when the federalist society opens its three-day national lawyers convention on thursday, the official topic of conversation will be <u+201c>the jurisprudence and legacy of justice scalia.<u+201d> even before his arrival at the supreme court in 1986, antonin scalia was known for his commitment to <u+201c>originalism.<u+201d> as a federal circuit court judge, he rejected the approach of divining the <u+201c>framers<u+2019> intention,<u+201d> as raoul berger and robert bork had advocated. instead, scalia insisted that judges seek the public meaning of the text at the time it was enacted. i<u+2019>m pleased to see that president-elect trump is echoing scalia. last week mr. trump<u+2019>s transition team affirmed that he will nominate judges <u+201c>who are committed to interpreting the constitution and laws according to their original public meaning.<u+201d> during the campaign mr. trump released a list of 21 potential candidates for scalia<u+2019>s seat. those on the list with whom i am familiar would be sympathetic to originalism. the bigger unknown is where they stand on stare decisis <u+2014>latin for <u+201c>let it stand.<u+201d> this is the idea that precedents of previous supreme courts should be followed, even when they conflict with the original text of the constitution. here is where scalia<u+2019>s friend and colleague, justice clarence thomas, comes to the fore. justice thomas has been more willing to reject stare decisis and reverse precedents. consider the new deal-era case wickard v. filburn . in 1942 the supreme court held that congress<u+2019>s power to regulate interstate commerce extended to a farmer growing wheat to feed his own livestock. sixty-three years later, that expansive reading of the constitution<u+2019>s commerce clause continues to hold. take the 2005 case gonzales v. raich , in which i represented angel raich. a 6-3 majority of the court relied on wickard to rule that congress could stop ms. raich from possessing homegrown marijuana for medical use, as authorized by the law of her state. justice thomas dissented and would have reconsidered wickard . stare decisis has the unfortunate effect of grandfathering in hundreds of judicial decisions, like wickard , that have interpreted federal powers well beyond what can be supported by the constitution<u+2019>s original meaning. with washington<u+2019>s power now extended over americans<u+2019> everyday lives<u+2014>rather than allowing for 50 state solutions to economic and social problems<u+2014>every divisive issue is elevated to the national government. this has resulted in a hobbesian political war to control the levers of federal power, with each side trying to avoid living under policies with which it fundamentally disagrees. as a result, every presidential campaign is now <u+201c>the most important election of our lives.<u+201d> moreover, post-new deal courts authorized congress to delegate its lawmaking powers to the administrative state. today, most federal <u+201c>law<u+201d> is made, interpreted and enforced by faceless, unaccountable executive-branch bureaucrats. this is what has allowed washington to regulate nearly every aspect of citizens<u+2019> lives. the 535 members of congress simply wouldn<u+2019>t have the time to do it on their own. rejecting dubious precedents does not necessarily require overturning specific government programs that were previously upheld or entitlements on which citizens have come to rely. but it does mean declining to use these past decisions to justify new unconstitutional exercises of power. the agricultural adjustment act of 1938, upheld in wickard , might continue to operate. but future congressional schemes to regulate wholly intrastate activity could be struck down. such an approach would gradually return the u.s. to a federal government of limited, enumerated and separated powers. which leads to the two questions that the trump administration should be asking of potential judicial nominees. first: will they elevate precedent over the original meaning of the constitution, thereby locking in a highly distorted reading of federal power? or will they insist on interpreting america<u+2019>s founding document and its amendments as they were written? second: do they, like justice scalia, have the courage of their convictions<u+2014>the intestinal fortitude to stand against the public<u+2019>s demand for this or that outcome, and to do what they believe to be right? or will they bend with the political wind to protect the <u+201c>legitimacy<u+201d> of the court? this isn<u+2019>t a matter of seeking judges who will reach conservative results versus liberal ones. it<u+2019>s about adhering to the text of the constitution, while letting the political chips fall where they may. (justice thomas would have reached a <u+201c>liberal<u+201d> result in raich .) thanks to the results of last week<u+2019>s election<u+2014>including republicans<u+2019> retaining control of the senate<u+2014>there has never been a better opportunity in my lifetime to restore what donald trump, in the final presidential debate, quite eloquently referred to as <u+201c>the constitution as it was meant to be.<u+201d> mr. barnett, a professor of law and the director of the georgetown center for the constitution, is the author of <u+201c>our republican constitution: securing the liberty and sovereignty of we the people<u+201d> (harpercollins, 2016).
two questions for donald trump<u+2019>s supreme court nominees - wsj
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