Justice Scalia's Impassioned Defense of the Constitution

Justice Antonin Scalia's Dissent in the DOMA case was a fundamental rebuke of the Supreme Court decision to overturn the Defense of Marriage Act and we will discuss this aspect of his Dissent tomorrow. But the Scalia Dissent was also a gut-wrenching plea for constitutional government - and for the preservation of the Constitution itself. Justice Scalia made the case that the self-governing power of the people has been eroded. "Today's opinion aggrandizes the power of the court to pronounce the law," Scalia wrote. The weakening of the people's constitutional power and right and obligation to govern the United States will have the predictable consequence of diminishing the "power of our people to govern themselves," wrote Scalia, who was joined in his dissent by Justices Clarence Thomas and Chief Justice John Roberts, while Justice Samuel Alito wrote a separate dissenting opinion. Scalia described the "assertion of judicial supremacy over the people’s representatives in Congress and the executive" as "jaw-dropping." "It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere 'primary' in its role," said Scalia. "This image of the court would have been unrecognizable to those who wrote and ratified our national charter." In simple terms, Justice Scalia points out that it is Congress, not the judiciary, that is entrusted with lawmaking power under the Constitution. The role of the judiciary is to resolve disputes, in specific factual situations and not in the abstract, when the government and a party or two private parties have differing views about what a law means and whether the law, applied to those specific facts, is constitutional. Applying his analysis to the facts in the DOMA case, Scalia concludes that the Supreme Court should never have taken the case because the lower courts had already ruled in favor of tbe widow whose rights were violated by DOMA, so there were no facts to analyze in relation to the law under DOMA. Therefore, Justice Scalia concludes that everything written by the Majority in DOMA was self-aggrandizing over-reaching of the Supreme Court beyond its constitutional powers in order to make itself another lawmaker under an imaginary constitution that the Court says it is following. And by doing that, Scalia says that the Court has weakened the Constitution and the right of the American people to govern themselves. The scope and comprehensiveness of Justice Scalia's argument for the Constitution and against the creation of law by the judiciary outside the scope granted to it by the Constitution is such that it will be studied, quoted and argued in support of that sacred document for as long as the United States exists.