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The Constitution is Alive!

What is the proper amount of time to mourn someone you actively disliked? Of course I am talking about Justice Scalia but my grandma always said say something nice so I will start with not one but two things– 1. He was Italian! 2. He was a brilliant writer, his style and wit were clever, sharp and on point.
Yesterday someone asked me why I disliked Scalia so much and they assumed it was his term ‘homosexual agenda’. They guessed wrong.
I disagreed with his view that the constitution is static, dead. Textualism–only the words matter, not the legislative history. It is a subject that fascinates me. It was Scalia’s tendency to claim intimate knowledge of the “Founders’ intent” when such knowledge is impossible. Context is everything in terms of the Constitution, which makes it a living document by nature. I just can’t see how it could be any other way and I don’t understand how we can pretend we knew their intent when they could not possibly have imagined assault weapons, computers, stem cell research and where that would/could lead– just to name a few.
If I can’t imagine something how can I have an opinion on it? Haven’t your opinions evolved and changed based on your increased knowledge of something? On a personal level, the first one that comes to mind for me is tattoos. I would shudder at the sight of them, the sorts of people who got them, they certainly were not my chums! Now my nieces think they are de rigueur, badges of angst, like my Birkenstocks and bad poetry in the day.
On a larger scale, we as a people have changed and grown throughout our history, for example when the constitution was written we had slavery. There were actually some decent people who owned slaves and yes I know how that sounds. But their opinions changed, evolved and hence we have the 13th amendment that abolished slavery.
The Constitution—the document itself is beautiful and should always be the beginning but elasticity of interpretation and room for growth is essential for the document and the government to function.
We must understand the philosophy behind the words. The right to bear arms is a good example — since the people were the armed forces, there was no issue in having them armed with the technology of the day– pistol, rifle, or cannon. Citizens were the soldiers. However, once we had professional, government-run armed forces, the issue of who should be armed arose.
If we take the strict constructionist point of view on the right to bear arms, under the terms of the 2nd Amendment, should muskets be the only legal firearms today as they were when it was written? Or to the other extreme, should tanks and machine guns be available for public purchase because it only says “arms” and we should interpret that strictly? An argument for another day but I bring it up to illustrate how arbitrary the argument of an originalist is—much like the Bible and those who love to pick and choose what they deem relevant. I have no problem if they want to apply it to themselves, just keep such unyielding hypocrisy away from me. I hate hypocrites so much that anyone who brings it up quickly regrets it when they can’t get me to shut up!
And following my complaint of cherry picking for relevancy, originalists have no answer to Thomas Jefferson’s famous question: why should we allow people who lived a long time ago, in a very different world, to decide fundamental questions about our government and society today? Originalists do not draw on the accumulated wisdom of previous generations. That strikes me as unequivocally ignorant and serves again to validate their subjective, preconceived notions.
And what about women and blacks? Women were not even mentioned in the constitution and blacks would remain slaves for nearly a century more before the 13th amendment was ratified. They had the same status as criminals. If a slave escaped he was to be returned to his owner whereas a criminal returned to jail.
How does an originalist square that? Oh that damn cherry picking again.
Bottom line to me is, Scalia’s opinions and those of all ‘originalists’ that are based on this strict interpretation are just an excuse for their arch- conservative views to fly forward into law and consequently giving legitimacy to their enforcement.
So yes, my views were fundamentally opposite of Justice Scalia’s but that’s ok, let’s go with that for a minute— you had to admire that Scalia was consistent in his rulings until Bush vs. Gore 2000 presidential race. Scalia stopped the recount. Aside from the fact of that being such a divisive and polarizing event for our country, he made a U-turn on his previous reluctance of advocating federal intrusion into state’s rights. I believe that was the end of a smattering of respect I had for him.
I wonder who Clarence Thomas will copy from now? Too soon?

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