Supreme Court Justice Antonin Scalia was on “60 Minutes” recently, and here’s hoping Barack Obama was listening, or that if he wasn’t, someone will send him a tape. You can pray it will straighten out this Harvard Law School graduate on some of the balderdash he passes off as respect for the Constitution.
Respect, at the least, entails upholding what the document says and means, but as his reported words convey, Obama believes instead that justices should make primary reference to their own innermost moral convictions and sympathies. He thinks the Constitution should be regarded as “living,” which is to say that you should be able to jigger its principles in accord with the temper of the times.
“It’s an enduring Constitution that I want to defend,” is the way Scalia replied to such nonsense in an interview with Lesley Stahl, who immediately fell back on the canard that his judicial philosophy — known as originalism — requires a justice to know the “mind-set” of people who haven’t been around for more than 200 years.
“Well, it isn’t the mindset,” Scalia said, as later reported in a CBS online account of the exchange. “It’s what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution.” Figuring that out, he said in response to another question, does not rule out adapting to a changing society. Laws do change, he said.
“Because values change, legislatures abolish the death penalty, permit same-sex marriage if they want, abolish laws against homosexual conduct. That’s how the change in a society occurs. Society doesn’t change through a constitution,” Scalia said.
He insisted his own interpretations of the Constitution don’t reflect his political views, and cited as one example his opposition to laws criminalizing the burning of the American flag. To him, burning the flag is a right protected under the free-speech protections of the First Amendment, and on this point we come back to Obama.
Obama stood against a constitutional amendment outlawing flag burning. He said that frequent amendments of the Constitution addressing concerns of the moment would debase the document. But then he went on to say he favored a law opposed to flag-burning anyway.
Now, most of us who do respect the Constitution agree that amendments should be reserved for major issues of principle, but I would nevertheless argue that it is far better to amend the Constitution than to pretend it’s just not there, which is in essence what Obama was doing in this instance, and what he and other proponents of “a living Constitution” are doing in general.
If there’s a portion of the document that interferes with their political purposes or their ideological or moral persuasions, they waltz around it, making one excuse or another. This sort of thing has been going on for a long time, and it is tantamount to burning the Constitution itself — and making ours a republic based ultimately more on the rule of whim than of basic law.
All of this is important because the same Obama who has opposed judicial originalists as justices is seeking an office that could enable him to nominate a possible majority of justices on the court over an eight-year tenure, profoundly affecting constitutional interpretation for many decades out.
We could always hope — to use a word Obama likes — that he would pay attention to Scalia and change his thinking,but what his record tells us is that he is an unabashed, unswerving liberal who will do no such thing.
