By Paul M. Lewis
Much of the praise so recently heaped upon now deceased Supreme Court Justice Antonin Scalia has come as something of a surprise to me. Even President Obama eulogized him as having “given extraordinary service to our nation.” I get it that people do not want to speak ill of the dead. That, at least, is the polite take we have all been taught, as if the mere fact of a person’s mortality ought to make us somehow more forgiving of who that individual was in life. But sometimes the truth will out, regardless of conventional views on etiquette and protocol, because what a person did and said while alive, and how that individual treated others, should mean something.
Scalia’s fundamentalism, his so-called originalism in the reading of the Constitution, has to appear at the top of the list in terms of what I see as his faults. This is especially so because it has the potential of influencing others to follow the same rigid and overly literal attempt to understand a given text, in the same way as Christian fundamentalists read a passage from the Bible. In its essence, this is exactly what Scalia did with his reading of the Constitution, adding that it must be understood and interpreted exactly as its framers understood and interpreted it. We were, in other words, somehow supposed to ferret out their “intent.” The obvious fallacy of this position is that it’s hard enough for us to understand what even those close to us are thinking, let alone someone whom we do not actually know but who is still a contemporary. How, therefore, are we ever to fathom the thoughts and feelings, indeed the intent, of people who lived hundreds of years earlier, those who led vastly different lives in terms of the historical moment and culture of the day, their comprehension of what was important in human life, as well as what shaped that world’s values, needs, interests, technology, to say nothing of its ill treatment of whole classes of people? This would have included, by the way, all women, indigenous peoples, most foreigners (except those from Great Britain), anyone whose religion was not protestant, in addition to people of different races, ethnicities, and it goes without saying, sexual identities. How an otherwise intelligent individual, such as Scalia clearly was, could ever have come up with such a theory, and use it as a guiding principle of interpretation in case after case, remains a mystery to me.
But let us suppose that—against all odds—Justice Scalia had actually been able to somehow enter into the heads of Jefferson and Madison and the others. Let’s accept the fact, at least for argument’s sake, that he could have known, really known, exactly what these men were thinking, what their intent was. Even then, should we accept that originalism is a good way to interpret the Constitution?
We ought to begin by remembering, first of all, that these individuals were all white men. And not just any white men. They were of the upper class, wealthy landowners, to the manor born, as their British ancestors might have said. They were mostly protestants, they came from the same class, the same cultural background, went to the same colleges (Harvard, Princeton, William and Mary), knew many of the same people, and of course many of them owned slaves.
I am in no way attempting to denigrate these men, but they were men of their time. That doesn’t mean they also didn’t do marvelous things. To the contrary, they formed a new country that came to be the envy of all those who loved free thought, and they created a representative democracy that has lasted, more or less intact, for well over two hundred years. As such, they were in many ways remarkable men, albeit not perfect ones. And as grand a document as the Constitution they created was, and is, it failed to resolve one major division among the people who created it, and among all who have lived under it ever since, namely, the terrible tension between centralized federal power and states rights. In simplified form perhaps, but in essence, this is what led to the Civil War only some 80 years after its enactment, and it continues to haunt us to this day.
The point I am attempting to make is that reasonable people might well think that the Constitution has to be an evolving document, one that ought to be continually construed, interpreted, and understood according to the lights of those who are living under it at any given time. It’s worth noting that even its resonant opening phrase, “We the people,” at the time would have referred only to free, white men. And it is clear that not even an Antonin Scalia would hold to that in today’s world.
It is also true that Justice Scalia did not act alone, that he had the support of the other conservatives on the bench. But most Court observers recognize him as perhaps the leader of this faction; and certainly he often acted as its mouthpiece. Employing his strictly orthodox fundamentalism, his reactionary approach to interpreting the Constitution, Scalia did much harm to the living, breathing people of this country. Perhaps first and foremost among such decisions was the disgraceful overreach of Bush v. Gore, which landed us with an almost equally reactionary president for the next 8 years. In addition to that can be added the gutting of the Voting Rights Act, the overturn of McCain-Feingold and other campaign-finance rules, the infamous Citizens United, which miraculously turned corporations into people, and Scalia’s leadership in blocking much of Pres. Obama’s climate-change regulations. In the course of doing all this, he claimed that he attacked ideas, not people, but that is hardly how his scathing and vituperative dessents often came off. He seemed to reserve a special degree of toxic, hate-filled language for gay people, in fact. He spoke, for example, of the so-called gay agenda, which according to him was “promoted by homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Opprobrium, for those who may not know—but a thing which Scalia, with his Catholic education, probably knew well—has its etymology in the Latin word opprobrium, unchanged in form, and meaning scandal, dishonor, or reproach. It refers to harsh criticism meant to bring about censure and public disgrace. In this same heinous rant, he went on to say: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a life style that they believe to be immoral and destructive.” Does this sound like attacking an idea, or is more of an all-out frontal assault on a whole class of people?
Antonin Scalia may have had a flair for the dramatic in his writing. And many have noted his geniality among colleagues, including his friendship with liberal Justice Ruth Bader Ginsburg. But an ability to turn a phrase, or crack a joke, or even to befriend someone whom he disagreed with politically, philosophically, and legally do not in my view make up for the tremendous harm this man has caused to so many. We can only hope that President Obama will nominate a fairer and more even-minded replacement to him on the Supreme Court, and that somehow the Republican-controlled Senate will give that individual an open and honest hearing. Granted that, given the intransigence and obstructionism in evidence in Congress these days, it may be only a fool’s hope; but even so, it’s worth a try.
If not, it is clear that we will be at the mercy of the next president, whoever he or she may be, in conjunction with, or opposition to, the Congress. And given the current depth of division and discord evidenced in the country, a rift reflected so glaringly, so alarmingly in the discordant and uncompromising jurisprudence of this Supreme Court justice, we can only hope against hope that we will be better served by a new appointee than ever we were by Antonin Scalia.