By Gordon Davis
The late Supreme Court Justice Scalia’s view of the law is a form of “Originalism.” This legal philosophy is founded on the principle that the Constitution of the United States is a “fixed” and unchanging document, except by amendment. This philosophy is disingenuous and even Justice Scalia could not explain its contradictions.
The principle is based on the premise that the original writers’ of the Constitution views of the world are the only views of the world that the courts should consider, unless the Constitution is changed by the amendment process.
For hundreds of years the Supreme Court justices held something different. They held the principle that the Constitution is a “living” document that could be changed or interpreted. A good example of this is the relatively recent ruling that corporations are legal “persons.” It is a certainty that the original writers of the Constitution did not intend corporations to be legal persons. Another example is “money is speech” – no one in the 18th century thought this to be true, let alone the writers of the Constitution.
Justice Scalia was a salesman, actually a wizard of sorts, selling falsities and illusion. He sold us the pretext of Originalism, a wholly made up theory that was contradicted by the facts. Justice Scalia used this pretext to push through a very conservative agenda at the Supreme Court.
Unfortunately, Justice Scalia’s disciple, Clarence Thomas, is still a sitting Supreme Court Justice. I went to school – the College of the Holy Cross – with Clarence Thomas; I can only say good things about him when he was at Holy Cross.
Justice Thomas’ thinking and my thinking on the issues are far apart. Justice Thomas has not been such a good philosophical salesman. I think that with Justice Scalia’s death, Justice Thomas will be less influential. Justice Thomas might not be able to do as much harm as he has done in the past. I hope that Cooz can find his way out of the spell of the wizard. I worry about his redemption and salvation.
With the death of Justice Scalia some of the right wing agenda will be delayed indefinitely. The issue of the union busting of Public Service Unions will be put into abeyance. The issue of gerrymandering will be delayed until a replacement for Justice Scalia can be found. Other issues such as Affirmative Action, Abortion Rights and Immigration will be thrown into doubt.
These important issues will probably have to await the outcome of the Presidential election. The Republicans certainly are concerned about their right wing agenda. The Republican lawmakers in Washington sent a shot across the bow of the President within hours of the death of Justice Scalia to not nominate anyone for the vacancy.
It is likely that President Obama, with nothing to lose, will nominate Judge Sri Srinivasan for the Supreme Court vacancy. He is a liberal Judge on the D.C. Appellate Court. Many of the present justices were appointed from the D. C. Appellate Court, Justice Thomas being one. Judge Sri Srinivasan is of South Asian heritage. I think he could add a new perspective to rule of law, as we move into the uncharted waters of 21st Century modernity.
By Gordon Davis