An Original Idea

Originalism, the most conservative of ideas, holds that the job of the U.S. Supreme Court is to decide case law based on the meaning the founders had in mind when they wrote the Constitution.  And there is no greater proponent of the idea than Antonin Scalia, the most conservative of jurists.  Or is he?

Here is a fair definition of the concept from Wikipedia:

(Originalism) is based on the principle that the judiciary is not supposed to create, amend or repeal laws (which is the realm of the legislative branch) but only to uphold them.  Originalism is an umbrella term for two major theories, principally:

  • The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it.
  • The original meaning  theory …  the view that interpretation of a written constitution or law should be based on what a reasonable person living at the time of its adoption would have declared the ordinary meaning of the text to be.

In other words, the framers of the Constitution have the deciding vote when it comes to interpreting a law.  What they meant, how they understood it, rules.  The alternative, The Living Constitution theory, holds that laws should be viewed through a prism that recognizes the world is evolving over time, and should adapt to new circumstances.

In New York Magazine, Scalia is quoted as saying: “Words have meaning. And their meaning doesn’t change.”

Meanings don’t change?  That may bring a new understanding of the “gay divorcee.”

And in a lecture at the Virginia School of Law he said: “My burden is not to show that originalism is perfect, but that it beats the other alternatives, and that, believe me, is not difficult.” Originalism sees the Constitution as having a static meaning, while acknowledging history can occasionally enter the equation.

“Of course its provisions have to be applied to new phenomena” like the radio and the Internet, he said. “It is essential to originalism, as it is not to so-called ‘evolutionary constitutional jurisprudence,’ to know the original meaning of constitutional provisions.”

For instance, in the 1980’s, speaking of flogging, he defined himself as a “faint-hearted originalist,” but decades later repudiated the “faint-hearted” tag and said: “And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional.”

It makes for interesting reading – and some might say good policy – but it has to be applied consistently.  And that is where Scalia and his conservative compatriots on the Court keep tripping over their own words in their pursuit of a conservative agenda. Judicial activism?  Uh Uh, Not me, they would say. But let’s look at the record.

Just one of many cases in point: Gun Control.

In 2008 Justice Scalia, wrote the majority opinion that struck down provisions of the Washington DC Gun control act as unconstitutional under the Second Amendment.  He did acknowledge that as with most rights, the Second Amendment right is not unlimited. It is not a right to keep or carry any weapon anywhere, at any time and by anyone (such as felons and the mentally ill). But it did rule it was unconstitutional to ban handguns in the home because they can be used for self-defense.

While he wrote the Second Amendment is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” He slyly kept the door open.  On Fox News Sunday (where else) he hinted the extent of gun ownership “will have to be decided in future cases.”“We’ll see,” he said.

Yes, we will. Two years after the DC case, the Court extended the ruling to state laws as well. And now in Georgia you can carry a weapon into a bar, a church or airport. In fact, law enforcement can’t even determine whether an armed person even has a concealed weapon permit.

In North Carolina now you can have a gun in a car on school property – even an elementary school.

In Idaho, public university and college boards cannot ban possession of guns if you have an enhanced carry permit. But even with that permit you can’t carry a concealed weapon in a dorm or stadium unless you are using it in self defense. (Not sure exactly what that means before the fact.  Can you carry an AK-47 into your dorm “just in case?”

This prompted a Boise State University professor to ask, tongue-in-cheek (I hope), “When may I shoot a student?”  Dr. Greg Kampikian wrote, “I am a biology professor, not a lawyer, and I had never considered bringing a gun to work until now. But since many of my students are likely to be armed, I thought it would be a good idea to even the playing field.”

And, for example, he said: “I assume that if a student shoots first, I am allowed to empty my clip; but given the velocity of firearms, and my aging reflexes, I’d like to be proactive. For example, if I am working out a long equation on the board and several students try to correct me using their laser sights, am I allowed to fire a warning shot?”

In Texas and several other states the law explicitly says the Attorney General can get an injunction against any local government that adopts a gun or ammunition regulation.

But is this really what the Framers of the Constitution meant? New York Times columnist Joe Nocera writes of a new book by Michael Waldman, The Second Amendment: A Biography in which the author argues that the whole idea behind the second of the Bill of Rights was to prevent formation of a federal army that could overpower local and state militias.  In fact, Waldman contends, “They were not allowed to have a musket; they were required to. More than a right, being armed was a duty.”

That he says is why the full text of the Amendment reads: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Necessary to the security of a free state. If it doesn’t mean anything, why is it there in the beginning of the Amendment? Who gave today’s Court the right to edit out the first dozen or so words of the law?

Waldman says the entire 1789 House debate over this Amendment consisted of twelve congressmen – and not a single one mentioned a private right to bear arms for self-defense, hunting or for any purpose other than joining the militia. So where is “originalism” in the thinking of the uber-conservative justices?

Longtime Supreme Court reporter Linda Greenhouse wrote recently on the New York Times OP-ED page that the Court has sacrificed its theoretical philosophy for an ideological – and very conservative – agenda:

“To argue that the Roberts court is hurtling down the wrong path substantively is to make a judgment call that invites pushback and debate. I understand that. This is an opinion column, and here is my opinion: the court’s majority is driving it into dangerous territory. The problem is not only that the court is too often divided but that it’s too often simply wrong: wrong in the battles it picks, wrong in setting an agenda that mimics a Republican Party platform, wrong in refusing to give the political system breathing room to make fundamental choices of self-governance. …  I’m finding it impossible to avoid the conclusion that the Republican-appointed majority is committed to harnessing the Supreme Court to an ideological agenda. The evidence is everywhere.”

And I must agree.

One thought on “An Original Idea

  1. Barbara Byer says:

    Great launch. Much to think about. More to follow when I am not leaving at 7am for Winston Salem in the morning. I think this is a terrific blog. Barb


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