A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.
Because I love the U.S. Constitution and know the founding fathers of this nation were great men, I believe that would be a good place to start. What does Justice Scalia mean when he speaks about originalism in constitutional interpretation? According to an interview with Leslie Stahl of 60 Minutes, the CBS News report states, “Justice Scalia is still a maverick, championing a philosophy known as “originalism,” which means interpreting the Constitution based on what it originally meant to the people who ratified it over 200 years ago[ii].” Personally, I like the idea of interpreting the U.S. Constitution[iii] in a manner that upholds the values, principles and words of our founding fathers who actually risked everything to create such a wonderful document for the people of the United States. In the report Justice Scalia goes on to explain what he means, “It is an enduring Constitution that I want to defend.” Ms Stahl notes, “Scalia has no patience with so-called activist judges, who create rights not in the Constitution – like a right to abortion – by interpreting the Constitution as a “living document” that adapts to changing values.” Justice Scalia states why he is against the idea of a living Constitution, “What’s wrong with it is, it’s wonderful imagery and it puts me on the defensive as defending presumably a dead Constitution.” So it is apparent, Justice Scalia believes the U.S. Constitution should be and is our ‘rock solid foundation’ which we stand upon and which has elevated us, the United States, to our (at least once) grand stature. With regard to the founders, Justice Scalia goes on to say, “Well, it isn’t the mindset. It’s what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution.” Justice Scalia isn’t against progress or change, “Create it the way most rights are created…Pass a law.” But he is against changing the Constitution, our foundation. Like many people, I believe if you wish to change the Constitution, lawmakers need to go through the extremely cumbersome amendment process in order to make the Amendment. However, making a law in itself, is much less cumbersome, it just needs to be constitutional.
Why does Justice Scalia advocate textualism in statutory interpretation and what is it? Oliver Wendell Holmes in The Theory of Legal Interpretation stated, “How is it when you admit evidence of circumstances and read the document in the light of them? Is this trying to discover the particular intent of the individual, to get into his mind and to bend what he said to what he wanted?” Mr. Holmes, who I might add was a brilliant man, further states, “Thereupon we ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used, and it is to the end of answering this last question that we let in evidence as to what the circumstances were[iv].” So I believe Mr. Holmes is stating textualism is not necessarily the intent of the man as much as it is the words themselves, as used by men in general, to understand the meaning of the words within a certain circumstance.
According to the Harvard Journal of Law & Public Policy, “The basic premise of textualism is that judges “must seek and abide by the public meaning of the enacted text, [as] understood in context” and should “choose the letter of the statutory text over its spirit[v].”” Mr. Davis further states with regard to textualism, “Only the statutory text has passed the constitutional requirements of bicameralism and presentment, and that judicial reliance on unenacted intentions or purposes “disrespects the legislative process.”” Also according to Mr. Davis, textualists believe those ‘unenacted intentions and purposes’ are that which “Skirts the constitutional protections designed to safeguard liberty by diffusing legislative power.” So textualism maintains the separation of power within the three branches of government itself and protects the U.S. Constitution as well as the liberty of sovereign individuals and sovereign States.
Just so you know bicameralism is Congress as two chambers, the House of Representatives and the Senate. For the definition of presentment I’ll go to Black’s Law Dictionary, “In criminal practice. The written notice taken by a grand jury of any offense, from their own knowledge or observation, without any bill of indictment laid before them at the suit of the government. A presentment Is an informal statement In writing, by the grand jury, representing to the court that a public offense has been committed which is triable in the county, and that there is reasonable ground for believing that a particular individual named or described therein has committed it[vi].”
So between Oliver Wendell Holmes and Mr. Davis of the Harvard Journal of Law & Public Policy, Justice Scalia’s advocacy of textualism in statutory interpretation is not the intent of what is or was meant, but the actual public meaning of the text itself within the context of what was said [in the statute] and this is done strictly to safeguard our liberty under the U.S. Constitution while holding the government in check. I can’t figure out how that is a bad thing. The framers of the Constitution believed in limited government, to be sure, limited federal government as stated by James Madison in Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government are few and defined[vii].”
Now imagine a provision—perhaps inserted right after…the Naturalization clause—which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits.
Apparently, the Obama administration which flatly refuses to rigorously enforce existing immigration laws, just like his predecessor, George W. Bush who also refused to enforce those laws should not handcuff a sovereign State from doing so. Each sovereign State, like the nation as a whole, has its own Constitution and its own three branches of government. The federal government in my view is always subordinate to the States as well as the individuals who make up the States, unless one of the various constitutionally guaranteed rights of the individual has been violated by the State. What right does the federal government believe it has to step in as ‘High Lord and Potentate’ and issue its so-called fatwa’s or to even dictate to the sovereign individuals and the sovereign States? The business of the State is just that, the business of the State. The federal government’s power is limited for a reason, the founders believed in the sovereign individual and the sovereign State. Clearly, the federal government merely acts out of jealousy in its daily attempts to usurp what is not rightfully theirs as stated in the Law of the Land, the U. S. Constitution.
Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing…But this wolf comes as a wolf.
The right to abortion is another issue with which we are all too familiar, based on the landmark case Roe v. Wade. In Planned Parenthood v. Casey, Justice Scalia gave his dissenting opinion, “By foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. – We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining[xi].” Whether someone is for or against abortion, it seems clear to me as it seems to be with Justice Scalia, nowhere within the U.S. Constitution does it state there is a right to abortion. However, I do believe as Justice Scalia’s dissenting opinion states, this is a matter that should be left up to the States. Roe v. Wade is a perfect example of the federal government’s attempts to destroy States rights. Has there been an amendment to the Constitution? The easy answer is no, but if that is the case, then why does the federal government feel they have the right to enact a national law without going through the cumbersome amendment process to the U.S. Constitution? If a State or the people of a State enact a law which either affirms or denies the right to have an abortion through State law, the individual on either side is not held against their will in that State. They have the freedom and the right to leave and seek out their liberty in another State where the people of that State have beliefs which are more in keeping with their own set of beliefs. But to have a national law foisted upon us all with the misguided attempt at appeasement for some, completely disregards the others. Not to mention the fact that such an idea is completely foreign to the U.S. Constitution.
I would conclude by stating Justice Scalia is not only a fantastic jurist, but an outstanding Supreme Court Justice. This man has a clear grasp of the law and an understanding of the U.S. Constitution which is unparalleled. I happen to like the fact that he adheres to the public meaning of text in his interpretation of the statutes and how he sticks to what the founding fathers said and what the words meant to them regarding the U.S. Constitution and the Bill of Rights. Justice Scalia’s belief that the idea of a living constitution is in reality a dead constitution is an honorable defense of the U.S. Constitution. His belief that his duty is to defend an enduring Constitution speaks volumes about this man. Justice Scalia’s defense of the sovereign State in the face of Executive, Congressional and Judicial malfeasance is also quite noteworthy. To protect the sovereign State is to protect the sovereign individual and it would appear as though Justice Scalia is a staunch supporter of both. As I have already stated, he defends the Constitution, but he also does this by affirming there is a clear separation of power between the three branches of government as stated in the Constitution. His conservative leanings don’t seem to sway his opinions or impartiality with regard to any case. And his opinions in general are quite interesting to read. Justice Scalia shows up for work each day fully prepared to uphold, defend and protect the Constitution of the United States. I cannot imagine why so many people hate this man, unless of course, it is because they hate the U.S. Constitution.
Justice Scalia is in many ways like Socrates, he questions and reproves, he educates and he enlightens. While in his interview with Ms Stahl he stated, “I was never cool,” I would have to disagree with him on that point. I personally believe Justice Scalia is in fact very cool, I might even go so far as to say he is a role model for decent and honorable men and not just young lawyers who someday wish to sit on the Supreme Court. Justice Scalia is an example of a man who leads by example. If we had more like him on the Supreme Court, it’s possible our nation wouldn’t hit the nail right on our thumb quite so often.
If you think aficionados of a living constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens to enact it. That’s flexibility.
God Bless this Great Republic, the United States of America.
Brett L. Baker
[i] Wikipedia; Antonin Scalia, http://en.wikipedia.org/wiki/Antonin_Scalia
[ii] CBS News; 60 Minutes, Justice Scalia On The Record, http://www.cbsnews.com/stories/2008/04/24/60minutes/main4040290.shtml
[iii] Charters Of Freedom; Constitution of the United States, http://www.archives.gov/exhibits/charters/constitution_transcript.html
[iv] Harvard Law Review; The Theory of Legal Interpretation, Oliver Wendell Holmes, pp 417-418. http://www.jstor.org/stable/1321531?seq=1
[v] Harvard Journal of Law & Public Policy [Vol. 30]; The Newer Textualism: Justice Alito’s Statutory Interpretation, p. 988, Elliott M. Davis. http://www.law.harvard.edu/students/orgs/jlpp/Vol30_No3_Davisonline.pdf
[vi] Black’s Law Dictionary 2nd Edition Online; Definition of PRESENTMENT, http://thelawdictionary.org/presentment/
[vii] Founding Fathers Info; Federalist No. 45, James Madison. http://www.foundingfathers.info/federalistpapers/fedindex.htm
[viii] Arizona v. United States; Opinion of Scalia, J, pp 19-21. http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf
[ix] On Sovereignty; US Constitution: How the U.S. government fails to follow the U.S. Constitution and the incompetent, so-called leadership of the United States, http://mytreatises.blogspot.com/p/on-sovereignty.html
[x] Cornell University Law School, Legal Information Institute; Morrison v. Olson (No. 87-1279), http://www.law.cornell.edu/supct/html/historics/USSC_CR_0487_0654_ZD.html
[xi] Gonzaga University; Scalia dissent in the Casey case, http://guweb2.gonzaga.edu/~dewolf/scalia.htm
[xii] Brainy Quotes; Antonin Scalia Quotes, http://www.brainyquote.com/quotes/authors/a/antonin_scalia.html