Thomas Paine, Scalia and the Originalists

Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.⁶

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990) :

“ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment , and by the First and Second Amendment s, and to whom rights and powers are reserved in the Ninth and Tenth Amendment s, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

--Antonin Scalia

Reading Thomas Paine is stunning, when you think this  guy was writing 250 years ago, addressing issues so basic we are still struggling with them today.

Of course, some of those issues have receded, as most of us have got past the idea that mankind needs a king and hereditary monarchies to rule them and that the rights of kings and aristocrats to have so much power and wealth is God given and rightful.

But the idea of the importance of "stability" and "continuity" persists and controls us in very practical and important ways. To pick only the most egregious and obvious example, our Supreme Court still labors under the weight of the ideal of "originalism" which is to say the Constitution constitutes an immutable law, handed down by sacred "founding fathers" who spoke with one voice and of one mind and gave us the law, which is the original truth, Biblical in its constancy and all the answers are contained in it, if only we are wise enough to read and follow it.

Of course, Antonin Scalia revealed in his contorted opinion in Heller v DC, the absurdity of such a position. It was clear the gun loving Scalia, a devout Catholic who needed an inviable text to justify his pronouncements, turned to the 2nd amendment, which is about as unambiguous as any sentence in the entire Constitution, and the only place in that document where the authors took pains to explain the reason why they grant a right: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed."

Anyone reading this sentence who does not understand that "the people" here are specifically members of this "well regulated" militia, has got to be fooling himself. It is even more telling  the amendment's author was not content to simply leave it at "a militia" but deliberately put in "well regulated" with the clear meaning that these people bearing arms were under control of the state.

So how did Justice Scalia get over, under or around this clear barrier to a right to individual gun ownership, which is, obviously, where he was so determined to go?

The mental contortions and back flips Scalia performs are breath taking. If ever you want to see a man in the struggle to convince himself that black is white or that 2+2=5, this would be a good example to consider.

Consider Thomas Paine dis-articulating the argument that our current generation, in the 21st century, beset by assault rifles which can mow down 50 people within an instant, should be bound by any rule set down in at the end of the 18th century. 

"There never did, there never will, and there never can exist a parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the 'end of time,' or of commanding for ever how the world should be governed, or who should govern it: and therefore, all such clauses, acts or declarations, by which the makers of them attempt to do what they have neither the right nor the power to do, nor the power to execute, are in themselves null and void. Every age and generation must be as free to act for itself, in all cases, as the ages and generation which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies." [Italics added]

We have now a Supreme Court which is a peculiar amalgam of "originalists" like Gorsuch, Kavanaugh and Alito and a justice who rejects precedent because he sees the history of the law in this country as being unjust (Thomas) and one who vacillates between dismissing precedent when it suits him and clinging to it when it doesn't (Roberts.)

Stare decisis has for this Court become stare plasticity.  Scalia ignored generation after generation of prior decisions which specifically denied the Constitution bestowed an individual right to gun ownership.

Whatever we have, we have a court of unelected men who are faced daily with cases which fall between the cracks of the structure nailed together by the framers and who do, some would say, must, make up the law as they go along.

Just consider the righteous baker case: A Colorado baker receives an order from two gay men to prepare a wedding cake for their ceremony. He is a fundamentalist Christian who says his religion forbids him from sanctifying such a sinful union, and he refuses. The Supreme Court looks at the way the lower courts have decided the case and they point to the disparaging remarks made by the courts about the baker's religion and they find that the courts have erred in disrespecting this man's religion.

The baker also emphasizes how he was mistreated by the angry gay couple, which is somehow relevant to the Supreme Court.

Now it is the righteous baker who is the victim, not the gay couple.

It is a problem for today's originalist justices to look for guidance from those gentlemen in powdered wigs and silk stockings who wrote the Constitution and said "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

One might say: "Ah, there it is. The lower courts violated the baker's right to not bake that cake by prohibiting his free exercise of religion."

But then you have to deal with all those folks whose free exercise of religion forbade them from allowing people of color in their motels, which forbade serving colored people at their lunch counters, which instructed them to pass laws forbidding inter racial marriage.  What do you do when religious belief directs people to violate other parts of the Constitution?

For that you need a Court willing to make decisions unencumbered by direction from the grave.


And as current opinion and belief change, so must our Court. 
One of the most important issues ignored in our discussion of who should lead the Democratic Party in 2020 has been the issue of packing the Court.

The Evangelicals and a whole far right sector elected Donald Trump in no small part because they wanted a Court which would reverse Roe v Wade. 

The Dems didn't see that coming and still are blind to it.