It doesn’t surprise me that in the weeks after his death,
the mainstream and rightwing news media have treated Supreme Court Justice
Antonin Scalia as if he were Robert E. Lee, who is traditionally presented as
an admirable hero who served his country well. Both were brilliant and
prominent men whose distorted visions of what constitutes liberty and who
should have it reflected the views of large portions of the ruling elite. The
difference, of course, is that Scalia successfully pursued his rightwing
agenda, at least in the short term, whereas Lee proved to be an incompetent
general on the strategic level, whose failures ensured that his illegally-constituted
renegade government dedicated to slavery and racism would fall.
A better historical comparison for Scalia would be John
Calhoun, the wealthy slave owner who defended the interests of slavery and
promoted its spread westward as vice president, secretary of state, secretary of
war, congressman and senator in the first half of the 19th century. Both Scalia
and Calhoun achieved great successes pursuing their retrograde agendas, which
helped the wealthy few while hurting the bulk of Americans. Scalia, like
Calhoun, should rightfully appear in all our history books, but will eventually
be seen as a regressive figure who did the country great harm. Another good
comparison to Scalia might be our seventh president, Andrew Jackson.
Scalia pretended to pursue an “originalist” interpretation
of the Constitution, which means he wanted all laws and regulations to conform
to the original intent of the 40 wealthy white men who signed the Constitution
in 1787.
As others have pointed out since his death, Scalia, and his
cohorts Thomas, Alito and Roberts, have not really strictly followed the words
of the Constitution, but instead have stretched and warped meanings as least as
much as they contend liberal justices have done. The classic example is the Citizens United v. FEC decision, in
which the four ultra-right Supremes and the mildly conservative Justice Anthony
Kennedy ruled that a corporation had the same rights as individuals and could
therefore legally contribute whatever they liked to political campaigns. The Citizens United ruling overturned an
earlier decision, to which Scalia had dissented, that established that
corporations did not have the same rights as individuals.
You don’t have to be a constitutional scholar to do a word
search through the Constitution and find that the word “corporation” appears
nowhere. And why would it? At the time of the Constitution’s signing, there
were very few corporations in the United States.
Thus, any decision by the Supreme Court that involves
corporations must interpret beyond the meaning of the original words. Yet time
and time again, Scalia peered into the minds of 40 dead white men and declared
they embraced the idea that corporations have the same legal rights as people. When
considered in this light, his proclamations that the Constitution does not
protect the rights of women to have abortions because the word “abortion” was
not mentioned in the Constitution seem inconsistent and perhaps two-faced.
(FYI, infanticide was a preferred method of birth control in the late 18th
century.)
In general, Scalia took an expansive approach to
interpreting the Constitution when it suited him and tried to stick to the
original words when it didn’t. He used the term “originalism” as a brand to
mask his pro-business and ultraconservative religious views and to assert
states’ rights in matters in which states, groups or individuals have wanted to
restrict voting rights, loosen gun laws, inflict one set of values on society
or enforce patterns of racial discrimination.
But even if one generously overlooks the inconsistency with
which Scalia applied “originalism,” we have the concept itself, which is as wrong-headed
and pernicious as slavery, scientific racism, phrenology or spontaneous
regeneration. The central idea of “originalism” is that these 40 rich white males
were so wise that more than two centuries later their words can still be one
hundred percent valid without reading into them or interpreting them in light
of modern conditions, just as rabbis read into the Five Books of Moses.
The 40 rich white males who signed the Constitution stood
literally at the brink of a new world that they could never imagine, a world
far more complicated than the way humanity had lived for thousands of years.
Most economic historians now understand that when you net out population growth
there was little economic progress as measured by per capita income anywhere in
the world before the 19th century. While theorists have postulated that the Industrial
Revolution started in the middle of the 18th century, or about 30-40 years before the writing
of the Constitution, the changes produced by industrialization really did not
begin to affect society and social, political and economic relationships until
the 19th century. For a full understanding of why we cannot talk about an
industrialized society or economy until at least the middle of the 19th
century, I refer readers to Jürgen Osterhammel’s The Transformation of the World: A Global History of the 19th Century.
In other words, the signers of the Constitution—40 rich
white males claiming to represent more than two million other people—were used to
a world in which not much had happened for thousands of years, but which was
about to be turned upside down by new technologies, new economic forms (including
the modern corporation) and rapid urbanization, as well as new relationships
between business entities, the private sector and government, employers and
employees and men and women. They had no idea what was going to happen. One could theorize that if the creators of
the Constitution knew that the rate of social change was going to increase
exponentially, they might have made it easier to amend the document.
Luckily for the continued development of the United States,
just 16 years after the signing of the Constitution, in the case of Marbury v. Madison, the Supreme Court,
under its first chief justice, John Marshall, established the Court’s power to
decide what the Constitution means. By establishing its authority as the final
arbiter of what the Constitution means, the Court also established its
authority to interpret. Many of the signers of the Constitution were alive at
the time of the Marbury decision, but
there doesn’t seem to have been much of an objection, although the slave-owning
Thomas Jefferson did disagree with the decision to have the judges serve as
final arbiter of the law.
Because amending the Constitution is so hard, without
judicial interpretation the document would be completely unviable as a guide to
government and law in the 21st century (or the 20th for that matter). The
foundation of originalism is that these 40 rich white males in 1787 could see
into the future and create the perfect document for a world beyond their
imaginations. But the staying power of the Constitution, like the Old Testament
or the I Ching, derives not from its inflexibility, but from the ability to
flexibly interpret it to respond to changing conditions and social conventions.
It is the job of the Supreme Court to read this flexibility into the original
words, and therefore, make them still viable in today’s world. The end game of
the theory of originalism (and not the cynical way Scalia
practiced it) would turn the Constitution into an unworkable document.
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