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July 6, 2005

The Laminated Constitution

-- by Gary Boatwright

With the media focus on Bush's first nomination to the Supreme Court, this is as good a time as any to take back the Constitution. Whether you call it
original intent or textualism , the idea that conservatives have been divinely ordained with the ability of channeling the founders, and that channeling the founders is the only legitimate method of interpreting the Constitution, is inherently flawed.

The radical Constitutional nabobs, led by Bork and Scalia, and institutionalized by The Federalist Society, are not only wrong, they are dangerously wrong. It is not a “liberal” interpretation of the Constitution that offends them. They are offended by both a libertarian as well as an authentic interpretation of the Constitution of the United States. Justice Stevens is not a liberal, he is a moderate who was appointed by President Ford. Justice O'Connor is not a moderate. With one very big exception and a half dozen or so minor exceptions, she is a somewhat principled conservative, who was appointed by President Reagan. There are no liberals currently serving on the Supreme Court.

For decades, the Right Wing Noise Machine has been pushing the meme that conservatives have a divine insight into the only correct method of Constitutional interpretation. We have a lot of catching up to do. The Bork/Scalia dandies are already all over the airwaves on cable and talk radio, pretending that if a specific word isn’t in the Constitution, then the courts don’t have the authority to over rule Congress or state legislatures.
Credit to Framed for Posterity : The Enduring Philosophy of the Constitution by Ralph Ketcham, for the following four inherent factual flaws with original intent, or textualism:

(1.) Who were the founders?

(a.) The authors of the Federalist Papers.
(b.) The authors of the Anti-Federalist Papers.
(c.) The members of the Constitutional Convention.
(d.) The delegates to the state ratification conventions.
(e.) The members of Congress and the state legislatures who proposed and ratified the Bill of Rights.


(2.) What did all of these thousands of people agree on besides the broad outline of the Constitution and the Bill of Rights?

(3.) Considering the inaccuracy and incompleteness of the records, how is it possible to know precisely what the “founders” thought about specific issues, even if we could identify with certainty who they were?

(4.) What was the original meaning of specific words at the time the Constitution was ratified? Word usage and circumstances change too much over time to be an accurate and detailed guide to modern interpretation.

The answers to those questions are only some of the factual reasons the conservative theory of a laminated Constitution is inherently flawed. There are also broad philosophical reasons they are wrong. First, they make the same mistake interpreting the Constitution that they make interpreting the Bible. Original intent focuses on the literal words of the text and misses the higher meaning and the revolutionary spirit of the Constitution. Conservatives ignore the admonishment that “the letter killeth, the spirit giveth life.” The meaning and significance of both the Bible and the Constitution are not in the text, but in the deeper truth and spirit of both documents. By locking the Bible and the Constitution up in a textual prison, conservatives diminish the deeper poetic truths that resonate through the ages.

The Enlightenment or The Age of Reason was not the only intellectual force that shaped our Constitution. Edward S. Corwin is without question one of the most respected Constitutional scholars in American history. In Richard Loss’s collection of Corwin essays, Corwin On The Constitution, vol. I, Corwin has a fascinating chapter on The Impact of the Idea of Evolution on the American Political and Constitutional Tradition.

Darwin’s Evolution of the Species was not a part of the intellectual mystique that informed America’s founding fathers, but it is consistent with the idea of progress, which did shape the Constitution. Corwin's analysis is also relevant to the contempt that Bork and Scalia have for the Constitutional standard of "evolving standards of decency." Corwin points out that ”Darwinism evolutionism, translated into social terms, became reformism.” It also became reformism with a socialist twinge, which is what radical conservatives and Christian fascists are up in arms about. Bork, Scalia, Thomas and Bush do not venerate American history or the American Constitutional tradition. They bombard America’s political and legal tradition with deceit, non sequiturs and false declarations of what America’s founding fathers believed and selectively choose what they said.

Corwin examines the impact that evolution had on American society and American law:

A subordinate question at once arises; Whose conception of evolution are we talking about? Three lines of thought have to be taken account of in answering this question: (a) Spencerian evolutionism; (b) the Darwinian theory of biological descent; (c) modern “pragmatism” or “instrumentalism.” But I propose to devote some passing attention also to a fourth line of thought, which, while not the product of evolutionism, has indubitably contributed to the latter’s impact upon the American tradition – I mean the Marxian doctrine of class struggle. - which, besides being a sort of specialized version of the generalized notion of the struggle for existence, has indirectly contributed to American reformism looking to the economic betterment of the masses.

As Justice Holmes observed in his classic dissent in Lochner v. New York, “The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.” Corwin quotes Huxley to illustrate, fittingly, that the dog eat dog economic determinism of Herbert Spencer lost in the market place of ideas;

“Unfortunately, facts were always cropping up to disturb his logic. Hence Huxley’s quip, that Spencer’s “idea of a tragedy was a beautiful theory killed by an ugly fact.”

Supply side economics is little more than Spencer's Social Statistics dressed up in a new suit and it is still bad economic theory. When dealing with radical conservatives, it is simply pointing out the obvious to say that the more things change the more they stay the same. Just this morning I watched Inherit the Wind on cable and heard Spencer Tracy’s character get accused of “hating the bible” for defending his client’s right to teach evolution in public schools.

In addition to evolution and progress, Corwin also emphasizes the importance of the classic American idea of the Frontier, which without question was as much part and parcel of the intellectual milieu of the founders as the idea of revolution. America gave new meaning to both the word and the idea of a frontier. The Age of Reason and the ideas of the American Frontier and Progress carried over to the doctrine of Manifest Destiny, and continues with us today in the opening montage voice over for Star Trek, “to boldly go where no man has gone before.”

It’s not just in general Constitutional principles that radical conservative theory fails, but in individual cases as well. Scalia’s dissent in Atkins v. Virginia documented the historical standard of “idots versus imbeciles” (emphasis added):

The Court makes no pretense that execution of the mildly mentally retarded would have been considered “cruel and unusual” in 1791. Only the severely or profoundly mentally retarded, commonly known as “idiots,” enjoyed any special status under the law at that time. They, like lunatics, suffered a “deficiency in will” rendering them unable to tell right from wrong. 4 W. Blackstone, Commentaries on the Laws of England 24 (1769) (hereinafter Blackstone); see also Penry, 492 U.S., at 331-332 (“[T]he term ‘idiot’ was generally used to describe persons who had a total lack of reason or understanding, or an inability to distinguish between good and evil”); id., at 333 (citing sources indicating that idiots generally had an IQ of 25 or below, which would place them within the “profound” or “severe” range of mental retardation under modern standards); 2 A. Fitz-Herbert, Natura Brevium 233B (9th ed. 1794) (originally published 1534) (An idiot is “such a person who cannot account or number twenty pence, nor can tell who was his father or mother, nor how old he is, etc., so as it may appear that he hath no understanding of reason what shall be for his profit, or what for his loss”). Due to their incompetence, idiots were “excuse[d] from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses.” 4 Blackstone 25; see also Penry, supra, at 331. Instead, they were often committed to civil confinement or made wards of the State, thereby preventing them from “go[ing] loose, to the terror of the king’s subjects.” 4 Blackstone 25; see also S. Brakel, J. Parry, & B. Weiner, The Mentally Disabled and the Law 12-14 (3d ed. 1985); 1 Blackstone 292-296; 1 M. Hale, Pleas of the Crown 33 (1st Am. ed. 1847). Mentally retarded offenders with less severe impairments–those who were not “idiots”–suffered criminal prosecution and punishment, including capital punishment. See, e.g., I. Ray, Medical Jurisprudence of Insanity 65, 87-92 (W. Overholser ed. 1962) (recounting the 1834 trial and execution in Concord, New Hampshire, of an apparent “imbecile”–imbecility being a less severe form of retardation which “differs from idiocy in the circumstance that while in [the idiot] there is an utter destitution of every thing like reason, [imbeciles] possess some intellectual capacity, though infinitely less than is possessed by the great mass of mankind”); A. Highmore, Law of Idiocy and Lunacy 200 (1807) (“The great difficulty in all these cases, is to determine where a person shall be said to be so far deprived of his sense and memory as not to have any of his actions imputed to him: or where notwithstanding some defects of this kind he still appears to have so much reason and understanding as will make him accountable for his actions …”).

This extraordinary paragraph is an example of how determined Scalia is to denounce the very idea of progress in human affairs. Highmore recognized what Scalia skips right over. In 1807 there were no experts who were proficient at identifying different degrees of mental retardation. According to Scalia’s pinched reading of the Constitution, the Supreme Court is prohibited from allowing any procedures for identifying mental capacity developed since 1847. Did Scalia have a principled reason for cutting off progress in understanding the mentally disabled in the year 1847? Or was that the last date Scalia could come up with that was sufficiently neanderthal to suit his constitution?

I have to wonder if Scalia would also encourage the same means of identifying mentally retarded people who have not committed a crime as "imbeciles" or "idiots." Would Scalia also like to prohibit contemporary educational and socialization programs for the mentally retarded? What principled basis is there for allowing progress in one setting, but not in the other? Under what other circumstances would Scalia demand that experts wear chronological blinders?

Scalia also believes that the Catholic church and the Bible are not to be subjected to the ideological tyranny of evolving standards of decency. Sister Helen Prejean, of Dead Man Walking fame, whose brother just happens to be another one of Justice Scalia’s duck hunting buddies, includes an extensive crtique of Scalia in an article in the Catholic News Service. Scalia does not approve of the position of the Catholic Church on the death penalty:

He was particularly critical of an amicus, or friend-of-the-court, brief filed by the U.S. bishops and other religious groups in Atkins vs. Virginia, the case about a retarded defendant sentenced to death. Scalia ridiculed the brief as the "court's most feeble effort to fabricate 'national consensus'" against capital punishment.

Catholic doctrine was perfected in the 13th century:
In public appearances Scalia not only has defended the death penalty as constitutionally solid, but he has argued that the church doctrine approving of capital punishment dating to St. Thomas Aquinas in the 13th century and St. Augustine in the fourth century still prevails. He has said that more recent teachings of Pope John Paul II are not obligatory because they were not spoken ex cathedra, Latin for from the chair, meaning the pope intended them to be accepted as infallible teachings of the church.

This is classic Antonin. For a religion where “death is no big deal,” Christians sure do make a big deal out of the crucifixion and the "culture of life." Maybe Little Tony made this statement before he got the talking points on Teri Schiavo. Scalia’s death penalty decisions manage to deform both the Constitution and the Bible by inserting the Redneck Warmonger Jesus of Christian fascists into the Constitution.

[Sister Helen Prejean's] book cites Scalia's comments at the Chicago forum in 2002, in which he says secularist societies are losing the notion that governments act with God's favor, including when they mete out capital punishment.

The Scalia quote also says that "the more Christian a country is, the less likely it is to regard the death penalty as immoral," and that efforts to abolish the death penalty have the least support in "the churchgoing United States ... (because) for the believing Christian, death is no big deal."

"Governments act with God's favor." Does Little Tony really think the divine right of Kings is part of the Constitution? Didn't Americans came to America to escape that kind of noxious belief? Could it be any clearer that Scalia favors a Constitutional Theocracy over a Constitutional Republic?

Apparently the "culture of life" is also an infinitely flexible concept, perhaps with color coded alerts, depending on Dr. James Dobson's mood on any given day. I wonder what James Madison thought about destroying stem cells, blastocytes and white girls in a persistent vegetative state?

Another recent Scalia decision that reeks with hypocrisy was his concurrence in Gonzales v. Raich. A principled position for Scalia in Raich would have been to join O’Connor’s dissent, for exactly the same reasons he joined O’Connor’s dissent in Kelo v. New London. Digby crucifies Scalia, and indirectly the entire court In A Land Called Honalee for deciding that interstate commerce includes medicinal marijuana, but not guns near school yards.

The Supreme Court’s decision in Castle Rock v. Gonzales reinforced the court’s precedents that women are entitled to lesser Constitutional rights than men. Castle Rock was almost completely ignored by the M$M, but Common Dreams has a good summary of the case. In spite of a clear Colorado statute passed by the state legislature and a restraining order signed by a local judge, Scalia reasoned that a woman's right to have her restraining order enforced was a discretionary duty that the Castle Rock police department was permitted to ignore.

In fairness to the radical conservative minority on the Rhenquist court, accusations that they hate women are an over-simplification. The Rhenquist court has been generally hostile to claims of individual liberty rights and the doctrine of substantive due process for any citizen, regardless of gender. The Rhenquist court has balanced their hostility towards private citizens by being generally favorable towards government intrusion into the private lives of American citizens as well as their public records.

For their part, the Bush administration argued that to “uphold the 10th Circuit's findings would inappropriately insert the federal courts into state matters,” which was not a concern for Bush when he signed bankruptcy legislation and the No Child Left Behind Act. Inappropriately inserting the federal government into traditional state matters was not a concern for Bush, and other radical conservatives, in the Sciavo fiasco or persecuting medicinal marijuana users.

I can't leave the issue of strict construction without paying homage to the Rhenquist court's "actual innocence" decision in Herrera v. Collins. There were only four concurring opinons, but then it was decided in 1993 and Clarence Thomas was still getting the hang of writing his own opinions. I'm sure it wasn't from a lack of gusto for the subject matter. Nothing says conservative like executing an innocent man. It must be with deep regret that Scalia et. al. have been forced to resign themselves to the unfortunate failure of the Rhenquist court to be presented with the opportunity to justify executing an innocent minor, or better yet, an innocent mentally retarded minor.

It’s amazing how much flexibility strict constructionists grant themselves to bend and stretch Constitutional principles, considering how vociferously they complain about “activist liberal judges.” Judicial activism, like beauty and pornography, are in the eye of the beholder.

If you've read this far and are still hungry for more Scalia bashing, check out Dave's post from two years ago, Scalia and Self Government. It's not that we enjoy picking on Little Tony, but that he makes it so easy.

Posted by Gary Boatwright at July 6, 2005 5:30 AM

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