The impact of the late Supreme Court Justice Antonin Scalia’s perfection of the art of dissent in opinions related to cases in which he deemed that a majority of his fellow justices ignored – or downright denigrated – both the words of our Constitution and intents of its founders likely will reverberate throughout America’s remaining history and bring positive future change impossible to presently envision.
The reason is two-fold.
First, it takes genuine courage to dissent – especially in the way, with the types of cases and in the exclusive circles in which Scalia spoke, wrote and moved.
It takes more mettle to dissent than acquiesce to the ignorance – or worse, the tyranny – of the majority.
When it came, for example, to Scalia’s approach of interpreting the Constitution in terms of its original intent, the great justice once bemoaned: “This is such a minority position in modern academia and in modern legal circles that on occasion I’m asked … a question from the back of the room – ‘Justice Scalia, when did you first become an originalist?’ – as though it is some kind of weird affliction that seizes some people – ‘When did you first start eating human flesh?’”
Second, most people recognize and admire such courage – even when they themselves are unwilling to rise to such conviction.
What if, for example, every politician singing the praises of this giant of jurisprudence at the moment of his recent passing dedicated themselves to creating platforms and casting votes based on what’s constitutional and right rather than on the basis of some guilt trip laid on them by a hounding majority that increasingly seeks government handouts instead of real opportunities to better themselves?
It takes political courage for Gov. Matt Bevin and his administration to shutter a duplicative, wasteful and failed state operated health-insurance exchange while offering sustainable change for a bloated Medicaid program in the face of cynical opportunists.
Bevin also deemed it “unconstitutional” and even “illegal” for a government’s executive branch to bypass elected legislators – as former Gov. Steve Beshear frequently did – to enact programs requiring expenditures of tax dollars.
Senate President Robert Stivers, R-Manchester, offered a Scalia-like response by rightly declaring that it’s the legislature that will decide what happens with Kentucky’s Medicaid program, which swelled from around 800,000 enrollees to 1.2 million participants during Beshear’s administration.
Such fortitude isn’t popular in this day of President Barack Obama’s pen and phone, when the constitutionally illiterate majority view government and tax dollars of we the producers as their own personal ATMs rather than what our Founders intended – protectors of our liberty and our ability to prosper.
Constitutionally conservative Kentuckians who in the past have felt maligned by party or the political process and may despair as to whether their principled stands for restrained and constitutional government should celebrate the power of current dissent to bring future change to a country or even a commonwealth should be heartened by past and present history.
Central Kentucky native and Supreme Court Justice John Marshall Harlan – the lone dissenter in Plessy v. Ferguson, in which the high court upheld a policy of separate-but-equal racial segregation – must have felt the despair that seizes voices of dissent even as it expounded what was most definitely a minority opinion of the culture, society and even law of the day: “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”
That was 1896.
Less than 60 years later, Harlan’s dissenting opinion resulted in the Supreme Court unanimously overturning its own earlier Plessy decision and deeming separate-but-equal policies forever unconstitutional in the famous Brown v. Board of Education case.
Planting the seeds of liberty and change can be a lonely, frustrating experience. But someday there will be a Harlan-like – and Scalia-like – harvest for today’s honorable dissenters.
Jim Waters is president of the Bluegrass Institute, Kentucky’s free-market think tank. Reach him at firstname.lastname@example.org. Read previously published columns at www.bipps.org