January 10, 2011

Justice Scalia’s ‘Originalist’ Hypocrisy (and that of the GOP)

This one hit the radar a couple of weeks ago and it makes me laugh every time I read it – for being what lawyers and judges call an “originalist,” as in, he believes in interpreting the constitution to the letter, Justice Antonin Scalia certainly has tons of revisionist ideas of what the Constitution says. After all, this week he says that the whole “equal protection under the law” apparently doesn’t apply to women, and that the Constitution offers them no protection against discrimination.

That’s right – it’s one thing if you want to say something about the Constitution’s implied protections for African-Americans (who were slaves at the time and there was debate even then if they should be protected, culminating in the decision that African-Americans were three-fifths human, which gave them carte blanche to ignore us entirely…what, didn’t know about that? Those are in the parts of the Constitution that the Tea Party thugs who claim to honor the document so highly decided to conveniently avoid reading when they did their theatrical reading on the House floor last week) but the founders made it clear that women were supposed to have the same legal protections, even if they didn’t believe at the time they should have the same rights to vote and own property.

Yet again, Scalia reveals himself as being an “originalist,” but only when he supports the perspective of the founders – anything else is conveniently bent to the right.

“In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation,” Scalia said in a recent interview with the legal magazine California Lawyer.

“So does that mean that we’ve gone off in error by applying the 14th Amendment to both? Yes, yes. Sorry, to tell you that.”

However, if the “original intent” of the amendment’s drafters was so determinative – that the 14th Amendment supposedly was only meant to apply to black men at the end of slavery – it might be safe to assume that the drafters weren’t thinking about protecting a white man like George W. Bush from possibly losing an election in Florida in 2000.

Here’s the beauty of the piece all summed up and pretty:

n other words, Scalia and other right-wing justices operate with a situational ethic when it comes to “originalism” and “strict construction.” If their partisan and ideological interests require the abandoning of those precepts, the principles are dumped overboard.

That is what most of us would call hypocrisy or dishonesty. But Scalia, like many on the Right, operates with a curious sense of false righteousness, at least when his “principles” match up with his ideology and partisan interests.

In the recent interview, Scalia packaged his assessment of “originalist” intent on the 14th Amendment as a tough-minded recognition of the facts. Scalia claimed that the amendment’s provisions should only relate to the “original” intent of extending legal rights to black men.

He framed his argument as an invitation to state legislatures to grant women, gays and other groups equal rights. But that also suggests that the states would be free to deny these Americans their rights, if the legislatures saw fit.

In essence, leave it up to the states, and he’s already laid the groundwork for his own denial of equal rights on Constitutional grounds going forward. It’s not only unfortunate, but it’s horrifying, and it’s horrifying that his perspective has managed to stay on the highest court for so long. I’m far from an originalist, mostly because I think the Constitution, which is an amazing document, is a framework – a prism through which the founders intended future generations to peer and look at the world they lived in, not a stone tablet they expected future Americans to adhere to the letter at all times.

But sadly, the definition of conservatism is to maintain the status quo and avoid progress at all costs – to live in the false righteousness that the way things “are” is the way things “should be,” or the way things “were” are better than the way things “are.” It’s unfortunate, but very real – and as we see in Justice Scalia, it’s a perspective we have a great deal of work remaining to fight against.

[ Justice Scalia’s ‘Originalist’ Hypocrisy ]
Source: Consortium News

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