Scalia: What Were the Founding Fathers Thinking?

This article first appeared on the American Enterprise Institute site.

Our nation lost one of its leading lights on Saturday with the death of Antonin Scalia, associate justice of the Supreme Court.

Today, constitutional theory orbits around Justice Scalia. Even though his tenure on the court is not characterized by a string of landmark majority opinions, his demanding intellect, rigorous theories and provocative writings sparked a revolution in constitutional law.

His adherence to the written law and the Framers' understanding drove a stake into the heart of the Warren Court's jurisprudence. In its place, he constructed a newfound respect for the democratic process, judicial restraint and a Constitution of enduring meaning.

Scalia tenaciously fought to prevent judges from imposing the latest political or legal fads on the nation in the guise of constitutional interpretation. Court watchers who count only majority or dissenting votes would miss Scalia's influence on these questions.

Scalia did not prevail on the issues perhaps most important to him. He attacked a majority of justices for divining a right to abortion from "due process of law." He notably accused the court of taking sides in the culture wars by finding gay rights in the Constitution. He saw the court uphold independent agencies and the expansion of the welfare state to all health care.

Yet Scalia's greatest victories emerged from his worst defeats. In Morrison v. Olson, the court upheld the Ethics in Government Act, which established an independent counsel for the investigation of high government officials. The law made the counsel subject to the control of no other official in government and protected him or her from removal except for the commission of a federal crime.

Dissenting alone, Scalia argued that the Constitution required that the president control all federal law enforcement, because it vested him alone with all of the executive power of the government and gave him the duty to see that the laws are faithfully executed.

Scalia employed a sharp analysis that would ripple out to influence constitutional law all around. Not for him were congressional or academic theories on creating new mechanisms of government, or curing the latest problems in government. Scalia instead began with the Constitution's text, made sense of the structure it created, and then turned to the Framers' understanding of what they had created.

When the Constitution vests the president with "the executive power," Scalia concluded, it "does not mean some of the executive power, but all of the executive power." And law enforcement was the core of the executive power.

By creating an independent counsel, Congress had fragmented the unity of the executive branch and disrupted the balance of powers between the three branches. Scalia observed that threats to the separation of powers often "will come before the Court clad, so to speak, in sheep's clothing," but with the independent counsel, "this wolf comes as a wolf."

Scalia lost Morrison by 7-1. But his predictions came all too true, as independent counsels beset the Reagan and Bush administrations and then culminated in the Whitewater investigation of President Bill Clinton. Energy no longer was found in the executive. By the end of the century, both political parties bent to Scalia's analysis and decided not to renew the act.

Morrison symbolized the Scalia approach. Begin with the constitutional text. Seek to understand it based on the understanding of the Framers, because they wrote and ratified it. While society may change, the Constitution does not. It is not the job of the Supreme Court to adjust the Constitution's meaning to the modern day, because judges are not elected and enjoy a life tenure that makes them unaccountable.

While it is important for the courts to restrain themselves from interfering with the policy choices of the democratic process, it cannot allow politics to go so far as to corrupt the basic framework of government. And as in many other cases, Scalia wrote his greatest words while dissenting: He would rather be right than be popular.

Justice Scalia was one of the intellectual forces behind the conservative revolution in constitutional law that began in the 1980s and continues today. It is only fitting that the American Enterprise Institute provided him a home where he could develop his constitutional arguments, just as it created a space for conservatives to develop the economic, military, diplomatic and political theories that would save the nation in the 1980s.

And so, as we still live today in the political world defined by President Ronald Reagan, so too do judges, lawyers and citizens debate constitutional law today by the terms set by Justice Scalia. He would want no other legacy than that we continue his work to remain true to a Constitution that endures through every age.

John Yoo is a professor of law at the University of California, Berkeley, School of Law since 1993 and a visiting scholar at the American Enterprise Institute.