Monday, February 15, 2016

Textualism; Originalism

About a year ago, or perhaps two years ago we were treated to a wonderful and original play at the Arena Theater in Washington DC called "The Originalist". It is remarkably well-written, with word-play and ensemble performances of Scalia and a hypothetical lesbian graduate of Harvard Law School as his clerk. What made it stunning was that the actor who played Scalia was not only a dead ringer physically, but that he had studied Nino's mannerisms carefully and managed a stupendous theatrical coup of making us think we actually watched the judge himself. I thought long and hard afterward about the meaning of the word "originalist", now popularly textualist. I decided, rightly or wrongly, that Scalia's pretense of revering the US Constitution was, inherently, an act of the deepest form of hypocrisy; he used the protection of claiming reverence to the founding fathers words to justify whatever he felt in his most partisan feelings. To my knowledge, he NEVER found that the words in the US Constitution actually told him otherwise. In science, an idea that cannot be falsifed—i.e., for which no test can be constructed that would show it to be false—cannot be considered a theory. If Scalia never deviated from partisan beliefs, that would be an exceptionally strong and scientifically valid basis for accusing him of hypocrisy. Thus, unless Scalia even once issued a progressive ruling because the Constitution was written that way, he cannot avoid being guilty of hypocrisy. In the context of the scientific method, Scalia's "originalism" was inherently not falsifiable, and hence logically akin to scientific creationism. Scalia was gifted at word games, to be sure, and lawyers love word games, often perhaps more than justice itself. The central truth of my perception of hypocrisy has now become self-evident. The Constitution assigns the responsibility of judicial appointments to the sitting President, and yet Scalia's partisans now wish to efface that authorization from the Constitution and are willing to risk a lasting constitutional crisis to get it erased. We have already been treated to Elizabeth Warren's sparkling statement that the people have already spoken. I'm curious to consider the opinions on this point from folks more familiar with jurisprudence than I am.

Saturday, February 13, 2016

Excitement at SCOTUS!

The shocking news just came across Huffington that Antonin Scalia had passed away in his sleep. I am one who, since the 2000 ruling in Bush Vs Gore has felt that the Supreme Court of the United States was little more than a joke. In the intervening time, five Roman Catholic men have made that characterization even more certain. I don't feel that institutions deserve our respect; I feel they must earn it. Antonin Scalia's time on the court was dominated by his own hypocrisy. Rather than actually considering the meaning of the constitution, he hid under that rubric while issuing rulings which, instead of reflecting what the framers of the constitution meant, actually expressed his own, particularly nasty, partisan feelings. What now? I have been reserved in my response to many of Barack Obama's accomplishments; I think he has all too often taken everything valuable off the table before he went to the mat. However, his two appointments to the court have been stellar. Will he now make a similarly progressive appointment? More importantly, can he get his appointment confirmed by a Senate that houses a ravenous minority? Stay tuned!