Antonin Scalia, the spiritual leader of the current Supreme Court, gone but not forgot, styled himself as an "originalist."
"The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted."
--Antonin Scalia
Scalia said he really didn't care about the founding fathers and what they thought, only about the text they wrote, but that is sophistry, sounds nice but hides the truth behind a veil of words. He says you take the words as they were commonly meant and used at the time of the founding fathers, in the late 18th century and that way you have an immutable set of laws which you cannot change except by amendment.
The fact is, you cannot know the meaning of the words without studying the past, and the men who made that past, which is why Scalia read the Federalist papers. He treats the Constitution as if it were handed down on stone tablets from the mountain.
Of course, Scalia uses this when it gets him where he wants it to take him, but discards it when inconvenient. He wants to find the District of Columbia law limiting ownership of guns is invalid and he has to refer to the 2nd Amendment to do it, so he has the problem that the 2nd Amendment is the only place in the Constitution where the founding fathers actually take pains to explain why they are granting a right, and they say explicitly the right of the people--the people who are in a well regulated militia--to bear arms shall not be infringed.
Well, Scalia retorts, the understanding of what a militia was in those days was different than what we understand as a militia now and he's a "textualist" and an "orginalist" so he goes back the meaning as Jefferson and Madison and Hamilton would have understood that word.
And Neil Gorsuch says the same thing. For these two there is no right of privacy, no right to abortion because there wasn't any such thing at the time the Constitution was written. The word "privacy" never appears in the Constitution so it cannot be used by Supreme Court justices to justify abortion.
But consider another opinion: "Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the convenant, too sacred to be touched...They ascribe to the men of the preceding age a wisdom more than human."
Who is this brash and irreverent cad? Who would despoil Justice Scalia's sacred text?
Well, actually, it was Thomas Jefferson.
Scalia was appalled at the idea that the public now understands when you appoint a Supreme Court justice you are appointing a man who sees the law in terms of today's world, a man or woman who brings his/her own understanding of right and wrong to each case and will likely find something in the Constitution to justify that, just as preachers have found just about anything you wish in the Bible.
But that is where we have been for at least two generations.
"The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted."
--Antonin Scalia
Scalia said he really didn't care about the founding fathers and what they thought, only about the text they wrote, but that is sophistry, sounds nice but hides the truth behind a veil of words. He says you take the words as they were commonly meant and used at the time of the founding fathers, in the late 18th century and that way you have an immutable set of laws which you cannot change except by amendment.
The fact is, you cannot know the meaning of the words without studying the past, and the men who made that past, which is why Scalia read the Federalist papers. He treats the Constitution as if it were handed down on stone tablets from the mountain.
Of course, Scalia uses this when it gets him where he wants it to take him, but discards it when inconvenient. He wants to find the District of Columbia law limiting ownership of guns is invalid and he has to refer to the 2nd Amendment to do it, so he has the problem that the 2nd Amendment is the only place in the Constitution where the founding fathers actually take pains to explain why they are granting a right, and they say explicitly the right of the people--the people who are in a well regulated militia--to bear arms shall not be infringed.
Well, Scalia retorts, the understanding of what a militia was in those days was different than what we understand as a militia now and he's a "textualist" and an "orginalist" so he goes back the meaning as Jefferson and Madison and Hamilton would have understood that word.
And Neil Gorsuch says the same thing. For these two there is no right of privacy, no right to abortion because there wasn't any such thing at the time the Constitution was written. The word "privacy" never appears in the Constitution so it cannot be used by Supreme Court justices to justify abortion.
But consider another opinion: "Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the convenant, too sacred to be touched...They ascribe to the men of the preceding age a wisdom more than human."
Who is this brash and irreverent cad? Who would despoil Justice Scalia's sacred text?
Well, actually, it was Thomas Jefferson.
Scalia was appalled at the idea that the public now understands when you appoint a Supreme Court justice you are appointing a man who sees the law in terms of today's world, a man or woman who brings his/her own understanding of right and wrong to each case and will likely find something in the Constitution to justify that, just as preachers have found just about anything you wish in the Bible.
But that is where we have been for at least two generations.
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