Tuesday, February 16, 2016

Scalia's originalism vs the Constitution as a living document

Scalia's judicial philosophy was that cases brought before the Supreme Court were to be decided according to the original intent of the authors.  This sounded like a really good idea to me when I first heard it, but over time I have concluded that it is incomplete.  

It seems to me what needs to be preserved into perpetuity of the Constitution, Preamble, and Declaration of Independence are the broad principles of those founding texts, but not their literalness.  I believe that the principles are enduring, but the interpretation must be thought out for each generation.  

Simple example - the Declaration of Independence says "We hold these truths to be self evident, that all men are created equal...".  This is a glorious statement about equality, not a statement about men.  

If you try to be stick to the original wording and decide that the Founding Fathers were referring only to men, not women, not black men or red men or yellow men or brown men, then you gut the most powerful statement of the purpose and meaning of America itself - equality.  But, if you realize that the Principle is Equality, then you must apply that principle to later understandings, which is that the real purpose of the statement is that "all humans are created equal..."  men is not the point, equality is the point.  

So, by deliberately ignoring the textualist/originalist narrow interpretation that only men are created equal, later generations applied the luminous imperative of equality to include women, blacks, reds, yellows, browns, and whites - as it should be, and as the deeper spirit and meaning of the Declaration of Independence demands.  

The Constitution IS a living document - the Principles of our sacred documents are enduring and are challenges for future generations to apply to future worlds. To limit interpretation to the circumstances of the 18th century could not have been the intent of the Founders. 

Scalia famously said:

"Would the American people have ratified the document if it said, the application of this document and what it means shall be whatever the Supreme Court says it means from age to age? Nobody — nobody would have ratified that document."

I would respond that on the contrary, would Americans have ratified the document if it said that the application of this document if it locked America into living the life, culture, technology, business practices, religious imperatives of the 18th century with no hope of change or progress?  I think nobody would have ratified that document.  The whole point of the founding of the United States was that it was to be, and is, a noble experiment in self government.  It was never conceived to be a trap to lock an expanding nation in a time warp.

At any rate, Scalia forced the Courts to pay attention to intent of the words, and his foes forced the courts to look at not only the words but the principles underneath the words.  The result are a couple of good guides to future courts.