The United Status
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
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
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.