The Roots of Scalia’s Originalism
Larry Wilkerson examines the pitfalls of Scalia’s theory of originalism and how this creates a tendency of disunion rather than cohesion when interpreting the law
JESSICA DESVARIEUX, TRNN: Welcome to the Real News Network. I’m Jessica Desvarieux in Baltimore.
Conservative Supreme Court Justice Antonin Scalia died on Saturday at the age of 79. He was known as an advocate of Constitutional originalism; that is, understanding the Constitution from the point of view of those who drafted and ratified it. Scalia was known for his opposition to the Voting Rights Act, same-sex marriage, and anti-union policies.
Here to further understand Scalia’s legacy is our guest, Larry Wilkerson. Larry is the former chief of staff for U.S. Secretary of State Colin Powell, and he’s currently an adjunct professor of government at the college of William and Mary. And of course, he’s a regular contributor to the Real News. Thanks for being with us, Larry.
LARRY WILKERSON: Thanks for having me, Jessica.
DESVARIEUX: So, Larry, let’s talk about what exactly Scalia’s adherence to Constitutional originalism means. What does it mean, exactly?
WILKERSON: To me it meant, and I have to do due diligence here and tell you that the Justice came down when I was deputy director of the Marine Corps War College in Quantico, Virginia, and talked to us at length about it. About an hour and a half, as a matter of fact. And I remember several Marines and myself talking about it afterwards and trying to figure out what it was all about. And one of my Marines said something, Marines can sometimes be really pithy. He said, well, what it’s about is Scalia is a conservative, and his interpretation of the Constitution feeds that conservatism.
That may not sound that profound, but I think it is. Conservatives don’t want to change things, and they want to change things only with great circumspection. And that’s not bad, that’s almost Edmund Burkian. But with Scalia I think he took it a couple of feet too far. And by that I mean his interpretation of the Constitution was that it was a dead letter. It was there. And whatever was there was what you interpreted, legally or otherwise, and nothing else. But you couldn’t look beyond the letter. You couldn’t look, as Jefferson said quite eloquently, at that new set of clothes that you needed to put on as you grew up, and as you got older and more mature, and as the nation changed and society changed.
There has to be a meeting of the minds somewhere in the middle of that, I think. Yes, you want to continue things that have worked. You want to preserve the best that’s been thought and said and done in the world, and change it only with great circumspection. But at the same time, you do probably want to change it from time to time. Otherwise the Constitution is a pact for suicide.
DESVARIEUX: Let’s talk about how he took it too far at times. Can you mention any specific policies or cases where you felt like he did just that?
WILKERSON: Well, I, I thought that his argument on abortion was a particularly acute argument. And not, that that badly taken, as it went so far. And that so far was that the Constitution is clear, and the writers who expounded the Constitution during the Convention and afterwards, made this quite clear that there was this, there was this reservation of power, if you will, in the bulk of the power, to the states and to the people. Ultimately to the people. And if it wasn’t specifically enumerated in the Constitution, then that’s where it went. It went to the states or the people. So his argument was abortion is not in the Constitution, therefore it goes to the states and to the people.
I think we’ve seen over time, though, that the interpretation, the evolution, if you will, of that Constitutional fabric, has been that if there are issues, take slavery, for example, which the Constitution is very specific about, there are issues that cause over time a disconcert, a disunion, if you will, or a tendency towards disunion. A breakup of the union. Controversy, and even conflict within the union. And if there is something like that then the federal government has every right to step in and to make pronouncements, and to take the case, as it were, and to deal with it, which the Supreme Court did.
I do still entertain Scalia’s argument that that is a valid concept, that the states and the people have the bulk of the power, and in most instances that power should remain with them. But all you have to do is look at what we’ve done today with power in general, both in the presidency and in the legislature, and for that matter in the Supreme Court, to understand that we have changed majorly since that really pristine, original interpretation. And I think change has to be had in some cases. I’m not always in favor of it. But I think it does have to occur. And if I had any objection to Scalia it was he was adamant, he was like rock, about that, and I think that was wrong.
DESVARIEUX: I’m glad you mentioned the presidency, because President Obama, he will be looking to appoint Scalia’s replacement, as we know. But you know, some folks are, are, it’s, some people might argue that it’s not as impactful, what the Supreme Court does, and his appointment and nomination, and so on and so forth. But for you, Larry, would you make the case that the president’s nomination of potentially the next justice on the Supreme Court is quite important.
WILKERSON: I think it’s very important. Let’s go back to the Constitution and Scalia’s interpretation thereof, if you will. Article Three of the Constitution are the only details of the Supreme Court. That’s the only one it sets up. And then it has language that says and any other court subsidiary to it that the government deems necessary. And of course we’ve taken that and run with it bigtime. Necessarily so.
But the Supreme Court is the ultimate law of the land, and it is the ultimate arbitrator of the Constitution and the ultimate arbitrator of what you might call potential Constitutional crises between the legislature and the executive. That’s an important position, and it’s an important position for a number of reasons, not least of which is it has nine judges on it. And it ought to have nine judges on it, because that gives you a majority breaker. It gives you a tiebreaker.
And so for people to even in the media, for example, to be talking about this as if it were a, a typical standoff between the White House and the legislature is a big indicator, illustrator, of how broken our system is today. The fact that the president has a Constitutional responsibility to appoint on a timely basis and seek the advice and consent of the Senate in the process a new Supreme Court justice, and it is being argued or being told on the floor of the Senate that it will not be allowed by the Senate majority leader, Mitch McConnell, is unconscionable. It’s reprehensible. It’s disgusting.
DESVARIEUX: Yeah, and these are the same folks who are always preaching that they are Constitutional as, Larry, which is–.
WILKERSON: Yeah, exactly. They have every right to advise and consent, and in the case of dissent to say no, send up another person. But they don’t have a right to come out right at the beginning and say okay, no one will be appointed. No one will be appointed because this guy–my God, someone even said, I think it was Marco Rubio, that a president shouldn’t be allowed to appoint him, because he has so little time left in office. I’ve got news for you, Marco Rubio. The man is president until the last day, hour, and minute of his administration.
DESVARIEUX: Yes, that is quite clear. All right, Larry Wilkerson, thank you so much for joining us.
WILKERSON: Thanks for having me, Jessica.
DESVARIEUX: And thank you for joining us on the Real News Network.
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