The Constitution is Dead. Long Live The Constitution.  

The Constitution is Dead. Long Live The Constitution.  

Adrienne BoettingerTuesday,16 February 2016

A behemoth in the field of jurisprudence and an ardent originalist has died. Supreme Court Justice Antonin Scalia died this past weekend while on a hunting trip. Those who knew and liked him, of whom there were many, said he was exactly where he wanted to be — that the only other ways he would have wanted his time on this mortal coil to end were with his family or in church.

In what is probably not the most shocking statement ever, I was never a fan of Justice Scalia’s rulings. That doesn’t mean I didn’t respect his devotion to the Constitution or his brilliant and scathing legal opinions (plus he was RBG’s best buddy so he had to have many redeeming qualities underneath the “jiggery-pokery” and “mere factual innocence” crap). I just think his belief that the Constitution is dead underestimates the amazing forethought of the country’s founders.

Because to assume that they only ever intended for the future of the country to be guided precisely by the exact and literal words they used over 200 years ago is absurd. The founders knew the country would change immeasurably over the course of our existence. The Constitution doesn’t spell out every single act legal and illegal – it can’t. For example, the U.S. Constitution doesn’t explicitly spell out the right to privacy. Sure, the 4th Amendment alludes to it, but alluding is not defining.

Currently the Twitterverse is, well, all atwitter over who will replace Justice Scalia. Crap, as soon as the news came out that he had died, people were either rubbing their hands together in glee over the idea of replacing him or swearing on the graves of their most cherished relatives that they would rather give up their AR-15s then allow President Obama to nominate a jurist to replace Justice Scalia. The ironic thing is that the pure originalist Scalia would have to note that Article II, Section II, Clause II of the Constitution notes that the President shall nominate, and with the advice and consent of the Senate, shall appoint Judges of the Supreme Court. Nowhere in the Constitution is that followed with “unless it’s 10 months before a Presidential election and a whole passel of Senators are royally pissed that the President is still trying to act like he’s President.”

The fact of the matter is that 4 of the surviving Justices were appointed by Republican Presidents and 4 were appointed by Democratic Presidents. This is not a court owned by the right wing or the left. It is the highest court in the land and to let the country go for a year or more — a move unprecedented in our history — is a disservice to the justice system for which Antonin Scalia lived his life.

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Image Credit: Ted Eytan

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