Yesterday, Supreme Court Justice Antonin Scalia traveled to the Capitol to teach a class about the Constitution to members of Congress, led by controversial Tea Party caucus chairwoman Michele Bachmann. Justice Scalia's participation in Bachmann's Constitution school has prompted a heated debate about the proper relationship between Supreme Court justices and political leaders. But the real debate that should be raging is not about judicial ethics, but about the dubious vision of the Constitution that Scalia and leaders of the Tea Party will be discussing.
As Jonathan Turley pointed out in the Washington Post this weekend, while Supreme Court Justices across the ideological spectrum have taken on increasingly prominent public roles, Scalia has become a true "celebrity justice." But Scalia's pugnacious celebrity is in service of a distorted and bizarre reinterpretation of the Constitution championed by the Tea Party movement.
Although the Tea Party seeks to wrap the Constitutional founding in religious doctrine and intention, this view conveniently ignores the Establishment Clause, the clause forbidding religious tests for public office, and the fact that neither the Bible nor God is mentioned in the Constitution's text. Meanwhile, the Tea Party's Constitution offers very few of the hard-won protections ensuring equal rights and liberties for all Americans, and all but eliminates the power of government to protect and empower its citizens in interstate commerce. Tea Party candidates across America in 2010 also called for repeal of the 16th Amendment (making federal income taxation possible), the 17th Amendment (providing for direct popular election of U.S. Senators), and parts of the 14th Amendment.
Bachmann's Constitution classes are not so much an introduction to the founding documents, but to a new interpretation of the Constitution that mirrors the Tea Party's radical political agenda.
Scalia, a star proponent of selective originalism, in many ways is the perfect professor to teach this school of constitutional philosophy. Scalia's originalist philosophy is perhaps best summarized by his attitude toward the 14th Amendment's equal protection clause. He has asserted that the equal protection clause, originally meant to ensure black Americans the full rights of citizenship, was never meant to ensure equal rights for women or gay people. Yet, in one of the most famous decisions in which he joined the majority, he departed completely from the original intent of the amendment, using it as a justification for halting the 2000 recount in Florida and handing the presidency to George W. Bush.
And Scalia, along with his colleague Clarence Thomas, has signaled his willingness to consider handing the Tea Party its ultimate constitutional revisionist victory: the overturning of the health care reform law. Earlier this month, the two justices filed an unusual dissent to the dismissal of a case that challenged the scope of the Commerce Clause--a parallel to the argument made by those challenging the constitutionality of health care reform. If they do ultimately contribute to an overthrow of the health care reform law, the justices will be adding to the record of a court that has radically departed from precedent in order to place the rights of corporate entities over those of individual citizens--all in the name of an ill-defined idea of the founders' intentions.
The justice's company on the faculty of Bachmann's school is also revealing. David Barton, the revisionist pseudo-historian and Religious Right stalwart whom Bachmann has tapped to lead another one of her classes, is one of the most influential proponents of this newly revised American history and constitutional scholarship. Barton is a driving force in the growing trend of denying that the founders intended to separate church and state, and claiming--despite overwhelming evidence to the contrary--that the founders meant the United States to be a purely Christian nation. Barton has showcased his creative interpretation of the Constitution by claiming, among other things, that it's unconstitutional for Congress to meet on a Sunday.
But perhaps the most dangerous part of this new zeal for selective constitutional originalism is that it is based on an entirely fictional white-washing of American history. When the House GOP organized a Constitution reading earlier this month, it left out the parts included by the founders that had later been eliminated by hard-won amendments--most notably the compromise that allowed slave holding states to count slaves as 3/5 of a person. Bachmann herself recently showcased her absurd re-imagining of American history when she told a conservative gathering that early America was color-blind and that the founding fathers (many of them slave-holders) were in fact "tirelessly" dedicated to ending slavery.
It is this sort of denial of history that lies behind the Tea Party's fictionalized Constitution movement. It would have been a pretty miraculous thing if the United States, as Bachmann imagines, sprung up out of the ground as the happy-go-lucky land of opportunity. But to believe that, and to deny the struggles that underlie American history, is ultimately a great insult to a Constitution that has provided the blueprint for two centuries of growth and strength.
Scalia and Thomas are not just getting mixed up in a political movement. They're getting mixed up in a political movement that centers on a skewed interpretation of the Constitution and a dangerously simple view of American history. Whatever the ethical implications of Supreme Court justices becoming political celebrities, there is reason to worry when justices become celebrities for such a cause.
Follow Michael B. Keegan on Twitter: www.twitter.com/peoplefor
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Yea..a recount a just 4 counties....that liberals knew were heavily liberal....gimme a break. The fix was in and Scalia stopped it. statewide recounts done by decidedly liberally biased news publications all came up with bush the winner....give it a rest already.
This is why I have no respect for the teabaggers, all of their positions end up being based on mis-information made up to make the ideology look good.
When are we going to let them know that fact?
That's what makes it activism. Scalia has never issued a decision which wasn't in accord with his personal politics. Not true of Burger, Warren,Black, Brenner, et al. Those, "activist" judges used the law far more consistently, to the law, than Scalia does.
The man said, "in the most controversial cases, I don't even need to read the briefs, for pete's sake." That indicates he is not using the law to make his mind up, but rather his personal opinions.
A good example of this is people using the imaginary wall saying no level of government can impose a religion. The Constitution clearly says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”, meaning the US Congress. However, now anytime a township with a population of 2 erects a nativity scene at Christmas the ACLU throws a sh*t-fit citing the first amendment, even though it has nothing to do with it. Of course that's just MY interpretation of it.
http://blogs.forbes.com/rickungar/2011/01/17/congress-passes-socialized-medicine-and-mandates-health-insurance-in-1798/
Congress Passes Socialized Medicine and Mandates Health Insurance -In 1798 - Rick Ungar - The Policy Page - Forbes
"...In July of 1798, Congress passed – and President John Adams signed - “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.
Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.
And when the Bill came to the desk of President John Adams for signature, I think it’s safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind.
Here’s how it happened..."
The research was done by "JustFrogs" who asked that the word be spread in this article:
http://www.huffingtonpost.com/2011/01/19/vermont-lawmakers-single-payer_n_811177.html
Vermont Lawmakers Lay Groundwork For Single Payer System In Place Of Obamacare
"In the 1798 Act, the government imposes a tax, collects all the tax revenue, and spends the revenue as it chooses. This is a good precedent for programs in which the government imposes a tax and then spends the money on medical programs (e.g., Medicare), but it has nothing to do with mandating that individuals purchase a private product."
"The 1798 Act thus shows that Medicare, while vastly broader in scope than anything from the Early Republic, is generally consistent with constitutional practice of that period. The Act certainly did not order seamen to purchase any form of private insurance, nor did it order them to purchase any other type of private good. The Act is a solid precedent for federal involvement in health care, and no precedent at all for a federal mandate to purchase private products."
http://topconservativeblogs.com/2010/04/02/an-act-for-the-relief-of-sick-and-disabled-seamen/
There's a place for looking at framer's intent. It is a very important tool for interpreting terms that don't have a clear meaning but the language in the 14th amendment is clear. If we start looking at framer's intent for every single term, even those that have clearly defined meanings, we get into the situation where we're arguing about what "the" means. We shouldn't do that. The first place to start should always be the plain language of the text. If the text isn't ambiguous, and the 14th amendment isn't, then we have to apply what the text says. Not what we think they meant to say.