This week-end, the second most powerful man in our country died, Antonin Scalia, an Associate Justice of the United States Supreme Court. The New York Times summarized his judicial philosophy:
“Justice Scalia’s most important legacy will be his “originalism” and “textualism” theory that judges should decide cases according to the ‘public meaning’ of the words in the Constitution or its Amendments as understood by the American people in the state constitutional ratifying conventions. ‘The only good Constitution is a dead Constitution,’ Scalia claimed. ‘The problem with a living Constitution in a word is that somebody has to decide how it grows and when it is that new rights are – you know — come forth. And that’s an enormous responsibility in a democracy to place upon nine lawyers, or even 30 lawyers.’ ( Such modesty from our Supreme Court Justice.) For him, the Constitution was static, unchanging and enduring.”
Chaucer wrote The Canterbury Tales in 1400 A.D. 200 years later, Shakespeare wrote Hamlet. The English language had evolved so extensively Chaucer’s English is not understandable without a translation. 200 years ago, the American colonies ratified the Constitution. Rap evolved from the language of James Madison. Nothing evolves faster than language. Words are breathed into the world by living human beings. They undergo infinite permutations. Words aren’t alive but the folks who use them are. Paraphrasing Heraclitus, we humans don’t step in the same river twice.
And Scalia, a grand Poo-Bah, claimed that the only way to master words is to throttle them. KIll the darlins’! “Sorry, folks, but what has to be has to be. We must recognize that the only good Constitution is a dead Constitution!” That’s what the man said. He was an “Originalist,” a fancy word for appropriating a people’s vision and burying it in his own back yard. His Constitution is written on clay tablets. The poet laughs him to scorn,
“Clay lies still, but bloods a rover.
Breath’s a ware that will not keep….”
The Constitution takes each generation back to the future. It looks before and after. It is an horizon that moves forever and forever with time past and time present and time future. It is not an antiquity displayed amid the accumulated rubbish of some special group.
Scalia thought like the fundamentalists and the evangelists. For them, the Bible is, literally, the Word of God. It is a Thing. These Christian sects claim ownership of the Godhead! They have The Kingdom, The Power, The Glory in their hands! Actually, it’s a world-wide thought disorder. Have you heard of the Sunnis and the Shias? (How ’bout Republicans?) Well, that’s how Scalia thought about the Constitution. What was so remarkable about Scalia is that he claimed not even 30 lawyers could accurately render the meaning of a living text. Heaven forbid! But one exegete, himself, could piece out the meaning of a dead document. He was known for not changing his opinion on any issue. If you have THE TRUTH in your possession, in your hot little hands, it does not lend itself to modesty or cooperating with others on the absurd notion they might have something to offer.
There’s a further problem. What to do with “new rights?” What to do with enlarging human powers? with an evolving world? John Adams’ daughter had a mastectomy without anesthesia! Has medicine evolved in the last 200 years beyond belief? And sexual mores? Homosexuality has been discovered deep in biology. Contraception is a magnificent power only recently available to the race. What about savages and the findings of anthropology?
Scalia was a politician in judicial robes. He was deeply Catholic. Like his church through the piled-up centuries, Scalia was ignorant and ruthless, vicious really, about human sexuality. He could be incredibly stupid. I heard his response today to a question about Citizens United. “It enlarges speech. After all, newspapers have the freedom to support a candidate.” The interrogator said that speech in Citizens United meant secret money. The grand Poo-Bah didn’t blink.