By Steven Jonas
With the publication of a collection of his speeches ,
the late, unlamented (from the Left at any rate) Supreme Court Justice
Antonin Scalia is back in the news. Scalia was well-known for describing
himself as an "Originalist" when it came to Constitutional law. He held
that the Constitution should be interpreted as controlling in the sense
that the framers would have understood it at the time of the framing.
No other interpretation is to be allowed. Another name for that approach
is called "strict constructionism." As the Federal bench is being
filled with far right-wing judges (and a Supreme Court justice or two),
picked for the Trumpites by the far-right Federalist Society, we are
going to be hearing a lot more of that phraseology.
OK.
If 'originalism" is going to be the guiding light of decision-making in
the Federal courts, more-and-more down the road, it does pay to take a
look at what the doctrine means, and more importantly how it has been
and will be used by the Right-wing/Trumpite Federal bench. For that
understanding let us turn to no less authority than Scalia himself:
"Let
me begin by telling you what originalism is. The Constitution, as you
know, contains a number of broad provisions, which are necessarily vague
in their application: due process of law, equal protection of the laws,
cruel and unusual punishments, the freedom of speech, to name a few. Originalism
gives to those terms the meaning they were understood to have when the
people adopted them. Is the death penalty cruel and unusual punishment? A
hard question, perhaps, for the non-originalist. I have sat with four
colleagues who thought it was. But for the originalist the answer is
easy: At the time the people ratified the Eighth Amendment -- the Cruel
and Unusual Punishments Clause -- no one thought it forbade the death
penalty."
The key sentence here is: "Originalism gives to those terms the meaning
they were
understood to have when the people adopted them." Sounds logical,
right? Well, perhaps. But perhaps not so fast. Unlike the Napoleonic
Codes that govern the
law in much of Europe the phrases the Scalia quotes are not in fact
absolute in
their language. "Equal protection of the
law," "Freedom of speech," and certainly "due process of law" are all
concepts
wide open to interpretation, starting with the question "for whom?"
They are actually quite ambiguous terms.
In fact the Constitution, starting right from
the Preamble (ignored by all, but a quite
powerful statement of the purposes the government defined by the
Constitution is supposed to fulfill), is filled with ambiguity, ranging from
what exactly is "interstate commerce" (Art. I, Sect 8) to what exactly is a
"Republican form of government" (Art. IV, Sect. 4). And when it came to the powers of the Supreme
Court (Art. III, Sects. 1 and 2), it is again inexact. So much so that the fourth Chief Justice of
the United States, John Marshall, going into territory that none of his
predecessors had done, in a series of decisions starting with Marbury v.
Madison, was able to fashion the broad-ranging review powers of the Court over
the actions of both the Federal and state governments that are nowhere
mentioned in the Constitution, explicitly or even vaguely (see Chap. 5,
"Anderson v. Board of Education," The 15% Solution: How the Republican
Religious Right Took Control of the U.S. 1981-2022: A Futuristic Novel http://www.puntopress.com/2013/03/23/jonas-the-15-solution-hits-main-distribution/).
And so, Scalia is right in stating that
"Originalism" should be one's guide in the interpretation of the Constitution. He is just wrong in stating what the Framers
had in mind when they wrote it. To
repeat, they filled it with ambiguity, hardly an endorsement of any kind, from
the plain text of the document itself, of the concepts of "originalism" (in the
sense that Scalia promoted the term) or "strict constructionism." Scalia just used that high-sounding concept
as a cover for basing his opinions on his personal philosophy and understanding
of the law, and politics, which is in fact what all justices of the Supreme Court
have always done.
Click here for the full article.
Source: OpEdNews.com
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