A Constitutional Viewpoint

Now the Senate is looking for “moderate” judges, “mainstream” judges.  What in the world is a moderate interpretation of a constitutional text?  Halfway between what is says and what we’d like it to say?
            Supreme Court Justice Antonin Scalia, address to Chapman University, 2005

Much talk has been given to the appointment of judges upon the Supreme Court of the United States.  For those not familiar, such judges are appointed by the president and confirmed by the U.S. Senate.  They have life-time tenure.  The thought was that such a tenure would allow judges to exist and to issue verdicts above and removed from political pressures.  For many Americans, legal studies and the inner workings of our court system might come across as rather esoteric but within the wranglings and debates, arguments and dissenting opinions lies a committed guarding of the U.S. Constitution.  The justices who seem to have the right answer are called originalists.

There is an older judicial term called strict or loose constructionism.  It was designed to interpret the extent to which one stays connected to the U.S. Constitution.  Today, a more proper term is originalism.  Originalism or textualism is the concept of judges making a decision on the basis of the exact words of the Founders and the context in which they wrote.  Justice Antonin Scalia, one of the Court’s most brilliant and controversial judges, has often used the death penalty to explain.  Some activists suggest that the Eighth Amendment to the Constitution and its warning against “cruel and unusual” punishment, in essence, invalidates the authority behind capital punishment.  Justice Scalia said that the Eighth Amendment obviously does not suggest that since all the states had capital punishment as a possible consequence to criminal behavior.  How could the Founding Fathers ban something on one hand and allow for it on the other unless they considered the death penalty neither cruel nor unusual?

If we as a society purport to hold valuable the words and intent of the Founding Fathers, why do we try so hard to perform logical gymnastics in order to justify various unfounded political opinions?  The whole purpose of the Constitution is to provide a guideline that brings us through temporary controversies and debates – a calming voice that strongly rejects legal contradiction and moves us away from our worst vices.  To further highlight the importance of an originalist’s point of view, let us take a view at another social dilemma.  Anti-gun advocates suggest that the Second Amendment’s wording suggest the Founding Fathers wanted only those in a militia to have weapons.  However, that was not the context within which they were writing.  In their days, many families, many of them not in a militia, had weapons.  If it was acceptable in 1789, why would the Founding Fathers suggest, reaching through time, that it is not acceptable? 

Behind the power of the point of view of the originalist is a belief in the power of the words of the U.S. Constitution.  If, indeed, these words serve only as a guideline and not irrefutable demands from those who constructed the country, then what is the purpose of the document?  Justice Scalia once said, “Robert F. Kennedy used to say, ‘Some men see things as they are and ask why.  Others dream things that never were and ask why not?’  That outlook has become a far too common and destructive approach to interpreting the law.”  If the United States, its citizens, its lawmakers and its judges cannot agree in the inviolable character of the U.S. Constitution, we could cease to exist as what we were once envisioned.