The death of Supreme Court Justice Antonin Scalia, coming as it did at the start of a presidential election season, has set the stage for a political drama that may go unresolved for a year. The stakes could not be higher. With the remaining justices split 4-4 along ideological lines, Scalia’s replacement will determine the course of American jurisprudence for years to come. The repercussions of filling the vacancy could be felt for generations. It is therefore little wonder that politicos on both sides of the aisle have girded their loins for battle over whether the next appointee will be nominated by lame duck Barack Obama or his successor.
The situation presents a certain irony. Scalia had a well-earned reputation as a constitutional constructionist. He believed that the nation’s founding document “says what it says and doesn’t say what it doesn’t say.” President Obama was no doubt cognizant of that legacy as he cited his “constitutional responsibilities to nominate a successor in due time.” Indeed, the entire Democrat apparatus has discovered a newfound respect for a plain reading of the text, if only in this instance. By contrast, Republicans and their conservative patrons have staked out a different stance. They pledge to hold up any confirmation until the people elect a new president. Some, even on the Right, have responded to that with cries of constitutional foul.
Regardless of your read on the Constitution, it seems clear how things are going to go down. One way or the other, the Senate will not confirm Scalia’s replacement until Obama’s successor has been inaugurated. Stalling will prove a political gamble, but a necessary one given the overall stakes. In the end, the American voter will determine who gets to nominate Scalia’s replacement.
In a manner grander than most, this drama demonstrates the practical limits of constitutional navel gazing. Activists, pundits, and elected officials all regard themselves as constitutional experts in times like these, each applying an interpretation that favors their desired outcome. At the end of the day, none of those interpretations will matter. Whatever you think the Constitution says, what it actually says, what the framers originally meant –none of it will have any bearing on how this plays out. It will be decided by one thing and one thing only: political will. Who has the votes? Who has the support? Who wants it more? That will determine who wins the day.
Therein lies a lesson for activists. For eight years, the Tea Party has wielded “original intent” as if it were a crucifix to ward off evil, except it hasn’t. We’ve watched as government has continually expanded, and liberties have continually shrunk. We’ve thought to stem the tide by unseating a House majority leader or removing a speaker. But those achievements, if you want to call them achievements, have fundamentally changed nothing. Demanding that candidates acquiesce to an esoteric reading of our founding documents has not tangibly restored our republic. There’s a simple reason why. While Scalia was correct in stating that the Constitution “says what it says and doesn’t say what it doesn’t say,” the tangential truth is that the Constitution effectively means whatever we let it mean. If we let it mean that the penalty in Obamacare is actually a tax, then, practically speaking, that’s what it means. If we let it mean that states can no longer define marriage through law crafted by their own people, then, practically speaking, that’s what it means. All the constitutional scholarship in the world matters not in the face of political will. Regardless of what our forefathers wrote two hundred years ago, today’s people get what today’s people want. That’s why we have Obamacare and gay marriage. It’s also why Obama will not successfully nominate the next associate justice to the Supreme Court of the United States.
If conservatives wish to foster any hope of turning the country around, of truly making America great again, then we need to dispense with the notion that the Constitution will save us. It is we who must save it. We must do so by earning support for its underlying principles in our culture. That is not a political objective. That comes before any political objective. It happens in our homes, churches, schools, and communities. It happens through relationships, literature, and art. It happens the same way the progressives have eroded our culture to this point, incrementally over several generations. It won’t happen because somebody gave a great one-off speech about liberty and the Declaration of Independence. It won’t happen because conservatives picked off a handful of establishment figures in Congress. It won’t happen because the next president of the United States is a Republican. We have to change ourselves. We have to reshape the culture. We have to summon political will. It’s time for the constitutional navel gazing to end, and a cultural reformation to begin.