The death of Supreme Court Justice Antonin Scalia has exposed just how divided the nation has become. Almost immediately after his passing the GOP and the DNC faced off with drawn swords. There will be blood on the floor.
The Republicans want a conservative; the Democrats want a liberal. A second faction fights for a “balanced” hybrid of the two.
The third school of thought believes that the Constitution is a living document, one that adapts to society in a perpetual state of flux.
But Scalia would argue against all three choices. His solution lies in the fourth way to interpret the Constitution called, “originalism.” We'll explain each.
1) Should the High Court be conservative or liberal?
The very idea of a judiciary that is conservative or liberal is wrong. The Constitution requires that members of the nation's highest court take an oath to uphold the Constitution, not to a political philosophy.
2) What about a balanced court?
Proponents of a balanced court not only proceed from an unconstitutional basis, but they propose an impossibility. A nine-member Supreme Court composed of conservatives and liberal judges cannot be balanced. Five might be conservatives and four liberals or vice versa. In either case, it will always be imbalanced.
If the bench included justices who could decide either way, then the court would have no coherent judicial philosophy. Each ruling would be an unpredictable roll of the dice.
3) Is the Constitution a living document?
This mode of interpretation holds that the Constitution should be viewed as a living document, that is, one that evolves and changes with the times without being formally amended.
This avenue of thought contends that the Constitution being an 18th-century document is not applicable to the circumstances of the 21st century. Compounding this are the vast technological advances: electricity powering lights and energy to every home, the automobile, TV, the internet, iPhones, worldwide commerce and communication. The list is endless.
The Founding Fathers could not have foreseen these technological developments and the societal upheavals they would generate. Consequently, the Constitution was not written to accommodate them.
The Constitution describes how it can be amended, but they are time-consuming and cumbersome not suitable for the rapid adjustments demanded in today's world.
Hence, they say, there is no realistic alternative to a living Constitution. Ahh, but there is.
4) What is originalism?
The idea behind originalism is that the Constitution must be interpreted by the intent of the 55 framers. It is how an ordinary citizen of that time would understand its meaning.
A constitutional originalist accepts the views, words and their definitions at the time the Constitution was written as fixed and unchanged.
It is evident that the drafters of the country's guiding document were aware that their founding nation was socially dynamic and inventive.
Article 1, Section 8 of the Constitution reads: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Notable inventions patented shortly after the Constitution was ratified in 1788 are the automatic flour mill, cotton gin, suspension bridge, vapor-compression refrigeration, circular saw, sewing machine, and combine harvester.
While these inventions seem commonplace by today's standards, each one produced vast cultural changes that rippled through the nation. But their introduction never obviated the Constitution; rather they flourished under its aegis.
Similarly, wars have always been part of our history from colonial times to WW I, WW II, the Korean War, Vietnam, Iraq, and presently, Afghanistan. Has anyone suggested that these conflicts have diminished the Constitution?
Originalists believe that despite the mechanization and now computerization of manufacturing, wars, and transformative developments in culture, the Constitution remains as timely today as when it was written 230 years ago.
Getting back to Scalia's empty chair, the Senate must make it clear to our banana-republic chief that as soon as a port-listing nominee leaves the White House he will be sunk by the Senate.
Somehow the Republicans must screw-up their courage, stand on their spindly legs and shaking knees and tell Obama that he has no chance of turning the Supreme Court into a leftist city of refuge. With Trump at the Senate's back, they just might be able to do it.
Scalia's chair is to be filled by the next president; not by Obama. It is for the people to choose which method of constitutional interpretation they prefer and which candidate is most compatible with that interpretation.
Sincerely,
Bob Scroggins
New Milford, PA