Scalia, the preeminent conservative firebrand of the court, told the audience it is the structure of the government under the Constitution and not the liberties guaranteed under the Bill of Rights that makes us free.
As reported by The Daily Signal: “Every tin horn dictator in the world today, every president for life, has a Bill of Rights,” said Scalia, author of the 2012 book Reading Law: The Interpretation of Legal Texts. “That’s not what makes us free; if it did, you would rather live in Zimbabwe. But you wouldn’t want to live in most countries in the world that have a Bill of Rights. What has made us free is our Constitution. Think of the word ‘constitution’; it means structure.”
Congress passed the first ten amendments to the Constitution, which became known as the Bill of Rights, during the opening months of its first session in 1789, largely following those proposed by the “Father of the Constitution,” James Madison. They were ratified by the states and became the law of the land in 1791.
Scalia argued that without the division of power created by the Constitution, the Bill of Rights, which guarantees freedom of speech and religion, the right to bear arms, protection against unlawful search and seizures, and trial by jury of one’s peers among other rights, would just be paper promises with no mechanism to enforce them.
“The genius of the American constitutional system is the dispersal of power,” he said. “Once power is centralized in one person, or one part [of government], a Bill of Rights is just words on paper.” There cannot be any semblance of debate here, there or anywhere. One may try to debate this notion — or even argue for and/or against it. The Bill of Rights is contingent upon first there being a Constitution seeding a government first; or else, what would remain is a government not taking part in the policing of governmental separation of powers.
Scalia stands on firm ground with his observation. James Madison wrote in Federalist 51 that the best bulwark against government tyranny is structuring a system where “ambition must be made to counteract ambition.” As I read this in conjunction with Federalist 51 and what Justice Scalia is referring to is a two-word phrase of “government tyranny.”
He observed: “In…the republic of America, the power surrendered by the people is first divided between two distinct governments [federal and state], and then the portion allotted to each subdivided among distinct and separate departments [legislative, executive, judicial]. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”
All things being equal what President James Madison wrote, and I venture to say that this is all predicated upon theory from the great philosophers and an easier means, meaning of course from those that preceded the founding of the United States and subsequently failed.
Scalia noted that the most profound departure from the dispersal-of-power structure established under the Constitution was passage of the ratification of the 17th Amendment in 1913, which changed the method of the election of U.S. senators to the popular vote rather than by the state legislatures.
The Founders intended the House of Representatives to be the “people’s house” with elections every two years, while senators served for six-year terms–their constituency being the state legislature. This ensured that senators would have no incentive to trample on the state government’s authority through federal action.
This given to us by first James Madison and reaffirmed by Justice Scalia is a stroke of genius. If one looks at what has become of the U.S. Senate I do not think it is even arguable to understand that those members of government are not showing the esteem of the duly elected State’s legislature.
The Constitution created a federal government with certain enumerated powers, leaving all the remaining authority to the states and the people. Scalia and many other critics believe the federal government has usurped broad authority in powers left primarily to the states.
Okay insofar as this is based on a keynote speaking address given by Justice Scalia he is just about making a mockery of what has become the U.S. Senate and furthermore, leaves no stone unturned when one considers the usurpation of the federal government and what is being from the state’s legislative branch as well as the judiciary.
The “genius stroke” is that Justice Scalia is very much a states oriented person.
“What a difference that makes,” Scalia said. “When you have a bill that says states will not receive federal highway funds unless they raise the drinking age to 21, that bill would not pass. The states that had lower drinking ages would tell their senators, ‘You vote for that and you are out of there.’”
Regarding interpretation of the Constitution overall, Justice Scalia is an originalist. In other words, he believes that it is not up to courts to re-interpret the nation’s governing document, but follow what the Founders’ intended. If the Constitution or laws generally need revision, it is up to the legislative branch to do so.