I had the opportunity to meet United States Supreme Court Justice Antonin Scalia when he came to DePaul University College of Law, where I have the privilege to teach. He spoke about originalism, and he has spoken again this week about his views in an interview with the California Lawyer. According to Scalia, the Constitution's 14th Amendment equal protection clause doesn't extend to protecting women against sex discrimination. Now, if a legislature wants to outlaw that, there is nothing in the constitution that says they can't, he opines. But the constitution doesn't require it. Wow.
When Justice Scalia explained his position about originalism, one of his justifications is that it makes things so much easier. Just look at the words, he said, and that's all one need do. Never mind that the framers of our constitution wanted the courts to be a check on power and to protect people, which at the time meant only white male landowners. No one has to protect women, gays or other minorities, according to Justice Scalia's thinking, and such categories of people can be left to the mercy of the prevailing political majority when it comes to ensuring fair treatment. As The New York Times wrote, it "is an 'originalist' approach wholly antithetical to the framers' understanding that vital questions of people's rights should not be left solely to the political process. It also disrespects the wording of the Equal Protection Clause, which is intentionally broad, and its purpose of ensuring a fairer society." This view of a sitting justice becomes even more disturbing in light of his acceptance of a speaking engagement at the behest of the right wing tea party, which sends a disturbing political and politicizing message.
Besides the obvious, Justice Scalia's ideas bring to mind a song by the musician and poet Gil Scott Heron called "B Movie" which Mr. Heron penned right after the election of President Reagan. Mr. Heron spoke about how many Americans were nostalgic -- perhaps for something that never existed -- and that was Reagan's appeal: "The idea concerns the fact that this country wants nostalgia. They want to go back as far as they can even if it's only as far as last week. Not to face now or tomorrow, but to face backwards. And yesterday was the day of our cinema heroes riding to the rescue at the last possible moment. The day of the man in the white hat or the man on the white horse -- or the man who always came to save America at the last moment, someone always came to save America at the last moment, especially in B movies. And when America found itself having a hard time facing the future, they looked for people like John Wayne... Nostalgia, that's what we want, the good ol' days when we gave 'em hell. When the buck stopped somewhere and you could still buy something with it. To a time when movies were in black and white and so was everything else."
It appears that nostalgia and an almost religious belief that everything we need is in (and only in) the precise words of the constitution (and those of the Bible, for many) is animating the tea party and Justice Scalia's inflexible and incorrect view of what the Supreme Court is here to do. The Court is the guardian of us all, and "us" includes those who may be discriminated against -- because of an immutable characteristic like gender or race, or choices about religion or lifestyle, or opinions we might hold. As Justice Douglas once said, "As nightfall does not come at once, neither does oppression. In both instances, there's a twilight where everything remains seemingly unchanged, and it is in such twilight that we must be aware of change in the air, however slight, lest we become unwitting victims of the darkness."
Justice Douglas was preceeded by a century with this quote from SCOTUS Justice Joseph Story:
“An American citizen has many political duties to perform, and his activity is constantly demanded for the preservation of the public interests.”
More concise, and painfully needed. Might pay to search up the source of Story's quote at Google Books...
Quote from: VALUE AND IMPORTANCE OF LEGAL STUDIES.
A DISCOURSE PRONOUNCED UPON THE INAUGURATION
OF THE AUTHOR AS DANE PROFESSOR OF LAW
IN HARVARD UNIVERSITY, AUGUST 25, 1829.
BY U.S. SUPREME COURT JUSTICE JOSEPH STORY, A.M., LL.D.
Story also defines the epistemology in interpreting the "original" words in his "Commentaries on the Constitution". See around Section 904ff,
Example of his exegesis:
Article 1. "The congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence, and general welfare of the United States"
"§ 904. Before proceeding to consider the nature and extent of the power conferred by this clause, and the reasons, on which it is founded, it seems necessary to settle the grammatical construction of the clause, and to ascertain its true reading."
'§ 906. The constitution was, from its very origin, contemplated to be the frame of a national government, of special and enumerated powers, and not of general and unlimited powers."
Answer: "Enumerated, not unlimited powers" means just that.
Any thoughts ?
I for one don't think that the general public are aware of the power that the supreme court holds, as the last backstop.
Yet the desisions handed down by the Supreme court last year changed our democracy, and yet we have seen no drive to change the constitution, no pressure on politicians to stop this march into that dark night.
We as a country need to stop this steady handing of rights to a few limited thinkers, and allow for the freedom of Ideas, and living up to the promise and ideals of america.
If it is going to take a constitutional amendment to change corporate personhood, or to publicly finance political races, that is what we all as a country need to start working for
There is no human law that can Force fair treatment of others. That is a spiritual law that even on it's best day is continually broken. Again the reason for Nostalgia. A time when government didn't intrude people's households but stayed within the confines of "Liberty and Justice for All."
American's want the title "American Citizen" again and not "American Consumer".
They are tired of being categorized by the amount of money they can spend. People are longing for the times when neighbors knew and trusted their neighbor. A time when one could leave their door unlocked without fear. Nostalgic memories of people caring for people fills the minds of our nation. The lack of hope for a better future has left many resorting to drugs and alcohol. All that is left for them is the nostalgic memories of a better time.
To also quote Justice Douglas, "As nightfall does not come at once, neither does oppression. In both instances, there's a twilight where everything remains seemingly unchanged, and it is in such twilight that we must be aware of change in the air, however slight, lest we become unwitting victims of the darkness."