Antonin Scalia: exemplary juror for PH

US SUPREME COURT Justice Antonin Scalia, who died last week, was a giant of the legal profession, so much so that his intellectual impact extends beyond the country he served.

Appointed by US President Ronald Reagan in 1986, Scalia championed textualism and originalism with such brilliance and insight that the “living constitution” theory is properly now being questioned and further scrutinized.

Noting that the Philippine constitutional system, by history and design, closely mirrors that of the United States, we see Scalia’s relevance to the Philippines. As he reminds everyone: “The Constitution is not a living organism. It’s a legal document and it says what it says and doesn’t say what it doesn’t say.”

This is important for a country where some institutions are selected for pedestal-placing. Scalia’s relentless advocacy for originalism reminds us that ultimately authority is, has always been, and will always be with the people.

Another way of putting it is this: The “originalist” looks at the Constitution and draws conclusions based on what it provides; the “living constitutionalist” starts with an objective (like allowing anyone to run for president, the Bangsamoro to acquire Philippine territory, same-sex marriages, abortion, euthanasia, etc.) and then twists the interpretation of the Constitution (justifying it by saying that the words thereof have “grown” or “evolved”) to reach that objective.

This must be emphasized: The Constitution is the express written will of the People. It is the People who promulgated the Constitution. They are its authors, and not government officials or academics or judges, no matter how learned they are and regardless of the strings of degrees to their names. Being its author, only the People can change it. Should the Constitution ever become outmoded, the proper cure would be to amend it through a plebiscite, and not through judicial legislation.

Contrary to what most people think, the Supreme Court is not the branch of government exclusively entrusted with “defending” the Constitution, much less “protecting” the Constitution against the other two branches of government (i.e., the legislative and the executive) and ensuring freedom.
That job lies with all the branches of government: Congress is supposed to make laws it knows to be constitutional; the executive is supposed to apply laws in a constitutional manner.

As far as the Supreme Court is concerned, what the Constitution merely says is that “judicial power shall be vested” in it and that it has the power to decide cases, usually on appeal, “in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.” Even the “grave abuse” clause does not give carte blanche authority and must be read in context.

The myth that the Supreme Court is the ultimate defender of the Constitution lies in the thinking that since its members are “not political” individuals (they are unelected, after all), they are thus free from the passions of the time or of the need to seek popularity. But that argument is neither here nor there. The reason is simple: Supreme Court justices are people, too.

In reality (and this is in no way intended to denigrate the members of the Supreme Court), people appointed to it are political, and necessarily so. Otherwise, they wouldn’t get themselves to be appointed in the first place. The appointing power would logically appoint someone who, to varying degrees, shares his or her political beliefs and persuasions. That is just human nature.

But there are even more profound reasons to disregard the idea that the Supreme Court is like a parent wading in to correct legislative or executive childishness. Believe it or not, even justices of the high court can make mistakes. They can do so even on points of law or engage in erroneous reasoning because that’s what humans do. Witness the Dred Scott and Roe vs Wade cases in the United States; locally, the Manila Hotel and Bt talong cases come to mind.

Thus the cynicism: “The law is what the Supreme Court says it to be” should not be condoned. That such is not democratic should be obvious. Or, as one legal commentator puts it, “the unchecked power to do good is unavoidably also the unchecked power to do evil.”

The best security against bad laws is not to allow the Supreme Court to act outside its mandate; it’s for the people to elect better individuals to the legislature and the presidency.

Thomas Jefferson, writing more than 200 years ago, said it best: “I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”

Ultimately, our political system is built on the idea that our country’s destiny, its success or failure, lies not with the government but with the people. That’s why our government is one of limited powers. As James Madison put it: Government is merely an “auxiliary precaution,” there to assist the people to be able to do things for themselves. Scalia’s legacy should remind us Filipinos that we must not unduly delegate our responsibility to our country.

Cristina Montes (LLM Navarre) and Jemy Gatdula (LLM Cambridge) are cofounders of the Philippine Principles Institute, an organization dedicated to upholding the true meaning of the Constitution.