The U.S. Supreme Court – the law of the land – has just begun a new term. This is scary because the court is made up of the same judges who brought us the Citizens United decision, which legalizes bribes to politicians. Looking at the Supremes is also timely because we have also begun the race for the presidency, the winner of which will likely appoint new justices for a lifetime on the court of the last resort. And finally, it will soon be Halloween and at night, before I sleep, I see the terrifying masks of Justice Antonin Scalia everywhere.
The great failure of Scalia is that the premise on which he hangs his understanding of the U.S. Constitution is wrong — backward, really. Unfortunately he has followers on and off the Court who make the same mistake. As a self-proclaimed “originalist,” or ‘strict constructionist” as he is sometimes called, Justice Scalia and his allies miss the original purpose of the document and therefore pervert the document’s enduring meaning.
I apologize for stating what is or should be obvious. The Declaration of Independence was written to make it clear that the inhabitants of colonial America were about to set up their own government because, in short, they sought economic freedom from the Royals and their trade allies, and religious freedom from a shameless and cruel theocracy. The new country’s founders wanted individual legal protections the Crown withheld. They tossed the rules and those who enforced them overboard.
The writing of the U.S. Constitution followed to set the rules of governance for this new, sovereign country.
The writers almost immediately added the Bill of Rights, fearful that some of their comrades might suggest that the constitution would be interpreted as the limitation of rights rather than the extension of rights, which was what the revolutionary war was about. And thus began a dreadful confusion. And it is the fossilized Scalia and his minions – slow-witted Alito, taciturn Thomas and a caught-in-the-middle Roberts who have a bizarre and muddled understanding of freedom and who have deserted original intent.
Getting it right is important. It boils down to this: Are you entitled to all rights not specifically prohibited by the document or are you entitled to only those rights explicitly granted by it? This question pits the literal or fundamentalist against the conceptualist or liberal. Is this profound document, conceived by the finest minds of the time, a living and adaptable philosophy that accommodates the evolution of our culture or is it an ironclad set of rules frozen in the time of muskets and quill pens?
The battle is familiar. Christians have long debated the literal meaning of the Bible with those who urge folks to view the words more broadly and find meaning that relates to our times. It is a battle, involving various faiths and governments throughout the world. Most enlightened Christians do not worry about wearing clothing made of two different fabrics or eating scallops.
But back to the U.S.A. and our Constitution. Below is the text from Section 1 of the 14th Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Justice Scalia cannot find in that last clause that discrimination against women because they are women, is forbidden by our constitution. To deny women equal treatment is either in defiance of the Constitution or women aren’t people.
“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t,” Scalia said in an interview with the magazine California Lawyer.
|The word, “person” baffles Justice Antonin Scalia|
When people remind us that justice should be blind, it didn’t mean it should be without vision. And, of course, this same, logic-free Scalia interpretation of equal protection sets a precedent on other equal protection issues based on ethnicity, religion, height, disability, vocation – you name it. Chances are this affects you. The Fourteenth amendment clearly states, “equal protection.” What Scalia seems to say is we have a right to equal victimization.
To me, this kind of restrictive interpretation of freedom comes from a petty mind, not to mention a stingy heart. This conclusion is not exactly in the spirit of American freedom, nor, for the unsentimental, can it be found in the actual words of our governing document.
And this is the man who somehow construed the Constitution to recognize corporations as people and money as speech. He can find that in the Constitution, but not that women are entitled to equal rights?
He has also told us we have no right to privacy. The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This is pretty straightforward, a simple, direct statement that even a strict constructionist should understand.
What’s more frightening is that most of the current Republican Party presidential nominees name Scalia as the kind of Supreme Court justice they would appoint if they became president.
If Yogi Berra were still around, maybe he’d ask what the Fourth and Fourteenth amendments mean if they don’t mean what they mean?