Justice Scalia is Dead…Wrong
I know what freedom is. I live in a country where I can write those provocative words on the day of the funeral of Justice Scalia and other than hearing a few groans nothing will happen to me. To some degree I have Justice Scalia to thank for that, as well as others in his line in the history of America, many of whom I disagree with. But that does not mean that I buy into their notion of the Constitution. Most of them are wrong…dead wrong.
The Declaration of Independence and the Constitution were writing assignments, largely undertaken by slave holders. One task was to set up a government conceived in “liberty” where about one fifth of the population would be slaves without mentioning the word “slave” or “slavery”. Done. Neither document concerned itself with any rights of women, doing so without mentioning the word “woman”. In 1776, Abigail Adams wrote to her husband…””Remember that all men would be tyrants if they could”. I do not recall her receiving an invitation to the love fests we call the continental congress or the constitutional convention. As I have previously stated in this series, the men who wrote these documents had their own problems to solve, and their results did not benefit the situation of others in their midst.
My particular concern here is for the “originalists” like Justice Scalia and the many dark suited disciples who follow him, who worship the text of the founding documents. The Dred Scott decision was decided by an “originalist” too, one who held that no person of African descent could ever be a citizen United States. That Justice, Justice Taney, understood that the founders were dividers, not uniters. Justice Taney understood that the founding documents that many hold sacred purposely set up different rights for different classes of people. “Originalists” are honoring that tradition.
James Madison, a slave holder of course, thought he solved a problem by setting up the three/fifths compromise in the Constitution. How can a slave can be a person for the parts of the Constitution that benefit Virginia, but not for other parts that benefit the person? It was similar to the solution of Thomas Jefferson in speaking of liberty and rights while owning slaves and thereby destroying the meaning of those words. These two actually perpetrated a hoax onto an unsuspecting America, and we today must still deal with the remnants of their handiwork. The Declaration of Independence and Constitution are more than founding documents, they embrace political philosophies where words are deprived of their common meaning. Women still do not have rights to control their lives under the constitution. That is “originalist”. There remain many in this country who although are not slaves, have no realistic opportunity to partake of the American Dream. That is “originalist”. The beautiful land and beautiful people of this country continue to be stifled by documents that were not set up to benefit them, but only to benefit others. That is “originalist”. The original “originalists” set up a system that made their government difficult to change. Let us try. Let us today move past originalism. There has to be something better.