Without even allowing grass to grow over the grave of the great Catholic Supreme Court justice Antonin Scalia, who died on February 13, the Jesuit flagship America Magazine has devoted a front-page article to trashing the justice’s legal theory in an effort to legitimize judicial activism.
The blunt instrument chosen by the magazine to do its dirty work was
conveniently not a Jesuit but a Dominican friar named Anthony Giambrone,
who contrasts Scalia’s legal theory with that of the medieval scholar
and saint, Thomas Aquinas.
Giambrone claims that Scalia’s originalist approach to Constitutional
law—which insisted on respecting the original and manifest intent of
the writers of the Constitution rather than what modern interpreters
think they should have said—stands in sharp contrast to Aquinas’ theory
of law, which left room for disregarding “poorly written laws” in favor
of natural law principles.
Scalia would have agreed that to be an originalist one must believe
in the basic integrity and goodness of the law in question, and the
justice did indeed believe in the U.S. Constitution as a document worthy
of defense and, indeed, veneration. Above all, he advocated judicial
restraint, a specific application of the Christian virtue of humility so
often lacking among those commissioned to judge according to the law.
Americans have a legislature entrusted with the enactment of law,
Scalia often reminded his hearers, and a judiciary commended with the
task of interpreting the laws as they apply to particular circumstances.
For a political system to function where the powers of government are
thus divided, this division must be respected.
Whatever the author’s intent, his rambling essay,
titled “Scalia v. Aquinas,” plays into a thinly veiled attempt to
somehow legitimate the judicial activism that has been at the core of
the worst decisions ever handed down by the United States Supreme Court,
from Roe v. Wade to Obergefell v. Hodges.
While this dovetails nicely with the project of the Jesuits at America Magazine, it should deeply concern conservative Americans who care about the future of the Court.
Along with the utter crassness of trying to undermine the legacy of a
great Catholic jurist while people are still mourning his passing, the
essay proposes the worst possible formula for enabling the Court to
accomplish the purpose for which it is constituted.
It is moreover ridiculous in the extreme to enlist the testimony of
Thomas Aquinas to propose that U.S. justices should impose their own
vision of social organization on the country’s most foundational
document and its application to real-world situations and laws, a
proposal that the angelic doctor would have found appalling.
With an unworthy and backhanded compliment, Giambrone expresses his
hope that another “good man” like Scalia may be found to fill his chair
on the Supreme Court, as long as he is unburdened with Scalia’s
“problematic theory.”
For if you take away Scalia’s deep reverence for the Constitution as
it was written and intended, and his respect for the critical but
limited role that justices are called to play, all you are left with is
another judicial activist legislating according to his best lights
without a mandate to do so. Breitbart
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