Antonin Scalia the longest serving and the most controversial member of the Supreme Court of the United States, has died. This has focused attention on two important issues. The first, of which Scalia is the foremost proponent is, the "originalist" view of the Constitution. This is the idea that came to the fore in the 1980s, that the Constitution must not be interpreted but that it should be applied as the Founding Fathers intended. This " original intent" is what the those who drafted it meant. As Scalia noted, " original meaning (textualism) is what " reasonable persons" living at the time would say the " ordinary meaning" of the text to be.
" If the Constitution can mean anything, then the Constitution is reduced to meaninglessness". In other words it is not subjected to interpretation, but only to discover what was the "original intent". This makes the Constitution above change and even though there is an amending formula, the Constitution is "fixed"....what it does say, cannot be changed. "Originalism" is a means of constitutional interpretation not construction, for it was fixed at the time of enactment. It is, in other words written in stone.
Many have felt that Scalia, a firm Catholic (he had nine children), use the "original intent" doctrine as a guise for a theocratic agenda.. He was strongly opposed to abortion, gay, same-sex and voting rights and he himself is on record as writing that "rights came from the deity, rather than from the text of a constitution". At the Supreme Court he had a partner in Clarence Thomas ( so also was Justice Bork, who failed to get confirmation in 1988).
This brings to the second issue. on two counts. The Supreme Court, without Scalia is split 4-4 and there are many outstanding cases to be heard....cases on abortion, political representation, gun ownership, unionization, presidential power, affirmative action, environmental protection, campaign finance, death penalty all with ideological divisions. These matters have to be resolved or there will be much uncertainty and confusion.
The Republicans led by McConnell, in the Senate which has to agree to any and all federal appointments, have signalled that they will not consider any appointment made by Pres. Obama, claiming wrongly that he cannot make an appointment in his last year in office. There is no law stating that and there have been precedents from Lyndon Johnson ( Abe Fortas, who was not confirmed in time) to Nixon to Ford to Reagan ( Anthony Kennedy, after the failed Bork nomination). The chorus of "don't do it", have been joined by the candidates running for the presidential nomination for the Republican party (no surprise here). They are afraid that Pres. Obama would appoint a "liberal" to the bench and thus give them a majority of 5-4 (not including "swing vote" Kennedy).
These "objectors" should rethink their opposition. They will cause a stagnation in the judicial process, because if the Supreme is deadlocked, 4-4, then the decision revert back to the circuit courts and there is no precedent. The decisions of the circuit courts may differ from one to the other and so you will have a checkerboard of decisions on the same issue. Also, Pres. Obama has had 8 years to stack the lower circuit courts with "liberal" judges and thus their decisions will stand, until the Supreme Court rule on them and establish order and precedent. It's a no win position for the Republicans. Also, the next president may well be another Democrat and so nothing will have been gained by this stalling ( except to deny Obama). Perhaps Obama may well be nominated to the Supreme Court. It has happened before when Taft was nominated and served. That would be most galling.
The Republicans are in a no win situation also, because in the November election, one third ( most of them Republicans), Senators are up for re-election and to campaign on this issue may not bode them well. They may lose control of the Senate.
It's a conundrum ( of their own making) for the Republicans. They have the most to lose, including the Presidency, the Senate and the Supreme Court.
" If the Constitution can mean anything, then the Constitution is reduced to meaninglessness". In other words it is not subjected to interpretation, but only to discover what was the "original intent". This makes the Constitution above change and even though there is an amending formula, the Constitution is "fixed"....what it does say, cannot be changed. "Originalism" is a means of constitutional interpretation not construction, for it was fixed at the time of enactment. It is, in other words written in stone.
Many have felt that Scalia, a firm Catholic (he had nine children), use the "original intent" doctrine as a guise for a theocratic agenda.. He was strongly opposed to abortion, gay, same-sex and voting rights and he himself is on record as writing that "rights came from the deity, rather than from the text of a constitution". At the Supreme Court he had a partner in Clarence Thomas ( so also was Justice Bork, who failed to get confirmation in 1988).
This brings to the second issue. on two counts. The Supreme Court, without Scalia is split 4-4 and there are many outstanding cases to be heard....cases on abortion, political representation, gun ownership, unionization, presidential power, affirmative action, environmental protection, campaign finance, death penalty all with ideological divisions. These matters have to be resolved or there will be much uncertainty and confusion.
The Republicans led by McConnell, in the Senate which has to agree to any and all federal appointments, have signalled that they will not consider any appointment made by Pres. Obama, claiming wrongly that he cannot make an appointment in his last year in office. There is no law stating that and there have been precedents from Lyndon Johnson ( Abe Fortas, who was not confirmed in time) to Nixon to Ford to Reagan ( Anthony Kennedy, after the failed Bork nomination). The chorus of "don't do it", have been joined by the candidates running for the presidential nomination for the Republican party (no surprise here). They are afraid that Pres. Obama would appoint a "liberal" to the bench and thus give them a majority of 5-4 (not including "swing vote" Kennedy).
These "objectors" should rethink their opposition. They will cause a stagnation in the judicial process, because if the Supreme is deadlocked, 4-4, then the decision revert back to the circuit courts and there is no precedent. The decisions of the circuit courts may differ from one to the other and so you will have a checkerboard of decisions on the same issue. Also, Pres. Obama has had 8 years to stack the lower circuit courts with "liberal" judges and thus their decisions will stand, until the Supreme Court rule on them and establish order and precedent. It's a no win position for the Republicans. Also, the next president may well be another Democrat and so nothing will have been gained by this stalling ( except to deny Obama). Perhaps Obama may well be nominated to the Supreme Court. It has happened before when Taft was nominated and served. That would be most galling.
The Republicans are in a no win situation also, because in the November election, one third ( most of them Republicans), Senators are up for re-election and to campaign on this issue may not bode them well. They may lose control of the Senate.
It's a conundrum ( of their own making) for the Republicans. They have the most to lose, including the Presidency, the Senate and the Supreme Court.
