Uncommon Sense

February 17, 2016

But the Legal Bullshit Lives On

Supreme Court Justice Antonin Scalia passed away recently, but unfortunately the form of interpretation of the Constitution he invented did not die with him. Scalia formulated and promoted a view of the Constitution (“originalism”) such that it should be interpreted only as it was understood to mean when it was drafted 227 years ago. Notwithstanding the fact that the drafters of said document said over and over they wanted to have a living document. The framers even included a process by which the Constitution could be amended, and then went ahead and amended the thing ten times within the first couple of years of its existence.

To limit the Constitution to what it meant to the citizens of the time is bizarre. Consider if we interpreted theories of physics or medicine in such a way today. We would be talking about humours, vapors, and “bad air” along with spooky action at a distance and the ether. To have a politically guiding document locked into a time frame is counter to nature and all of reality. The only constant in our existence is change and the Constitution was planned to allow for it. It even created a national supreme court to interpret what it meant and did not limit that court to interpretations of what it meant to the founders. If that was what they wanted, don’t you think they would have said so?

Even Justice Scalia participated in the creation of “new constitutional rights,” something he said should not be possible without a formal amendment. Justice Scalia even re-interpreted 100 years of the high court’s rulings to create the right of individuals to bear arms (Heller). Basically he claimed all of those famous jurists of the past, along with the founders, didn’t mean what they said. To take the late justice’s opinion literally, women should still not be able to vote, Black people should still be in chains, corporations shouldn’t possess freedom of speech, and money shouldn’t be a form of free speech. That those are no longer the case is based upon our ability to change our Constitution’s meaning from what it meant when it was written.

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