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and Justice Scalia
Consider some of those whom the Justice’s statement relegates to the status of idiocy. Chief Justice John Marshall, the architect of judicial review, once insisted that “(We) must never forget that it is a Constitution we are expounding…a constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”
That the Chief Justice thought of the Constitution as an evolving organism can hardly be doubted. Was he an idiot? Unfortunately, the answer, according to Justice Scalia, appears to be yes. (But, in case anyone is wondering, the Justice has never turned up his nose at the Court’s power of judicial review, although it is a power nowhere explicitly given to the Court within the Constitution or spelled out within the four corners of the document.)
Justice Oliver Wendell Holmes, Jr., whose career on the bench many legal historians regard as stellar and distinguished, maintained that “(The) life of law has not been logic: it has been experience…The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” Was he mentally challenged too?
Of course, these two jurists are probably not the best examples of idiocy when it is measured according to Justice Scalia’s yardstick. Chief Justice Earl Warren and the entire Court over which he presided left a legacy which demonstrated that they regarded constitutional interpretation, especially in the sphere of individual civil rights, as less about the black letter of the Constitution than about remedying social injustices. One need not even ask what Justice Scalia thought of their manner of interpretation.
The point is that his sharp-edged defense of originalism cuts a wide, injudicious swath across our legal history. What it boils down to is that most past and present justices who have served on the Supreme Court, excluding Justice Scalia of course, have been hopelessly misguided. Since they do not believe that the philosophy of original meaning is judicially viable, we are given to understand that they are, well, dim bulbs.
Pointing up the deficiencies of Justice Scalia’s philosophy has become all too commonplace and even boring. Suffice it to say that many have sincerely asked questions like “How can we know what the original intent of a clause in the Constitution is?”
Debates during and after the Philadelphia Convention reveal that words, phrases, and clauses in the Constitution were frequently the result of compromise and that there was often no overarching consensus regarding their specific meaning. Ratifying the Constitution was, in many respects, a leap of faith because the delegates at the state conventions were often unsure what many of the clauses meant and how they would play out in the life of the new republic.
The same considerations hold for subsequent amendments to the Constitution. Take a single example: Does the clause “Congress shall make no law respecting an establishment of religion” proscribe only the creation of a national church or does it outlaw governmental support, financial or otherwise, for any instrumentality of religion? The precise meaning of the religion clauses has been vigorously debated, with compelling points made by scholars of many persuasions. For Justice Scalia to pound his lectern and to profess with apodictic certainty that he knows what the original meaning of the Establishment Clause is would surely result in a big horse laugh from First Amendment scholars and would stigmatize him as a proponent of such new found “knowledge.”
This observation brings me to my bottom line. Is it not ironic that those who maintain that theirs is a simple hermeneutic of allowing the text of the Constitution to speak for itself in its pristine majesty are the very ones who impress the rest of us as the most extreme ideologues?
Justice Scalia seems oblivious to the following facts: (1) that constitutional law is largely about political policy decisions, (2) that he represents one particular point of view in this ongoing political conflict, and (3) that characterizing his constitutional interpretation as that of uncovering original meanings is disingenuous, just as clothing his opinions in that rhetoric amounts to little more than judicial legerdemain.
One may agree with Justice Scalia’s decisions,
but one should frankly call them what they are: conservative, very
conservative, political policymaking.
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