Democratic Underground

The United Status of America
March 31, 2001
by Susan Sigandres

I am having difficulty getting the hang of Scalia's approach to interpreting our Constitution. Many of the hacks that pass for journalists these days have treated us to "explanations" of what Scalia believes is a real legal theory. As near as I can tell, here's how it goes: The Constitution is not a "living" document, it is a "legal" document that must be interpreted on the basis of the Framers' exact words and on the meaning that the Framers intended at the time of writing. The Constitution is locked in time and from this he derives the further absurdity that the Constitution must be protected from the will of the people.

Does anyone else see that this approach is prima facie ridiculous? You can just apply common sense, like so: Point one of Scalia's theory is that the Constitution is not a living document. Stop right there. If the Constitution is not living -- then it's dead. And if the Constitution is dead, we certainly don't need anyone interpreting it. Scalia, you're out of a job!

Having issued the Constitution's death warrant, Scalia tries to distract us with mumbo-jumbo about exact words and Framers and intent. All of that is, of course, irrelevant. We must turn our attention to very pressing questions which we now have to answer, starting with this: Is a federal government elected under the auspices of a dead Constitution legitimate? No, of course not! If the document is a corpse, then whatever rules and institutions were created by it are just so much dust in the wind.

So Scalia and the other members of the supreme court's "party of five," who have no authority whatsoever, interpreted nonexistent law in such a way as to install a piece of human foliage into an imaginary office. Bush, you're out of a job! Also, under Scalia's theory, we have no Congress. This is arguably no loss. Here's another little matter: Since the Constitution is dead we're not actually a nation anymore. Do we go back to the drawing board and write a new, living Constitution, do we re-animate the dead one, or do the fifty states go their separate ways? In light of this larger issue, we can forget about Bush's tax cut for the rich, the national religious program, the new bombs and rockets initiative, the patient's bill of rights, Medicare reform, Social Security reform, and unfilled ambassadorships.

And if we're not going to re-unite, then we've got some big-time divvying up to do. We should all be demanding that our governors and state and local representatives get moving on dividing up what's left in the Treasury and the Social Security trust fund. Unfortunately, this will postpone the election reform debate. That issue will have to take a back seat because our state representatives now have their hands full with unanticipated matters, thanks to Scalia. What does Scalia gain by killing off the Constitution?

Well, now that the federal government is gone and his justice act is over, maybe he's thinking he'll just disrobe and slip into some cushy board room seats that all too grateful executives will offer him as payment for services rendered.


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