Adapted from a talk given by Helen Cross at the 2016 Convention. It will appear in the summer issue of Massachusetts Citizens for Life Quarterly.
The jurisprudence of the late Supreme Court Justice Antonin Scalia relied on a reading of the actual text of the Constitution and understanding how it was originally understood by the Framers. The Framers had designed a system of government in which individual liberty could be safeguarded by the restriction of governmental power. Within the limits of the Constitution, the people could exercise the power to govern themselves. Scalia’s reasoning uncovered the underlying principles behind the text of the Constitution that implied a natural law foundation.
Scalia’s appointment to the Court in 1985 countered the prevailing judicial notion of a “living Constitution,” the idea that judges could view the Constitution in a way that furthered social progress, by defining what the words meant in their own time. Under originalism, because the law is established according to what the text meant to the original framers, Scalia argued for a judiciary with limited power, existing to interpret the law but with no authority to change it. “The question of whom to appoint to the court is polarizing because the questions of what the court is and does has become subject to drastically conflicting understanding on the part of the judges themselves,” wrote L. Joseph Hebert, commenting on the difficulty of choosing a successor to Scalia.
Scalia faulted the Supreme Court’s Roe v Wade decision for declaring that abortion could not be prohibited and for locating an abortion liberty in the 14th Amendment. He said, “My view is that regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it. It leaves it up to democratic choice. Some states prohibited it, and some states didn’t. What Roe vs. Wade said was that no state can prohibit it. That is simply not in the Constitution.
“But some of the liberties the Supreme Court has found to be protected by that word, ‘liberty,’ nobody thought constituted a liberty when the 14th Amendment was adopted. Abortion? It was criminal in all the states,” Scalia explained.
His dissent in Planned Parenthood v Casey (1992) reiterated that abortion had never been a liberty protected by the Constitution and had always been legally proscribed by long-standing traditions in the United States. Scalia wrote, “The permissibility of abortion and the limitations upon it are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
Scalia also wrote the dissenting view in Stenberg v Carhart (2000). The Court struck down a state ban on partial-birth abortion. He wrote, “The notion that a Constitution designed to establish justice and secure the blessings of liberty to ourselves and our posterity would prohibit the states from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.”
In Cruzan v Missouri Department of Health (1990), Scalia supported the constitutionality of state laws prohibiting assisted suicide. “American law has always accorded the State the power to prevent, by force if necessary, suicide … [T]he point at which life becomes ‘worthless,’ and the point at which the means necessary to preserve it become ‘extraordinary’ or ‘inappropriate,’ are neither set forth in the Constitution nor known to the nine justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory.”
He continued this line of reasoning in Gonzales v Oregon (2006). “Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted-suicide is unquestionably permissible. If the term ‘legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death.”
Shortly after Scalia’s passing George Will wrote, “Scalia lived 27 years after the person who nominated him left office, thereby extending the reach of Ronald Reagan’s presidency and reminding voters of the long-lasting ripples that radiate from their presidential choices. ‘A teacher,’ wrote Henry Adams, ‘attains a kind of immortality because one never knows where a teacher’s influence ends.’ Scalia, always a teacher, will live on in the law and in the lives of unnumbered generations who will write, teach, and construe it.”