The Universal Notebook: Are the Constitution and the Bible DOA?

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The sudden passing of Justice Antonin Scalia gives President Obama the chance to appoint a new Supreme Court justice and alter the ideological balance of the court.

Republicans, of course, will do everything in their power to stop him, but then that’s all they’ve done for seven years now, so why should 2016 be any different? To be fair, back in 2007, some Democrats advocated blocking any Bush appointments to the Supreme Court during his final year and half in office, too.

Play all the partisan games you want, but the president does have the authority and the duty to fill Supreme Court vacancies until the day he leaves office and he should do so. Fortunately, both of Maine’s U.S. senators understand this.

There is speculation that Obama may appoint federal appeals court Judge Sri Srinivasan, an Indian-born centrist who would become the first Hindu on the Supreme Court. At Srinivasan’s confirmation hearing in 2013, Sen. Ted Cruz asked him if he thought the Constitution was “a living document,” a conservative litmus test meant to weed out activist liberal judges.

“I would say no,” Srinivasan replied. “The Constitution has an enduring, fixed quality to it.”

“An enduring, fixed quality to it,” yes, but of course the Constitution is a living document. It provides for its own amendment. It must be applied to situations that the framers could not have foreseen. It must be interpreted because the meaning is rarely obvious and changes over time. It is meant to change.

The Senate confirmed Srinivasan 97-0, so I can’t wait to see what tortured logic Republicans may use to try to block the nomination of a federal judge they unanimously confirmed just three years ago.

To conservatives, the Constitution was dead on arrival, just as the Bible is for fundamentalist Christians. “God said it. I believe it. That settles it.” “James Madison wrote it. I believe it. That settles it.”

If only it were so easy.

The Constitution and the Bible are both inspired, but flawed, human documents that can guide personal and societal behavior. They should not be allowed to dictate it as though the meanings were clear, known and agreed upon by all. If “Thou shalt not kill” meant what it said, Christians would all be pacifists opposed to the death penalty.

I am a lifelong member of the United Church of Christ who believes “God is still speaking,” that the immutable laws were not laid down once and for all thousands of years ago. Just so, I believe the Constitution is a living document, not a dead dogma to be followed slavishly.

Antonin Scalia, however, was a self-described originalist. He believed the Constitution was intended to prevent change.

“I am one of a small number of judges, small number of anybody – judges, professors, lawyers – who are known as originalists,” Scalia once said. “Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.”

But it is not always possible to know what was in the minds of dead colonials. That’s why so few intelligent people are originalists. But Scalia, even while admitting that most judges disagreed with him, insisted he was right.

“The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break,” he said, arguing against a flexible interpretation. “But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.”

Funny, the Constitution doesn’t say anything about corporations, yet Scalia and his conservative cronies on the Roberts court had no problem deciding corporations were citizens in the wrongheaded Hobby Lobby decision. So please don’t tell me Scalia was always true to original intent.

And now Scalia’s death presents a knotty little problem for originalists, in that the Constitution clearly states that a president’s term is four years and that he/she shall appoint justices of the Supreme Court. I can certainly understand why Republicans would rather not have a Democrat appoint a new justice, but that is what the Constitution calls for.

So what part of original intent don’t they get?

Originalism, like fundamentalism, is a function of the conservative mind, which does not easily deal with complexity and is generally guided by fear. But you can use the Constitution and the Bible to support almost any argument you want. They do not have fixed, commonly understood and agreed upon meanings. If they did, we would not need a Supreme Court or a Supreme Being, we could just read what the dead have written.

Freelance journalist Edgar Allen Beem lives in Brunswick. The Universal Notebook is his personal, weekly look at the world around him.

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  • tiresias75

    So true, Ed! I don’t pretend to be a Biblical expert (or a true Constitutionalist, for that matter), but both Article V of the Constitution itself and the 9th Amendment make it clear that the Founders intended the document to be changeable – as indeed it has been. Furthermore, were Justice Scalia (r.i.p.) truly an originalist he would never have ruled on ANYTHING, as the power of judicial review is clearly not in the Constitution, but was invented out of whole cloth by Chief Justice Marshall in the Marbury v. Madison case in 1803. Justice Scalia never did resolve that conundrum….

  • Chew H Bird

    Amendments are needed as time progresses, however “changes” should not occur to the original document or intent of the framers. Amendments and revisions are appropriate based upon situations not addressed, unclear, or regarding items wholly outdated. The basis for revisions is within the Constitution itself and the Constitution as a basis should not be altered, re-interpreted, or “changed” or the basis for amendments will be altered. To me, it really is that simple.

    As for replacing a justice, the matter should also be simple. Regardless of the President in office, the duty is to nominate an individual who seeks to uphold the Constitution and amendments, who is honest, forthright, not intimidated by special interests, political leanings, or the media circus of the day. In my opinion, a Supreme Court Justice has no business being “conservative” or “liberal” as these are buzzword agenda items that detract from the ability to be fair, honest, and realistic when resolving the largest legal questions in out country.

    • truther

      The Eighth Amendment prohibits “cruel or unusual punishment.” There’s no way to meaningfully interpret that phrase while also remaining true to the “intent of the framers” or the original meaning of the text. The Founding Fathers lived in a world where it was legal to give your slave twenty lashes.

      The whole Constitution is like that. It’s like a cookbook that’s been deliberately written to be malleable, with recipes that say “cook until delicious-looking” instead of “cook precisely 20 minutes at exactly 380 degrees.”

      Likewise there have always been “liberal” and “conservative” justices. Roger Taney went out of his way to make the Dred Scott decision a pro-slavery ruling when he didn’t have to. The justices of the late 19th century frequently shot down pro-labor and pro-worker legislation. FDR tried to pack the Court precisely because he was frustrated with the conservatives impeding his New Deal. The civil rights era got a major boost from the more liberal justices around at the time. And so on.

      The one thing that is non-negotiable, that can never be cast aside, is RESPECT FOR THE RULE OF LAW. I’m sorry to go all caps on people but this is the sine qua non of our constitutional republic. Without it we have nothing. What the Senate GOP is doing right now — vowing, in advance, to refuse to consider any nominee until the next president is sworn in — is treasonous. It is so utterly, despicably contemptible that it’s the kind of thing that will tar their legacies forever. There is no excuse, no justification, for Congress to openly ignore the Constitution simply because it doesn’t like what would happen if it followed the law.

      • Chew H Bird

        We may not be able to succinctly define the details of “cruel or unusual punishment”, but I wager we both can identify it if we were to witness it… Sure have have been and will continue to be liberal and conservative justices, but what I am saying is the goal (in my opinion) is to select a fair and honest judge whose mission is to uphold the law instead of pushing an agenda. What the Senate is doing is no different than what they have done in the past and while it is wrong, it is how things happen (or don’t happen). Applying a tax to American citizens who do not want and do not have health insurance is also against the Constitution…

  • Charles Martel

    “But it is not always possible to know what was in the minds of dead colonials.” Thus, the Federalist Papers.

    • EABeem

      Nobody adopted the Federalist Papers. They were spin documents. And you can use them, too, to make just about any point you want, for example that we don’t need the Bill of Rights at all (No.84) or that the courts have the right of judicial review (No. 78). That said, there is no good reason why a nation should be shackled to the wills and whims of Hamilton, Madison and Jay. The Constitution is a living document that changes based on the interests and issues of the time.

      • Charles Martel

        Spoken like a true “progressive”.

        • EABeem

          You bet. And true to boot.

          • Charles Martel

            You should be embarrassed but as Michael Savage has said many times, “Liberalism is a mental disorder.”

          • EABeem

            Michael Savage is what’s wrong with America.

          • Charles Martel

            No, you and your Leftist buddies are what’s wrong with this country. Thank God, that NerO’s reign will soon be over issuing in the Trump era. At least Trump built some things unlike the community organizer.

          • EABeem

            Donald Trump is World War III waiting to happen. A clown prince is exactly what America needs. What Trump built was on the backs of taxpayers, most of whom seem too stupid to realize he is not a conservative, not a Republican, not a self-made man, and not a good man.

          • Charles Martel

            Blah, blah, blah. Bernie or Hillary are?

          • tiresias75

            Witless, stupid, and pointless.

          • Charles Martel

            Yes, you are. You should go over to USM and see if there’s a “safe place” to make you feel better.

          • jack bauer

            Your post is pure rubbish.

          • EABeem

            Yes, he is.

          • tiresias75

            You know, Charles, we would be more advanced as a society if you had just lost the Battle of Tours….

          • Charles Martel

            Then, we all live happily under Sharia law.

          • splurker

            yup – any day Sharia law will be imposed…just as soon as Obama comes for your gun…its been what..7 years now?..still waiting…

          • Charles Martel
          • splurker

            Ok – there’s 9 minutes I wont get back – you drop a frigging youtube link and that in of itself is your proof…You seem short on clues yourself..the fact that you really and truly believe that Sharia law will be imposed here finally clears the air as to why Trump has supporters..

          • Charles Martel

            Well how about this: Taught at the Univ. of Kabul in Afghanistan back in the 70s, have read close to 100 books on Islamic doctrine and the threat of “civilization jihad”, read countless articles, receive a half-dozen daily news briefs, attended dozens of seminars, workshops and presentations over the past 15 years. In fact, I’ll be at another one in West Palm Beach this Saturday. I also give talks to small groups on the subject. And, you’re an expert how?

          • splurker

            never claimed to be an expert on Islam..So, by way of your CV – you have firmly concluded that Sharia law is possible..IN this country..Still don’t buy it

          • Charles Martel

            It’s possible especially under the Ayatollah-in-Chief in the White House. The Muslim Brotherhood has been active in this country since the 60s with their 1st organization, the MSA (Muslim Students Assoc.). Now, there are 29: CAIR, ISNA, NAIT, ICNA, IIIT, etc. If you’d like to spend 7 hours or so see Frank Gaffney’s, from the Center for Security Policy, 10 part series on the MB in America.

  • Scott Harriman

    Another thing to consider is the language in which the document was written.

    The Bible was not written in English, so whatever the average American thinks is the “absolute word of God” has already been altered once by the person who wrote it down and a second time by the translator.

    Furthermore, different English translations from various periods in the evolution of the English language can lead a modern reader toward very different interpretations.

    At least the language of the Constitution is pretty close to what we speak today.

  • jack bauer

    Your spurious argument contradicts the views of Joseph Biden or are you too unintelligent to know that?
    http://www.nytimes.com/2016/02/23/us/politics/joe-biden-argued-for-delaying-supreme-court-picks-in-1992.html?_r=0

  • jack bauer

    So Joseph Biden is part of the right-wing conspiracy, too? Really looking forward to reading some new columnists in the Forecaster.
    http://www.c-span.org/video/?c4581759/sen-joe-biden-supreme-court-confirmation-process

    • EABeem

      Read carefully. I acknowledged that both parties play this unconstitutional game. The difference is that the Ds didn’t refuse to hold hearings.

  • Jason Coombs

    Come on Mr. B, don’t exclude who led the democrats charge to block the surpreme court appointment last time. Then
    Sen. Obama was leading the pack by means of the filibuster tactic. Now it’s happening to him and he is annoyed. Politics, so much fun!

    • EABeem

      As I wrote, “To be fair, back in 2007, some Democrats advocated blocking any Bush appointments to the Supreme Court during his final year and half in office, too.” Bottom line: Is Alito on the Supreme Court?