“All the most controversial stuff. … I don’t even have to read the briefs, for Pete’s sake.” – Antonin Scalia
That’s where conservative judicial activism begins, with a preconceived political notion against “controversial stuff” that the Right uses the U.S. Constitution to excuse. So it’s fitting that today Mr. Scalia will join Rep. Michele Bachmann, newcomer Rep.-elect Kristi Noem from South Dakota, who is called “the next Sarah Palin, Rep.-elect Tim “Ten Commandments” Scott, Rep.-elect Allen West, who is said to be readying to join the Congressional Black Caucus, as well as the rising star of the Republican Tea Party, Marco Rubio, and the incoming “Constitutional Conservative Caucus” Tea Party Caucus to tutor them on the Constitution.
I’ll take the original teachers, one in particular.
“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.” – Thomas Jefferson (engraved on one wall of the Jefferson Memorial.)
Jefferson’s quote has always been my guide, as was Al Gore on the subject, whose adamant belief in a “breathing” constitution is just one reason he was so hated by the Right.
“…I believe the Constitution is a living and breathing document and that there are liberties found in the Constitution such as the right to privacy that spring from the document, itself, even though the Founders didn’t write specific words saying this, this, and this, because we have interpreted our founding charter over the years and found deeper meanings in it, in light of the subsequent experience in American life of the last 211 years of our republic, and a strict constructionist, narrow-minded, harkening back to a literalist reading from 200 years ago, I think that’s — I think that’s a mistake. And I would certainly not want to appoint any justices that took that approach.” – Al Gore (PBS NewsHour)
I bring up Al Gore, because Justice Antonin Scalia’s pontificating on anything having to do with the Constitution was rendered suspect, because of his joining the opinion in Bush v. Gore, which Jack Balkin states with legalese to back it up.
Progress is anathema to conservatism, because the whole notion of expansiveness threatens the Right’s strict vision of a set society of neat and tidy rules and traditions, which puts everyone in their defined roles and places, that must never change.
The heart of liberal thinking is the exact opposite in nature, because progressive philosophy exists to produce meaningful solutions to life that is always constantly changing.
Amanda Terkel writing at the Huffington Post caught Supreme Court Justice Scalia’s interview and it’s gone viral. His originalist views on the U.S. Constitution, which are rooted in political prerogatives as much as Chief Justice Rehnquist was when he began the Right’s modern judicial activism, reveals the irreconcilable shortcomings of conservative thinking.
From California Lawyer:
You believe in an enduring constitution rather than an evolving constitution. What does that mean to you?
(Scalia) In its most important aspects, the Constitution tells the current society that it cannot do [whatever] it wants to do. It is a decision that the society has made that in order to take certain actions, you need the extraordinary effort that it takes to amend the Constitution. Now if you give to those many provisions of the Constitution that are necessarily broad—such as due process of law, cruel and unusual punishments, equal protection of the laws—if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all. If the cruel and unusual punishments clause simply means that today’s society should not do anything that it considers cruel and unusual, it means nothing except, “To thine own self be true.”
In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
(Scalia) Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.
Mr. Scalia’s argument about “cruel and unusual punishment” is laughably sophomoric, especially coming from someone who’s been touted as having a brilliant mind, which is actually condescension in a robe meant to awe. What he says about women having no 14th Amendment rights, however, proves his rigidity doesn’t allow for the very thing Thomas Jefferson said is required of us all when living in a democratic republic that now exists in a globalized world that didn’t exist and weren’t spoken of during Jefferson’s time. It’s this reality that the founders believed made the breathing requirement Gore speaks about so critical.
You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it.
No doubt that’s exactly what Mr. Scalia’s tutoring will be about. How to prohibit what wasn’t expressly written in the U.S. Constitution before modern society was born, even if he long ago lost credibility on the subject.
Plucking the above passage from Scalia’s interview, it’s obvious he’s disavowing the Warren Court’s historic judgments and the liberalism that set their minds free to think and expand American human liberties to women, who weren’t included as fully at our founding.
As to prohibiting abortion, you can bet Scalia’s tutoring revolves around Griswold, which has always been the bane of conservatives’ existence. He’ll cluck about Roe v. Wade, but as I’ve written and talked about for 16 years, it’s the ruling people understand and which gets the Right most animated. The privacy acknowledgment in Griswold is the real target, even if no one is talking about it in the context of Scalia’s latest unenlightened belch.
Jack Balkin:
Scalia argues that if contemporary generations want to protect women, they can pass antidiscrimination laws and nothing in the original understanding of the Constitution forbids this. But this is not quite correct. The federal government would not be able to pass civil rights laws protecting women from discrimination; only states and local governments could. That is because if judges followed what the Constitution’s framers expected, federal regulatory power would be greatly constricted and, among other things, the Civil Rights Act of 1964′s ban on sex discrimination would be unconstitutional because it would beyond federal power to enact. Justice Scalia would surely vote to uphold much federal legislation today (see his concurrence in the medical marijuana case, Gonzales v. Raich), but that is because he accepts the New Deal revolution, which he well knows is not consistent with original understandings about the scope of federal power. So Scalia’s arguments about what modern majorities can do today rest on his view that a very significant proportion of constitutional understandings of the framers can simply be jettisoned because they make little sense in today’s world. That is to say, he doesn’t really believe in originalism either when it comes to a very wide array of cases concerning federal governmental power.
Elizabeth Cady Stanton and Susan B. Anthony always knew the 14th Amendment (and 15th) would be a problem for women. America was still Scaliaville in the late 1800s. It’s why they raised the roof when these amendments were created and adopted. It’s why they fought so hard at the time, because they knew that men wouldn’t automatically create laws to protect women and expand their human rights. So, if courts wouldn’t interpret their individualism as recognized through the U.S. Constitution, well, women were screwed. Luckily there were men on their side, on which feminists have always had to rely.
From TIME on Scalia and sexual discrimination back in September:
As Justice Oliver Wendell Holmes explained almost a century ago, the Constitution’s framers created an “organism” that was meant to grow — and to be interpreted “in the light of our whole national experience,” not based on “what was said a hundred years ago.”
And once again we’re back to Jefferson.
That is, excepting Mr. Scalia and his Tea Party students who worship him, all of whom would rather women remain “under the regimen of their barbarous ancestors.” Lesson one on how to turn back the progress we’ve made begins today.
Where liberalism sets us all free, conservatism would limit our life, our freedoms and our very human rights.
