Civil Discourse Now

Where the far left and far right overlap for fun and enlightenment

Justice Scalia's death, originalism's invalidity, mortality tables, and the poossibility of a second vacancy.

    With the death of Justice Antonin Scalia, many more people seem aware of what Professor Sheila Suess Kennedy had pointed out on February 3, 2016, on her blog, the Supreme Court is the most important issue for voters in the 2016 election.
    The impact of Justice Scalia’s death on the presidential campaign already has been felt and is, and will continue to be, significant.  Senator Mitch McConnell vowed that a nominee of President Obama will not be approved; that the confirmation will occur only after the November election so that the American people can make the choice.
    First, the American people twice chose to elect President Obama, in contrast with his predecessor, George W. Bush, who was awarded the Oval Office by—yes, the institution is that important—the United States Supreme Court.
    Second, when people speak of “entitlements,” those of the right-wing usually speak of Social Security (to which I have contributed all my working life), Medicare (see previous parenthetical comment), and miscellaneous welfare programs for the poor (the concept and existence of which I support). As I listened to various commentators and elected officials last evening and read comments this morning, I was struck by the right wing’s sense of entitlement to a majority on the Supreme Court.
    Third, Justice Scalia, for all his jurisprudential quirks, was generally well-liked by colleagues and clerks. Those jurisprudential quirks, however, have left us with a concept for interpretation of the United States Constitution known as “originalism.” He believed the Constitution should be interpreted as the words were used by The Framers in 1787.  There are several problems with this jurisprudence, as I have pointed out several times in this blog. First, who were The Framers? Were they the 36 delegates to the 1787 Constitutional Convention who signed the Constitution?  Do the Framers include the other three delegates present who refused to sign (although two later signed)? Included amongst the Framers—to whom we look for “intent” in originalism—do we include all 55 delegates who, at one time or another, attended the Convention?  What of the 18 men chosen as delegates, some of whom refused to attend?  There was fear felt by some (e.g., Patrick Henry, who said he “smelt a rat” in Philadelphia) that the Constitutional Convention would act outside its charter—to make improvements to, and not engage to scrap completely, the Articles of Confederation—something the Convention did.  Do we include the delegates to the various State constitutional conventions? One would infer we only could include white, male, landowners.  Deists and Protestants predominated at the Convention in Philadelphia.  Thomas FitzSimmons appears to have been the only Roman Catholic.  Women could not vote in most places.  No women were delegates.  The unspoken compromise of the Convention—to permit the continuance of the evil institution of slavery—meant people held in bondage had no voice. Do we discount their views? Second, even if we can identify the Framers upon whose intent we would base an interpretation, can we discern that intent? Third, as to such a means of interpretation, we should turn to the writings of James Madison, who “kept the most extensive notes during the course of the Convention, [and] also refused to published hs journal until after his death.”: “...till the Constitution should be well settled by practice, and till a knowledge of the controversial part of the proceedings of its framers could be turned to no proper account... As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.”  Teuber, “Original Intent or How Does the Constitution Mean?” 10 London Review of Books 7, March 1988. In other words, the Framers, upon whose “intent” originalism focuses, did not believe their “intent” should be a guide. Finally, what of the amendments that have been made to the Constitution? The so-called Civil War Amendments, particularly the Fourteenth, inherently were at odds with the original document—or else they would not have been “amendments.”  Inclusion of the process of amendment itself indicates the Framers did not view theirs as a work written in stone.
    There is another problem that looms in the composition of the members of the Court.  Mortality tables carry a degree of reliability. Other Justices on the Court are very old. It is possible another Justice could pass away before the November elections.
    The composition of the Court, as an issue, will figure in an election campaign as it has none during my life.  Nixon spoke of the ravages on society wrought by the Warren Court.  FDR’s threats to “pack” the Court backfired on FDR and were fodder for his opponents. Yet this nomination could be the most important and dominant issue in November.  If another vacancy on the Court should occur, the implications are scary.     I really hope we do not receive a lecture on the structure of the United States Supreme Court from former Alaska Governor Sarah Palin. Gosh, that might make me want to wretch.

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