Scalia criticized those who believe in what he called the “living Constitution.”
“That’s the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break.”
“But you would have to be an idiot to believe that,” Scalia said. “The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.”
Fair enough. The problem, of course, is that a lot of what it says is really, really vague. And it’s not always as simple as “It says that” or “It doesn’t say that.” And, as we all know, Scalia sticks to this “originalism” when it best suits him. When we look to issues like the right to die, he wavers between his “if it’s not enumerated in the Constitution I won’t touch it” view and moralizing from the bench: If a group is claiming that the Constitution protects the right to physician-assisted suicide, Scalia is quick to say that there is “no constitutional right to die.” But when individual states assert their right to allow their citizens to choose assisted suicide, Scalia pulls the morality card to claim that they are precluded from doing so.
So for all the originalists out there, do me the favor of telling me:
-Where in the Constitution it says that schools must be integrated (“Equal protection” doesn’t do it; schools can arguably be separate but equal, can’t they?)
-Where does it say that prison populations should be subject to a lower level of review than others when it comes to racist policies? (Johnson v. California)
-Where do we see a broad-reaching executive privilege, like the one supported by Scalia?
-Where in the Constitution — in the 10th Amendment or elsewhere — are the states given the right to ignore Congressional authority?
-Where does it give preference to the majority religion over minority ones, or claim to protect minority religions less?
-How does the Constitution define “cruel and unusual?” Would you say that the average person qualifies electrocution or hanging as “cruel and unusual?”
-When we talk about original “intent,” do we mean the intent of the framers, or the intent of those who actually ratified the document?
-What does “due process of law” mean?
-What is the jurisdiction of the Supreme Court? Of the federal courts in general?
-Does Affirmative Action deny equal protection of the laws, or affirm it? Where in the text does it say that?
-Where does the federal government get the right to criminalize fraud, if the falsities were only spoken and the Constitution guarantees free speech?
-Where in the words “free association” do you find the right to deny someone membership to a particular group? (Boy Scouts of America v. Dale). Where does the term “expressive association” — as used by Rehnquist in the Dale opinion — enter into that clause of the Constitution?
-Bush v. Gore. Explain.
-Where does it say that corporations are persons?
-When should Stare Decisis be invoked?
My point isn’t that Scalia or other conservative justices were necessarily wrong in all of these instances (although I think they were in at least some of them). My point is that, sometimes, the plain meaning of the Constitution isn’t clear. Usually it is — and most Supreme Court cases are decided with a clear majority. But in those instances where the court is split, it isn’t typically because half of them are “idiots.” It’s because these issues are complex, and the Constitution — like law in general — just isn’t always cut and dry when you apply it to real-life situations. The “original meaning” of the words doesn’t always apply to modern-day situations. The “original intent” of the framers isn’t always discernable — and even when it is, should it matter, given that all the framers did was write the document and its actual legal authority comes from the ratifiers? Originalism fails, and it fails often. And what to make of the assertion that the framers’ intent was that the framers’ intent wouldn’t matter all that much?
Scalia, Thomas, and other so-called “originalists” or “textualists” try and pare down a complex document operating within a complex legal system into a set of black-and-white rules. But it just doesn’t work like that, and even these two are perfectly willing to abandon their judicial philosophies when something irritates their moral conscience. That isn’t necessarily a bad thing — a black-and-white view of the law absolutely must be abandoned if one is going to approach it realistically and reasonably. The problem, of course, is the suggestion that (a) originalism is even a cogent legal theory in the first place, and (b) anyone who doesn’t subscribe to it is an “idiot.” Pointing out the inconsistencies and impossibilities of originalism may be viewed as a cheap shot, particularly when focused on Scalia’s record. But I’m not doing it to attack Scalia as an individual — there’s no denying that he’s incredibly intelligent, and has had more influence on legal theory than any other judge on the current court. The issue, though, is his assertion of an absolute, static, carved-in-stone Constitution, when the human experience itself renders such a thing impossible.