I was sitting and resting in bed yesterday after working at the library when I read on my Facebook feed that Justice Antonin Scalia passed away from a heart attack at a resort ranch in the town of Marfa, Texas, a small town 200 miles east of El Paso. Scalia was not without faults (most notably his adherence to the incorporation doctrine), but he was one of the few justices on the Supreme Court who did not buy the rubbish that the Constitution was a living, breathing document that had to be interpreted with the times.
The Constitution, as envisioned by our Founding Fathers, gave the federal Congress specified powers that were enumerated in Article I, Section 8 of that document. James Madison, in Federalist No. 45, stated the following with regards to the federal Constitution:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.
It was clear that many of the powers that the new government had would be restricted and that the states would have much to say as to how their own governments were run. This practice was maintained for all of the 19th Century and early into the 20th Century. Even after the convulsion of the War Between the States, the federal government was very small with budgets not even reaching $1 billion a year until our entrance into World War One. In the aftermath of the war, the country took a decidedly different direction where power would be amassed on the Potomac and that the power of the states would gradually decline throughout the century.
The expansion of federal power greatly accelerated with the Coup of 1937, where the Supreme Court abandoned its place in applying strict construction of the Constitution and began to embrace a more progressive understanding of the document. Men like Woodrow Wilson were influenced by the theory that law like men were evolving in Darwinian terms and that the Constitution’s meaning changed over time.
Antonin Scalia rightly saw the danger in the evolving theory and stated:
The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.
Obama will now likely replace Scalia with a man that fits his vision of what law should be. Men like Scalia are few and precious in these days and he will be missed.