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There will be a funeral service for Antonin Scalia on Saturday, the same day as the Republican presidential primary in South Carolina.
Scalia served on the United States Supreme Court for nearly 30 years, where he was the leading advocate of “originalism” — the doctrine that the constitution is not a living tree, but rather a dead document that must be interpreted as its (mostly) 18th- and 19th-century authors intended.
Scalia vigorously argued that the Court should not tell states to desist from executing teenagers or the mentally ill, that it does not have the authority to permit a woman to choose whether or not to be pregnant, and that the constitution does not provide any right to same-sex marriage.
South of the border, even his adversaries are saying nice things about Scalia, now that he is dead.
His succession, however, has become a hot and highly partisan political issue.
Presidents name Supreme Court justices, but the Senate must approve them.
The Republicans have a majority in the Senate and are promising to block any appointment President Obama might make in this election year.
On the campaign trail, Republican candidates try to outdo each other in pledges to name a replacement who would be as dogmatically originalist as Scalia. The most fervent of them all on that score is Texas Senator, Calgary-born Ted Cruz.
Scalia inadvertently boosted Canada’s judicial reputation
Aside from Cruz’s place of birth, there are other Canadian angles to all this.
Canadian legal scholar Adam Dodek asserts, in a piece for the Ottawa Citizen, that Scalia’s highly influential judicial do-nothing-ism had the unintentional effect of raising the profile of Canada’s Supreme Court.
As the U.S. Supreme Court retreated into passivity, Canadian court decisions — and the Canadian Constitution — became a beacon to the world, says Dodek.
And this writer knows of yet another connection between Scalia and Canada.
In 2005, a Canadian-based international organization, the Forum of Federations, held an international conference on federalism in Brussels, in partnership with the Belgian government.
Scalia was one of the hundreds of academics and government practitioners from all over the world in attendance.
Canada’s Chief Justice, Beverley McLachlin, also attended. She and her amiable husband stayed close to Scalia for most of the three-day event, as though they wanted to keep an eye on the notoriously loose-cannon U.S. justice.
They were not entirely successful.
In a session on the role of federal upper houses, Scalia averred that in his view it was a mistake, in 1913, for Americans to amend their constitution to allow for the direct election of United States senators.
Prior to that amendment — the 17th — state legislators, not the people at large, had elected United States senators.
Scalia told the Brussels conference that, in his view, the 17th amendment was the wrongheaded result of an excess of progressive enthusiasm. He made the case that direct elections have distorted the U.S. Senate’s orginally intended vocation as the voice for states’ interests at the centre.
A century ago, the idea of directly electing senators was controversial and much contested. Today, it is a settled matter. Even the most diehard originalist would not dare publicly propose turning back the clock on the 17th amendment.
Scalia was aware of that fact when he spoke so candidly in 2005.
He reminded his audience that he was speaking off the record. One hopes his heirs and successors do not now mind if his true views are revealed.
Minority government: only in Canada you say?
While Scalia may have been a hard-right judge and legal thinker, in social situations he was entertaining, sometimes even funny, and always, of course, blunt-spoken.
And he dearly loved his espresso coffee.
It came as a surprise then, given his much-touted erudition, that Scalia seemed quite ignorant of the way we do things in Canada.
During a coffee break chat, this writer made mention of the fact that the Canadian federal government of the time — the Paul Martin Liberal government — had only a plurality, not a majority, of seats in Parliament.
Scalia quizzically noted that the current ruling party must have, then, cobbled together a governing coalition, as they do in so many countries.
Canadians who were present had to explain that in Canada we do not, as a rule, practice that kind of coalition politics. They told the eminent judge and legal scholar that when a Canadian party wins the most, but not more than half, the seats, it simply tries to govern as what we call a “minority” government.
It seeks support of the House for each legislative measure on a case-by-case basis, and stands or falls on its ability to attract such support.
The eminent U.S. justice betrayed not the slightest familiarity with that Canadian practice.
Perhaps it is not so surprising.
As Dodek describes him, the man many consider to be the leading American jurist of his time was not only indifferent to foreign legal and constitutional precedents; he was actively hostile to them.
He was not just an originalist; he was a nativist.
Foreign ideas and precedents have no place in American jurisprudence, Scalia deemed.
In the 19th century they used to call that attitude know-nothing-ism. The Know Nothing (or Native American) Party was fiercely opposed to immigrants, especially Roman Catholics, who, they asserted, would pollute American Protestant purity.
In this political season we can hear many echoes of that insularity and narrowness on the campaign trail.
There is one leading candidate who has famously proposed blocking any and all of the world’s 1.6 billion Muslims from even visiting the United States.
That proposal has grabbed lots of attention.
But Canada will also be in the sights of these new Know-Nothings, now that there is one prominent presidential candidate who very openly and vigorously advocates for Canadian-style “single-payer” health care.
Photo: U.S. Supreme Court/Wikimedia Commons
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