The death of Antonin Scalia has set up a nasty battle over who shall occupy his vacant seat on the Supreme Court. The battle does not just involve the endless political skirmishes now taking place between the White House and the Senate. It also extends to the larger philosophical debate over the constitutional theory of originalism, with which Justice Scalia was so closely associated. Few of the attacks on originalism and Scalia have been as tasteless and ignorant as “Looking Back,” the broadside that the journalist Jeffrey Toobin recently published in The New Yorker.

It is evident that Toobin is out for blood from his opening salvo: “Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy.” This gratuitous slur on Scalia’s integrity is odd. One of Scalia’s most prophetic warnings was that the defenders of the “living Constitution” seek to remove key issues, such as gay marriage, from the ordinary political process, and in so doing necessarily politicize the Court. In Scalia’s view, once that happens, people have to be ever more concerned about the political inclinations of the justices, because fidelity to text will not anchor them to positions that are contrary to their own philosophical predilections. The point is one that classical liberals like myself have to take seriously. For example, no matter how much we think that protective tariffs are a source of economic stagnation, it is beyond dispute that the founders gave Congress the power to regulate foreign commerce in order to allow it to erect tariff walls around the United States.