The previous chapter focused on Supreme Court Justice Hugo Black's seven infamous decrees which reversed 160 years of jurisprudence and the establishment of our Federal Government on the foundation of Christian principles.  He did this in direct and premeditated opposition to the declaration of the 1892 Supreme Court which meticulously documented and emphatically stated that “America is a Christian nation.” 

He was, in effect, making a new law saying that the First Amendment “ ...has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve of the slightest breach."  In doing so, he was usurping the constitutionally established powers of the legislature.   He himself was leaping over the wall which the Constitution did establish, namely the separation of powers within the three branches of our government.  This power grab has become so much the norm in today’s activist courts that the proper use of judicial power has been all but forgotten. 

But fortunately, there are still justices who believe in adhering to their proper roles.  One such man is Supreme Court Associate Justice Antonin Scalia. 

In September 26, 2006, Senator Orrin Hatch marked the 20th anniversary of Justice Scalia's Supreme Court appointment with a powerful speech to the U. S. Senate.  He contrasted the responsible use of judicial power intended by the Constitution with the blatant misuse of power by the Black court.  These excerpts from the Senator's speech describe the impact that Justice Scalia has had on our nation; emphasis has been added. They illustrate what should be in the model court room, rather than what is in the activist court room. 

".... In the time I have this morning, I would like to offer a few general remarks about Justice Scalia’s judicial philosophy, his judicial personality, and his judicial impact. 

… President Reagan chose Justice Scalia because his smarts and talents are connected to a deeply considered and deliberately framed judicial philosophy rooted in the principles of America’s founding.  Indeed, as Pepperdine law professor Douglas Kmiec has said, Justice Scalia “is the justice who works the hardest to construct a coherent theory of constitutional interpretation that does not change from case to case.”  When the Judiciary Committee hearing on Justice Scalia's nomination opened on August 5, 1986, I quoted from the Chicago Tribune's evaluation that the nominee before us was “determined to read the law as it has been enacted by the people’s representatives rather than to impose his own preference upon it.”

Consider for a moment the vital importance of this simple principle. Since the people and their elected representatives alone have the authority to enact law, the way they have enacted it is the only sense in which the law is the law. The way they have enacted it, then, is the only legitimate way for judges to read it. This fundamental principle is at the heart of Justice Scalia’s judicial philosophy.

This principle springs directly from the separation of powers, which America’s founders said was perhaps the most important principle for limiting government and preserving liberty. Alexander Hamilton wrote in The Federalist No.78 that there is no liberty if the judiciarys power to interpret the law is not separated from the legislature’s power to make the law.

In his dissenting opinion in Morrison v. Olson, Justice Scalia highlighted the Massachusetts Constitution of 1780 which, to this day, contains what Justice Scalia called the proud boast of democracy, that this is a government of laws and not of men. The Massachusetts charter, however, also states what is required for this boast to be realized. It requires the separation of powers, including that the judiciary shall never exercise the power to make law.

Today, only 42 percent of Americans know the number of branches in the federal government and fewer than 60 percent can name even a single one. But America’s founders insisted that identifying them, defining them, and separating them is essential for liberty itself.

In Marbury v. Madison, the great Chief Justice John Marshall wrote that it is the duty of the judicial branch to say what the law is. Not what the law says, but what the law is. The law is more than simply ink blots formed into words on a page. Saying what the law is requires saying what the law means, for that meaning is the essence of the law itself.

But here is the crux of the matter ...  The meaning of the words in our laws comes from those who made them, not from those who interpret them.  Those who chose the words in our laws gave them life by giving them meaning, and the judicial task of saying what the law is requires discovering the meaning they provided.  The separation of powers, therefore, excludes from the judiciary the power to change the words or meaning of the law and secures to it the power to interpret and apply that law to decide cases.

... America’s founders intended that the judiciary be independent and strong, but also confined within the boundaries of a written Constitution and laws. No one believes that principle more deeply, and insists on implementing it more consistently, than Justice Scalia.

President Reagan often used the general label judicial restraint for this notion of judges restrained by law they did not make and cannot change. ... Justice Scalia used the more specific label originalism for his judicial philosophy. When judges interpret the law, he said, they must “give that text the meaning that it bore when it was adopted by the people.”

... Justice Scalia was merely echoing America’s founders. James Madison said that the only sense in which the Constitution is legitimate is if it retains the meaning given it by those who alone have the authority to make it law.

The Constitution cannot govern government if government defines the Constitution. That includes the judiciary, which is as much part of the government as the legislative or executive branch. To once again cite Chief Justice Marshall from Marbury v. Madison, America’s founders intended the Constitution to govern courts as well as legislatures. It cannot do so if, as Chief Justice Charles Evans Hughes famously claimed, the Constitution is whatever the judges say it is.

If the Constitution is little more than an empty linguistic glass that judges may fill or a checkbook full of blank checks that judges may write, it is not much of anything at all. I am not sure what such a collection of words without meaning might be called, ... but it is not a Constitution.

Thankfully, Justice Scalia rejects such an anemic and shape-shifting view of the Constitution, insisting that even judges must be the servants rather than the masters of the law. Justice Scalia insists that judges stick to judging so the Constitution can indeed be the Constitution. Analyzing Justice Scalia’s jurisprudential approach in the Arkansas Law Review, one scholar described what he called the justice’s meticulous, almost obsessive, attention to language.

But let us remember that the epicenter of the remarkable system of government America’s founders crafted is indeed a written Constitution. They, too, were obsessed with language.

President George Washington warned in his 1796 farewell address against changing the Constitution through what he called usurpation rather than the formal amendment process. George Mason actually opposed ratification of the Constitution, in part because giving the Supreme Court too much power to construe the laws would let them substitute their own pleasure for the law of the land. President Thomas Jefferson said that “our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”...

No one should assume that while originalism is relatively straight-forward to describe, it is neither perfect or easy. .... But it is consistent with, I would say compelled by, the principles underlying our form of government. And it is certainly better than the alternative, which puts judges rather than the people in charge of the law’s meaning and the nation’s values.

... Justice Scalia’s judicial philosophy is about the process of interpreting and applying the law, to whatever ends the law requires. That process can produce results in individual cases that political conservatives or liberals will support or oppose. But when the law, and not the judge, decides the outcome of cases, those who do not like the outcome can work to change the law. When, however, the judge and not the law decides the outcome of cases, the people are nearly always left with no voice at all.

Justice Scalia’s critics attack his judicial philosophy for the same reason he embraces it. Originalism limits a judge’s ability to make law. The famed Senator and Supreme Court orator Daniel Webster once said that “there are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.”

Justice Scalia has often said that judges are no better suited to govern than anyone else, and certainly have no authority to do so. Unelected judges, no matter how well-intentioned, do not have the power to be our masters.

... As Hamilton put it, the great and terrible cost of judges rather than the people making law would be liberty itself. Thomas Jefferson warned that by playing with the meaning of the Constitution’s words, the judiciary would turn the charter into a mere thing of wax that they would twist and shape into any form they chose.

In the last 70 years or so, the judiciary has been doing a lot of twisting and shaping.  One of Justice Scalia's predecessors on the Supreme Court, Justice George Sutherland, … wrote this in 1937: “The judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation. To miss the point of difference between the two is to…convert what was intended as inescapable and enduring mandates into mere moral reflections.”

In 1953, Justice Robert Jackson lamented what had become a widely held belief that the Supreme Court decides cases by personal impressions rather than impersonal rules of law.

Many people, conservatives as well as liberals, do not seem to mind this trend so long as it is their moral reflections and their personal impressions that are twisting and shaping the Constitution.  Many people, conservatives as well as liberals, applaud or criticize the Supreme Court when it amends the Constitution, depending on whether they like the Court’s amendments.

Yet I ask my fellow citizens, both conservatives and liberals: would you rather have your liberty secured by moral reflections and personal impressions or enduring mandates and impersonal rules of law? If you cede to judges the power to make law when you support the law they make, what will you say when judges – and they will – make law you oppose?

Liberty requires separating judges from lawmaking. Liberty requires that judges take the law as they find it, with the meaning it already has, apply it to decide concrete cases and controversies, and leave the rest to the people.

Professor John Jeffries of the University of Virginia Law School writes that Justice Scalia “...is more dedicated to a vision of constitutional law as something distinct and apart from constitutional politics.”

That is precisely the kind of judge America needs on the bench.

...because of Justice Scalia’s influence, we start more often with text rather than its history when looking at written law.

America’s founders, it seems to me, assumed that judges would always start with the text and be kept in check because the meaning of that text already exists. This is why America’s founders could call the judiciary the weakest and least dangerous branch. Putting statutory text ahead of statutory history would be a judicial no-brainer to them. If Professor Dorf is correct, we should first lament that the courts had gotten so far off course and then cheer Justice Scalia for helping point the way back.

... Justice Antonin Scalia ... considers aggressively and defends passionately the principles responsible for the ordered liberty that makes America the envy of the world. He refuses to let politics supplant principle and with a confident humility, or perhaps a humble confidence, submits himself to the rule of law and the collective judgment of his fellow citizens.

In the process, by the force of the principles in which he believes and the personality with which God has blessed him, Justice Antonin Scalia has made our liberty more secure, our citizenry and leaders more responsible, and given us all plenty to ponder ... ."1

Fortunately for America, there are some other wise judges like Justice Scalia who recognize the Secularist's strategy to subvert our court system in order to demolish our Constitutional freedoms.  They are rejecting the temptation to usurp legislative power to make new laws and instead, are ruling according to the stated intent of our the majority of our Founding Fathers and court and historical precedent.  The next chapter will give an example of just such a courageous, patriotic judge who ruled against the ACLU in a key case on December 20, 2005.