Sunday, February 14, 2016

The Originalist

Academics say Justice Antonin Scalia was an “originalist.” What does it mean to be a Constitutional originalist? It means that one reverts back to the Founders of our 1789 Constitution, a mere 227 years ago to decide cases before the Court today. It means to craft Court Constitutional opinion in the 21st century in accordance with what we think our 18th century Founders thought and wrote. Some call an “originalist” a “strict constructionist” that is an interpreter of the Constitution as the Founders of our nation had written it assuming they were all of one mind on everything and assuming the interpreters now get it right. Our Founders were, as history shows, surely not of one mind on everything. Does anyone think the Founders would have thought the nation might change its social milieu over two centuries?

I have pondered long in my politically formative years about this and came to the conclusion that our Constitution has value because the Founders knew it had to be a flexible document that could change as the social milieu changes. What was appropriate in 1789 can hardly be looked at through the same 21st century lens. It is why, I believe, the Constitution must evolve as the social climate does. Our nation and its Constitution cannot remain static or the culture can never grow and change as science, technology and culture changes it.

In 1789 slavery was a reality, as was segregation. It took a bloody Civil War to end slavery and it took until 1865 to install the 13th Amendment to the Constitution ending its practice. Women were denied the vote until 1920. Black children were treated as inherently unequal until Brown v. Board of Education said they could not be treated as such. Persons of color were not guaranteed an equal vote until the 1965 Civil Rights Act said they must be accorded it. Until the 20th century and a Supreme Court decision of Loving v. Virginia a person of color could not marry a white person even though to marry each other was their choice. These things became possible only because social change ensued and legal enforcement was enacted to guarantee it.

Again, "conservatives" are belching ecstasies as to Scalia's "greatness." Justice Antonin Scalia, I aver, was not great. He was devastating to the poor, devastating to persons of color, devastating to a group that was trying over centuries to claw its way out of segregated schools, lunch counters and into what should have been their right to begin with – the voting booth. He regressed cultural advancement, he regressed the rights of persons of color, the powerless, gays and those who had to live in a cultural jail cell of prohibitive edict but he aggrandized most especially the mega rich with the nearly universally abhorred Citizen's United decision. He would have, if he could have, denied millions health care, doomed them to perpetual illness and most probably death. He would have if he could have denied millions more their right to marry whom they choose because of the ascribed status of sexual orientation. Surely, the Founders, 18th century men, could not have understood the essence of sexual orientation. If Antonin Scalia had lived he would have relegated women to back alley abortionist butchers of long ago. Yes, there is a place for the Federal government to act when equal justice for the powerless is denied. It took the 1929 Great Depression for FDR to see that path and create the New Deal. Yes, we have come a long way since then.

I feel empathy for his family’s loss but I rate Antonin Scalia as one of the worst justices in American history and I am thankful his viewpoint is gone. I hope no one like he is nominated by a President, God forbid, Cruz, Trump, Rubio or Bush. It is why now with purpose those who care about human rights and those who have been crushed for generations by a cruel and extreme Scalia Court but liberated by an Obama presidency get out the Democratic vote! Now we MUST as progressives be vigilant and NOT surrender our passion but increase it. Scalia and the so called “conservatives” on this Court took this nation and relegated it to a swamp of malevolence. Am I angry? YES, of course, I am and so should everyone else be who calls themselves progressive and humane!

Did Antonin Scalia and those of his ideological bent ever think what it might be like to walk in a poor persons’ shoes and to walk out of the door of one’s home a person of color or a gay person? Answer: No. That is why I am adamant, that is why I am passionate and that is why I am desperate to keep the presidency in Democratic hands while fighting furiously to try to take back the Senate as well!


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