Death of a literalist

Justice Antonin Scalia has passed away. As a common person, unschooled in law and affected by it only as it governs and restricts my daily life, I disagreed with much of what Justice Scalia had to say from the bench. Yet I'm saddened by his demise and I hope that his is not the last voice of strict literalism on the Supreme Court of the U.S.

I strongly disagree with Justice Scalia's opinions on women's rights, gay rights and the death penalty. I was happy when he was in the minority in cases which furthered the humanist cause in these areas.

However, I value the fact that he was a strict literalist when it comes to the U.S. constitution. This is, of course, something for which he was criticized and derided. His unfailing belief that the constitution is not a living document -- something I also disagree with -- drove the entirety of his legal thought. In this, he was true to his words and beliefs.

In unflinchingly holding to his literalist value system, Justice Scalia pushed the rest of us to debate with each other, win each others' approval, persuade our opponents and pass laws -- the basic way a democracy is supposed to work -- to cause societal improvement. In restraining the court's reach, he may have thwarted progress on issues that I value; but he also curtailed the oppressive power of government when it could easily have worked against me and my fellow citizens. Two examples:

1. In Kylo v. United States, Justice Scalia opined that thermal imaging of a suspect's house counted as "search", and was protected under the fourth amendment to the U.S. constitution. This means that the state needs a warrant before it can use such technology, even though the technology does not require physical access to the property being searched.

2. In Hamdi vs. Rumsfeld, Justice Scalia wrote the strongest language limiting the power of detention of U.S. citizens by the federal government, even when such citizens are found in a combat zone where the United States is waging a war.  "Justice Scalia envisions a system in which the only options are congressional suspension of the writ of habeas corpus or prosecution for treason or some other crime." It is quite telling that Justice Scalia was unmoved by the fact that President Lincoln had suspended habeas corpus during the Civil War -- for Scalia, it was the constitution or bust.

We don't always need people in positions of power with whom we agree all the time. We need principled people with whom we may disagree. The benefits are twofold: such powerful people help us refine our arguments when we disagree with them. Secondly, by the force of their principles, they help us attain goals that would otherwise elude us all.

So while I admire Justice Thurgood Marshall -- he who criticized the foundational principles of our country as being unideal -- I can find respect for Justice Scalia, too, perhaps as much his polar opposite as one can expect to find.

Requiescat in pace, Antonin Scalia.