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OpEdge: Scalia’s “Originalism” vs. a Changing World

Marc Jampole
February 22, 2016

by Marc Jampole

la-le-0219-friday-originalism-scalia-20160219IT DOESN’T SURPRISE me that in the weeks after his death, the mainstream and rightwing news media have treated Supreme Court Justice Antonin Scalia as if he were Robert E. Lee, who is traditionally presented as an admirable hero who served his country well. Both were brilliant and prominent men whose distorted visions of what constitutes liberty and who should have it reflected the views of large portions of the ruling elite. The difference, of course, is that Scalia successfully pursued his rightwing agenda, at least in the short term, whereas Lee proved to be an incompetent general on the strategic level, whose failures ensured that his illegally-constituted renegade government dedicated to slavery and racism would fall.

A better historical comparison for Scalia would be John Calhoun, the wealthy slaveowner who defended the interests of slavery and promoted its spread westward as vice president, secretary of state, secretary of war, congressman and senator in the first half of the 19th century. Both Scalia and Calhoun achieved great successes pursuing their retrograde agendas, which helped the wealthy few while hurting the bulk of Americans. Scalia, like Calhoun, should rightfully appear in all our history books, but will eventually be seen as a regressive figure who did the country great harm.

Scalia pretended to pursue an “originalist” interpretation of the Constitution, which means he wanted all laws and regulations to conform to the original intent of the forty white men, most of them quite wealthy, who signed the Constitution in 1787.

As others have pointed out since his death, Scalia and his cohorts Thomas, Alito, and Roberts have not really strictly followed the words of the Constitution, but instead have stretched and warped meanings as least as much as they contend liberal justices have done. The classic example is the Citizens United v. FEC decision, in which the four ultra-right Supremes and the mildly conservative Justice Anthony Kennedy ruled that a corporation had the same rights as individuals and could therefore legally contribute whatever they liked to political campaigns. The Citizens United ruling overturned an earlier decision, to which Scalia had dissented, that established that corporations did not have the same rights as individuals.

You don’t have to be a constitutional scholar to do a word search through the Constitution and find that the word “corporation” appears nowhere. And why would it? At the time of the Constitution’s signing, there were very few corporations in the United States.

Thus, any decision by the Supreme Court that involves corporations must interpret beyond the meaning of the original words. Yet time and time again, Scalia peered into the minds of forty dead white men and declared that they embraced the idea that corporations have the same legal rights as people. When considered in this light, his proclamations that the Constitution does not protect the rights of women to have abortions because the word “abortion” was not mentioned in the Constitution seem inconsistent and perhaps two-faced. (FYI, infanticide was a preferred method of birth control in the late 18th century.)

IN GENERAL, Scalia took an expansive approach to interpreting the Constitution when it suited him, and tried to stick to the original words when it didn’t. He used the term “originalism” as a brand to mask his pro-business and ultraconservative religious views and to assert states’ rights in matters in which states, groups or individuals have wanted to restrict voting rights, loosen gun laws, inflict one set of values on society, or enforce patterns of racial discrimination.

But even if one generously overlooks the inconsistency with which Scalia applied “originalism,” we have the concept itself, which is as wrong-headed and pernicious as slavery, scientific racism, phrenology, or spontaneous regeneration. The central idea of “originalism” is that these forty rich white males were so wise that more than two centuries later their words can still be 100 percent valid without reading into them or interpreting them in light of modern conditions, just as rabbis read into the Five Books of Moses.

The forty rich white males who signed the Constitution stood literally at the brink of a new world that they could never imagine, a world far more complicated than the way humanity had lived for thousands of years. Most economic historians now understand that when you net out population growth, there was little economic progress as measured by per capita income anywhere in the world before the 19th century. While theorists have postulated that the Industrial Revolution started in the middle of the 18th century, or about thirty to forty years before the writing of the Constitution, the changes produced by industrialization really did not begin to affect society and social, political and economic relationships until the 19th century. For a full understanding of why we cannot talk about an industrialized society or economy until at least the middle of the 19th century, I refer readers to Jürgen Osterhammel’s The Transformation of the World: A Global History of the 19th Century.

In other words, the signers of the Constitution — forty men claiming to represent more than two million other people — were used to a world in which not much had happened for thousands of years, but which was about to be turned upside down by new technologies, new economic forms (including the modern corporation) and rapid urbanization, as well as new relationships between business entities, the private sector and government, employers and employees, and men and women. They had no idea what was going to happen. One could theorize that if the creators of the Constitution knew that the rate of social change was going to increase exponentially, they might have made it easier to amend the document.

Luckily for the continued development of the United States, just sixteen years after the signing of the Constitution, in the case of Marbury v. Madison, the Supreme Court, under its first chief justice, John Marshall, established the Court’s power to decide what the Constitution means. By establishing its authority as the final arbiter of what the Constitution means, the Court also established its authority to interpret. Many of the signers of the Constitution were alive at the time of the Marbury decision, but there doesn’t seem to have been much of an objection, although the slave-owning Thomas Jefferson did disagree with the decision to have the justices serve as final arbiter of the law.

Because amending the Constitution is so difficult, without judicial interpretation the document would be completely unviable as a guide to government and law in the 21st century (or the 20th for that matter). The foundation of originalism is that these forty males in 1787 could see into the future and create the perfect document for a world beyond their imaginations. But the staying power of the Constitution, like the Old Testament or the I Ching, derives not from its inflexibility, but from the ability to flexibly interpret it to respond to changing conditions and social conventions. It is the job of the Supreme Court to read this flexibility into the original words, and therefore, make them still viable in today’s world. The end game of the theory of originalism (and not the cynical way Scalia practiced it) would turn the Constitution into an unworkable document.

Marc Jampole, a member of our editorial board, is a poet and writer who runs Jampole Communications, a public relations and communications firm in Pittsburgh. He blogs several times a week at OpEdge.