Justice Scalia loved the Constitution exclusively

February 13, 2016

OPINION by ILAN FUNKE-BILU

I will miss Justice Scalia and so will my clients. Many see him as an originalist guided by conservative, law and order principles. I disagree and I have so advised my clients. Justice Scalia loved the Constitution exclusively. He never cheated on it. He never disrespected it.

If only all of our judges would treat our Constitution with that same devotion and fealty!

I practice criminal law because I, like Justice Scalia, love our Constitution. In my practice, rarely a day passes without consideration of the First or Second or Fourth or Fifth or Sixth or Eighth or Fourteenth Amendments. It is a living document that has been strengthened by Justice Scalia’s interpretations. I doubt if President Reagan would have nominated him to the Supreme Court if the late president would have known the opinions that eventually flowed from his scholarship.

The right of confrontation was eroding for years until Justice Scalia healed it back to health. Justice Scalia reinvigorated juries by arming them with the power to weigh in at sentencing. In other words, Justice Scalia took away some powers traditionally reserved for judges and delivered them to juries.

Can you imagine a judge ordering his fellow judges to back off the way they have been doing business for years and share their responsibilities with 12 lay folks?

The right to be free from unreasonable searches or seizures is stronger today because of Justice Scalia. The police today need to be more mindful of the Fourth Amendment. It is not that Justice Scalia has made their job more difficult. Rather, through his profound understanding of our Constitution, he has made them better better stewards of the rights of the people.

If one were to read Justice Scalia’s opinions superficially in the field of criminal law, one might conclude that he was a leftist, socialist, who disdained the police and desired to expand the rights of the individual at all costs. We know that he was a devout Catholic, with nine children who hobnobbed with Republicans. He was, after all, appointed by President Reagan. He was considered to be part of the conservative wing of the Supreme Court. His opinions in cases outside of criminal law may be more consistent with that assessment.

But in my profession, in the practice of criminal law, there was none more influential. His opinions transcended political labels. I will miss Justice Scalia, as will my clients, as will all Americans. Today the Constitution is crying.