We've lost a valiant defender of the Constitution. Rest in peace, Justice Scalia.
That's a simple enough concept, but it's under attack from all directions these days. I remember in seminary learning about how since societies and thought-worlds change, the words of the Bible should not be taken for what they say, but..... well, when all the gobbledygook was done, the bottom line is that they could be twisted to mean just about anything you wanted them to, anything that fits the agenda you were trying to advance.
It's a tough line to walk. Societies do change. Ancient (or even old) documents really were written by people who thought differently than we do. Even words themselves change their meanings (the introduction to the RSV is an enlightening document not only for "KJV Only" people but for anybody). In fairness, we walk a thin line between scholarly assessment of the nature of the change and honestly translating the thoughts in old or foreign documents into the way we would express the thought or concept in modern English on one hand and "spinning" and distorting it to fit our own contemporary agendas. Honest efforts to walk that line do not necessarily meet with success. We all view the world subjectively, through the prism of our own experiences and philosophies. And then, there's that factor which Christian theologians describe by the term "original sin." There's a large measure of dishonesty- including dishonesty to the self- in even the most honest man or woman. We may not be aware of our own intellectual dishonesty. We may not even be honest with ourselves about it.
It's a legitimate dilemma, even if it's often used as an excuse- even without meaning to or realizing that that is what one is doing- to distort a text rather than elucidate it. Walking that line is difficult. The U.S. Supreme Court (and, in fact, courts all over the democratic world) have tried to walk it and often failed.
In this country that legitimate dilemma has given rise to the pernicious concept of a "living Constitution" whose basic concepts, and not merely the words and thoughts used to describe them, evolve with time. Roe v. Wade and Obergefell v. Hodges are just two examples of landmark decisions in which the pressures of contemporary culture and the personal philosophies and prejudices of a majority of the Supreme Court have resulted in decisions which cannot by any objective and rational process be understood to be justified by the text of the Constitution. And just as back in seminary "the Gospel" became a term emptied of any inherent meaning and transformed into a buzz word useful for negating what the words of the text actually said, so the concept of "the living Constitution" has been used as a means of setting aside the natural meaning of the words and amending it by judicial fiat, without going through the process for amendment specified by the Constitution.
Justice Antonin Scalia was a valiant defender of the Constitution against such torture. His advocacy of "originalism" or "original intent-" the notion that the words of the Constitution should be read to mean what its writers intended them to mean and understood them to mean-" is really just intellectual honesty. Without dismissing the real job of applying those meanings to the modern world, it might not be going to far to say that Justice Scalia was one of the most powerful defenders that much-besieged and mangled document has ever had.
Below is an interview this great and brilliant man had done by Charlie Rose. In that interview, as in his "Dead Constitution tours" around the nation explaining and defending originalism, Justice Scalia tried to convince us that words really did mean things, that we really were meant to have a government of laws rather than of men and women, and that judges ought to use their brains as well as their hearts.
One of the reasons the upcoming presidential election is so important is that we'll be losing several Supreme Court justices to retirement or, sadly, death in the next four years. We had expected Justice Scalia to be one of them, but not so soon. Whoever appoints the new justices will set the tone of the Court for a generation. Our Constitution depends on this election. It will determine whether we are governed by it, or by the personal beliefs and whims of those who comprise the Supreme Court. It will determine whether such Supreme Court decisions as Roe and Obergefell can be reopened and assessed more rationally, or whether they will be engraved in stone for all time.
I hope that Sen. McConnell and the Republican leadership of the Senate ensure that no replacement for Justice Scalia is confirmed until after the inauguration of the new president next January. This is one case in which I approve of strident partisanship and "obstructionism." The stakes are too high to allow President Obama to distort the court's future by replacing one of the Constitution's most valiant defenders with another justice who will undermine it.
But all of that is for another day. Today is a day to mourn a great man, and to thank God that he was given to us.
Here's that Charlie Rose interview:
Caricature by DonkeyHotey