady writing of our Founding Fathers. They wisely wrote these essays in accessible language, not only to make the case for ratification, but to create a timeless record to which future generations could refer and understand.

And I thank the late Justice Antonin Scalia for resurrecting thoughts of the Federalist Papers from my long ago history classes to the top of my mind. I’m sure I still won’t find myself agreeing with his rulings, but at least I’ll understand, just a little better, why he made them.





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