Trump’s Nominee the Tale of Two Court’s Makes A Stronger Court and Stronger Nation

WASHINGTON, D.C.—-President Donald J. Trump nominated Amy Coney Barrett to serve as the ninth Supreme Court justice Saturday.

Barrett is the Justice Antonin Scalia’s model.  Expect Barrett to rule like Scalia as the animated proponent of originalism and structural constitutionalism.  

Barrett said in her first statement “I was lucky enough to clerk for Justice Scalia and given his incalculable influence on my life—I am moved to have members of his family here today.”   I clerked for Justice Scalia twenty years ago, but the lessons I learned still resonate.”   His judicial philosophy is mine too.  A judge must apply the law as written. Judges are not policy makers, and they must be resolute and setting aside any policy views they might hold.”

Antonin Scalia Photo

“Justice Scalia was an originalist in that he interpreted the U.S. Constitution in accordance with the meanings and intentions that were present when it was first adopted. This legal philosophy is the ideological opposite of a “living Constitution” that evolves by incorporating the contemporary meanings and intentions of society-at-large.  Scalia’s judicial philosophy—which holds that the Constitution should be interpreted in terms of what it theoretically meant to those who ratified it over two centuries ago,” resonates today as Barrett’s philosophy.

In Justice Scalia’s view, the Constitution was not supposed to facilitate change but to impede change to citizens’ basic fundamental rights and responsibilities. Barrett has given all indications that she intends to follow Scalia’s philosophy to “apply the law as written,” and setting aside her personal policy views.”

Justice Scalia abhorred “judicial activism” and believed the place for implementing change was in the legislature, where the will of the people is represented. Barrett’s opponents stress that by interpreting the Constitution in its original form, any progressive law (abortion and equal rights) would be declared unconstitutional because it doesn’t adhere to the original intent of the founders.

Barrett nomination strengthens the Supreme Court. Justices should stop interpreting the Constitution based on the views of the political party, but as the Constitution was written.  Justices must stop interpreting the Constitution with what is popular with the people— while they lack the support of the Constitution.  Bribery has no place in society, and the Justices must stop allowing themselves to be bribed by special interest groups and advocates.  Barrett to stand her grounds, and not to put self-first but the people. The Supreme Court is the people’s court, said Barrett.

Justice Scalia was a believer of state rights.  The Supreme Court confirmed stated rights, and held in the Obamacare case “that federal authorities could not take away a state’s Medicaid funding for refusing to expand the program.”

Many Federalists argued, as in Federalist No. 84, that the people surrendered no rights in adopting the Constitution.

Arguing that the Constitution is “not an organism,” Scalia urged his audience not to “play games with the Constitution.”

“I am one of that small band of judges who are called originalists,” he said. The Constitution “means today just what it meant when it was adopted.”

Scalia once wrote in an opinion referencing the Federalist papers:

  • Hamilton in No. 27 first notes that because the new Constitution would authorize the National Government to bind individuals
    directly through national law, it could “employ the ordinary
    magistracy of each [State] in the execution of its laws.”… [H]e
    states that “the legislatures, courts and magistrates of the respective members will be incorporated into the operations of the
    national government, as far as its just and constitutional authority
    extends. “.. . The natural reading… is not merely that the officers
    of the various branches of state governments may be employed in
    the performance of natural functions; Hamilton says that the state
    governmental machinery “will be incorporated”
  • Madison in No. 44 supports this …. He asks why state
    magistrates should have to swear to support the National
    Constitution …. His answer is that national officials “will have
    no agency in carrying the State Constitutions into effect. The
    members and officers of the State Governments, on the contrary,
    will have an essential agency in giving effect to the Federal
    Constitution.”

“If there was one predominant thread running through Scalia’s cases it was a determination, consistent with his originalism, to limit the unelected judiciary’s power to the exercise of “merely judgment,” as characterized by Alexander Hamilton in a Federalist Papers passage that Scalia loved to quote.”

Scalia were highly concerned at the idea that judges were the custodians of a “living Constitution” whose meaning they could change in accordance with “evolving standards.” As Scalia wrote dissenting from the court’s 2005 death penalty decision in Roper vs. Simmons: “On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?”  

This Essay focuses specifically on the sources Justice Scalia used for his plain-meaning argument to define “vacancies that may happen,” the credibility of these sources, and whether there are other sources that substantiate his argument. 

Barrett is expected to bring back the Federalist Essay’s as Scalia to strengthen the Supreme Court and our Nation.  The Supreme Court is as strong as its people and the interpretation of its justices. Justice Barrett–to take our progressive laws to a new and higher horizon—of applying the Federalist Essay’s and the opinions of Hamilton and Scalia with a touch of Madison.

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