I understand that Justice Scalia was good company and personally a nice man. One should never speak ill of the recently dead.
However, notwithstanding the eulogies, it is appropriate to comment briefly on his Constitutional views and judgments.
This was the man who believed that corporations are people and should be accorded the same rights as individuals (if this is so why are they not restricted to the same level of electoral donations as individuals?). This is the man who was implicated in the Citizens United case, which opened up the floodgates of dubious and unaccountable money in elections. This has resulted in the very rich, the lobbyists and the corporations subverting democracy and putting the stamp of oligarchy on the whole American political system. This is the man who compared laws banning homosexual behavior to laws prohibiting bestiality — or murder, who compared illegal immigration to bank robbery, and insinuated that black people should be in “slower-track” colleges because that was all they could cope with. Scalia voted with the court majority to end the Florida vote recount in 2000, essentially handing all of Florida’s electoral delegates to George W. Bush and making him President, a straight political move.
Justice Scalia was entitled to his views, but the current over-the-top adulation smacks of hypocrisy. Epicureans, for our part, regard a Constitution as a document designed to be for modern human beings and their needs, one that allows them to live together in security and harmony, a relevant, living document, not a relic of a long-gone age of slaves and transport on horseback.
This will upset many Republicans, but much of what is in the Constitution has resulted in political dysfunction. I understand that the ‘checks and balances’ system is meant to curb executive tyranny, but by splitting power too evenly, nothing gets done anymore. The constitution fails to put checks on the Supreme Court, which is far too powerful- allowing unelected judges like the late Scalia enormous influence on public policy. There is no need for a bicameral legislature: Sweden, New Zealand and many other countries get by perfectly well without one- it simply delays reform while arguably worsening the quality of legislation by compromising it and ensuring it serves the interests of minority groups. America should scrap its current constitution and replace it with a parliamentary system with proportional representation and a multi-party system.
There are also policy failures of the constitution. There should have been a ban on slavery and limitations on the president’s power in foreign affairs. The Second Amendment should never have been written. There should be term limits on congressional tenure the way there are in most state legislatures. Overall, the constitution is a wonderful document, it created one of the freest societies in the world. But it is not infallible, and originalists like Scalia shouldn’t have treated it as such.