Monday, February 15, 2016
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.