The Biggest (A)-Hole In Our Constitution

I have heard Antonin Scalia talk about his judicial philosophy many times, most recently on a 60 Minutes segment.

He is a slippery and charming bastard who often refers to himself as an "Originalist" who is an opponent of the idea of a "living constitution."

Which makes me wonder if the Constitution is in his mind dead.

It also makes me wonder if this "Originalist" has ever read about the origins of the Bill of Rights.

It is a fact lost to most Americans today but the Constitution was originally ratified without those famous first ten Amendments.

This was because many Founders (especially the Federalists like Hamilton) were concerned that the act of enumerating certain rights in the Constitution could later be misconstrued as implying that whatever rights they had not specified, singled out or mentioned did not exist.  In other words - if a certain right isn't specifically defined in the document then you don't have it.  

Like the right to breathe.  Or the right to take a walk on a sunny day.  Or the right to annoyingly baby talk to your cat.

They preferred the English Common Law system which doesn't define or quantify certain rights but rather accepts them as rational, commonsense and tacitly understood.

 

(Side Note - you'd have to go back to Henry II to understand the English system's evolution and how it works but to give you an idea in England even the killing of someone in cold blood isn't defined specifically as a crime.  This either shows us how effective common law is or how polite the English are that they don't need a law to say murder is wrong.  It's just understood to be rude and not terribly helpful.)

Now you'd have to be a real A-hole to interpret the Constitution in such a narrow minded, limited and nitpicky capacity, to actually argue that any right not spelled out does not exist.

I mean really, it would take an A-hole of almost gravity-defying proportion to think along these lines. You'd almost have to be an A-hole so big and so dense you were in danger of collapsing in on yourself like a dying star.

But the Founders were very shrewd and they knew that while history has shown us from time to time we may have droughts, famine or even a dearth of brave and ingenious men, there is never, ever a shortage of assholes.

So because of these fears the Bill of Rights wasn't actually passed until 1791, the third year of Washington's first term.

It was the fulfillment of a promise the founders had to make to the states to get them to ratify the Constitution and centralize authority to the degree that the Federalists were proposing.

Because in order to accept such a radical rethinking (actually a complete overhaul) of the Articles of Confederation the states had exacted promises that a Bill of Rights must be added and added in short order.  

In fact Thomas Jefferson wrote a scathing letter to his protege James Madison (who is considered by many to be the father of the Constitution) about the lack of inclusion of a Bill of Rights.

Eventually it became clear to everyone it was either add a Bill of Rights or no dice on the Constitution making it in the long haul.

So Madison, working as a member of the House of Representatives from Virginia pushed through what eventually became our first 10 Amendments - freedom of speech, freedom of the press, separation of Church and State, the right to bear arms and so on.

Therfore from its very inception the Constitution was already a living document.

This still left the aforementioned problem.  The idea that any right not spelled out did not exist.  

This was solved rather easily by the clever Ninth Amendment which reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

So case closed, right?

Wrong.  Enter Antonin Scalia.

His "Originalist" philosophy is exactly what the founding fathers were afraid of.

Contrary to everything history has taught us about the constitution being a living document he sees it as a deceased one, incapable of change no matter what technological, generational or moral evolutions occur in this country.  

According to him we must abide by exactly what was laid down by the Founders in the summer of 1887.

Case closed.

This is so contrary to what the Founders intended it should be laughable.

Obviously the Constitution is a living, vibrant document that must, has to change with society.

About this idea Jefferson once said, "... as we grow older, as a republic you cannot expect a man to wear a boy's jacket."

What a wonderfully succinct way to put it.  Expecting today's society to be ruled by something 18th century men thought up is obviously (excuse the continuation of the metaphor) a poor fit.

In fact, the meager 27 amendments we have added in 200 plus years would probably be rather horrifying to Jefferson.  He would most likely have expected hundreds by now.

He was actually for holding a new Constitutional Convention every 30 years because to paraphrase him - the earth belongs to the living.

In my mind there is no greater argument for a living constitution than what I have just laid out.

However Scalia refuses to see it as thus and governs as if he were a Justice in 1808 instead of 2008.

This brings me to my final point and what I feel should be the 28th Amendment to the Constitution.

Supreme court appointments should no longer be lifetime.  People live too long for this to make sense anymore.

We must accept that when the Constitution was written a man was exceedingly lucky to live to 40.  Now we are faced with a Chief Justice and other Justices who will be on the court until they die in their 70's or 80's, long after their mental capacity has diminished and long after they have the right to rule for a much younger populace.

We should shorten their term to 15-20 years.  This would rid us of the burden of 80 year-olds making decisions that affect all of us long after they are dead.

This would also hopefully ensure a modern understanding of today's society is and would always be reflected by the court.

As a bonus it would also mean it's time for Scalia to retire (and Clarence Thomas).

In my mind that makes the argument - you guessed it - case closed.