On Sixty Minutes tonight was a profile of Justice Antonin Scalia, arguably one of the most conservative judges on the bench. I have often wondered about the framework for his decisions and this profile was fascinating.
Justice Scalia arguing a (fundamentally flawed) point.
It turns out that Justice Scalia's position is that of an 'Originalist'. In other words, he believes that the Constitution is not a living document that can be interpreted to derive answers to the questions that we face today. The Constitution is written as it is, and anything that is not mentioned specifically by it does not exist and must be created by lawmakers today.
This is an interesting point of view, but ultimately it is an irresponsible one, and the concept of irresponsibility flies so certainly in the face of what our forefathers intended that it is amazing that Justice Scalia could hold this opinion as long as he has without turning inside out.
The problem with thinking that the Constitution covers only what it specifically mentions is that it opens the door to the dismantling of the Constitution itself. A case in point is torture, as was mentioned on the show. Scalia's opinion was that the term 'cruel and unusual punishment' did not cover torture because when a person is being tortured, they are 'not being punished'.
This is what is at issue with the Originalist idea. It makes all legal decisions relative. Without the foundational basis of guidance given from the timeless ideas embodied in the Constitution, we are all free to violate those ideas, as long as a decision has been handed down that makes it legal.
From this point of view, the Bush Administration's 'extraordinary rendition' program, its 'coercive interrogation' tactics can all be justified by the legal memos written by John Yoo. The problem inherent in this point of view is that it denies the basis of the Constitution itself. The Constitution and the Declaration of Indepence were created to stand against the ideas of monarchy and dictatorship, not necessarily in other countries, but in this country. Our entire framework of law and jurisprudence are built on this and to take an Originalist point of view is to take what is basically an anarchist point of view.
The position is cynical and sad. It also denies the basic driving force behind the creation of the Declaration and Constitution, which is that there are certain ideals that are timeless, that have held true througout history. Among these are man's search for equality and justice, ideals that are, as the document says, "self evident". Since these ideals are living ideals that are apparent to all men, regardless of language, creed, race or religion, the Constitution is NOT a dead document at all. It is a living representation of the truths that guided our founding fathers, and that still guide us today.
I am afraid, Justice Scalia, that you have been overruled and found irrelevant.