A third case makes chopped liver of Scalia's claim to "say what the law is, not what it should be." In Citizens United, Scalia joined in the majority decision that the First Amendment guaranteed individuals and corporations the right to unlimited election spending.
University of Colorado law professor Paul Campos found this most instructive. "The men who drafted and ratified the First Amendment would have, it's safe to say, been shocked out of their wits if someone had told them they were granting the same free speech rights to corporations they were giving to persons," wrote Campos. "It would be hard to come up with a purer example of treating the Constitution as a 'living document,' the meaning of which changes as social circumstances change."
Campos called Scalia "an intellectual phony." That, too, would be hard to disagree with. I would only add that among the first to give prominence to the idea that money is speech were those activist liberals at the American Civil Liberties Union (ACLU). Was their reasoning any more objective than Scalia's? Was it any closer to the rule of law?
Contrary to much that's been written, Scalia called himself "a faint-hearted Originalist." Over time he leaned more to "textualism," which focused narrowly on what specific laws and contracts say -- and emphatically not on trying to figure out what the authors intended. This was an even more objective way to make judicial decisions, he insisted. But he was equally ideological about that. His textualism "tilts toward 'small government' and away from 'big government,' which in modern America is a conservative preference," wrote Richard Posner in his trenchant critique of Scalia's "incoherence."
But Posner goes beyond pillorying Scalia. He tells a needed truth about how his colleagues play the judicial game, liberals as well as conservatives. "Judges like to say that all they do when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them," he explained. "They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic."
Posner does not buy the pretense, not from Scalia or from any other judge or justice, left, right, or center. Neither should anyone else.
"Judges," he wrote, "tend to deny the creative -- the legislative -- dimension of judging, important as it is in our system, because they do not want to give the impression that they are competing with legislators, or engaged in anything but the politically unthreatening activity of objective, literal-minded interpretation, using arcane tools of legal analysis."
Rule of law? No, the rule of lawyers, with undeniable ideological, political, and experiential bias. This honest understanding should govern how the country chooses Scalia's replacement and all the judges and justices to follow.
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