The Real Reason Losing A Judge Like Antonin Scalia Hurts

When Supreme Court justice Antonin Scalia passed away suddenly, social media lit up. Of course, most people will focus on the abortion issue. Scalia didn’t see a right to privacy in the Constitution. Abortion supporters detested him. Pro-life people loved him.

No, the real reason that Scalia’s loss is damaging is because he interpreted the law and usually came down on the side of the little guy. He read the Constitution as it was originally written. America’s founders were highly skeptical of big government, and highly skeptical of centralized solutions. They wanted to form a confederation of independent states.

In order to do that, it means the individual has to take precedent over the collective.

That plays out in all kinds of ways. Eminent domain is one example. The Kelo case is one case of Scalia championing individual rights over collective rights. But, this also plays out in things like patent law and intellectual property. Losing a justice with Scalia’s world view and replacing him with a justice that values the collective over the individual would be damaging to startups and innovation.

Scalia made an interesting comment about freedom.  One freedom we embrace is freedom of religion.  Scalia believed that our freedoms came out of English common law.  Freedom of religion doesn’t just mean that you can practice any religion you want.  It also means you cannot be compelled by anything to practice a religion you don’t believe in.  That is a different twist.

Scalia wrote or co-authored several books on how he viewed the world.   Before you get caught up in the political hyperbole, it might be worth your time to take a step back and read some of them to see how he constructed his point of view.  You might find yourself agreeing with him more than you disagree with him.

There is so much fear in America today.  I have never seen our country so fearful in my lifetime.  Even during the Cold War, America was always confident that it would prevail.  During the Carter years, there was a lack of confidence, a “malaise”.  Reagan reinvigorated the American spirt and 9 years later the Cold War was over.

I listen to both Democratic and Republican debates, and I hear fear.  One problem that is always brought up is China.  “China is huugge” as Trump might say.  But their culture is very different than ours.  Individual liberty is not valued.  It is very hard to go against the grain in China because their cultural values don’t allow younger people to speak out and go against older people.  They also strive to build consensus and squelch debate.  It’s seen as disrespectful to go against the grain.  If you are Chinese, you can forget about even thinking about the rights we have in our Constitution and Bill of Rights.

Other countries have similar cultures, and similar styles of governing to China.  Get fingered for a crime in France and you don’t have a right to an attorney.  You are guilty until proven innocent.  Forget about individual rights in countries like Russia or most of the Arab world.  Even in Singapore, where people are economically free, the government is a benevolent dictator that can take action against you capriciously.

America is one of the only places on earth where individuals are truly free.  That ethic permeates almost every thing and entity in our culture.  It makes a massive difference.  How massive?  It creates opportunity.  America is one of the only countries on earth people are clamoring to move to.  Ask someone that emigrated here the difference.

If we as a country embrace that ethic, we win.  We will out innovate anyone.  Because we give individual liberty and opportunity to everyone, we have more bites at the apple than anyone else on earth.

  • awaldstein

    You may be right.

    And I applaud his ability to write really well.

    His vitriol against a women’s right to choose though is something I can’t get beyond.

    It’s simply too fundamental for me to find much value in anything beyond it. That is all that matters and to the broader population, not as studied as yourself, that is his legacy.

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