Tuesday, October 27, 2009

Scalia vs. The Evil Activist Judges

When it comes to interpreting the United States Constitution, there are several different philosophies that the Supreme Court Justices have adopted throughout history. Those judges following the Purpose doctrine seek to understand why a particular section or amendment was created in order to apply its intent to a given factual situation. Conversely, those judges following the Strict Constructionist doctrine tend to toss purpose out the window and are only concerned with the actual literal text of the clause in question. As one might imagine, these two groups of judges bump heads on just about every issue that comes before the Court. These two groups are also just as equally if not more so divided on the following major philosophical issue: Is the Constitution (1) a "Living Document" where its interpretation changes and grows as America changes and grows or (2) a static document that retains its Original interpretation as that interpretation existed in 1787 when it was written?

While you're pondering that question and basking in all of its philosophical glory, allow me to inject an ugly dose of reality into the matrix: whether you feel (1) or (2) is correct is largely determined by your politics.

Generally speaking, progressives feel that the Constitution is a Living Document that must be interpreted in light of a maturing society (this is what Republicans refer to as "activist" judging). Conservatives, on the other hand, generally feel that the Constitution is not a Living Document.

The Justice that most embodied the "Living Document" philosophy was the late Chief Justice Earl Warren who was Chief Justice from 1953-1969 during the height of the Civil Rights Era. Chief Justice Warren was about as (1) as they come. Under the "Warren Court," America was given Brown v. Board which overturned prior precedent and outlawed racially segregated schools, Miranda v. Arizona which literally created the rule that we all know from watching too many TV cop shows as our "Miranda Rights" (the right to remain silent, anything you say can and will be used against you in a court of law, etc.), and also Loving v. Virginia which made it illegal for any state to ban interracial marriage. These cases are widely heralded as landmark American accomplishments and a true testament to our progress as a nation, BUT had the Warren Court adopted the Originalist Philosophy of (2) up above, schools would still be segregated racially depending upon the state you live in, the police would not have to read you your rights, and many people like the 44th president of the United States would not exist. See the difference a simple judicial philosophy makes in our daily lives?

Speaking of (2)'s and the Originalist Philosophy, we turn now to Supreme Court Justice Antonin Scalia. Nobody represents the Originalist Philosophy better than Justice Scalia. Justice Scalia was misquoted today by the Huffington Post as saying that he would have dissented on the historic Brown v. Board case, however he actually did not go that far. But Scalia did provide ample evidence of his Originalist Philosophy recently at the University of Arizona College of Law where he stated the following:

"The fight is about the Supreme Court inventing new rights nobody ever thought existed...Right to abortion? Come on. Nobody thought it violated anything in the Constitution for 200 years. It was criminal. The same is true of homosexual sodomy. Yet the nation’s high court has struck down state laws banning both. They may be bad ideas but don’t tell me it’s unconstitutional.

"The only thing you can be sure of is the Constitution will mean whatever the American people want it to mean today...[a]nd that’s not what a constitution is for. The whole purpose of a constitution is to constrain the desires of the current society."

Scalia may not have literally said that he would have voted against Brown v. Board, but in light of the fact that this is a man who truly believes that the Supreme Court should resolve the legal issues facing our nation in 2009 using the original intention of the Constitution as it existed in 1787, he didn't have to.

Aside from the fact that the original Constitution sanctioned slavery, there's just one other minor little flaw in Scalia's approach, created by the founding fathers themselves, that contradicts the notion that the Constitution should remain static: it has been amended 27 times.
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