United States Supreme Court Associate Justice Antonin Scalia was back in Delaware a week or so ago speaking to Delaware’s legal community about his use of textualism and orginalism to interpret the Constitution.
I didn’t get to attend this latest speech (click here to read about it); but he gave an eerily similar one at the University of Delaware back in 2007. And I WAS present for that one.
To him Constitutional interpretation boils down to a simple examination of the WORDS our Founding Fathers used when they wrote the Constitution as well as what their words meant to THEM at the time they wrote it.
I wrote a piece about that speech back in 2007. And while I’m not even in the same intellectual legal stadium as most Constitutional scholars are, I’m entitled to my own opinion. I disagreed then with Scalia’s views and I still do.
With a bit of condensing, below is a summary of that article. And, if you compare his most recent speech with the one he gave in 2007, other than the date, nothing else has changed… except perhaps the steepness of his speaking fee.
From my 2007 piece…
Various people, to describe the way we interpret our Constitution, have used two contrasting terms. They are, “Originalist” view and “Living Document” view. U. S. Supreme Court Justice, Antonin Scalia, contrasted them during his speech at the University of Delaware this past Friday evening.
Justices Scalia and Thomas are strict “Originalists” while the other Justices, to varying degrees, subscribe to the “Living Document” view.
Of course, there is another view that I call the “DUH!” view. No one has mentioned it because I just made it up. And it’s not at all politically correct. Regardless, it’s out there and I’ll get back to it later.
Here’s an excerpt from our Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights that among these are Life, Liberty and the Pursuit of Happiness.”
Yes, these words assume absolutes; but so does an “originalist view” to our Constitution.
Our Founders declared this nation “free” and “independent.” They wrote a Constitution that laid out the rules that they thought would be the best way to ensure our freedoms and independence in perpetuity.
Declaring TRUTHS to be “self-evident” is inherently dangerous. It assumes that everyone, everywhere, thinks the way we do. They don’t.
This rock on which we live is getting close to 7-BILLION inhabitants. Most of them do not enjoy the freedoms that we, in the United States, take for granted. In fact, to a sizeable percentage of them, rights are not unalienable and “Life,” “Liberty,” and the “Pursuit of Happiness” are just meaningless words.
It’s a nice comforting thought to believe that a “Creator” endowed humans with such “unalienable rights.” It provides a feeling of built-in humility about what we believe and how we act. After all, we didn’t give ourselves these rights; we were born with them. We’re just defending them, not only for ourselves, but also for others who can’t. Yes, very comforting and righteous, indeed.
Speaking for myself, I do not know if a Creator created us OR endowed us with rights. But I do know that in the natural world, the only rights that ANY of us have, no matter where we live, are the ones we are WILLING and ABLE to defend, even to the death, if necessary.
As citizens of the United States, we have always been willing and able to defend our rights. THIS is the reason we have them in the first place. No one gave them to us. We took them.
Eliminate either our WILLINGNESS or ABILITY to defend our rights and we’ll cease to have any, Creator-endowed notwithstanding.
When it comes to interpreting the Constitution, I think we can do no more than our best given the circumstances that confront us at specific times.
If the United States still exists 250-years from now, I wonder what the living conditions will be like and if we’ll still be a superpower.
I also wonder if 21st century Americans had to write a Constitution from scratch, beginning with the year 2007, which Constitutional protections we’d include. Think about it!
SOMETHING motivated the original designers of the Constitution to include the protections that they included! I suspect that everything hinged on those contemporary issues surrounding THEIR lives.
Like most of today’s politicians, they could afford being politicians… wannabe power-seekers of their time who could easily afford to “serve others.” They changed things because they didn’t like the living conditions.
But unlike today’s politicians, MOST of our Founders KNEW that they didn’t know EVERYTHING; so they endowed THEIR Constitution with a bit of inherent genius: a way to change it if ABSOLUTELY necessary.
The Constitution did not address the death penalty. Just the same, we’ve imposed one, off and on, over the past 200 plus years and for a lot less than capital murder. We used to hang horse thieves.
Additionally, Justice Scalia quickly pointed out that the Constitution didn’t originally address abortion. It wasn’t because it didn’t happen back then; it most certainly did.
But it did address other protections such as, among others, gun ownership, the right to religious freedom, and the assumption of innocence until proven otherwise.
Since, the Constitution did not deal directly with many of today’s issues; do you think there’s a common thread to all those that our founding fathers made sure to include directly? How about the term, CONTEMPORARY?
Among other things, our Founders didn’t care much for an “official” religion and barred our federal government from establishing one.
Nor did they appreciate the British Crown assuming the guilt of people they arrested for crimes and forcing them to prove their innocence. Thus they installed a presumption of innocence until proven guilty beyond a reasonable doubt.
And the Brits didn’t need warrants, either. They could just kick your door in and take you away. So our founders protected us against this sort of thing. Oh, yes, they also felt that guns were essential to protecting our new way of life.
Abortion was not an issue for them, either. Men ran EVERYTHING; women had no rights other than those bestowed upon them by their fathers or husbands. Abortion was a quiet, family matter… or between slave owners and their slaves!
During his speech, Justice Scalia said that answers to questions about “the death penalty, assisted suicide, and homosexual sodomy are absolutely clear for the originalist.”
Sadly this is true for ALL absolutists. But, absolutism is usually a precursor to simplistic solutions. To such people, the death penalty is righteous; assisted suicide is wrong; and homosexuality is immoral. It was all in the Bible; so why involve the Constitution?
Enough of my 2007 piece…you get my point!
Yes, 225-years ago, the delegates to the Constitutional Convention of 1787 signed the final draft of a document that covered CONTEMPORARY issues.
But as to their absolute application to future generations, they were not as sure of themselves as Justice Scalia is of HIMSELF; and Benjamin Franklin expressed contemporary concern nicely.
“I confess that there are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them. For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise.”
Our Founders couldn’t conceive of even 150-years into the future, let alone what life would be like in the 21st century; it’s why they included Article V in that very Constitution.
We’d be able to change it if NECESSARY. But they made it tough to do. It had to be for a very good reason and one with which 75% of the STATES agreed!
I’m a Conservative; but I’m not a Scalia fan. I’m not questioning his conservatism, intellectual honesty or character. I simply don’t think he belongs on any court, let alone a member of the United States Supreme Court.
To me he simply proves that Neanderthals may still be walking among us and that while they often get quite cranky, they can at times be witty as well.
Now, about that “Duh!” view of the Constitution that I mentioned earlier—and I’m by no means referring to Christine O’Donnell, Michele Bachmann, or a host of other Tea Party idiots, male OR female—if you’re not sure of what the Constitution is or the things that it protects against, you’re probably a subscriber.