A Providential Passing: The Death of Judge Scalia…and the Constitition?

photo constitution

by Gordon M. Hahn

On the edge of the pivot point in the U.S. presidential primary races at a time when America’s future is in doubt, the news came: U.S. Supreme Court Justice Antonin Scalia passed away at 79. His passing seems a providential warning to the American people who, judging by early primary voting patters, have gone far astray from the American constitution’s original intent for the state and society as envisioned by our founding fathers and their contemporaries.

Judge Scalia was not a jurist of traditional ‘original intent,’ as typically understood. He did not turn to the founding fathers’ writings in attempting to ascertain original intent ostensibly hiding in the constitution’s words. Rather, in getting at the original intent of the constitution’s words he relied on their meaning in society at the founders’ time. Scalia’s “originalism” held that the constitution’s meaning does not change over time, regardless of whether or not society changes over time. Our founding document places eternally strict limits on the powers of the state vis-à-vis society and the individual as well as a permanent, consistent division of powers and functions ‘vertically’—between the federal and state governments—and ‘horizontally’—between the three branches of power. Thus, the Supreme Court reviews laws, it does not make them. SCOTUS reviews the constitutionality of laws, it does not rewrite them to make them constitutional. That is the legislative branch’s function. These tenets remain constant regardless of social, economic, and political change. As Judge Scalia implied in the Obamacare case, the constitution does not give the state the power to force Americans to buy broccoli or health insurance.

Thus, Scalia’s death rings symbolic of the great danger—the death of the American constitution. A great decision stands before the American people—whether to continue down the dangerous road of overthrowing the constitution and forced Americans to buy broccoli, work in a particular profession or join a particular political organization, on the one hand, or to turn back to constitution’s original intent of individual freedom from the state’s economic, social, and political control.

As of writing, the constitution’s revival seems a doubtful outcome. The American people have put three candidates at the head of the presidential race; each represents a threat—even the final blow—to the meaning of the constitution.

The gravest threat hails from the communist from Vermont, Bernie Sanders. His promises of universal free education, universal free medical care, universal free everything as fundamentally destructive of freedom. Clean and simple. Full stop, end of sentence. His neo-communist economics will throw the U.S. economy into a depression, exacerbating sociopolitical tensions to the breaking point.

The only reason the Democrats’ other leading candidate, the corrupt feminist Hillary Clinton, should not be awaiting trial for her gross violation of U.S. government information security rules is because she should already be in prison for a series of other crimes, ranging from embezzlement and fraud in the Whitewater case to slander in her various efforts to cover up her husband’s sex crimes. This not augur well for constitutional rule. A Hillary presidency will mean a slow death—rather than the quick death under Sanders—for the U.S. constitution, economy, and polity. For the latter, decay will likely advance more quickly, given Clinton’s Obama-like obsession with manipulating identity politics.

In fact, either candidate’s election will gravely downgrade if not destroy the American way of life, even the country itself, but they also will bring down much of the global economy and political stability along with it. For example, both would implement a ‘single-payer’ medical insurance system, i.e. a state health system. Democrats love to point to Cuba and the ‘social democracies’ of Europe with their cradle to grave social welfare systems, forgetting that without the U.S. defense umbrella and economic engine, their systems would collapse under the weight of needing to provide guns and all the butter.

For those who doubt this, keep in mind that it is not the Norwegian, Danish, Swedish socialist systems but the American free market that allowed for the creation of 17 of the 20 largest medical technology companies. These capitalist entities provide the advanced medical equipment without which socialist European systems could not survive. Similarly, socialist Europe and the rest of the world will miss sorely the American pharmaceutical industry’s research, development, and production. Take a look at your phone, your computer. Need I mention that Silicon Valley is not a government ministry.

Many commentators are fond of saying that nowadays John F. Kennedy could not win the Democratic Party’s nomination. The fact is that today not even 1992’s Bill Clinton could win his party’s nomination. 1992 Clinton was a moderate in his party at the time; now he would have to switch parties to play the same role and would fit in nicely in the Republicans’ moderate lane with Jeb Bush and John Kasich.

The third horseman of the American apocalypse is the Republicans’ Donald Trump. This modern day Huey Long is riding a wave of Republican and conservative desperation to save the country rattled by the liberal-left onslaught of recent years. Many Republicans and even Tea Party constitutionalists are throwing our founding law to the wind in favor of someone who can allegedly ‘get things done.’ Pouring the constitutional baby down the drain with the Obama bath water may feel good, but it will not lead to a restoration of constitutional governance.

To the contrary, just as Trump is dividing Republicans, he will polarize the country. Just like a piece of metal bent back and forth repeatedly, the American polity will snap under the to and fro of political antagonism—first in one direction, then the other—orchestrated again from the White House as during the last seven years. The first signs of the danger that awaits is visible in Ferguson and Oregon.

The Democrats’ schemes and Trump’s governmental inexperience and personal temperament are not just dangerous for what will remain of the American constitutional order and individual freedom after eight years of socialist, identity politics rule by a half-educated, smooth, yet obvious Marxist professor with little to no real knowledge of either the country or the world he sought to ‘fundamentally transform.’ They will lead to a full unraveling of what remains of the global economy and national and international security.

So Judge Scalia’s passing at this moment seems a providential message to Americans to return to its founding principles before it is too late. For regardless of the country one is talking about, once a people rejects its original foundations, the edifice upon which it rests is destined to fall.

In a speech at SMU, the judge, intimating his doctrine of originalism, told an audience that the constitution is “not a living document.” “It’s dead, dead, dead,” he said. Not yet, Judge Scalia, not yet.

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Gordon M. Hahn is an Analyst and Advisory Board Member of the Geostrategic Forecasting Corporation, Chicago, Illinois; Adjunct Professor and Senior Researcher, Middlebury Institute for International Studies at Monterey; Senior Researcher, Center for Terrorism and Intelligence Studies (CETIS), Akribis Group, San Jose, California; a Contributor for Russia Direct, www.russia-direct.org; and an Analyst/Consultant, Russia Other Points of View – Russia Media Watch, http://www.russiaotherpointsofview.com. Dr Hahn is author of three well-received books, Russia’s Revolution From Above (Transaction, 2002), Russia’s Islamic Threat (Yale University Press, 2007), which was named an outstanding title of 2007 by Choice magazine, and The ‘Caucasus Emirate’ Mujahedin: Global Jihadism in Russia’s North Caucasus and Beyond (McFarland Publishers, 2014). He also has authored hundreds of articles in scholarly journals and other publications on Russian, Eurasian and international politics. Dr. Hahn has taught Russian politics and other courses at Boston, American, Stanford, San Jose State, St. Petersburg State (Russia), and San Francisco State Universities as well as the Middlebury Institute for International Studies at Monterey, California. He also has been a Senior Associate at the Center for Strategic and International Studies (2011-2013) and a Visiting Scholar at both the Hoover Institution and the Kennan Institute. His website is http://www.gordonhahn.com.

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About Gordon M. Hahn