Replacing Scalia: Why the Election Is Crucial to Our Republican Constitution

US President Barack Obama passes a portrait of Justice Antonin Scalia after paying respects as the Justices body lays in repose at the US Supreme Court February 19, 2016 in Washington, DC. / AFP / Brendan Smialowski (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)

The death of Justice Antonin Scalia—combined with Senate Republicans’ refusal to consent to any nominee until after November—has raised the stakes on an issue that should always be at the forefront of a presidential campaign, but usually isn’t: the future of the Supreme Court and of our Constitution. Selecting the next justice is already a prime topic of the presidential debate, but now is the time to be clear about the nature of the choice we face.

Most today assume that the current divide on the Court is “political” in the sense that the “left” side favors progressive outcomes whole the “right” side favors conservative ones, but this is not truly the case. When I argued the case of Gonzales v. Raich before the Court, one might have supposed that the left side of the Court would have favored my clients, who sought to use marijuana for medical purposes as authorized by California, while the right side would have been opposed. Yet, Chief Justice Rehnquist and Justices Thomas and O’Connor sided with us, while the four most “progressive” justices were opposed (and we lost 6-3 when Justices Scalia and Kennedy joined their ranks).

What was at stake for both sides, however, was not policy but principle: in particular, a principled disagreement about the sort of Constitution we have and the proper role of judges in enforcing it.

  • Do we have a “democratic” constitution in which the rule of the majority takes priority unless expressly prohibited? If so, judges should generally defer to the “will” of We the People as expressed by their representatives.
  • Or do we have a “republican” constitution in which the rights of “We the People” take priority over the decisions of their servants in the legislature? If so, judges have a duty to ensure that the servants of We the People remain within the constitutional limits on their powers.

In my book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, I identify the difference between a “republican” constitution like ours, and the more democratic constitution given to us by the courts. A “democratic” constitution views We the People as a group, which requires a constitution to enable majority rule. In this scheme, judges are problematic because they are thought to thwart “the will of the people” as reflected in their legislatures.

In contrast, the Declaration of Independence identified the fundamental tenets of a “republican” constitution that views We the People as individuals, with governments established as their servants “to secure” their pre-existing rights. As I explain, our Republican Constitution secures these rights primarily by means of federalism and the separation of powers. But, in addition, judges too are servants of We the People, who have a duty to keep all the government servants within what the Declaration calls their “just powers.”

Both Raich and the Obamacare case illustrate the importance of this difference and how “conservative” justices accept aspects of the democratic constitution. In Raich, the “liberal” justices put their principled commitment to majoritarian rule at the national level above their compassion for the suffering and the dying. Conversely, the three “conservative” dissenters put their principled commitment to constitutionally-limited federal power above their abhorrence of drugs. We cannot be sure why Justice Kennedy joined the liberals, but Justice Scalia made his reason clear in his separate concurring opinion: under the Necessary and Proper Clause, he wrote, the Court must defer to Congress’s judgment that it was “essential” to reach home grown and consumed marijuana to enforce the ban on its interstate trade.

In short, in Raich six of nine justices exercised “judicial restraint” in deferring to the “democratic” will of Congress when it came to enforcing the scope of Congress’s power under the Commerce and Necessary and Proper Clauses. Three justices were prepared to draw a line at a federal power to prevent citizens from producing and consuming a good on their own property, leaving the democratic regulation of such activities to the states.

The same divide over the proper role of judges in enforcing our Republican Constitution arose ten years later in the Obamacare case but, by then, the numbers had moved in a “republican” direction. There, as in Raich, the four more progressive justices were monolithic in their deference to Congress’s claim of a power to require citizens to do business with a private company. But now four, including both Justices Scalia and Kennedy, stood forthrightly against.

As we know, however, the fifth “swing vote” was by Chief Justice Roberts. On the one hand, he affirmed the republican limits on the scope of federal power by saying that individual purchase mandates were beyond the commerce power. On the other hand, he then invoked the democratic constitution’s conception of “judicial restraint” by adopting a “saving construction” to rewrite the law so that it conformed to the limits on congressional power. Perhaps he expected his split-the-baby approach to be received by conservatives with equanimity. It wasn’t.

The Obamacare decision was an inflection point in how conservatives conceive of the role of courts. Formerly they were conflicted between their twin commitments to the original meaning of the Constitution and to “judicial restraint.” Thanks to Chief Justice Roberts, the trend of opinion is now moving in favor of the enforcement of the original meaning of the text, even if this means invalidating “popularly-enacted” laws. With the judicial philosophy of the Court now evenly divided, the next appointment will be crucial.

My law school classmate Judge Merrick Garland is an intelligent and honorable man. But his decisions clearly indicate he prioritizes the democratic constitution above the original meaning of the text. Therefore, he is not the man to replace Justice Scalia. We need a president who will appoint judges who understand that their duty is to enforce the original meaning of our Republican Constitution, even against the will of the majority. Only by replacing Justice Scalia with such a person can we protect the rights for We the People, each and every one.


Randy Barnett is a professor of constitutional law and director of the Georgetown Center for the Constitution. His book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, will be published by HarperCollins on April 19th.