Part Two: Understanding the Constitution, with Big Mean Jerk Antonin Scalia


Antonin Scalia, Supreme Court Justice and total jerk.

Recently I told you about a post in the Jezebel blog concerning big mean meanie Antonin Scalia. Sometimes, when they’re not busy talking about how mandating condoms for porn stars is a bad idea, or what kind of oral sex is the most awesome, or what Lindsay Lohan’s up to, they take on serious topics. But don’t be too alarmed: the substance of the Scalia post is not much more intelligent than one of their typical paeans to fornicating celebrities.

See, Supreme Court Justice Antonin Scalia pointed out that interpreting the Constitution in regards to certain super-complicated issues – he specifically mentioned the death penalty, abortion, and homosexual sodomy – is, well, easy. For 200 years, nobody had any doubt whatsoever that there is nothing unconstitutional about the death penalty, and no constitutional right to abortion or sodomy. According to Jezebel, this doesn’t matter because it’s obvi not the 1700s, duh, and Scalia is a big dumb jerk.

Scalia is an originalist. He believes that the Constitution means what it says it means – in other words, it must be interpreted based on what it meant when it was written. As I explained in my previous column, which you should totally go back and read, the idea of a living Constitution that changes with the times – to Jezebel and to many – is a total “duh.” But let Scalia, in this excerpt from a 2005 speech, explain why it’s not:

If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it — the original meaning of the Constitution — I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way… Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society. You got me.

He’s into the self-deprecating humor, this guy. He goes on:

Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the Living Constitutional judge? …  I have put this question — you know I speak at law schools with some frequency just to make trouble — and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other.

And finally, this is what I will conclude with although it is not on a happy note. The worst thing about the Living Constitution is that it will destroy the Constitution…

It is already happening, the destruction of the Constitution. Because — and this is important — if the document does not mean what it meant when it was adopted than it can mean literally anything. Please pay close attention to this:

… [W]hen we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority, and they will be selecting justices who will devise a constitution that the majority wants. And that, of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority.

This is exactly what happened with Roe v. Wade. The majority chose the senators who selected the justices who told the American people: “Hey, guess what! The Constitution says abortion is cool!” We never got to vote on it. There was no amendment, like when slavery was abolished or ladies got the vote. The right to abortion was just suddenly, magically declared to have always existed. “Oh look! It’s been here the whole time!” It was always around, lurking in the darkness somewhere unseen, like Chelsea Handler.

Pay very close attention, in this political season, to people talking about judicial “litmus tests,” and appointing justices who are not “activists” but “moderate.” As Scalia says:

What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text.

There is no such thing as a moderate judge. There is a judge who believes that the Constitution means what it says, and a judge who believes that it means whatever he decides it means. It is the latter type who gave us Roe v. Wade and affirmed the constitutionality of abortion’s new favorite legislation, ObamaCare.

To fauxminists, a guy who gets paid to open ladies’ legs and suck their dismembered children out of them is a hero. But Antonin Scalia, for defending the mean, awful, homophobic, lady-hating Constitution, is a big fat jerk.

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